United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Sioux Falls, SD, Employer
__________________________________________

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

Docket No. 10-525
Issued: November 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 18, 2009 appellant filed a timely appeal from a November 6, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established an employment-related disability from
May 6 to 23, 2009; and (2) whether the Office properly determined the employment-related neck
and shoulder conditions had resolved as of November 6, 2009.
FACTUAL HISTORY
On April 4, 2007 appellant, then a 46-year-old food service worker, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a neck and shoulder injury on March 28,
2007 when she lifted a bucket of ice.
The claim was denied by decision dated
December 14, 2007. On January 9, 2008 appellant underwent a C5-6 cervical discectomy. In an

April 29, 2008 decision, the Office vacated the December 14, 2007 decision and accepted the
claim for a bilateral shoulder strain.
In a report dated June 11, 2008, Dr. Timothy O’Shea, an attending internist, stated that a
magnetic resonance imaging (MRI) scan showed multilevel cervical degenerative disc disease.
He stated that the condition was aggravated by working conditions.
The Office referred appellant for a second opinion examination with Dr. David
Hoversten, an orthopedic surgeon. It requested that he provide an opinion as to the
employment-related conditions and whether there was a cervical condition causally related to the
March 28, 2007 employment injury. In a report dated August 5, 2008, Dr. Hoversten provided a
history and results on examination. He diagnosed cervical degenerative disc disease, left
shoulder tendinitis with a small tear of the rotator cuff and right shoulder tendinitis with rotator
cuff swelling. With respect to the cervical spine, Dr. Hoversten found that the March 28, 2007
employment incident aggravated the condition. As to the shoulder conditions, he opined that
these were not causally related to the employment injury, stating that these were “age and more
genetic in basis and a certain amount of wear and tear has also been occurring in the shoulders
through the years.” Dr. Hoversten completed a work capacity evaluation outlining appellant’s
work restrictions.
On August 11, 2008 the Office advised appellant that the claim had been accepted for
degeneration of cervical intervertebral disc. On August 11, 2008 it asked Dr. Hoversten to
address whether the aggravation was temporary or permanent. In a report dated August 21,
2008, Dr. Hoversten stated that the aggravation was temporary, “back to original condition at six
months postinjury i.e., [September 28, 2007].”
In a February 23, 2009 report, Dr. Thomas Ripperda, a physiatrist, reviewed the history
and provided results on examination. He stated that appellant’s neck seemed to be doing fairly
well at that time. Appellant had more rotator cuff pathology of the left shoulder and
Dr. Ripperda recommended an MRI scan. In a letter dated March 31, 2009, the Office asked
Dr. Ripperda whether he concurred with Dr. Hoversten that the employment-related condition
was limited to the neck and there was a temporary aggravation that returned to baseline six
months after the injury. On May 11, 2009 Dr. Ripperda stated that he agreed with the second
opinion. He advised that appellant also had a left rotator cuff tear with tendinitis and her current
symptoms were related to the left shoulder.
Appellant submitted an April 22, 2009 report from Dr. Jeffrey Kalo, an osteopath, who
diagnosed mild (acromioclavicular) joint arthrosis of the left shoulder and significant cuff tearing
of the left shoulder. Dr. Kalo stated that it appeared that appellant had a cuff tear from the initial
injury that maybe was missed as part of the cervical spine process.
In a May 1, 2009 report, Dr. Stephanie Broderson, a family practitioner, advised that
appellant could work four hours a day as of May 8, 2009 until her surgery. A time analysis form
dated May 20, 2009 noted that appellant worked four hours per day. A claim for compensation
(Form CA-7) was filed for intermittent hours from May 6 to 23, 2009.

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In a June 4, 2009 report, Dr. Ripperda stated that appellant had a left rotator cuff tear
“that in my opinion occurred at the time of her injury.” He stated, “The mechanism of injury, the
objective findings, primarily the MRI [scan] demonstrating a left full thickness rotator cuff
injury, persistent left shoulder pain despite surgery all are consistent with the injury of
March 28, 2007.”
The Office found a conflict arose between Dr. Ripperda and Dr. Hoversten regarding
appellant’s left shoulder. In a letter dated June 24, 2009, it advised appellant that it found a
conflict based on the June 4, 2009 report from Dr. Ripperda. In a letter dated July 1, 2009,
appellant’s representative argued that there was no conflict in the medical evidence. He stated
that Dr. Hoversten did not have the benefit of an MRI scan of the shoulder. The representative
also questioned the unilateral selection of the referee physician without input from appellant.
The record indicates that appellant underwent a left rotator cuff repair surgery on June 26, 2009.
In a letter dated August 7, 2009, the Office advised appellant’s representative as to the
procedures for selecting a referee physician using the Physician’s Directory System (PDS) and
enclosed a copy of the appointment worksheet.
The Office selected Dr. John Dowdle, a Board-certified orthopedic surgeon, as the
impartial referee. In a report dated August 17, 2009, Dr. Dowdle provided a history, reviewed
medical records and provided results on examination. He diagnosed diffuse degenerative disc
disease of the cervical spine and status post left rotator cuff repair. With respect to the
degenerative cervical condition, Dr. Dowdle indicated that the degenerative changes preexisted
the employment injury and there were no structural changes to the neck as a result of the
March 28, 2007 injury. He opined that the injury did not alter the natural course of the
underlying condition and any neck strain had resolved. As to the left shoulder, Dr. Dowdle
opined that the work injury of March 28, 2007 resulted in temporary shoulder strains. He
explained that “the medical record documentation which indicates that [appellant’s] initial
complaints related to the trapezius muscles. It was not until more than a year later that she had
significant left shoulder complaints that were evaluated with MRI [scan]. Before that time,
[appellant] had no localized findings to indicate a problem with the left rotator cuff. Certainly,
there are no examination findings or anything in the medical records indicating the presence of a
rotator cuff tear until more than a year after the work injury at issue.” Dr. Dowdle concluded
that appellant had no continuing employment-related work restrictions.
By letter dated September 9, 2009, the Office advised appellant that it proposed to
terminate medical benefits and wage-loss compensation based on the medical evidence. By
letter dated October 6, 2009, appellant’s representative argued that Dr. Dowdle was not a referee
physician as there was no conflict. He also argued that Dr. Dowdle omitted critical facts and
offered unsupported conclusions.
In a decision dated October 6, 2009, the Office denied the claim for compensation from
May 6 to 23, 2009. In a decision dated November 6, 2009, it terminated medical benefits and
entitlement to compensation for wage loss based on the medical evidence.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.2 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.3
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.4 Causal relationship is a medical issue and
the medical evidence required to establish causal relationship is rationalized medical evidence.5
Rationalized medical evidence is medical evidence which includes a physician’s rationalized
medical opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. 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.6 Neither the fact that a disease or condition manifests itself during a period of
employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.7
ANALYSIS -- ISSUE 1
The October 6, 2009 Office decision was limited to the claim for compensation from
May 6 to 23, 2009. Appellant’s work history is not entirely clear from the record, but according
to the compensation payment history she had not received compensation for wage loss since
June 2008. With respect to the claimed period May 6 to 23, 2009, the time analysis indicated
that appellant generally was working four hours per day from May 8, 2009 and it would be her
burden of proof to establish compensation for the additional hours claimed. Dr. Broderson
recommended four hours of work as of May 8, 2009 but did not discuss causal relationship
between any disability and the March 28, 2007 employment injury. None of the other physicians

1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

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

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of record provided a rationalized opinion as to disability from May 6 to 23, 2009 causally related
to the employment injury.
It is appellant’s burden of proof with regard to the claimed period of compensation. The
Board finds that she did not meet her burden of proof in this case.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, it may not terminate compensation without establishing that
the disability had ceased or that it was no longer related to the employment.8 The right to
medical benefits for an accepted condition is not limited to the period of entitlement to
compensation for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.9
The Act provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.10 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.11
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.12
ANALYSIS -- ISSUE 2
The November 6, 2009 Office decision referred to termination of both compensation for
wage-loss and medical benefits. As noted, however, appellant had not been receiving
compensation for wage loss and it would be her burden to establish a specific period of
disability. The November 6, 2009 decision did find that the accepted neck and left shoulder
conditions resolved and it is the Office’s burden of proof on this issue.

