United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, San Diego, CA, Employer
__________________________________________

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

Docket No. 08-1038
Issued: November 17, 2008

Case Submitted on the Record

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

JURISDICTION
On February 25, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 16, 2007 merit decision concerning the Office’s wage-earning
capacity determination and the Office’s December 7, 2007 denying his request for further review
of the merits of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly reduced appellant’s compensation
effective September 2, 2007 based on his capacity to earn wages as an optometric assistant; and
(2) whether the Office properly denied appellant’s request for further review of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
The Office accepted that on January 4, 2004 appellant, then a 41-year-old baggage
screener, sustained a left shoulder strain, left rotator cuff tendinitis and precipitation of cervical
degenerative disc disease due to lifting baggage. He stopped work and the Office paid him
compensation for periods of disability.1
In December 2004, appellant was referred to vocational rehabilitation services and in
October 2005 a direct placement plan was approved, which was designed to return him to work
as an optometric assistant or dispensing optician.2 The record indicates that from 1986 to 1987,
he attended the American Business College in San Diego, CA and that he received a certificate
as an optical technician. In 1988, appellant obtained an optician’s license. He gained extensive
work experience in this field for a variety of employers between 1986 and 2001. Appellant was
not placed in a job under the October 2005 direct placement plan.
On September 30, 2005 Dr. Mark C. Nelson, an attending orthopedic surgeon, stated that
appellant primarily reported pain and numbness in his neck, which radiated into his left arm and
noted that he also reported low back pain. He diagnosed work-related left shoulder, cervical and
trapezius strains and cervical spondylosis likely preexisting, but likely aggravated by the
work-related cervical strain. Dr. Nelson opined that appellant was unlikely to successfully return
to his previous employment as a baggage screener for the employing establishment. He
recommended restrictions from lifting over 20 pounds, avoidance of overhead lifting, avoidance
of repetitive flexion and extension of the neck and avoidance of work on a computer or telephone
to prevent worsening of his cervical and shoulder symptoms.
Dr. Nelson referred appellant to Dr. Robert E. Scott, Jr., a Board-certified physical
medicine and rehabilitation physician. On December 12, 2005 Dr. Scott diagnosed cervical
spondylosis and degenerative disc disease (aggravated by the January 4, 2004 cervical strain,
which caused chronic cervical and thoracic myofascial pain); left arm pain and numbness caused
by cervical radiculitis, median neuropathy or myofascial pain; and left shoulder strain. He
indicated that he agreed with other treating physicians that the majority of appellant’s complaints
were related to the cervical and thoracic regions.
In early 2006, appellant’s vocational rehabilitation counselor learned that appellant’s
optician’s license had expired in December 2004. Therefore, he was provided with a new direct
placement plan in March 2006, which allowed for an additional 90 days to attempt to place him
in a job as a security guard or an optometric assistant (a job which did not require an optician’s
license).3 These efforts did not result in appellant being placed in a job. His rehabilitation

1

There is some indication in the record that appellant sustained an employment injury on April 30, 2003, but the
nature of this ostensible injury is not clear from the record.
2

The record at that time contained medical reports showing that appellant was capable of light-duty work.

3

Appellant’s rehabilitation counselor determined that appellant was physically and vocationally capable of
performing these positions and conducting a labor market survey in February 2006, which indicated that they were
reasonably available in appellant’s area.

2

counselor indicated that appellant felt that he could not work in any job and noted that he made
no discernable effort to contact potential employers on his own.
On July 30, 2006 Dr. Scott diagnosed cervical spondylosis and disc disease with the
potential for significant foraminal stenosis at C4-5 and C5-6 and loss of cervical lordosis
(aggravated by the January 4, 2004 injury and resulting in local cervical pain, radicular
symptoms and cervical/thoracic myofascial pain); mild left shoulder acromioclavicular joint
arthrosis and subscapularis tendinisis (contributing minimally to appellant’s current complaints
and objective finding); and history of low back pain due to a separate work injury of
April 30, 2003. He indicated that appellant could perform full-time work but was restricted from
overhead work, lifting over 25 pounds and repetitive or prolonged cervical motions or posturing.
Dr. Scott noted that appellant needed to be able to change positions, i.e., alternate between sitting
and standing at will.4 He stated that appellant’s conditions associated with the January 4, 2004
work injury had reached maximum medical improvement. Dr. Scott stated, “[Appellant’s]
medical conditions have not changed appreciably for better or for worse since my first evaluation
with him in December 2005. His presentation at that time is similar to his presentations noted in
previous records dating back through the year 2004.”
In January 8, February 21 and April 17, 2007 reports, Dr. Scott indicated that appellant’s
disability status had not changed since the time of his July 30, 2006 report. In an April 17, 2007
report, he indicated that appellant’s cervical motion remained guarded in all directions with
tenderness in the cervical paraspinal muscles and trapezius muscles (left greater than right) and
5/5 strength in his arms.
In May 2007, appellant’s vocational rehabilitation counselor again determined that, based
on his experience, education and medical restrictions and the findings of a labor market survey,
appellant was employable as an optometric assistant. He conducted a labor market survey on
May 7, 2007, which documented that the position of optometric assistant was reasonably
available in appellant’s commuting area and that the entry pay level for this position was $11.75
per hour or $470.00 per week.
The record contains an excerpt from the Department of Labor, Dictionary of
Occupational Titles describing the duties of the position of optometric assistant. The duties,
which are performed in support of an optometrist, include assisting in visual examinations of
patients, utilizing ocular testing apparatus, working with patients in vision therapy, assisting
patients in frame selection and instructing patients in the care and use of glasses or contact
lenses. The job might also require adjusting and repairing glasses and modifying contact lenses,
maintaining inventory of materials, assisting in fabrication of eye glasses or contact lenses,
scheduling appointments and performing other clerical duties. The optometric assistant position
is described as sedentary in the Department of Labor, Dictionary of Occupational Titles and

