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

)
)
)
)
)
)
)
)

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

Docket No. 07-1821
Issued: February 15, 2008

Oral Argument January 10, 2008

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On June 28, 2007 appellant timely appealed the April 4, 2007 nonmerit decision of the
Office of Workers’ Compensation Programs which denied merit review and a December 21,
2006 decision denying his claim for recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of the claim.1
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability on March 29,
2006 causally related to his December 14, 2001 employment injury; and (2) whether the Office
properly declined to reopen his case for merit review under 5 U.S.C. § 8128(a).

1

The record on appeal includes additional medical evidence received after the Office issued its April 4, 2007
decision. The Board cannot consider evidence for the first time on appeal. The review of a case shall be limited to
the evidence in the case record which was before the Office at the time of its final decision. 20 C.F.R.
§ 10.501.2(c) (2007).

FACTUAL HISTORY
Appellant, a 33-year-old mail processor, injured his lower back on December 14, 2001
when he tripped and fell at work. The Office accepted the claim for back contusion and lumbar
radiculopathy.2 Appellant was off work for approximately four and a half months following his
injury. On April 29, 2002 he returned to work in a limited-duty capacity and worked through
mid July 2002. Appellant stopped work entirely on July 31, 2002 and filed a claim for
recurrence of disability.3 The Office accepted his claim and paid appropriate wage-loss
compensation.
On December 27, 2004 appellant returned to work in a part-time, limited-duty capacity,
working four hours a day as an outbound dispatch announcer.4 The duties entailed announcing
via intercom upcoming dispatches and then verifying that the mail was dispatched as scheduled.
The work was primarily sedentary, but involved some limited walking in order to visually
confirm the outbound dispatches. The limited-duty assignment was consistent with the
November 16, 2004 physical limitations imposed by his treating physician, Dr. Myron M.
LaBan, a Board-certified physiatrist.5 On November 14, 2005 Dr. LaBan advised that appellant
could work up to seven hours a day, while maintaining the previous restrictions.
On March 28, 2006 appellant filed a claim for recurrence of disability. Dr. LaBan
excused appellant from work for three weeks beginning March 29, 2006 because of recurrent
low back and leg pain. On April 18, 2006 he extended the nowork restriction to three months.
Dr. LaBan reported that appellant had a low grade spinal stenosis associated with moderate
multilevel degenerative disease. He told appellant that he did not believe he would ever be able
to return to labor. Dr. LaBan explained that because of appellant’s markedly degenerative back,
performing work that involved repetitive stooping, bending and lifting would only serve to
aggravate what was now a significant symptomatic problem.
On May 11, 2006 the Office asked Dr. LaBan to submit a report explaining how
appellant’s employment-related condition changed such that he was no longer capable of
performing his limited-duty job as an outbound dispatch announcer.
In a report dated May 19, 2006, Dr. LaBan stated that appellant had a severely
degenerative back and he remained severely compromised with both moderate to severe

2

A February 4, 2002 lumbar magnetic resonance imaging (MRI) scan showed disc abnormalities at L4-5 and L5S1, with disc herniations. There was also evidence of “degeneraton” at the L5-S1 level. Appellant was 27-years-old
at the time. To date, the Office has not accepted appellant’s multilevel lumbar degenerative disc disease, disc
protrusions and lumbar spinal stenosis as being employment related.
3

Appellant’s work stoppage was precipitated by the employing establishment’s July 16, 2002 decision to
effectively withdraw light-duty work by ordering him to return to his regular, full-time duties.
4

The Office removed appellant from the periodic compensation rolls effective December 28, 2004.

5

Appellant’s restrictions included 20 minutes of intermittent sitting and standing, unlimited walking, no reaching
or reaching above shoulder, no twisting, limited repetitive wrist and elbow movements, limited pushing and pulling,
no lifting or squatting, occasional kneeling and no climbing.

2

multilevel degenerative disease and a low grade lumbar spinal stenosis. He noted that the
restrictions he imposed on April 18, 2006 remained in force.
By decision dated June 20, 2006, the Office denied appellant’s recurrence claim.
Appellant subsequently requested an oral hearing which was held on October 6, 2006. In
a July 18, 2006 report, Dr. LaBan noted that appellant continued to complain of low back and leg
pain, associated with the degenerative disease and spinal stenosis. Dr. LaBan stated that
appellant’s normal routine at work involved lifting heavy tubs of mail which appellant felt he
could not do. Appellant reportedly made an effort to return to work to do his regular job or
lighter jobs and found that he was unable to do it without pain. Dr. Laban noted that appellant
believed he could not handle the job at the present time and, therefore, he asked that appellant
remain off work for another three to four weeks. On August 29, 2006 Dr. LaBan excused
appellant from work for the next three months. In an October 9, 2006 treatment note, Dr. LaBan
indicated that appellant had significant lumbar degenerative disc disease, with associated early
spinal stenosis. He reported continuing discomfort on the left side as well as the right side.
Dr. LaBan indicated that surgery was not an option and that appellant would be scheduled for
epidurals.
On October 27, 2006 appellant consulted with Dr. Marc I. Wittenberg, a Board-certified
anesthesiologist specializing in pain medicine. Dr. Wittenberg diagnosed lumbar degenerative
disc disease and administered a lumbar epidural steroid.
By decision dated December 21, 2006, the hearing representative affirmed the June 20,
2006 decision.
Appellant requested reconsideration on March 16, 2007. He submitted a January 5, 2007
report from Dr. LaBan who noted that appellant returned with continuing recurrent low back
pain associated with his on-the-job injury superimposed on a back with spinal stenosis.
Dr. LaBan explained that a normal healthy back would be able to tolerate the trauma of the
injury and hopefully the pain would dissipate within a reasonable period of time, but with
appellant’s underlying spinal stenosis, the anatomical change would be a provocative and
recurrent source of low back pain. Dr. LaBan stated that as a practical matter, appellant had to
live within his tolerance now and for the foreseeable future and perhaps for the rest of his life.
He indicated that the combination of the on-the-job injury and the structural changes that
appellant was living with would create for him a potential recurrent source of pain. Dr. LaBan
also provided a March 15, 2007 work release. He indicated that appellant could return to work
on March 19, 2007, working four hours per day for two weeks, with limited work restrictions as
before.
By decision dated April 4, 2007, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous

3

injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.7 Moreover, when the claimed recurrence of disability follows a return to light-duty
work, the employee may satisfy his burden of proof by showing a change in the nature and extent
of the injury-related condition such that he was no longer able to perform the light-duty
assignment.8
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing that the recurrence of disability is causally
related to the original injury.9 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.10 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.11
ANALYSIS -- ISSUE 1
Appellant has not alleged that his claimed recurrence of disability was the result of a
change in the nature and extent of his light-duty assignment. There is no evidence that the
employing establishment either withdrew the light-duty assignment or otherwise altered
appellant’s job requirements prior to his March 29, 2006 work stoppage. Therefore, he must
establish a change in the nature and extent of his employment-related condition.12
At the January 10, 2008 oral argument, appellant advised the Board that he returned to
work on March 19, 2007 and, therefore, he was claiming wage-loss compensation due to a
recurrence of disability for the period March 29, 2006 to March 18, 2007. However, the medical
evidence of record does not establish that appellant was disabled as a result of either of his
accepted conditions. The only conditions the Office has accepted as employment related are
back contusion and lumbar radiculopathy. Dr. LaBan’s various reports concerning appellant’s
ongoing back and leg pain clearly attribute the pain and appellant’s inability to work to
6

20 C.F.R. § 10.5(x).

7

Id.

8

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

9

20 C.F.R. § 10.104(b); Helen K. Holt, 50 ECAB 279, 382 (1999); Carmen Gould, 50 ECAB 504 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
10

See Helen K. Holt, supra note 9.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

12

Theresa L. Andrews, supra note 8.