8

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993).

9

Furman G. Peake, 41 ECAB 361 (1990).

10

5 U.S.C. § 8123.

11

20 C.F.R. § 10.321 (1999).

12

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

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With respect to a cervical condition, the second opinion physician Dr. Hoversten
indicated that the employment-related aggravation would have ceased six months after the
March 28, 2007 employment injury. The attending physician, Dr. Ripperda, indicated in his
report received on May 11, 2009 that he agreed with the second opinion physician. On the issue
of a continuing cervical condition, therefore, there was no disagreement. The referral to
Dr. Dowdle was as a second opinion physician regarding the cervical condition.13
The Board notes that Dr. Dowdle opined that the March 28, 2007 employment injury did
not alter the underlying cervical condition and he did not find a continuing employment-related
condition. Based on the opinions of Drs. Hoversten, Ripperda and Dowdle, the Board finds that
the weight of the medical evidence supports the finding that the employment-related cervical
condition had resolved by November 6, 2009.
With respect to the issue of a left shoulder rotator cuff tear causally related to the
March 28, 2007 employment injury, there was a disagreement between Dr. Hoversten and
Dr. Ripperda. Dr. Hoversten noted the rotator cuff diagnosis but found that it was not related to
the employment injury. Dr. Ripperda opined that the rotator cuff was torn in the March 28, 2007
employment incident. The Board finds that the Office properly found a conflict under 5 U.S.C.
§ 8123(a) on this issue.
In an August 17, 2009 report, Dr. Dowdle provided a rationalized opinion that the rotator
cuff tear was not employment related and the accepted left shoulder condition had resolved. He
explained his opinion, noting the medical record and the lack of medical evidence demonstrating
a tear until a year after the injury. Dr. Dowdle provided a detailed medical report with a
rationalized medical opinion. As noted above, a well-rationalized opinion from a referee
physician is entitled to special weight. The Board finds Dr. Dowdle represents the weight of the
medical evidence.
On appeal, appellant argues that there was no conflict in the medical evidence. As noted
there was no disagreement regarding the cervical condition but there was a disagreement
regarding the left shoulder. Dr. Hoversten provided a reasoned medical opinion based on an
accurate background. Appellant also argued that Dr. Dowdle’s opinion was based on an
inaccurate factual and medical background, without identifying specific inaccuracies.
Dr. Dowdle was provided with a complete background and his report reviewed at length the
relevant medical record.
Appellant also contended that Dr. Dowdle was selected over her objections and she was
not advised that she had an option for another referee. A referee physician is selected from the
PDS using a strict rotational system in accord with Office procedures.14 The Office’s obligation
is to notify appellant of the nature of the conflict and that a referee physician is selected under
5 U.S.C. § 8123(a).15 A claimant has an opportunity to object to the selected physician and, in
13

Even though Dr. Dowdle is not a referee physician with respect to the cervical condition, his opinion can still
be considered for its own intrinsic value. Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).
14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (May 2003).

15

See N.M., 60 ECAB __ (Docket No. 08-2081, issued September 8, 2009).

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this case, she presented contentions that there was no conflict. Appellant also referred to the
“unilateral selection” of the referee but the Office followed its procedures in selecting the referee
through the PDS. If a claimant raises a valid objection to the selected referee, then she may
receive a list of three physicians.16 Appellant did not raise a valid objection and there is no
evidence of error with respect to the selection of the referee physician.
CONCLUSION
The Board finds that appellant did not establish an employment-related disability from
May 6 to 23, 2009. The Board further finds that the Office met its burden of proof in
determining that the employment-related neck and shoulder conditions had resolved by
November 6, 2009.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 6 and October 6, 2009 are affirmed.
Issued: November 9, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)(4)
(May 2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Elmhurst, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-74
Issued: March 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 15, 2008 appellant, through counsel, filed a timely appeal from a
September 2, 2008 merit decision of the Office of Workers’ Compensation Programs denying
modification of a March 27, 2008 decision terminating his compensation benefits. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUES
The issues on appeal are: (1) whether the Office properly terminated appellant’s
compensation benefits effective April 12, 2008; and (2) whether appellant met his burden of
proof to establish that he had any disability after April 12, 2008 causally related to his
October 14, 2006 employment injury.
FACTUAL HISTORY
On October 14, 2006 appellant, then a 57-year-old letter carrier, sustained injury to his
left leg, upper right arm, upper left arm and right hand as a result of a dog attacking him while he
was delivering mail. He stopped work on October 15, 2006 and has not returned. The Office

accepted the claim for multiple open wounds of the left leg without complications; multiple
bilateral open arm wounds; and lumbar intervertebral disc displacement and lumbar sprain. By
letter dated February 2, 2007, it placed appellant on the periodic rolls for temporary total
disability.
In reports dated March 1 to April 12, 2007, Dr. Deepika Bajaj, a treating physician,
diagnosed post-traumatic anxiety syndrome, right thumb contusion, multiple contusions and
lumbosacral radiculopathy, lumbosacral disc herniations. He found that appellant was totally
disabled due to his employment injuries.
On March 26, 2007 the Office referred appellant for a second opinion evaluation to
Dr. Robert Israel, a Board-certified orthopedic surgeon, to determine his work capability and
whether he had residuals from his accepted employment injuries. In an April 13, 2007 report,
Dr. Israel opined that appellant had no disability or residuals as a result of the October 14, 2006
employment injury. He reported that physical examination was within normal limits. In an
attached work capacity evaluation form (OWCP-5c), Dr. Israel advised that appellant had no
restrictions and was capable of performing his usual job.
The Office found a conflict in the medical opinion between Dr. Bajaj and Dr. Israel on
the issue of appellant’s work capability and residuals due to his accepted employment injuries. It
referred appellant to Dr, Stanley Soren, a Board-certified orthopedic surgeon, for an impartial
medical evaluation.
On August 30, 2007 Dr. Soren reviewed a history of appellant’s October 14, 2006
employment injuries, statement of accepted facts and medical treatment. On physical
examination, he reported essentially normal findings for the back, arms and legs with a lidocaine
patch in the midlumbar area. Dr. Soren reviewed magnetic resonance imaging (MRI) scan
results, which demonstrated an L3-4 disc herniation “with mild canal stenosis also seen at L4-5
disc space.” He stated that appellant’s left leg, right knee and upper extremity lacerations had
healed and the lumbosacral strain had resolved “with no significant clinical findings on
examination and none relating to radiculopathy.” Dr. Soren opined that appellant was capable of
performing his usual work duties.
In a supplemental report dated December 17, 2007, Dr. Soren addressed the disc
herniation at L3-4, as seen on a March 30, 2007 MRI scan and an L5-S1 disc herniation as seen
on a November 7, 2006 computerized tomography (CT) scan. He concluded that there were no
significant positive clinical findings and that the disc herniations were considered static and
clinically resolved.
On February 10, 2008 Dr. Soren related that the November 7, 2006 CT scan and
March 30, 2007 MRI scan showed L4-5 and L5-S1 disc herniations. However, he concluded that
it was “not possible to clearly state that those MRI [scan] findings either preceded or postdated
the injury.” Dr. Soren noted that the findings on the CT scan indicated that the herniation
predated the October 14, 2006 employment injury. He concluded that appellant’s condition had
resolved in the absence of lower extremity orthopedic neurological and low back findings from
his August 30, 2007 physical examination. Dr. Soren also opined that the disc herniations “were
not clearly related to the work injury of October 14, 2006” although the injury could have