4

degenerative disc disease and lumbar spinal stenosis. As neither condition has been accepted as
being causally related to the December 14, 2001 employment injury, appellant has not
established that he sustained a recurrence of disability beginning March 29, 2006.
Dr. LaBan’s reports are of limited probative value because they do not reflect an
understanding of appellant’s particular light-duty assignment as an outbound dispatch announcer.
Appellant performed these duties for approximately 15 months prior to his March 29, 2006 work
stoppage. While Dr. LaBan found him totally disabled, none of his reports described the specific
duties appellant had been performing during the months preceding his March 29, 2006 work
stoppage. Dr. LaBan did not explain why and how appellant’s accepted conditions had changed
to the point that he was no longer capable of performing the limited-duty assignment of
outbound dispatch announcer. The reports contemporaneous to appellant’s disability on
March 29, 2006 attributed his symptoms to spinal stenosis and degenerative disease.
While appellant stopped work on the advice of Dr. LaBan, the record indicates that the
March 29, 2006 work stoppage was the result of his preexisting lumbar degenerative disc disease
and spinal stenosis and not because of his accepted conditions. As such, appellant has failed to
establish an employment-related recurrence of disability. The Office, therefore, properly denied
his claim.
LEGAL PRECEDENT -- ISSUE 2
The Office has the discretion to reopen a case for review on the merits.13 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or (iii)
constitutes relevant and pertinent new evidence not previously considered by the Office.14
Section 10.608(b) provides that, when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.15
ANALYSIS -- ISSUE 2
Appellant’s March 16, 2007 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).16

13

5 U.S.C. § 8128(a) (2000).

14

20 C.F.R. § 10.606(b)(2).

15

20 C.F.R. § 10.608(b).

16

20 C.F.R. § 10.606(b)(2)(i) and (ii).

5

Appellant also failed to satisfy the third requirement under section 10.606(b)(2). He
not submit any relevant and pertinent new evidence with his March 16, 2007 request
reconsideration. Although the January 5 and March 15, 2007 reports from Dr. LaBan were
previously of record, the fact that they are new is not by itself a sufficient basis to reopen
record for merit review. The evidence must also be relevant and pertinent.

did
for
not
the

The March 15, 2007 return to work certificate did not address the relevant issue of why
appellant had been off work since March 29, 2006. It did not identify the specific condition that
prevented him from performing his regular duties as a mail processor. Dr. LaBan merely noted
that appellant could return to work on March 19, 2007, working four hours per day for two
weeks, with limited work restrictions as before. He did not address the relevant issue of why
appellant stopped work on March 29, 2006. As such, this evidence is insufficient to warrant
reopening the record.
Dr. LaBan’s January 5, 2007 report is also insufficient to warrant merit review. This
report is essentially duplicative of prior reports from Dr. LaBan relating appellant’s ongoing
back and leg complaints to his lumbar degenerative disease.17 He described appellant’s
“underlying spinal stenosis” as a “provocative and recurrent source of low back pain.”
Dr. LaBan did not address why appellant’s accepted injury of December 14, 2001 precluded him
from performing the limited-duty assignment of outbound dispatch announcer on or after
March 29, 2006. This latest report is, therefore, insufficient to warrant reopening the record for
merit review. Accordingly, appellant is not entitled to a review of the merits of his claim based
on the third requirement under section 10.606(b)(2).18
Because appellant was not entitled to a review of the merits of his claim pursuant to any
of the three requirements under section 10.606(b)(2), the Office properly denied the March 16,
2007 request for reconsideration.
CONCLUSION
Appellant has not established that he sustained a recurrence of disability on March 29,
2006 causally related to his December 14, 2001 employment injury. The Board further finds that
the Office properly denied appellant’s March 16, 2007 request for a review of the merits of his
claim.

17

Submitting additional evidence that repeats or duplicates information already in the record does not constitute a
basis for reopening a claim. James W. Scott, 55 ECAB 606, 608 n.4 (2004).
18

20 C.F.R. § 10.606(b)(2)(iii).

6

ORDER
IT IS HEREBY ORDERED THAT the April 4, 2007 and December 21, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 15, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD,
Charleston, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1063
Issued: September 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 25, 2016 appellant, through counsel, filed a timely appeal from a March 23,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $42,774.01 for the period January 1, 2001 through January 9, 2016 because OWCP
failed to reduce his benefits by the Federal Employees Retirement System (FERS) offset amount;
(2) whether he was at fault in creating the overpayment; and (3) whether OWCP properly
determined that it would recover the overpayment by deducting $345.00 from continuing
compensation payments.
FACTUAL HISTORY
On July 23, 1991 appellant, then a 52-year-old marine machinist, filed an occupational
disease claim (Form CA-2) alleging that he sustained an avulsion fracture of his right foot
causally related to factors of his federal employment.
On August 22, 1991 OWCP accepted the claim for right hallux rigidus. In the acceptance
letter, it advised that receiving wage-loss compensation and federal retirement benefits
constituted a prohibited dual benefit.
The employing establishment terminated appellant’s employment effective October 4,
1991 as part of a reduction-in-force. OWCP paid him compensation for total disability
beginning October 7, 1991.
By decision dated January 17, 1996, OWCP reduced appellant’s wage-loss compensation
effective February 4, 1996 based on its finding that he had the capacity to work as a computeraided design technician.
Appellant signed a Form EN1032 on January 22, 2002 indicating that he received
benefits from the Social Security Administration (SSA) as part of an annuity under FERS. He
continued to submit CA-1032 forms dated 2003 to 2014 disclosing the receipt of benefits from
SSA based at least in part on a FERS annuity.
On January 22, 2004 OWCP noted that appellant advised that he was receiving regular
retirement benefits and asked for information regarding his retirement program. On February 3,
2004 appellant resubmitted his Form CA-1032 and noted that he received a regular retirement
check from military service with the U.S. Coast Guard.
In letters dated January 30 and October 31, 2012, the employing establishment advised
OWCP that appellant was receiving SSA benefits and also retirement benefits under FERS. It
questioned whether OWCP was deducting for the FERS offset. In a November 29, 2012
response, OWCP notified the employing establishment that it was requesting information from
SSA regarding whether an offset was necessary.3

3

By decision dated July 22, 2014, OWCP found that appellant received an overpayment of compensation in the
amount of $435.50 because he received augmented compensation from March 2 through May 31, 2014 when he had
no dependents. It further found that he was at fault in the creation of the overpayment.

2

The employing establishment, on September 2, 2015, informed OWCP that appellant was
employed under the FERS retirement system and disclosed on his CA-1032 form dated
January 29, 2015 that he was receiving SSA benefits. It advised that he turned 66 years old on
December 24, 2004, at which point his benefits changed from disability benefits to retirement
benefits based on age. The employing establishment requested that OWCP determine the
amount that should be offset from his compensation.
On December 17, 2015 SSA notified OWCP of appellant’s SSA rate with and without
FERS from January 2001 to December 2015. Including federal employment, he was entitled to a
rate of $974.80 effective January 2001 and July 2001, $1,000.10 effective December 2001,
$1,014.00 effective December 2002, $1,1035.20 effective December 2003, $1,063.20 effective
December 2004, $1,106.70 effective December 2005, $1,143.20 effective December 2006,
$1,169.40 effective December 2007, $1,237.20 effective December 2008, December 2009, and
December 2010, $1,281.70 effective December 2011, $1,303.40 effective December 2012,
$1,322.90 effective December 2013, and $1,1345.40 effective December 2014 and
December 2015. Without counting appellant’s federal earnings, he was entitled to a rate of
$777.30 effective January 2001 and July 2001, $797.50 effective December 2001, $808.60
effective December 2002, $825.50 effective December 2003, $847.80 effective December 2004,
$882.50 effective December 2005, $911.60 effective December 2006, $932.50 effective
December 2007, $986.50 effective December 2008, December 2009, and December 2010,
$1,022.00 effective December 2011, $1,039.40 effective December 2012, $1,054.90 effective
December 2013, and $1,072.80 effective December 2014 and December 2015.
Beginning January 10, 2016 OWCP adjusted appellant’s compensation to offset the
portion of his SSA retirement benefits attributable to his federal service.
OWCP calculated that appellant received an overpayment of compensation by
determining the difference between his SSA amount with and without FERS for each period. It
multiplied the daily offset amount by the number of days in each period to find a total
overpayment of compensation in the amount of $42,774.01.
On February 2, 2016 OWCP notified appellant of its preliminary determination that he
received an overpayment of $42,774.01 as it paid him wage-loss compensation benefits for the
period January 1, 2001 through January 9, 2016 that were not reduced by the portion of the SSA
benefits that he earned based on his federal service. It found that he began receiving regular
retirement benefits under SSA on January 1, 2001 and that the portion of the SSA benefits he
received due to his federal service was part of his FERS retirement package and thus prohibited.
It further informed appellant of its preliminary determination that he was at fault in creating the
overpayment as he should have known that the portion of his retirement based on his federal
service constituted a dual benefit. OWCP noted that the August 22, 1991 acceptance letter
informed him that federal retirement benefits and compensation constituted a dual benefit. It
further found that appellant reported annually on CA-1032 forms that he received SSA benefits
due in part to federal service but continued to accept the payments from both SSA and OWCP
that he should have known were incorrect. OWCP requested that he complete the enclosed
overpayment recovery questionnaire and submit supporting financial documents. Additionally, it
notified appellant that, within 30 days of the date of the letter, he could request a telephone

3

conference, a final decision based on the written evidence or a prerecoupment hearing.
Appellant did not respond within the time allotted.
In a decision dated March 23, 2016, OWCP determined that appellant received an
overpayment of compensation in the amount of $42,774.01 for the period January 1, 2001
through January 9, 2016 as it failed to offset from his compensation the portion of his SSA
benefits based on his FERS service. It further found that he was at fault in the creation of the
overpayment and thus not entitled to waiver of recovery of the overpayment. OWCP determined
that it would recover the overpayment by deducting $345.00 from his continuing compensation
payments.
On appeal appellant, through counsel, challenges the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4 Section 8129(a) of FECA provides that, in pertinent part, when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.5
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee received SSA benefits based on federal service, his compensation benefits shall be
reduced by the amount of SSA benefits attributable to his or her federal service.6
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply. In disability cases, FECA benefits will be reduced by
the SSA benefits paid on the basis of age and attributable to the employee’s federal service.7 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: Where a claimant had received SSA benefit, OWCP will obtain information from SSA
on the amount of the claimant’s SSA benefits beginning with the date of eligibility to FECA
benefits. SSA will provide the actual amount of SSA benefits received by the claimant/
beneficiary. It will also provide a hypothetical SSA benefit computed without the FERS covered
earnings. OWCP will then deduct the hypothetical benefit from the actual benefit to determine

4

5 U.S.C. § 8102.

5

Id. at § 8129(a).

6

Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997);
Chapter 2.1000.11(a)(b) (February 1995).

4

the amount of benefits which are attributable to federal service and that amount will be deducted
from FECA benefits to obtain the amount of compensation payable.8
ANALYSIS -- ISSUE 1
Appellant received wage-loss compensation under FECA and SSA benefits concurrently
from January 1, 2001 through January 9, 2016. As noted, the portion of the SSA benefits he
earned as part of his FERS retirement package and the receipt of benefits under FECA
concurrently constituted a prohibited dual benefit.9 Appellant, consequently, received an
overpayment of compensation.
SSA provided appellant’s SSA rate with FERS and his hypothetical SSA rate without
FERS. The difference between the amounts must be deduced from FECA benefits. Based on the
information provided by SSA, OWCP determined that he received an overpayment of
compensation in the amount of $42,774.01 for the period January 1, 2001 through
January 9, 2016.
On appeal appellant, through counsel, generally challenges the overpayment but raises no
specific argument. The Board finds that the evidence of record supports that appellant received a
$42,774.01 overpayment of compensation for the period January 1, 2001 through
January 9, 2016.
LEGAL PRECEDENT -- ISSUE 2
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.10 The fact that the overpayment was the result of error by OWCP or another
government agency does not by itself relieve the individual who received the overpayment of
liability for repayment if the individual also was at fault for receiving the overpayment.11 Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she received from OWCP are proper. The recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits. A recipient who has done any of the following will be found to be at fault
with respect to creating an overpayment: (1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (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 (this provision applies only to the overpaid
individual).12
8

See L.B., Docket No. 11-2076 (issued August 29, 2012).

9

5 U.S.C. § 8116(d); see also B.M., Docket No. 15-0273 (issued June 26, 2015).

10

20 C.F.R. § 10.433(a).

11

Id. at § 10.435(a).

12

Id. at § 433(a); see Kenneth E. Rush, 51 ECAB 116 (1999).

5

ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in creating the overpayment as he accepted
a payment that he knew or should have known was incorrect. 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 OWCP based its fault finding on its 1991 acceptance letter informing him that
the receipt of disability compensation and federal retirement benefits was a prohibited dual
benefit. The acceptance letter, however, was sent to appellant 10 years before the overpayment
occurred. OWCP has not sufficiently explained how this put him on notice that he was accepting
incorrect payments of compensation beginning January 1, 2001. Appellant disclosed his receipt
of FERS benefits based in part on federal service on annual CA-1032 forms, but the forms did
not advise that the receipt of that portion of retirement constitutes a prohibited dual benefit.
OWCP’s procedures provide, “In general, if the evidence shows either a lack of good
faith or failure to exercise a reasonable degree of care in reporting changes in circumstances that
may affect entitlement or the amount of benefits, an individual will be found with fault.”14 The
Board finds that, under the circumstances, the evidence is insufficient to establish that he knew
or should have known that he received incorrect payments from January 1, 2001 through
January 9, 2016. Consequently, the case will be remanded to OWCP to consider whether the
overpayment created for this period should be waived.15
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $42,774.01 for the period January 1, 2001 through January 9, 2016 because OWCP failed to
reduce his benefits by the FERS offset amount. The Board further finds that he was not at fault
for the creation of the overpayment and that, consequently, the case will be remanded to OWCP
to consider waiver of recovery of the overpayment.

13

See A.L., Docket No. 09-1529 (issued January 13, 2010); Robin O. Porter, 40 ECAB 421 (1989).

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.5
(June 2009).
15

In view of the Board’s finding that the case must be remanded for OWCP to consider waiver of recovery of the
overpayment, it is premature to address recovery of the overpayment from continuing compensation payments.

6

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: September 15, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Erik B. Blowers, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 18-0781
Issued: September 5, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 4, 2018 appellant, through counsel, filed a timely appeal from a December 4,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a left foot injury
due to the accepted April 30, 2013 employment incident.
FACTUAL HISTORY
On April 26, 2016 appellant, then a 65-year-old program support assistant, filed a traumatic
injury claim (Form CA-1) alleging that on April 30, 2013 she sustained an injury while at work
1

5 U.S.C. § 8101 et seq.

when a patient in a wheelchair ran over her left foot. She asserted that she had a lump on the top
of her left foot which caused pain in her left foot, including the left big toe.2
In a May 2, 2016 development letter, OWCP noted that appellant did not submit any
evidence in support of her Form CA-1 and it requested that she submit evidence, including a
physician’s opinion supported by a medical explanation as to how the reported April 30, 2013
employment incident caused or aggravated a medical condition. It requested that she complete
and return an attached questionnaire which posed various questions regarding the circumstances
of her claimed employment injury and the course of her medical treatment. OWCP afforded
appellant 30 days to submit a response.
In a May 16, 2016 response to the questionnaire, appellant advised that on April 30, 2013
a patient backed her electric wheelchair directly over the upper part of her left foot. She indicated
that she sought treatment at the health unit of the employing establishment immediately after the
April 30, 2013 injury occurred. Appellant asserted that she had not sustained any other injury to
her left foot.
In a duty status report (Form CA-17) dated April 30, 2013, an individual with an illegible
signature listed the date of injury as April 30, 2013 and the mechanism of injury as the “left foot
having been run over by a veteran on a scooter.” The individual noted left foot contusion as the
“diagnosis due to injury” and indicated that appellant could not work.
In a May 2, 2013 disability certificate, Dr. Howard Osterman, an attending podiatrist, noted
that appellant was incapacitated from work from April 30 to May 5, 2013 and he advised that she
could return to work on May 6, 2013 “as tolerated after left foot [illegible].”
The findings of May 2, 2013 x-rays of appellant’s left foot contained an impression of mild
degenerative changes of the left first metatarsophalangeal joint.
In a May 11, 2016 report, Dr. Panos Labropoulos, an attending Board-certified orthopedic
surgeon specializing in foot/ankle surgery, indicated that appellant presented for evaluation of her
left foot. Appellant reported that three years prior she had a crush injury of her left foot which was
treated with a boot for a few days, after which she returned to her regular activities. Dr. Labropoulos
noted that appellant further reported that she recently noticed swelling or what she called a cyst on
the dorsum of her left foot. Appellant complained of moderate-to-severe pain and burning sensation
on the plantar surface of her left foot. Dr. Labropoulos detailed the findings of the physical
examination he conducted on May 11, 2016, noting that there was swelling on the dorsum of
appellant’s left foot and that she had mild tenderness/pain on direct palpation and passive stretching
of the extensor tendon. He advised that no other abnormality could be detected upon physical
examination. Dr. Labropoulos indicated that he obtained x-rays on May 11, 2016 which did not

2

On the reverse of the form, appellant’s immediate supervisor indicated that the employing establishment was
controverting appellant’s claim because the April 30, 2013 injury was not reported on a Form CA-1 within 30 days.
Appellant did not stop work.