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temporarily aggravated the disc herniations. In any event, he opined that appellant “had fully
recovered clinically” at the time of his examination of appellant on August 30, 2007 since he
found “no disability relating to the low back.”
By letter dated February 25, 2008, the Office issued a notice of proposed termination of
appellant’s compensation benefits based on Dr. Soren’s medical opinion. Appellant did not
respond.
In a decision dated March 27, 2008, the Office terminated appellant’s compensation
benefits effective April 12, 2008.
In a June 5, 2008 letter, appellant, through his attorney, requested reconsideration and
submitted arguments in support of his request.
In a May 6, 2008 report, Dr. Bajaj reviewed Dr. Israel’s report and a March 30, 2007
MRI scan. He noted that appellant continued to be symptomatic with lower back pain radiating
into the right leg, which was accompanied by muscle spasms and a decreased range of motion.
Dr. Bajaj opined that appellant sustained permanent injuries as a result of the October 14, 2006
employment injury due to the persistence of symptoms to date. He treated appellant on
August 16 and September 13, 2007, which was around the time of Dr. Soren’s examination and
that on physical examination appellant revealed muscle spasm and restricted range of motion.
Dr. Bajaj concluded that appellant’s falling backward on October 14, 2006 caused his herniated
disc and lower back injury. He noted that these injuries were documented by an MRI scan and
that appellant had no symptoms prior to his October 14, 2006 employment injury. Dr. Bajaj
opined that appellant was totally disabled from performing his usual employment duties.
By decision dated September 2, 2008, the Office denied modification of the March 27,
2008 decision. It accorded special weight to Dr. Soren’s impartial medical opinion in finding
that appellant no longer had any continuing residuals or disability causally related to the
October 14, 2006 employment injuries.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.1 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.2 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
1

Paul L. Stewart, 54 ECAB 824 (2003).

2

Elsie L. Price, 54 ECAB 734 (2003).

3

See Del K. Rykert, 40 ECAB 284 (1988).

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establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.4
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part:
“If there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary of Labor shall appoint a third physician who
shall make an examination.”5 Where a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background must be given special weight.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for multiple open left leg wounds, multiple
bilateral open arm wounds, lumbar intervertebral disc displacement and lumbar sprain. It placed
him on the periodic rolls. The Office has the burden of justifying the termination of appellant’s
compensation for these medical conditions.
The Office found a conflict in medical evidence between appellant’s treating physician,
Dr. Bajaj, and Dr. Israel, the second opinion physician. It referred appellant to an impartial
medical specialist, Dr. Soren, a Board-certified orthopedic surgeon. In reports dated August 30
and December 17, 2007 and February 10, 2008, Dr. Soren advised that appellant’s accepted
conditions had resolved and that he had the capacity to return to his usual duties as a letter carrier
without any physical restrictions. He found no clinical evidence of any continuing lower back
conditions or radiculopathy and advised that the disc herniations had resolved. A physical
examination revealed essentially normal findings for the arms, back and legs. The Office
properly relied on Dr. Soren’s opinion in its March 27, 2008 decision, which found that appellant
had no residuals or continuing disability stemming from his October 14, 2006 work injury and
was therefore not entitled to compensation or medical benefits.
The Board finds that Dr. Soren’s impartial medical opinion establishes that appellant’s
accepted conditions resolved without continuing disability or any residuals from his accepted
October 14, 2006 employment injury. Dr. Soren’s opinion is sufficiently probative, rationalized
and based upon a proper factual background. Therefore, the Office properly accorded his
opinion as the special weight of an impartial medical examiner.7
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective April 12, 2008.

4

James F. Weikel, 54 ECAB 660 (2003).

5

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).
6

Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

7

Darlene R. Kennedy, 57 ECAB 414 (2006).

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On appeal, appellant’s attorney contends that the Office should have expanded the
acceptance of appellant’s claim to include herniated discs at L4-5 and L5-S1. He also contends
that Dr. Soren’s report is equivocal on this matter or there is an unresolved conflict between
Dr. Soren and Dr. Bajaj on this issue. For conditions not accepted by the Office as being
employment related, it is appellant’s burden to provide rationalized medical evidence sufficient
to establish causal relation.8 Dr. Bajaj diagnosed herniated discs at L4-5 and L5-S1 in his
various reports. However, he provided no rationale explaining how these conditions were caused
or aggravated by appellant’s employment injury. The Board has held that medical reports
unsupported by medical rationale are of limited probative value.9 Similarly, Dr. Soren’s opinion
is also insufficient to support appellant’s claim that he sustained disc herniations at L4-5 and L5S1 due to his accepted October 14, 2006 employment injury. He concluded that there was no
hard objective findings to support a finding that appellant’s October 14, 2006 caused or
aggravated his herniated discs at L4-5 and L5-S1. The report of the impartial medical specialist
does not support appellant’s assertion that his herniated discs at L4-5 and L5-S1 are employment
related.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant.10 In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors.11 The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.12

8

Alice J. Tysinger, 51 ECAB 638 (2000).

9

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006).

10

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
11

Kathryn E. Demarsh, 56 ECAB 677 (2005).

12

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

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ANALYSIS -- ISSUE 2
After the Office properly terminated appellant’s compensation on March 27, 2008, the
burden of proof shifted to appellant to establish continuing employment-related disability.13
Appellant submitted a May 6, 2008 report by Dr. Bajaj, who noted his disagreement with the
reports of Drs. Israel and Soren. Dr. Bajaj opined that appellant continued to have disability and
residuals from the accepted back conditions. The Board notes that Dr. Bajaj was on one side of
the conflict which was resolved by Dr. Soren. His May 6, 2008 report is essentially duplicative
of his prior reports which also advised that appellant continued to have residuals from the
accepted conditions. Dr. Bajaj’s most recent report is insufficient to give rise to a new conflict
or otherwise show that the termination was improper.14 Accordingly, the Board finds that
Dr. Soren’s opinion constituted the special weight of medical opinion, supports the Office’s
March 27, 2008 decision to terminate appellant’s compensation and deny any entitlement to
continuing disability based on the accepted conditions of multiple open left leg wounds; multiple
bilateral open arm wounds, lumbar intervertebral disc displacement and lumbar sprain.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective April 12, 2008. The Board also finds that appellant has failed to establish that he had
any employment-related residuals or disability after April 12, 2008.

13

Joseph A. Brown, Jr., supra note 10.

14

M.S., 58 ECAB ___ (Docket No. 06-797, issued January 31, 2007).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 2 and March 27, 2008 are affirmed.
Issued: March 20, 2009
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
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, RINCON STATION
POST OFFICE, Tucson, AZ, Employer
__________________________________________