2

show any significant abnormality.3 He prescribed anti-inflammatory medication and noted,
“Diagnosis is residuals of previous injury and extensor tenosynovitis.”
By decision dated June 8, 2016, OWCP denied appellant’s claim for an April 30, 2013
employment injury. It accepted the occurrence of the April 30, 2013 employment incident in the
form of a patient in a wheelchair running over appellant’s left foot. However, OWCP further found
that appellant failed to submit medical evidence sufficient to establish a specific condition causally
related to the accepted employment incident.4
On July 7, 2016 appellant requested a hearing with a representative of OWCP’s Branch of
Hearings and Review. During the hearing, held on October 25, 2016, she testified regarding the
left foot symptoms that she experienced after a wheelchair ran over her left foot on April 30, 2013.
Appellant submitted a June 23, 2016 report from Dr. Labropoulos, who provided brief
findings from the left foot examination he conducted on that date.5 Dr. Labropoulos diagnosed
extensor tenosynovitis and possible midfoot arthritis (not visible on recent x-rays).
In an October 4, 2016 report, Dr. Osterman indicated that appellant reported for follow-up
care for a “left foot injury from a wheelchair on [April 30, 2013]” and noted that she still reported
pain and discomfort from this injury. He reported the findings of the physical examination he
conducted on October 4, 2016, noting that she reported tenderness upon palpation of the midfoot
region of her left foot and upon palpation of her left peroneal nerve. Dr. Osterman advised that
there was a small palpable mass over the midtarsal region of appellant’s left foot and he diagnosed
ganglion of the left ankle/foot, pain in left ankle and joints of the left foot, and left foot contusion
(subsequent encounter). He noted that he was producing a report for her “with respect to
[appellant’s] left foot injury sustained at work on [April 30, 2013]” and indicated that she
continued to have symptoms associated with the injury and had undergone many treatments over
the prior three years. Dr. Osterman discussed the possibility of surgery to remove the left foot
ganglion and noted that appellant did not wish to proceed with such treatment.
By decision dated January 10, 2017, OWCP’s hearing representative affirmed OWCP’s
June 8, 2016 decision. The hearing representative noted that the occurrence of the April 30, 2013
employment incident had been accepted in the form of a patient in a wheelchair running over
appellant’s left foot. However, she further found that appellant still had not submitted rationalized
medical evidence sufficient to establish a specific condition causally related to the accepted
employment incident.
Appellant submitted an August 25, 2017 report from Dr. Francisco Pizarro, an attending
podiatrist, who indicated that he had been treating her since June 7, 2017 and had been provided
The record includes a report of May 11, 2016 x-rays of appellant’s left foot with an impression of “normal left foot”
and findings of no acute fracture or bony lesion, normal bone mineralization, lack of foreign body, and normal joint
spaces.
3

OWCP noted that Dr. Labropoulos’ May 11, 2016 report lacked sufficient medical rationale to establish
appellant’s claim for an April 30, 2013 employment injury.
4

5

Dr. Labropoulos noted that appellant reported that her left foot was injured “many months, over a year ago.”

3

with medical records pertaining to her claimed 2013 foot injury. Dr. Pizarro indicated that his
diagnosis was predicated upon the taking of a careful history of her injury and its etiology, and
upon performing a meticulous physical examination to corroborate his diagnosis of “ganglion cyst
secondary to trauma.” He advised that he had considered other means by which appellant’s injury,
in its present state, could have occurred. Dr. Pizarro advised that she reported that on April 30,
2013 her left foot was run over by a wheelchair at work. He noted that appellant provided evidence
from Dr. Osterman containing a history of the April 30, 2013 injury and examination findings in
close proximity to the date of injury. Dr. Pizarro advised that there was evidence of immediate
treatment for the April 30, 2013 injury and loss of work until May 6, 2013. He indicated that this
evidence had “no controversion as to its veracity” and noted, “The history related, the immediate
symptoms noted, the subsequent issues, medical treatment, and findings surrounding this injury
and the now present cyst, lead me to conclude to a reasonable medical certainty that the injury of
April 30, 2013 was the cause of [appellant’s] current condition and impairment for her left foot.”
By decision dated December 4, 2017, OWCP denied modification of its January 10, 2017
decision. It noted that the Dr. Pizarro’s August 25, 2017 report lacked sufficient medical rationale
to establish appellant’s claim for an April 30, 2013 employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.7 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged.9 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.10

6

See supra note 1.

7

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

8

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury caused
by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period longer
than a single workday or work shift. 20 C.F.R. §§ 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
9

Julie B. Hawkins, 38 ECAB 393 (1987).

10

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

4

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the 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.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury due
to the accepted April 30, 2013 employment incident.
The Board notes that, although appellant established the occurrence of the April 30, 2013
employment incident in the form of a patient in a wheelchair running over her left foot, she failed
to submit medical evidence sufficient to establish a specific condition causally related to the
accepted employment incident.
Appellant submitted an April 30, 2013 duty status report in which an individual with an
illegible signature listed the date of injury as April 30, 2013 and the mechanism of injury as the
left foot having been run over by a veteran on a scooter. The individual noted left foot contusion
as the “diagnosis due to injury” and indicated that she could not work. The submission of this
report does not establish appellant’s claim for an April 30, 2013 employment injury because it
does not constitute probative medical evidence given that there is no indication that the person
completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2). The Board has
held that a medical report may not be considered as probative medical evidence if there is no
indication that the person completing the report qualifies as a physician as defined in 5 U.S.C.
§ 8101(2) and reports lacking proper identification do not constitute probative medical evidence.12
In a May 2, 2013 disability certificate, Dr. Osterman indicated that appellant was
incapacitated from work from April 30 to May 5, 2013 and advised that she could return to work
on May 6, 2013 “as tolerated after left foot [illegible].” However, this note is of no probative value
of the relevant issue of this case because he did not provide any opinion on the cause of her
disability for the specified period. The Board has held that medical evidence which does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.13
In a May 11, 2016 report, Dr. Labropoulos indicated that appellant reported that three years
prior she had a crush injury of her left foot which was treated with a boot for a few days, after which
she returned to her regular activities. Appellant further reported that she recently noticed swelling
or what she called a cyst on the dorsum of her left foot. Dr. Labropoulos detailed the findings of the
physical examination he conducted on May 11, 2016, noting that there was swelling on the dorsum
11

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

12

C.B., Docket No. 09-2027 (issued May 12, 2010).

13

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

5

of her left foot and that she had mild tenderness/pain on direct palpation and passive stretching of
the extensor tendon. He advised that no other abnormality could be detected upon physical
examination. Dr. Labropoulos indicated that he obtained x-rays on May 11, 2016 which did not
show any significant abnormality.14
Although Dr. Labropoulos noted in this report that appellant’s diagnosis was “residuals of
previous injury and extensor tenosynovitis,” his report is of limited probative value in establishing
appellant’s claim for an April 30, 2013 employment injury because he did not provide adequate
medical rationale in support of his opinion on causal relationship. The Board has held that a report
is of limited probative value regarding causal relationship if it does not contain medical rationale
explaining how an employment activity could have caused or aggravated a medical condition.15
Although Dr. Labropoulos noted that appellant reported a 2013 crush injury of her left foot, his
opinion is not based on a complete factual and medical history because he did not provide a
description of the accepted April 30, 2013 employment incident, i.e., the running over of appellant’s
left foot by an electric wheelchair. The Board has held that an opinion on a given medical question
is of limited probative value if it is not based on a complete factual and medical history.16
Dr. Labropoulos diagnosed “residuals of previous injury and extensor tenosynovitis” but he did not
explicitly detail the specific residuals to which he referred or otherwise provide medical rationale
explaining how the accepted April 30, 2013 employment incident could have caused appellant’s left
foot condition, including extensor tenosynovitis, which was observed three years later. He did not
explain why some cause other than the accepted April 30, 2013 employment incident was not solely
responsible for her observed left foot condition in 2016.17
In an October 4, 2016 report, Dr. Osterman indicated that appellant reported for follow-up
care for a “left foot injury from a wheelchair on [April 30, 2013]” and noted that she still reported
pain and discomfort from this injury. He advised that there was a small palpable mass over the
midtarsal region of her left foot and he diagnosed ganglion of the left ankle/foot, pain in left ankle
and joints of the left foot, and left foot contusion (subsequent encounter). Dr. Osterman noted that
he was producing a report for appellant “with respect to [appellant’s] left foot injury sustained at
work on [April 30, 2013]” and indicated that she continued to have symptoms associated with the
injury and had undergone many treatments over the prior three years.
The Board finds that Dr. Osterman’s October 4, 2013 report is of limited probative value
concerning appellant’s claim for an April 30, 2013 employment injury because he did not provide

14

The record includes a report of May 11, 2016 x-rays of appellant’s left foot with an impression of “normal left foot.”

15

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

16

E.R., Docket No. 15-1046 (issued November 12, 2015).

17

Such medical rationale is especially necessary in the present case because the left foot swelling/cyst condition
reported by appellant did not manifest itself until approximately three years after the accepted April 30, 2013 employment
incident. Appellant also submitted a June 23, 2016 report from Dr. Labropoulos in which he provided brief findings
from the left foot examination he conducted on that date. Dr. Labropoulos diagnosed extensor tenosynovitis and
possible midfoot arthritis (not visible on recent x-rays). However, this report is of no probative value on the underlying
issue of this case because Dr. Labropoulos did not provide an opinion on the diagnosed conditions. See supra note
13.

6

adequate medical rationale in support of his opinion on causal relationship.18 Dr. Osterman did
not explain the mechanism of how the April 30, 2013 employment incident could have caused injury
to her left foot. Dr. Osterman’s opinion on causal relationship appears to be primarily based on
appellant’s own reported belief about the cause of her left foot condition and he did not adequately
explain how objective medical findings supported his opinion on causal relationship.19
In an August 25, 2017 report, Dr. Pizarro indicated that he had been treating appellant since
June 7, 2017 and had been provided with medical records pertaining to her claimed 2013 foot
injury.20 He noted that his diagnosis was predicated upon the taking of a careful history of her
injury and its etiology, and upon performing a meticulous physical examination to corroborate his
diagnosis of “ganglion cyst secondary to trauma.” Dr. Pizarro indicated that this evidence had “no
controversion as to its veracity” and noted, “The history related, the immediate symptoms noted,
the subsequent issues, medical treatment, and findings surrounding this injury and the now present
cyst, lead me to conclude to a reasonable medical certainty that the injury of April 30, 2013 was
the cause of [appellant’s] current condition and impairment for her left foot.”
The Board finds that Dr. Pizarro’s report is of limited probative value in establishing
appellant’s claim for an April 30, 2013 employment injury because he did not provide adequate
medical rationale in support of his opinion on causal relationship.21 Dr. Pizarro did not describe the
April 30, 2013 employment incident in any detail or explain how it could have caused a ganglion
cyst as observed more than four years later in 2017. He noted that appellant provided evidence
from Dr. Osterman containing a history of the April 30, 2013 injury and examination findings in
close proximity to the date of injury, and he advised that there was evidence of immediate
treatment for the April 30, 2013 injury and loss of work until May 6, 2013. However, Dr. Pizarro
did not provide any discussion of this medical evidence or explain how it supported his ostensible
opinion that she sustained a left foot injury due to the accepted April 30, 2013 employment
incident. He advised that he had considered other means by which appellant’s injury, in its present
state, could have occurred, but he did not provide any discussion of what other causes for her left
foot condition he had considered. For these reasons, Dr. Pizarro did not adequately explain his

18

See supra note 15.

19
Dr. Osterman suggested that he treated appellant’s left foot condition in 2013, but he did not provide any discussion
of medical records from that period. Although he asserted that she had undergone many treatments over the prior three
years, he did not describe the nature of such treatment or explain how it showed a work-related cause for her left foot
condition.
20
Dr. Pizarro advised that appellant reported that on April 30, 2013 her left foot was run over by a wheelchair that
was exiting an elevator at work.
21

D.R., Docket No. 16-0528 (issued August 24, 2016) (finding that a report is of limited probative value regarding
causal relationship if it does not contain medical rationale explaining the relationship between a given employment
activity and a diagnosed medical condition).

7

conclusion on causal relationship and therefore his report is of limited probative value regarding
her claim for an April 30, 2013 employment injury.22
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury due
to the accepted April 30, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 4, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 5, 2018
Washington, DC

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

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

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

22

C.M., Docket No. 14-0088 (issued April 18, 2014) (holding that a medical report is of limited probative value on
the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, TRIPLER ARMY
MEDICAL CENTER, Honolulu, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1122
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On July 6, 2021 appellant filed a timely appeal from a March 23, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that, following the March 23, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

1

ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a traumatic injury in the performance of duty on January 3, 2021, as alleged.
FACTUAL HISTORY
On January 4, 2021 appellant, then a 58-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on January 3, 2021 she fell due to lightheadedness and hit the floor head
first, the left side of her body, and both knees while in the performance of duty. She stopped work
on the date of the claimed injury. On the reverse side of the claim form, appellant’s supervisor
acknowledged that appellant was injured in the performance of duty.
In support of her claim, appellant submitted discharge instructions dated January 3, 2021
from Dr. Douglas Waffen, a Board-certified emergency medicine specialist. Dr. Waffen
recounted that appellant had experienced a near fainting episode, without loss of consciousness,
which happened when her blood pressure suddenly dropped and not enough blood flowed to the
brain. He listed the causes of sudden blood pressure drop and related that the exact cause of
appellant’s near fainting was unknown. Dr. Waffen diagnosed multiple contusions to the left
periorbital area as well as to the knees.
OWCP received a memorandum dated January 7, 2021 from appellant’s supervisor, A.T.,
which stated that the incident happened in the hallway and that the surface was level and clear
from any obstacles or hazards.
Appellant submitted a medical report dated January 7, 2021 from Dr. Clayton Everline, a
Board-certified sports medicine specialist who noted that appellant had a trip and fall at work and
had fallen head first, impacting her eye. Dr. Everline diagnosed contusion of the left eye,
instability of the left knee joint, post-traumatic osteoarthritis of the left knee, and somatic
dysfunction of the knee region. He also provided appellant with work restrictions.
Appellant submitted an x-ray dated January 7, 2021 from Dr. Thomas Williams, a Boardcertified diagnostic radiologist who diagnosed bilateral knee osteoarthritis.
In reports dated January 15 and February 2, 2021, Dr. Everline related that appellant had
undergone a full cardiac work up and noted assessments, which included aortic valve insufficiency,
unspecified etiology of cardiac valve disease, as well as left eye contusion, left knee joint
instability and post-traumatic osteoarthritis of the left knee.
In a development letter dated February 11, 2021, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It explained the type of factual
and medical evidence needed and provided her with a questionnaire. The questionnaire noted that
the cause of appellant’s fall was unclear; therefore, appellant was asked to address the
circumstances that caused her to fall, whether she had a history of fainting spells, a heart condition,
or epileptic seizures, whether there was a special hazard or condition, i.e., slippery floor, which
contributed to her fall, and whether she struck anything on the way down. OWCP afforded her 30
days to submit the necessary evidence.