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

Docket No. 20-0676
Issued: May 6, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 6, 2020 appellant filed a timely appeal from October 3 and December 13,
2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective October 3, 2019, as she refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); (2) whether appellant received an
overpayment of compensation in the amount of $1,028.45 for the period October 3 through 12,
1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the December 13, 2019 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2019, because she continued to receive wage-loss compensation after the termination of her wageloss benefits; and (3) whether OWCP properly determined that appellant was at fault in the creation
of the overpayment thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On January 8, 2016 appellant, then a 55-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a hand condition due to repeated trauma caused by
casing and carrying mail while in performance of duty. OWCP accepted the claim for right hand
synovitis and tenosynovitis, and primary osteoarthritis of the right hand. It paid appellant wageloss compensation on the supplemental rolls, effective October 29, 2016, and then on the periodic
rolls, effective April 2, 2017.
In a May 4, 2018 report, Dr. Mark A. Braunstein, a Board-certified orthopedic surgeon,
noted that appellant had a triangular fibrocartilage complex (TFCC) tear of the right wrist. He
explained that the tear developed from overuse at work while performing repetitive activities
sorting mail, resulting in micro tears in her TFCC that led, over time, to a full thickness TFCC
tear. Appellant’s condition resulted in the need for a right wrist arthroscopy with debridement,
which she underwent on January 3, 2018. Dr. Braunstein opined that appellant was disabled from
work from October 29, 2016 to the present, as she was still recovering from her surgical procedure.
He explained that she could not grip or hold any objects, which was an important function of her
job duties, and that she still required additional time for recovery to improve mobility and force
grip.
On September 28, 2018 OWCP referred appellant for a second opinion examination with
Dr. Michael A. Steingart, an osteopathic physician specializing in sports medicine, to assess the
extent of appellant’s injury, periods of total temporary disability, treatment recommendations, and
work restrictions.
In a November 13, 2018 report, Dr. Steingart noted appellant’s history of injury and
medical treatment. He related that she had undergone an authorized surgical procedure on
February 23, 2017 for right second metacarpophalangeal joint replacement, and right
de Quervain’s tenosynovitis release, and that she had undergone right wrist arthroscopy on
January 3, 2018 for TFCC debridement. Dr. Steingart opined that further diagnostic testing was
unnecessary as the surgery for her work-related conditions was successful. He advised that
appellant could perform a sedentary job, but would not be able to case mail or do a lot of lifting
based on index finger metacarpocarpal joint replacement. Dr. Steingart noted some inherent
weakness in the finger to grip and handle and utilizing the hand itself. He noted that appellant
continued to suffer residuals of weakness of the hand as a joint replacement of the index finger
would not necessarily make the finger new again nor would repair of the de Quervain’s make her
able to resume a repetitive job. Dr. Steingart opined that the TFCC condition was age related and
would “not have much of an effect on her job at this time.” He found that appellant had reached
maximum medical improvement (MMI) and no further treatment was necessary. In response to
whether appellant was capable of returning to work, Dr. Steingart explained that she was not totally
disabled due to her finger issue or her de Quervain’s, that the TFCC tear was very common, and
that he had “never seen anybody disabled from a TFCC tear.” He opined that appellant was not
totally disabled and was capable of working in a sedentary to light-duty job without repetitive
activities and was capable of participating in vocational rehabilitation.
2

In a November 15, 2018 work capacity evaluation (Form OWCP-5c), Dr. Steingart
indicated that appellant could not perform her usual job without restrictions. He advised that she
could perform sedentary or light work. Appellant’s restrictions were related as no operating a
motor vehicle, up to four hours of repetitive movements of the wrists, pushing, pulling, and lifting
10 pounds for four to six hours, and up to six hours of climbing. Dr. Steingart indicated that
appellant had reached MMI and her restrictions would be indefinite.
By letter dated November 28, 2018, OWCP advised appellant that she had been referred to
vocational rehabilitation to assist her to return to work within her medical restrictions.
In an April 10, 2019 report, Dr. Braunstein noted that he had reviewed Dr. Steingart’s
report and concurred that appellant was unable to perform repetitive activities and that she could
not case mail. He indicated that he disagreed with the restrictions on the OWCP-5c form, which
indicated that appellant could perform up to four hours of repetitive activities. Dr. Braunstein
opined that appellant “is limited from doing any repetitive wrist movements whatsoever and is
only allowed to lift 10 pounds.”
On April 12, 2019 OWCP requested clarification from the second opinion physician
regarding his assessment of appellant’s work tolerance limitations.
In an April 15, 2019 report, Dr. Steingart explained that he had previously related that
appellant could work in a sedentary job, but that she should avoid repetitive activities. He
specifically noted that appellant should not case mail or lift anything heavy. Dr. Steingart again
advised that appellant could not operate a motor vehicle, but could engage in repetitive motions of
the wrists, limited to four hours per day, push and pull up to 10 pounds, four to six hours per day,
lift up to 10 pounds, four to six hours per day, and climb six hours. He specified the limitations
were based on the index finger, the wrist, and the hand.
In a letter dated May 9, 2019, addressed to the treating physician, Dr. Braunstein, OWCP
requested that he review the April 15, 2019 report with clarified restrictions from Dr. Steingart and
provide a response within 20 days. It also requested that Dr. Braunstein complete a Form
OWCP-5c listing appellant’s work restrictions. OWCP did not receive a response.
On May 30, 2019 the employing establishment offered appellant a position as a modified
city carrier. The duties included: assisting customer at window in lobby providing verbal
information and directions for six to seven hours per day; safety observations, intermittently
observing inside work areas and outside areas for potential safety hazards and reporting to
management for one to three hours per day; and answering telephones intermittently for zero to
one hour per day. The physical requirements included: sitting/walking/standing and changing
positions as needed for up to eight hours; zero to rare repetitive movement of the right wrist (per
IME limit of four hours per day); occasionally pushing, pulling, and lifting no more than 10 pounds
intermittently from one to four hours per day; no heavy lifting, intermittent simple grasp,
nonrepetitive up to four hours per day; no casing mail; and no driving work vehicle.
On June 24, 2019 appellant rejected the job offer and noted “medical restricted” and “can’t
have any repetitive motion.”
In a letter dated June 26, 2019, the employing establishment confirmed that the job offer
remained available and was indefinite, and that appellant had refused the offer. It also indicated
3

that the position did not require repetitive right-hand movements and all duties were self-paced
and intermittent.
By notice dated July 15, 2019, OWCP advised appellant that it had determined that
appellant had refused or failed to report to the offered position as a modified city carrier. It
informed appellant that it had reviewed the offered position and found that it was suitable and in
accordance with the restrictions provided by Dr. Steingart. Pursuant to 5 U.S.C. § 8106(c)(2),
OWCP afforded her 30 days to accept the position or provide reasons for the refusal. It informed
appellant that an employee who refuses an offer of suitable work without cause is not entitled to
wage-loss or schedule award compensation.
In an August 10, 2019 response to the proposed job offer, appellant noted that the job offer
included, “rare repetitive motion” and argued that Dr. Steingart provided contradictory opinions.
She noted that Dr. Steingart completed the Form OWCP-5c on November 13, 2018 and noted that
she could perform four hours of repetitive wrist movements, which was directly contrary to his
opinion that she was unable to perform repetitive activities.
By notice dated September 12, 2019, OWCP informed appellant her reasons for refusal of
the offered job were not valid. It confirmed that the offered position remained available and
provided her 15 days to accept the position or have her benefits terminated.
In a response dated September 17, 2019, appellant argued that OWCP did not properly take
into account Dr. Steingart’s work capacity evaluation form, which indicated “[a]t this time, she
could be working in a sedentary to a light-duty job without repetitive activities.” She enclosed a
November 5, 2017 Form OWCP-5c from Dr. John R. Klein, a Board-certified orthopedic surgeon.
Dr. Klein advised that appellant was able to perform zero hours of repetitive work. Appellant
argued that the job was unsuitable because she could not perform repetitive work.
In an October 3, 2019 letter, the employing establishment confirmed that the job offer
remained available and noted that there were “no repetitive movements with the duties of the job
offer. All are self-paced and intermittent.” The employing establishment further indicated that
they were “continuing to work with and accommodate [appellant] per the second opinion
examination restrictions listed on the [Form OWCP-5c].”
By decision dated October 3, 2019, OWCP terminated appellant’s wage-loss compensation
and entitlement to schedule award benefits, effective October 3, 2019, based on her refusal of
suitable work. It explained that Dr. Steingart provided a well-reasoned opinion as to appellant’s
current work limitations and the employing establishment offered her a job well within those
restrictions.
In an October 15, 2019 memorandum of telephone call, the employing establishment
confirmed that appellant returned to work on October 8, 2019.
In a preliminary overpayment letter dated November 12, 2019, OWCP notified appellant
that she had received an overpayment of compensation in the amount of $1,028.45 because she
received wage-loss compensation during the period October 3 through 12, 2019, despite the fact
that her compensation was terminated on October 3, 2019. It found her at fault because she
accepted a payment that she knew, or reasonably should have known, to be incorrect.