2

In a medical report dated March 3, 2021, Dr. Everline noted that appellant was seen for a
follow-up appointment. He repeated his prior assessments. In a letter dated March 4, 2021,
Dr. Everline related that appellant fell at work on January 3, 2021 and that he had diagnosed
derangement of left knee, post-traumatic osteoarthritis of left knee, and patellar tendinitis of left
knee. He stated that degenerative joint disease is aggravated by prolonged weight-bearing
activities because of the compressive and shear forces applied over the knee during these activities.
In addition, Dr. Everline attested that the force on the knee joint is increased with lifting as well
as walking on an incline or climbing stairs. He opined that given the patient’s history and the
impact with the hospital floor, the incident either caused or aggravated appellant’s diagnosed
medical condition.
By decision dated March 23, 2021, OWCP denied appellant’s claim finding that the
evidence did not support that the injury occurred. It noted that she had alleged on the CA-1 form
that her fall occurred due to light-headedness; however, she had not responded to the questionnaire,
which had asked appellant for further information regarding her medical history of fainting spells,
heart condition, or seizures, as well as details regarding any special conditions, which may have
contributed to her fall. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is

3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

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

3

whether the employment incident caused a personal injury and can be established only by medical
evidence.7
It is a well-settled principle of workers’ compensation law that an injury resulting from an
idiopathic fall where a personal, nonoccupational pathology causes an employee to collapse and
to suffer injury upon striking the immediate supporting surface, and there is no intervention or
contribution by any hazard or special condition of employment, is not within coverage of FECA. 8
Such an injury does not arise out of a risk connected with the employment and is, therefore, not
compensable. 9 However, the fact that the cause of a particular fall cannot be ascertained or that
the reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition.10
This follows from the general rule that an injury occurring while in the performance of
duty is compensable unless the injury is established to be within an exception to such general
rule.11 OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature.12 If the record does not establish that the particular fall was due to an idiopathic
condition, it must be considered as merely an unexplained fall, one which is distinguishable from
a fall in which it is definitely proven that a physical condition preexisted and caused the fall.13
ANALYSIS
The Board finds appellant has not met her burden of proof to establish a traumatic injury
in the performance of duty on January 3, 2021, as alleged.
Appellant has not provided sufficient detail to establish that a traumatic incident oc curred
in the performance of duty, as alleged.14 On her Form CA-1 she explained that she experienced

7

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

M.A., Docket No. 19-0341 (issued July 10, 2019); H.B., Docket No. 18-0278 (issued June 20, 2018); Carol A.
Lyles, 57 ECAB 265 (2005).
9

Id.; see also D.T., Docket No. 19-1486 (issued January 17, 2020).

10

H.B., supra note 8; M.M., Docket No. 08-1510 (issued November 25, 2008).

11

P.N., Docket No. 17-1283 (issued April 5, 2018); Dora Ward, 43 ECAB 767 (1992).

12

A.B., Docket No. 17-1689 (issued December 4, 2018); P.P., Docket No. 15-0522 (issued June 1, 2016); see
also Jennifer Atkerson, 55 ECAB 317 (2004).
13

P.N., supra note 11; John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988).

14

See J.W., Docket No. 19-0335 (issued July 2, 2019).

4

light-headedness and fell. OWCP could not determine, based upon appellant’s vague statement,
whether appellant’s fall was idiopathic or otherwise remained unexplained. 15
Appellant was subsequently provided an opportunity to submit evidence to establish how
her alleged injury occurred on January 3, 2021. By development letter dated February 11, 2021,
OWCP requested that she describe the factual circumstances of her injury and provided her with a
factual development questionnaire for completion. Appellant was specifically asked whether she
had any medical conditions, which caused the fall or whether any employing establishment
conditions, such as a wet floor contributed to her fall. She did not respond to the questionnaire
and failed to provide a narrative statement detailing the traumatic incident. The only explanation
appellant provided pertaining to the alleged January 3, 2021 employment incident is a general and
vague statement noted on her Form CA-1. The evidence of record indicates that Dr. Waffen, in
his January 3, 2021 report, assessed that appellant sustained a near fainting episode due to a drop
in blood pressure, and Dr. Everline on January 15, 2021 ordered a cardiac work up, which revealed
aortic valve insufficiency. By failing to describe the employment incident and any employmentrelated circumstances surrounding her alleged injury, appellant has not established that the
traumatic injury occurred in the performance of duty, as alleged. 16 Thus, the Board finds that
appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 3, 2021, as alleged.

15

Id.; see also John R. Black, supra note 13; Judy Bryant, supra note 13; Martha G. List, 26 ECAB 200 (1974).

16

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, LAND O’ LAKES
CARRIER ANNEX POST OFFICE,
Land O’ Lakes, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0722
Issued: April 26, 2021

Case Submitted on the Record

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

JURISDICTION
On February 13, 2020 appellant, through her representative, filed a timely appeal from a
January 23, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 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, following the January 23, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability from
work for the periods February 16 to March 15, 2019 and April 13 to May 10, 2019 causally related
to the accepted July 18, 2016 employment injury.
FACTUAL HISTORY
On July 25, 2016 appellant, then a 57-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 18, 2016 she sustained left shoulder pain when she lifted and
carried a large heavy parcel to a customer’s door in the performance of duty. She stopped work
on July 25, 2016.
Appellant accepted an offer of modified assignment (limited duty) on July 30, 2016 that
included lifting up to 10 pounds with the right arm and 5 pounds with the left arm with assistance,
simple grasping, and standing, for up to four hours per day. She again stopped work on or around
September 10, 2016. Appellant underwent surgery on December 1, 2016 for arthroscopic rotator
cuff repair and left shoulder subacromial decompression. After initial development and denial of
the claim, on November 15, 2018 OWCP accepted the claim for a left shoulder rotator cuff tear or
rupture. It paid appellant wage-loss compensation on the supplemental rolls from September 16,
2016 to February 15, 2019, from March 16 to April 12, 2019, and from May 11, 2019 to March 28,
2020, and on the periodic rolls from March 29, 2020 and continuing.
In a note dated March 28, 2017, Dr. Stephen Hanff, a Board-certified orthopedic surgeon,
related that appellant was unable to physically lift 70 pounds and that a functional capacity
evaluation (FCE) was required.
In an FCE dated June 1, 2017, Dr. Hanff found that appellant was capable of full-time light
duty with restrictions of lifting 18 pounds occasionally and 10 pounds frequently knee to waist and
with two-handed carrying up to 30 feet. Appellant was capable of lifting 13 pounds occasionally
and 8 pounds frequently waist to shoulder and waist to overhead. With regard to positional
tolerances, appellant was able to frequently bend, squat, stair climb, reach forward left, and reach
overhead bilaterally, while she was able to occasionally kneel, balance bilaterally, and crawl. She
was able to perform all measured tasks involving handling capacity and foot controls frequently.
On March 13, 2019 OWCP referred appellant for a second opinion examination with
Dr. Patrick Horan, a Board-certified orthopedic surgeon, to assess her employment-related
conditions and disability status. It requested that he opine as to whether she could return to her
date-of-injury position.
On March 22, 2019 appellant filed a claim for compensation (Form CA-7) for disability
from work during the period February 16 through March 15, 2019.
In a letter dated March 25, 2019, OWCP advised appellant that it had received her Form
CA-7 claiming wage-loss compensation from February 16 to March 15, 2019. It requested that
she provide medical evidence establishing disability during the period claimed. OWCP afforded
appellant 30 days to submit the necessary evidence.