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In the accompanying overpayment memorandum, OWCP noted that, for the period
October 3 to 12, 2019, appellant was paid a wage-loss compensation gross benefit of $1,283.22,
minus health benefit cost of $126.60, life insurance of $78.37, and dental/vision of $49.80,
resulting in net compensation of $1,028.45. It also noted that on October 12, 2019 an electronic
deposit in the amount of $2,879.65 was deposited into her checking account. OWCP explained
that $1,028.45 of that amount was based on the net compensation paid for the period October 3
to 12, 2019, and that appellant was not entitled to disability compensation as of October 3, 2019.
It found that appellant was at fault in the creation of the overpayment because she accepted a
payment she knew or reasonably should have known, to be incorrect. OWCP enclosed an
overpayment recovery questionnaire (Form OWCP-20) for her completion, advised appellant of
her appeal rights, and afforded her 30 days to respond. No further evidence was received.
By decision dated December 13, 2019, OWCP finalized the overpayment determination in
the amount of $1,028.45 for the period October 3 through 12, 2019. It determined that appellant
was at fault in the creation of the overpayment because she accepted a compensation payment,
which she knew or should have known was incorrect.3
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits.4 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by, or secured for the employee is not entitled to compensation.5 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable.6 Section 8106(c) will be narrowly construed as
it serves as a penalty provision, which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment.7
Section 10.517(a) of FECA’s implementing regulations provides that an employee who
refuses or neglects to work after suitable work has been offered or secured, has the burden of
showing that such refusal or failure to work was reasonable or justified.8 Pursuant to section

3

OWCP instructed that appellant to remit a payment for the full amount of $1,028.45 within 30 days.

4

See K.S., Docket No. 19-1650 (issued April 28, 2020); J.R., Docket No. 19-0206 (issued August 14, 2019); R.P.,
Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).
5

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

6

See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

7

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

8

20 C.F.R. § 10.517(a).

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10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.9
The determination of whether an employee is physically capable of performing a modified
assignment is a medical question that must be resolved by medical evidence.10 OWCP’s
procedures provide that acceptable reasons for refusing an offered position include withdrawal of
the offer or medical evidence of inability to do the work or travel to the job.11 In a suitable work
determination, OWCP must consider preexisting and subsequently-acquired medical conditions in
evaluating an employee’s work capacity.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP met it burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective October 3, 2019, for refusing
an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
On May 30, 2019 the employing establishment offered appellant a position as a modified
city carrier and on July 15, 2019 OWCP determined that the position was suitable. The duties of
the position included assisting customers by providing verbal instructions and directions for six to
seven hours a day, conducting safety observations for one to three hours a day, and answering
telephones intermittently for zero to one hour a day. The physical requirements of the position
included: sitting/walking/standing and changing positions as needed, for up to eight hours; no
repetitive right wrist activities, with zero to rare repetitive movement of the right wrist (per IME
limit of four hours per day); occasional pushing, pulling, and lifting no more than 10 pounds
intermittently, from one to four hours per day; no heavy lifting; intermittent simple grasp,
nonrepetitive activity, up to four hours per day; no casing mail, and no driving work vehicle.
The Board finds that the May 30, 2019 job offer was within the restrictions as prescribed
by the second opinion physician, Dr. Steingart. Dr. Steingart reported that appellant could perform
sedentary work; however, she could not case mail, perform heavy lifting, or drive a motor vehicle.
He also related that she could perform repetitive motions of the wrists, up to four hours a day, and
lift, push, pull up to 10 pounds four to six hours a day. The Board notes that the actual duties of
the modified city carrier position did not require casing mail, heavy lifting, or driving a motor
vehicle. Additionally, none of the actual job duties required repetitive motion of the wrists, or
lifting more than 10 pounds.
The Board finds that OWCP properly accorded the weight of medical opinion to the reports
of Dr. Steingart who opined that, while appellant required work restrictions including no mail
casing, no lifting over 10 pounds, and no driving, she was capable of returning to work.
Dr. Steingart based his opinion on a proper factual and medical history. He also provided
9

Id. at § 10.516.

10

M.A., Docket No. 18-1671 (issued June 13, 2019); Gayle Harris, 52 ECAB 319 (2001).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); see E.B., Docket No. 13-0319 (issued May 14, 2013).
12

See G.R., Docket No. 16-0455 (issued December 13, 2016); Richard P. Cortes, 56 ECAB 200 (2004).

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appropriate physical examination findings. OWCP properly relied on his reports to determine that
the offered position, which defined work activities with even further work restrictions was
suitable.13
Appellant’s physician, Dr. Braunstein, in an April 10, 2019 report, advised that appellant
was limited from doing any repetitive wrist movements whatsoever. However, while the position
as a modified city carrier included zero to rare repetitive movements of the right wrist (per IME
limit of four hours per day), the employing establishment, in a letter dated June 26, 2019,
confirmed that there were no repetitive movements and all duties were self-paced and intermittent.
Further, the limitations were limited to appellant’s right hand and there is no evidence to support
that appellant could not use her left hand and self-pace in the rare repetitive movement, if any.
Appellant also resubmitted Dr. Klein’s November 5, 2017 work restrictions and argued
that his restrictions did not allow her to perform any repetitive hand movements. While appellant
indicated that these restrictions were provided in November 2018, they were actually provided in
2017, prior to appellant’s January 3, 2018 surgical procedure, and were, therefore, of limited
probative value.
The Board finds that OWCP properly followed its established procedures prior to the
termination of appellant’s compensation pursuant to 5 U.S.C. § 8106(c)(2), including providing
her with an opportunity to accept the position offered by the employing establishment after
informing her that her reasons for initially refusing the position were not valid.14
For these reasons, OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation, effective October 3, 2019, because she refused an offer of suitable
work.15
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.16 Section 8129(a) of FECA provides, in pertinent part, that 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.17

13

S.V., Docket No. 19-0349 (issued October 18, 2019).

14

See K.S., supra note 4; C.H., Docket No. 17-0938 (issued November 27, 2017).

15

See M.H., Docket No. 17-0210 (issued July 3, 2018).

16

5 U.S.C. § 8102(a).

17

Id. at § 8129(a).

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ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of compensation in the amount of
$1,028.45 for the period October 3 through 12, 2019, because she received wage-loss
compensation following the termination of her compensation.
The Board finds that the evidence of record establishes that OWCP terminated appellant’s
compensation, effective October 3, 2019, based on a refusal of suitable work, but she continued to
receive wage-loss compensation by electronic deposit for the period October 3 through 12, 2019.
Therefore, an overpayment of compensation was created in this case.
With regard to the amount of overpayment, the Board finds that OWCP properly calculated
appellant’s compensation paid for the period October 3 through 12, 2019. Thus, the Board finds
that appellant received an overpayment of compensation in the amount of $1,028.45 for the period
October 3 through 12, 2019.
LEGAL PRECEDENT -- ISSUE 3
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”18 A claimant who is at fault in the creation of the overpayment is not entitled to
waiver.19 On the issue of fault 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (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 was incorrect.20 Section 10.433(b) of OWCP’s regulations
provides that whether or not an individual was at fault with respect to the creation of an
overpayment depends on the circumstances surrounding the overpayment. The degree of care
expected may vary with the complexity of those circumstances and the individual’s capacity to
realize that he or she is being overpaid.21
ANALYSIS -- ISSUE 3
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment.
OWCP explained on October 12, 2019 an electronic deposit in the amount of $2,879.65.
It explained that $1,028.45 of the amount was based on net compensation paid for the dates of
October 3 to 12, 2019. OWCP further explained that this represented her overpayment of

18

5 U.S.C. § 8129(b).

19

R.G., Docket 18-1251(issued November 26, 2019).

20

20 C.F.R. § 10.433(a).

21

Id. at § 10.433(b); see also R.G., supra note 19.