2

In a report dated April 10, 2019, Dr. Horan reviewed a statement of accepted facts (SOAF)
and appellant’s medical records. Appellant’s significant other, who attended the evaluation,
informed him that she had recently been diagnosed with Alzheimer’s disease. Dr. Horan related
her left shoulder physical examination findings. He diagnosed status post rotator cuff repair.
Dr. Horan opined that appellant’s left rotator cuff tear had not resolved as she continued to
experience persistent pain and restricted range of motion. He indicated that she was unable to
return to her date-of-injury position, noting that she had a limit of 18 pounds as determined by the
June 1, 2017 FCE. Dr. Horan further opined that it was unlikely appellant could participate in
vocational rehabilitation because of her Alzheimer’s disease and shoulder. He noted that she had
not reached maximum medical improvement (MMI) and that she required a new magnetic
resonance imaging (MRI) study for her rotator cuff.
On May 29, 2019 appellant filed a Form CA-7 claiming compensation for disability from
work for the period April 13 to May 10, 2019.
In a development letter dated June 3, 2019, OWCP noted that no medical evidence had
been received since February 27, 2017. It advised that appellant should submit medical evidence
establishing disability during the entire period claimed. OWCP afforded her 30 days to submit the
requested information. No additional evidence was received.
By decision dated June 4, 2019, OWCP denied appellant’s claim for wage-loss
compensation for the period February 16 to March 15, 2019. It found that the medical evidence
of record failed to support disability during the period claimed, as it had not received a response
to its development letter of June 3, 2019.
In a letter dated June 14, 2019, appellant’s representative noted that Dr. Horan’s April 10,
2019 report supported payment of wage-loss compensation benefits from September 10, 2016
through the present and continuing. He noted that the employing establishment had not offered
modified-duty consistent with appellant’s medical restrictions because the claim had previously
been denied.
By decision dated July 8, 2019, OWCP denied appellant’s claim for wage-loss
compensation for the period April 13 to May 10, 2019. It found that the medical evidence of
record failed to support disability during the period claimed, as it had not received a response to
its development letter of June 3, 2019.
In a report dated May 8, 2019, Dr. Robert R. Reppy, a family medicine specialist,
examined appellant for complaints of left shoulder pain. He noted that her original injury occurred
when she twisted in the driver’s seat of her mail truck to lift a heavy package from the back and
felt immediate pain. Dr. Reppy related physical examination findings regarding appellant’s left
shoulder and noted that she was unable to carry groceries or lift a laundry basket. He diagnosed
left shoulder rotator cuff tear/rupture and Alzheimer’s disease.
In a letter dated August 15, 2019, appellant’s representative noted that Dr. Horan’s
April 10, 2019 report related that appellant was unable to perform her date-of-injury position and
supported payment of wage-loss compensation from September 10, 2016 through the present and
continuing. He further noted that Dr. Reppy’s report of May 8, 2019 indicated that she was unable
to carry groceries or lift a laundry basket. Appellant’s representative stated that no modified duty
had been offered because appellant’s claim had previously been denied.
3

In reports dated November 27, 2018 and February 6 and July 17, 2019, Dr. Katherine
Standley, a Board-certified neurologist, diagnosed appellant with Alzheimer’s disease and
discussed her treatment and prognosis. In the July 17, 2019 report, Dr. Standley advised that
appellant was unable to drive.
In a letter dated August 31, 2019, appellant’s representative requested that OWCP pay
appellant’s wage-loss compensation claims. He again noted that Dr. Horan concurred with
Dr. Hanff’s FCE findings and that she was disabled due to her accepted conditions from
performing her date-of-injury position. Counsel further noted that Dr. Standley had indicated that
appellant could not drive and that appellant’s date-of-injury position involved driving.
In a report dated September 24, 2019, Dr. Reppy examined appellant for complaints of left
shoulder pain. He stated that she had reached MMI as of that date. Dr. Reppy diagnosed left
shoulder rotator cuff tear/rupture and Alzheimer’s disease.
On October 15, 2019 OWCP requested that Dr. Reppy provide further information
regarding appellant’s work status and work restrictions.
On November 2, 2019 appellant, through her representative, requested reconsideration of
OWCP’s June 4 and July 8, 2019 decisions. With the request, appellant’s representative attached
a letter explaining that Dr. Reppy’s October 23, 2019 and Dr. Horan’s April 10, 2019 reports
supported that she was unable to perform her date-of-injury position and that there was no
modified-duty offered because the claim had previously been denied. He requested payment of
wage-loss compensation benefits from September 10, 2016 through the present.
In his October 23, 2019, Dr. Reppy indicated that, since September 10, 2016, appellant
would not have been capable of performing the physical functions of her date-of-injury position
as rural route carrier because she would have had very limited ability to utilize the left upper
extremity for repetitive use of sorting and delivering mail and she did not have the strength required
to lift and carry packages. Furthermore, she would not have been capable of safely operating a
motor vehicle. Dr. Reppy stated that these remained the current restrictions as appellant’s MRI
scan revealed that her left shoulder condition had not resolved. The May 20, 2019 MRI scan was
attached, which demonstrated a persistent mild articular surface tear of the supraspinatus tendon
laterally and a partial thickness tear of the subscapularis tendon superiorly and laterally and
associated medial displacement of the long head of the biceps tendon superiorly.
In a report dated November 5, 2019, Dr. Reppy responded to OWCP’s October 15, 2019
letter. He diagnosed left rotator cuff tear/rupture and Alzheimer’s disease. Dr. Reppy reiterated
his physical findings of May 8, 2019. He noted that appellant’s FCE indicated that she was able
to lift 8 to 12 pounds, but that the position of letter carrier required a lifting capacity of 70 pounds.
Dr. Reppy observed that appellant’s rotator cuff tear was seen on MRI scan. He opined that the
original injury occurred when she twisted to lift a heavy package from the back of her postal
vehicle. Dr. Reppy explained that lifting from behind the seat put her in a disadvantaged position
in terms of leverage and that the weight of the package exceeded the strength of her deltoid and
supraspinatus muscles, resulting in a rotator cuff tear. He noted that because the tear was not
attended to in a timely fashion, scar tissue formed along the edges of the tear, preventing
spontaneous healing. Dr. Reppy opined that appellant’s work-related condition had not resolved
and that it required surgery. He stated that she was unable to return to work without restrictions
because her job description called for the ability to lift up to 70 pounds and she could no longer
4

lift above 12 pounds. Dr. Reppy further noted that appellant’s Alzheimer’s disease made her
ability to follow directions or remember how to do assignments problematic. He stated that she
could not perform modified duties as it would be dangerous to both herself and her coworkers, and
that her present level of disability was a direct result of her work-related conditions.
On December 4, 2019 OWCP referred appellant for a second opinion examination with
Dr. Krishan K. Batra, a Board-certified psychiatrist, to assess appellant’s employment-related
conditions and disability status. It requested that he opine as to whether she could return to her
date-of-injury position.
In a second opinion report dated January 2, 2020, Dr. Batra reviewed a SOAF and
appellant’s medical records. He diagnosed Alzheimer’s dementia at a moderate level of
impairment. Dr. Batra opined that due to her cognitive impairment, appellant was unable to return
to her date-of-injury position and that vocational rehabilitation was a remote possibility as she was
suffering from a neuropsychiatric condition of progressive and irreversible nature.
By decision dated January 23, 2020, OWCP denied modification of the decisions dated
June 4 and July 8, 2019. It found that she had not submitted contemporaneous evidence
establishing that she was unable to work for the claimed dates of disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the preponderance of the evidence.4 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.5 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.6
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.7 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.8
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is

4

See B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

5

Id.

6

20 C.F.R. § 10.5(f); B.O., supra note 4; N.M., Docket No. 18-0939 (issued December 6, 2018).

7

Id. at § 10.5(f); see B.K., Docket No. 18-0386 (issued September 14, 2018).

8

Id.