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compensation. The Board notes that this was the first direct deposit she received after her benefits
were terminated based on her job refusal, effective October 3, 2019.
In cases where a claimant receives compensation through direct deposit, the Board has held
that OWCP must establish that, at the time a claimant received the direct deposit in question, they
knew or should have known that the payment was incorrect.22 The Board has held that an
employee who receives payments from OWCP in the form of a direct deposit is not at fault for the
first incorrect deposit into his or her account, since the acceptance of the overpayment, at the time
of receipt of the direct deposit, lacks the requisite knowledge.23 Because fault is defined by what
the claimant knew or should have known at the time of acceptance, one of the consequences of
electronic funds transfers (EFTs) is that the claimant lacks the requisite knowledge at the time of
the first incorrect payment.24
There is no evidence to demonstrate that she had clear knowledge at the time the bank
received the October 12, 2019 electronic deposit that the payment was incorrect.25 Therefore, the
Board finds that at the time the improper direct deposit was made, appellant had no knowledge
that it was incorrect. Appellant, therefore, cannot be found to be at fault in the acceptance of the
October 12, 2019 direct deposit. The case must, therefore, be remanded to OWCP for a de novo
decision to determine whether she is entitled to waiver of recovery of the overpayment in the
amount of $1,028.45.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective October 3, 2019, as she refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board also finds that appellant
received an overpayment of compensation in the amount of $1,028.45 for the period October 3
to 12, 2019. The Board further finds, however, that OWCP improperly determined that appellant
was at fault in the creation of the overpayment.

22

See C.H., Docket No. 19-1470 (issued January 24, 2020); see also Claude T. Green, 42 ECAB 174, 278 (1990).

23

C.H., id.; Tammy Craven, 37 ECAB 589 (2006).

24

Id.

25

See B.W., Docket No. 19-0239 (issued September 18, 2020); K.P., Docket No. 19-1151 (issued March 18, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the October 3, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed. The December 13, 2019 decision is affirmed in
part and reversed in part. The case is remanded for further proceedings consistent with this
decision of the Board.
Issued: May 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Garden City, KS, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-755
Issued: March 5, 2013

Case Submitted on the Record

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

JURISDICTION
On February 21, 2012 appellant, through his attorney, filed a timely appeal of a
January 9, 2012 Office of Workers’ Compensation Programs (OWCP) merit decision denying
his emotional condition claim as untimely. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the
merits of the case.
ISSUE
The issue is whether OWCP properly determined that appellant’s claim for an emotional
condition was not timely filed under 5 U.S.C. § 8122.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal. On February 22, 2009
appellant, then a 78-year-old retired internal revenue agent, filed an occupational disease claim
alleging that he developed an adjustment disorder with mixed emotional features due to
coordinating large cases, conducting appellate conferences to prepare for trial and working 16
hours a day. He first became aware of his condition on June 17, 1985. Appellant retired from
the employing establishment on November 14, 1985 under disability retirement. The employing
establishment challenged his claim on the grounds that it was not timely filed as he was aware of
his condition in 1985.
By decision dated June 10, 2009, OWCP found that appellant’s claim was not timely
filed as it was not filed within three years of the date of last exposure and there was no evidence
in the record establishing that he provided his supervisor with reasonable notice of an on-the-job
injury. It found that he last worked on April 26, 1985, that he was aware of a possible
relationship between his work and his emotional condition on June 17, 1985 and that he therefore
had until June 17, 1988 to file his claim. OWCP concluded that as appellant’s claim was not
filed until March 11, 2009, 24 years later, it was not timely.
Appellant requested a review of the written record by an OWCP hearing representative
on June 16, 2009 and asserted that he had provided his supervisor with a June 17, 1985 letter
from Dr. Kale Gentry, a family practitioner, who alleged that this letter constituted adequate
notice of appellant’s employment injury.
By decision dated October 15, 2009, OWCP’s hearing representative affirmed the
June 10, 2009 decision of OWCP finding that appellant’s claim was not timely filed within the
three-year time limitation and that the record did not establish that appellant’s immediate
superior had actual knowledge of the injury within 30 days as Dr. Gentry’s June 17, 1985 letter
was not included in the record.
Appellant appealed this decision to the Board and in a decision dated September 1, 20102
the Board found that the time limitation for filing this claim began to run on July 17, 1985 the
date that he became aware of his emotional condition and its relationship to his employment. He
had three years from July 17, 1985 or until July 17, 1988 to timely file his claim. Since appellant
did not file a claim until February 22, 2009, it was not timely filed within the three-year period of
limitation. The Board further found while knowledge of his emotional condition could be
established by the employing establishment’s receipt of the June 17, 1985 report from
Dr. Gentry, the mere receipt of a medical report was not sufficient to establish that his immediate
superior had actual knowledge of the alleged work-related nature of appellant’s emotional
condition. The Board concluded that as Dr. Gentry’s report was not included in the record the
Board had no way of determining what this report contained. The Board could not ascertain
whether this report was sufficient to put appellant’s immediate supervisor reasonably on notice
of an on-the-job injury. Additional facts and circumstances of the case as set forth in the Board’s
prior decision are adopted herein by reference.
2

Docket No. 10-495 (issued September 1, 2010).

2

Counsel requested reconsideration on January 10, 2011 and submitted new evidence. In
a statement dated September 16, 2010, Lloyd Churchman, appellant’s supervisor, stated that he
and Ralph Robinson, appellant’s manager, were the two large case managers at the employing
establishment in 1985. He stated that appellant’s work consisted of large cases. Mr. Churchman
stated that on or about April 26, 1985 appellant sought treatment from Dr. Gentry because of
illness. Dr. Gentry diagnosed job stress. Appellant discussed this condition with Mr. Robinson,
who contacted the personnel department at the employing establishment. Mr. Churchman stated,
“Both [Mr.] Robinson and I were involved with these events. [Appellant] coordinated large
cases for both of us.” Mr. Churchman further stated, “[Appellant] returned from sick leave in
June 1985 with a letter from [Dr.] Gentry stating that [appellant] could no longer work because
of job stress.” He completed a second statement on September 28, 2010 and related that
appellant worked for both Mr. Robinson and himself. Mr. Churchman stated that Mr. Robinson
was currently unable to communicate due to an Alzheimer’s type of dementia. He noted that he
and Mr. Robinson worked in a common office area at the employing establishment and were
both involved with personnel matters for large case management. Mr. Churchman stated, “Both
[Mr.] Robinson and I were involved in these events….” He stated that appellant related the
results of his appointment with Dr. Gentry and his job stressors to Mr. Robinson on the date after
his appointment and that the personnel department recommended a few months of sick leave and
disability retirement.
Appellant also submitted a November 8, 2010 statement from Michael McCarthy, the
Labor Relations Specialist and the Employee Assistance Coordinator for the employing
establishment, who stated that he had no recollection of the specifics of appellant’s claim.
Appellant completed a statement on May 24, 2010 and stated that he first became aware
of the nature of the relationship between his condition and his employment on April 26, 1985.
He stated that he called to report the work conditions on that date and left work to see
Dr. Gentry, who attributed appellant’s condition to work stress. Appellant applied for disability
retirement based on Mr. McCarthy’s suggestion and received approval on November 14, 1985.
Marie L. Robinson, Ralph Robinson’s wife, completed two statements on May 13, 2010
and stated that Mr. Robinson was appellant’s manager in June 1985. She stated that it was
common knowledge in the workplace that appellant had been granted disability retirement in
June 1985. Mrs. Robinson stated that she worked in the audit division in 1985 and recalled these
events.
Appellant submitted a document dated May 13, 1982 which indicated that
Mr. Churchman was appellant’s supervisor and recommended a within grade increase.
In a note dated May 22, 2010, Dr. Gentry stated that on June 17, 1985 he wrote a
statement for appellant that he was 100 percent disabled due to severe anxiety.
By decision dated January 9, 2012, OWCP reviewed the merits of appellant’s claim and
denied modification of the prior decision. It found that he had not submitted the necessary
evidence to establish that his immediate supervisor, Mr. Robinson, was notified that his
condition was work related within 30 days of the date of appellant’s awareness of his condition
on April 26, 1985. OWCP stated that although the record established that the employing