5

claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.9
ANALYSIS
The Board finds that appellant has established that she was totally disabled during the
periods February 16 to March 15, 2019 and April 13 to May 10, 2019 causally related to the
accepted employment injury.
The record reflects that OWCP accepted appellant’s claim for left shoulder rotator cuff tear
or rupture. OWCP has paid appellant wage-loss benefits continuously from September 16, 2016,
except for the brief periods in question.
Appellant was examined by OWCP second opinion physician, Dr. Horan on
April 10, 2019. Dr. Horan related her left shoulder physical examination findings and diagnosed
status post rotator cuff repair. He opined that appellant’s left rotator cuff tear had not resolved as
she continued to experience persistent pain and restricted range of motion. Dr. Horan indicated
that she was unable to return to her date-of-injury position, noting that she had a lifting limit of 18
pounds as determined by the June 1, 2017 FCE.
OWCP also received reports from appellant’s treating physician, Dr. Reppy. On
October 15, 2019 it requested that he further address her work status and work restrictions. In a
report dated October 23, 2019, Dr. Reppy opined that, since September 10, 2016, appellant would
not have been capable of performing the physical functions of her date-of-injury position as rural
route carrier because she would have had very limited ability to utilize the left upper extremity for
repetitive use of sorting and delivering mail and did not have the strength required to lift and carry
packages. On November 5, 2019 he responded to OWCP’s October 15, 2019 request and
diagnosed left rotator cuff tear/rupture and Alzheimer’s disease. Dr. Reppy opined that the original
injury occurred when appellant twisted to lift a heavy package from the back of her postal vehicle.
He explained that lifting from behind the seat put her in a disadvantaged position in terms of
leverage and that the weight of the package exceeded the strength of her deltoid and supraspinatus
muscles, resulting in a rotator cuff tear. Dr. Reppy noted review of appellant’s May 10, 2019 MRI
scan of the left shoulder and explained that because the tear was not attended to in a timely fashion,
scar tissue formed along the edges of the tear, preventing spontaneous healing. He opined that her
work-related condition had not resolved and that it required surgery. Dr. Reppy stated that
appellant had been unable to return to work without restrictions because her job description called
for the ability to lift 70 pounds and she could no longer lift more than 12 pounds.
Appellant has therefore established that she was disabled during the periods in question,
with probative and reliable medical evidence.10
The Board finds that as appellant has established that she was disabled from February 16
to March 15, 2019 and April 13 to May 10, 2019 causally related to the accepted employment

9

A.W., Docket No. 18-0589 (issued May 14, 2019).

10

Supra note 6.

6

injury, upon return of the case record, OWCP shall authorize payment of wage-loss compensation
for these periods and any attendant medical expenses.
CONCLUSION
The Board finds that appellant has established that she was disabled from February 16 to
March 15, 2019 and April 13 to May 10, 2019 causally related to the accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 26, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer
________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-798
Issued: August 14, 2014

Case Submitted on the Record

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

JURISDICTION
On February 25, 2014 appellant filed a timely appeal from a September 18, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of his claim under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant on April 17, 2014 to
confirm his continuing desire for an oral argument in Washington, DC. No written confirmation was received
within the time allotted; thus, the Board, in its discretion, has decided the appeal on the record.

FACTUAL HISTORY
This is the third appeal before the Board. Appellant, then a 55-year-old mail expeditor,
injured his back and left leg on December 30, 2006. OWCP accepted a claim for back
contusion; abrasion or friction burn of the left leg, not including the foot, with no infection.
Appellant underwent an abdominal aortogram on June 12, 2008 which showed that he
had an abdominal aneurysm. He was referred to Dr. Stanley G. Crossland, a specialist in
vascular surgery, who stated in a June 12, 2007 report that appellant had developed an
abdominal-iliac aneurysm with emboli in both lower extremities. Dr. Crossland performed an
amputation of the right leg, below the knee, an endovascular aortoiliac repair procedure. He later
required amputation of the first, fourth and fifth toe of the left foot. Dr. Crossland advised that
appellant had a known history of hypertension and noninsulin-dependent diabetes mellitus and
stated that he had been diagnosed with a large infrarenal abdominal aortic aneurysm, an iliac
aneurysm with a large amount of thrombus, in February 2007. In an addendum to the statement
of accepted facts dated April 17, 2008, OWCP indicated that appellant’s aneurysms in the
abdominal aorta and iliac were nonwork-related conditions.
In order to determine whether appellant’s aneurysm, emboli and subsequent amputations
of his right leg and left toes were causally related to the December 30, 2006 work injury, and
whether he still had residuals from his accepted conditions, OWCP referred appellant to
Dr. Joshua A. Eisenberg, the second opinion physician, who opined in his May 28, 2008 report
that appellant’s embolic disease was not related to the December 30, 2006 traumatic injury.
OWCP found that there was a conflict in the medical evidence between appellant’s treating
physician, Dr. Crossland, who opined that appellant had residuals due to an aneurysm causally
related to the December 30, 2006 work injury, and Dr. Eisenberg, who opined that appellant’s
embolic disease was not related to the December 30, 2006 traumatic injury. It referred the case
to a referee medical specialist, Dr. Maurice R. Roulhac, a Board-certified general surgeon, on
February 24, 2009.
In a June 14, 2009 report, Dr. Roulhac opined that appellant’s December 30, 2006 work
injury to the right leg3 did not aggravate or contribute to the embolism that resulted in his
bilateral limb amputations. He stated that the aneurysm of the aortoiliac segment was present
prior to the injury and did not lead to immediate emboli. Dr. Roulhac asserted that there was no
medical literature supporting that a blunt trauma could cause emboli immediately or, as
Dr. Crossland asserted, five months later. He advised that these sequences of events are
perioperative complications and completely unrelated to the work injury. Dr. Roulhac opined
that an aneurysm can lead to emboli regardless of trauma. He opined that appellant’s condition
stemmed from a management problem rather than a sequelae from blunt trauma, given that
appellant had an abdominal aortic aneurysm and mural thrombus.
By decision dated August 17, 2009, OWCP terminated appellant’s compensation, finding
that Dr. Roulhac’s opinion represented the weight of the medical evidence. It further found that
appellant’s aneurysm and subsequent bilateral limb amputations were not causally related to his
December 30, 2006 work injury. OWCP noted that the record indicated that appellant had a
3

The Board notes that Dr. Roulhac referred to the date of injury as December 20, not December 30, 2006, the
actual date of injury.

2

preexisting condition, abdominal aortic aneurysm, at the time of the December 30, 2006 work
injury which did not become symptomatic until the May 2007 events in which appellant
developed gangrene, discoloration and inflammation in his right calf and right toe. Following a
request for reconsideration, by decision dated November 5, 2009, it denied modification of the
August 17, 2009 decision. Following an appeal to the Board, in a December 17, 2010 decision,4
the Board reversed OWCP’s termination, but affirmed its finding that appellant had not met his
burden of proof to establish an abdominal aortic aneurysm and an embolic condition in the
performance of duty.
By letter dated July 18, 2012, appellant requested reconsideration. In a March 17, 2011
report, Dr. Crossland reiterated his opinion regarding the etiology of appellant’s conditions. He
asserted that the injury to appellant’s lower back started the progression of aortoiliac clot
dislodgement which subsequently produced embolization leading to his progressive damage in
both lower extremities, which resulted in his bilateral lower extremity amputations; these
procedures, as noted above, were not accepted by OWCP as work related.5 By decision dated
October 10, 2012, OWCP denied modification of the prior decision. In an April 8, 2013
decision,6 the Board affirmed the October 10, 2012 OWCP decision, finding that the weight of
medical opinion was still represented by the report of Dr. Roulhac, the impartial medical
specialist, and that Dr. Crossland was merely restating one side of the conflict in medical
evidence which had been resolved by Dr. Roulhac. The complete facts of this case are set forth
in the Board’s December 17, 2010 and April 8, 2013 decisions and are herein incorporated by
reference.
By letter dated August 28, 2013, appellant requested reconsideration. He submitted a
copy of an August 19, 2013 inquiry from his congressional representative, but did not submit any
additional medical evidence in support of his request.
By decision dated September 18, 2013, OWCP denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require OWCP to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by OWCP; or by constituting
relevant and pertinent evidence not previously considered by OWCP.7 Evidence that repeats or

4

Docket No. 10-550 (issued December 17, 2010).

5

The Board notes that OWCP only accepted the conditions of back contusion and abrasion or friction burn of the
left leg, not including the foot, with no infection. The Board has not accepted any conditions for the right leg.
6

Docket No. 13-261 (issued April 8, 2013).

7

20 C.F.R. § 10.606(b). See generally 5 U.S.C. § 8128(a).

3

duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.8
ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has he advanced a relevant legal argument not previously
considered by OWCP. The issue in this case is medical; i.e., whether he submitted probative,
rationalized medical evidence sufficient to establish an abdominal aortic aneurysm or an embolic
condition due to his employment. Appellant did not submit any medical evidence in support of
his request for reconsideration. His reconsideration request failed to show that OWCP
erroneously applied or interpreted a point of law nor did it advance a point of law or fact not
previously considered by OWCP. OWCP did not abuse its discretion in refusing to reopen
appellant’s claim for a review on the merits.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
8

Howard A. Williams, 45 ECAB 853 (1994).

4