3

establishment personnel knew that his work stoppage was due to an emotional condition, the
evidence was not sufficient to establish that appellant made the employing establishment aware
that this emotional condition was job related. It determined that appellant’s claim was not timely
filed.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and 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 or
specific condition for which compensation is claimed is causally related to the employment
injury.4
Section 8122(a) of FECA5 states that “[a]n original claim for compensation for disability
or death must be filed within three years after the injury or death.” Section 8122(b) provides that
in latent disability cases, the time limitation does not begin to run until the claimant is aware, or
by the exercise of reasonable diligence should have been aware, of the causal relationship
between the employment and the compensable disability.6 The Board has held that, if an
employee continues to be exposed to injurious working conditions after such awareness, the time
limitation begins to run on the last date of this exposure.7 A claim, however, would still be
regarded as timely under section 8122(a)(1) of FECA if the immediate superior had actual
knowledge of the injury within 30 days. The knowledge must be such as to put the immediate
superior reasonably on notice of an on-the-job injury or death.8
ANALYSIS
As appellant had not filed his claim with the three-year period of limitation the Board
previously held that his claim for compensation could not be considered as timely filed unless he
established that his immediate supervisor had written notice within 30 days9 or had actual
knowledge of his injury and the work-related nature of that injury within 30 days.10 He has not
alleged that he provided his supervisor with written notice within 30 days. Instead, in support of
3

5 U.S.C. §§ 8101-1893.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

5

5 U.S.C. § 8122(a).

6

Id. at § 8122(b).

7

J.P., 59 ECAB 178 (2007); Linda J. Reeves, 48 ECAB 373 (1997).

8

Id.

9

5 U.S.C. § 8122(a)(1); see Ralph L. Dill, 57 ECAB 248 (2005).

10

Delmont L. Thompson, 51 ECAB 155 (1999).

4

his request for reconsideration, appellant has stated that the actual date that he became aware of
his condition was April 26, 1985. He stated that he stopped work on April 26, 1985 and sought
medical treatment on that date. Mr. Churchman has submitted two statements indicating that
appellant worked for both him and Mr. Robinson in 1985. He indicated that he was involved in
personnel matters including the events surrounding appellant’s sick leave usage and disability
retirement. Mr. Churchman noted that he and Mr. Robinson shared a common office area. He
stated that appellant related his diagnosis and its cause to both him and Mr. Robinson on
April 27, 1985, the date after his April 26, 1985 appointment with Dr. Gentry, stating that
Dr. Gentry diagnosed job stress.
Appellant also submitted two statements from Mrs. Robinson that it was common
knowledge in the workplace that appellant had been granted a disability retirement in June 1985.
The Board finds that Mr. Churchman’s and Mrs. Robinson’s statements are not sufficient
to establish that his supervisor, Mr. Robinson, had actual knowledge within 30 days of his
diagnosis of job stress. These statements made in 2010 about specific dates and events in 1985
are not sufficient to establish that Mr. Robinson, who is no longer able to make a statement, had
firsthand knowledge of the work-related condition. While there is some suggestion that
Mr. Robinson may have approved appellant’s trip to the doctor, he did not make any confirming
statement.11 The evidence is not sufficient to establish that appellant’s immediate supervisor,
Mr. Robinson had actual knowledge of the alleged work-related nature of appellant’s emotional
condition. Consequently, the exception to the statute is not met and appellant’s claim for
compensation is not timely.
CONCLUSION
The Board finds that appellant’s claim for an emotional condition was not timely filed
under the applicable provisions of FECA.

11

Cf. Duet Brinson, 52 ECAB 168 (2000) (where the supervisor had submitted a statement in 1994 that he had
knowledge of appellant’s pentachlorophenol (PCP) exposure through late 1984 and issued him a dispensary note in
February 1985 for appellant to confirm PCP exposure).

5

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, CUSTER ANNEX,
Salt Lake City, UT, Employer
__________________________________________

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

Docket No. 06-2122
Issued: January 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 18, 2006 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated July 17, 2006 which denied her claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has wrist
conditions causally related to factors of her federal employment.
FACTUAL HISTORY
On April 19, 2006 appellant, then a 54-year-old postal clerk, filed an occupational disease
claim, Form CA-2, alleging that she had worsening pain in her wrists with any use of her hands.
She did not stop work. By letters dated April 21, 2006, the Office informed appellant of the type
of evidence needed to develop her claim and requested that the employing establishment
respond. On May 4, 2006 Al Hunt, appellant’s supervisor in the stamp distribution office, noted
that appellant would have to lift up to 70 pounds and provided a job description for the position

of postal clerk. In a May 11, 2006 statement, appellant provided her job history and described
her job duties which included throwing mail, keying, lifting heavy mail trays and boxes of
stamps, loading and unloading bins, and counting thousands of stamps daily. She submitted an
April 27, 2006 report in which Dr. Kipley J. Siggard, a Board-certified orthopedist, noted her
complaints of bilateral wrist numbness and tingling. He opined that her examination was
consistent with bilateral carpal tunnel syndrome with positive Tinel’s and Phalen’s tests and a
mild component of cubital tunnel syndrome. Upper extremity electromyography (EMG) and
nerve conduction studies were performed on May 12, 2006 and were interpreted as
demonstrating right median neuropathy compatible with carpal tunnel syndrome. Pains derived
from nonnerve mechanisms such as joints or ligaments also seemed likely.
In a letter dated June 29, 2006, the Office requested that Dr. Siggard furnish additional
information regarding appellant’s condition to include a reasoned opinion on the relationship
between the diagnosed condition and factors of employment. The Office requested that he
respond in 15 days and sent a copy of the letter to appellant. By decision dated July 17, 2006,
the Office accepted that appellant’s work events included repetitive motions and lifting and
denied the claim on the grounds that the medical evidence did not establish that her diagnosed
condition was caused by factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.2
Office regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”3 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion must be one of reasonable medical certainty and must be supported by medical rationale

1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 278 (2001).

3

20 C.F.R. § 10.5(ee).

2

explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.4
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. 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.6 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.7
ANALYSIS
The Board finds that appellant sustained employment-related events of repetitive motion
and lifting but that she failed to meet her burden of proof to establish that she sustained a wrist
condition caused by these employment factors. Neither Dr. Siggard’s April 27, 2006 report nor
the May 12, 2006 EMG study contained an opinion regarding the cause of any diagnosed
condition, and medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.8 The fact
that work activities produced pain or discomfort revelatory of an underlying condition does not
raise an inference of causal relationship,9 and a diagnosis of “pain” does not constitute the basis
for payment of compensation.10 While the medical opinion of a physician supporting causal
relationship does not have to reduce the cause or etiology of a disease or condition to an absolute
certainty, neither can such opinion be speculative or equivocal. The opinion of a physician
supporting causal relationship must be one of reasonable medical certainty that the condition for
which compensation is claimed is causally related to federal employment and such relationship
must be supported with affirmative evidence, explained by medical rationale and be based upon
a complete and accurate medical and factual background of the claimant.11 On June 29, 2006 the
Office requested that Dr. Siggard provide an opinion on the cause of appellant’s diagnosed

4

Solomon Polen, 51 ECAB 341 (2000).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Id.

7

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

8

Willie M. Miller, 53 ECAB 697 (2002).

9

Jimmie H. Duckett, 52 ECAB 332 (2001).

10

Robert Broome, 55 ECAB 339 (2004).

11

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

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condition. He did not timely respond.12 The medical evidence in this case is insufficient to meet
appellant’s burden of proof.
CONCLUSION
The Board finds that appellant did not establish that she sustained an employment-related
wrist condition.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 17, 2006 be affirmed.
Issued: January 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

12

The Board notes that appellant submitted evidence to the Office subsequent to the July 17, 2006 decision. The
Board cannot consider this evidence, however, as its review of the case is limited to that evidence which was before
the Office at the time it rendered its final decision. 20 C.F.R. § 501.2c. Appellant retains the right to submit a valid
reconsideration request with the Office. See 5 U.S.C. § 8128(a); 20 C.F.R. § 10.606.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0937
Issued: December 21, 2021

Case Submitted on the Record

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

JURISDICTION
On June 7, 2021 appellant, through counsel, filed a timely appeal from a January 5, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to accepted factors of her federal employment.
FACTUAL HISTORY
On June 25, 2019 appellant, then a 54-year-old supervisor of distribution operations, filed
an occupational disease claim (Form CA-2) alleging that she developed back, bilateral knee, and
bilateral foot conditions as a result of factors of her federal employment. She noted that she first
became aware of her condition on November 27, 2017 and realized its relationship to her federal
employment on November 27, 2018. Appellant stopped work on November 12, 2018.
In an August 8, 2019 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. By separate development letter of even date, OWCP requested
additional information from the employing establishment, including comments fro m a
knowledgeable supervisor on the accuracy of appellant’s statements. It afforded appellant 30 days
to provide the requested information.
In response, appellant submitted a completed questionnaire signed on August 21, 2019.
She attributed the claimed conditions to repetitive walking, pushing, pulling, and bending while
transporting mail back and forth over the distance of a long city block for nine hours a shift.
In a November 27, 2017 report, Dr. Ronald M. Chase, an orthopedic surgeon, diagnosed
degenerative arthritis of both knees, lumbar herniated discs, lumbosacral radiculitis, and calcaneal
spurs. He noted that these conditions had been confirmed by x -rays and magnetic resonance
imaging (MRI) scans.
November 27, 2017 x-rays of the lumbar spine and left heel interpreted by Dr. Parashuram
Pinnapureddy, a Board-certified radiologist, demonstrated mild degenerative spondylosis with
levoscoliosis of the thoracolumbar spine, and calcaneal spurs.
In a July 24, 2018 report, Dr. Chase noted appellant’s symptoms of lumbar pain radiating
into the lower extremities with bilateral paresthesias and weakness. On examination, he noted
lumbar spasm, restricted lumbar motion, bilaterally positive straight leg raising tests, and bilateral
lower extremity strength at 4-5/5. Dr. Chase noted that a lumbar MRI scan demonstrated multiple
herniated discs with spinal cord and nerve root impingement.
In a report dated September 18, 2018, Dr. Chase noted complaints of pain and swelling in
the dorsum of the right foot and bilateral heel pain, which appellant attributed to “extensive
standing and walking at work.” On examination, he found swelling and bony deformity in the
dorsum of the right midfoot. Dr. Chase diagnosed arthritis of the right ankle and right foot, and
bilateral calcaneal spurs. He recommended heel cups, orthotics, and range of motion exercises.

2

OWCP received periodic reports by Dr. Chase dated from October 9, 2018 through
February 12, 2019 noting continued lumbar, bilateral knee, right ankle, and right foot symptoms.
An x-ray of the right knee dated January 29, 2019 revealed mild degenerative changes and
inferior patellar enthesophyte.
In a May 14, 2019 report, Dr. Chase diagnosed a left knee contusion with a flare-up of left
knee arthritis following a fall while at work.
By decision dated November 4, 2019, OWCP accepted that the identified work factors had
occurred as alleged and that the medical record contained definite diagnoses. It denied the claim,
however, finding that the medical evidence of record was insufficient to establish causal
relationship between appellant’s diagnosed lumbar and bilateral lower extremity conditions and
the accepted employment factors.
On October 29, 2020 appellant, through counsel, requested reconsideration of OWCP’s
November 4, 2019 decision, arguing that new medical evidence was sufficient to meet appellant’s
burden of proof to establish causal relationship. He submitted an October 29, 2019 attending
physician’s report (Form CA-20) by Dr. Chase, who noted that appellant had developed chronic
“pain from work.” Dr. Chase listed concurrent or preexisting conditions of degenerative arthritis
of the left knee and chronic low back pain. On examination, he observed lumbar paraspinal muscle
tenderness, radiculopathy into both lower extremities, and left knee swelling. Dr. Chase diagnosed
a left knee contusion and a lumbosacral myofascial strain. He checked a box marked “Yes”
indicating his support for causal relationship, noting that appellant had developed chronic pain in
her left knee and lower back related to employment activities. Dr. Chase found appellant totally
disabled from work commencing November 27, 2018 and returned her to sedentary work.
In a November 10, 2020 report, Dr. Chase noted that appellant’s knees and lumbar spine
had been symptomatic for several years. On examination, he observed an antalgic gait favoring
the left lower extremity, bilateral patellar crepitus on range of motion, bilateral knee stiffness, mild
instability of the left knee, paraspinal muscle tenderness with mild spasms, bilaterally positive
straight leg raising tests, and lower extremity motor strength of 4 -5/5 bilaterally. Dr. Chase
reviewed November 4, 2020 bilateral knee x-ray reports, which demonstrated bilateral inferior
patellar enthesopathy and effusions. He also reviewed reports of lumbar x-rays and a lumbar MRI
scan obtained on November 4, 2020, which demonstrated a grade 1 degenerative anterolisthesis at
L4-5 contributing to mild spinal canal stenosis, a central L4-5 disc protrusion with left lateral
herniation, a left central L5-S1 disc herniation, and levoscoliosis. Dr. Chase diagnosed bilateral
degenerative knee arthritis, L4-5 and L5-S1 disc herniations, and lumbosacral radiculitis. He
prescribed medication and noted work restrictions.
By decision dated January 5, 2021, OWCP denied modification of the November 4, 2019
decision.

3

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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
casually related to the identified employment factors.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 8 The opinion of the physician must be based upon a complete factual
and medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment incident. 9
In any case where a preexisting condition involving the same part of th e body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,

3

Supra note 2.

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

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.W., Docket No. 20-0767 (issued January 13, 2021); L.D., Docket No. 19-1301 (issued January 29, 2020); S.C.,
Docket No. 18-1242 (issued March 13, 2019).
8

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

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

4

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to accepted factors of her federal employment.
In reports dated from November 27, 2017 through November 10, 2020, Dr. Chase
diagnosed herniated L4-5 and L5-S1 discs with spinal cord and nerve root impingement,
lumbosacral radiculitis, levoscoliosis, degenerative arthritis of both knees, arthritis of the right
ankle and foot, and calcaneal spurs. He noted in a September 18, 2018 report that appellant
attributed right foot and bilateral heel pain to extensive standing and walking at work. On May 14,
2019 Dr. Chase diagnosed a left knee contusion and flare-up of left knee arthritis after a fall at
work on an unspecified date. However, he did not provide an opinion on causal relationship in
any of these reports. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.11 Therefore, these reports are insufficient to establish appellant’s claim.
In an October 29, 2019 Form CA-20 report, Dr. Chase opined, with a checkmark “Yes”
that her diagnoses of left knee contusion and a lumbosacral myofascial strain were due to the
chronic pain that she experienced from work. He listed concurrent or preexisting conditions of
degenerative arthritis of the left knee and chronic low back strain. The Board has held, however,
that when a physician’s opinion as to the cause of a condition or period of disability consists only
of a checkmark on a form, without further explanation or rationale, that opinion is of diminished
probative value and is insufficient to establish a claim. 12 Therefore, Dr. Chase’s report is
insufficient to establish appellant’s claim.
Appellant also submitted imaging studies. The Board, however, has explained that
diagnostic studies, standing alone, lack probative value as they do not address whether the
employment injury caused any of the diagnosed conditions.13
As appellant has not submitted rationalized medical evidence establishing a medical
condition causally related to the accepted employment factors, the Board finds that she has not met
her burden of proof to establish her claim.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
G.T., Docket No. 21-0170 (issued September 29, 2021); D.W., Docket No. 20-0674 (issued September 29, 2020);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).
11

D.K., Docket No. 21-0214 (issued September 29, 2021); S.W., Docket No. 19-1579 (issued October 9, 2020); see
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
12

See A.C., Docket No. 21-0087 (issued November 9, 2021); O.M., Docket No. 18-1055 (issued April 15, 2020);
Gary J. Watling, 52 ECAB 278 (2001).

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6