4

Dr. Scott first provided similar restrictions in a March 2, 2006 report. In another portion of the July 30, 2006
report, Dr. Scott indicated that appellant should not engage in prolonged sitting or standing.

3

appellant’s rehabilitation counselor indicated that the employers he contacted also characterized
the position as sedentary in nature.5
In a June 12, 2007 report, Dr. Scott indicated that appellant’s disability status had not
changed since the time of his July 30, 2006 report. He indicated that appellant had some
limitation of cervical motion with pain at extremes and indicated that motor strength was 5/5 in
his arms.
In a July 11, 2007 notice, the Office advised appellant of its proposed adjustment of his
compensation based on its determination that he had the capacity to earn wages as an optometric
assistant. It indicated that it had been determined that he was vocationally and physically
capable of working as an optometric assistant. The Office advised appellant that if he disagreed
with this proposal he had 30 days from the date of the letter to submit evidence regarding his
capacity to earn wages.6
In an August 1, 2007 letter, appellant’s attorney argued that appellant could not
physically perform the optometric assistant position. He indicated that Dr. Scott, in his July 30,
2006 report, had restricted appellant from “prolonged sitting” but that the position required
“sitting most of the time.”
In an August 16, 2007 decision, the Office reduced appellant’s compensation effective
September 2, 2007 based on its determination that he had the capacity to earn wages as an
optometric assistant. It indicated that the duties of the optometric position were within the work
restrictions recommended by Dr. Scott. The Office calculated appellant’s new compensation rate
based on a formula which used his rate of pay when injured and the pay rate of the constructed
position of optometric assistant.
In October 2007, appellant requested reconsideration of his claim. In an October 22,
2007 memorandum, appellant’s counsel again argued that he could not physically perform the
optometric assistant position because Dr. Scott had restricted him from “prolonged sitting” but
the position required “sitting most of the time.” In an undated statement, appellant argued that
the medical evidence of record showed that he could not perform the optometric assistant
position. He claimed that, based on his experience, the optometric assistant position was not
sedentary in nature but rather was “predominately a stand-up job.” Appellant resubmitted a copy
of Dr. Scott’s July 30, 2006 report and new report dated August 7, 2007 in which Dr. Scott again
indicated that his disability status had not changed.

5

The employers contacted in a July 25, 2006 labor market survey specifically indicated that the position of
optometric assistant would not require lifting more than 20 pounds, sitting or standing over 45 minutes without a
break or repetitive reaching at the shoulder level or above. The Department of Labor, Dictionary of Occupational
Titles describes a sedentary position as one that requires the exertion of up to 10 pounds of force occasionally
(occasionally meaning up to 1/3 of the time) and exertion of a negligible amount of force frequently (frequently
meaning up to 2/3 of the time) to lift, carry, push, pull or otherwise move objects, including the human body.
Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time.
6

The Office calculated appellant’s proposed new compensation rate based on a formula which used his rate of
pay when injured and the pay rate of the constructed position of optometric assistant.

4

In a December 7, 2007 decision, the Office denied appellant’s request for further review
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.7 Its
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.8
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent his wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity or if the employee has no actual earnings, his
wage-earning capacity is determined with due regard to the nature of his injury, his degree of
physical impairment, his usual employment, his age, his qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect his
wage-earning capacity in his disabled condition.9 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.10 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.11 The
fact that an employee has been unsuccessful in obtaining work in the selected position does not
establish that the work is not reasonably available in his commuting area.12
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor, Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.13
7

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

10

Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34 ECAB 409, 411 (1982).

11

Id.

12

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

13

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).

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ANALYSIS -- ISSUE 1
The Office accepted that on January 4, 2004 appellant sustained a left shoulder strain, left
rotator cuff tendinitis and precipitation of cervical degenerative disc disease due to lifting
baggage. In an August 16, 2007 decision, it reduced appellant’s compensation effective
September 2, 2007 based on its determination that he had the capacity to earn wages as an
optometric assistant.
The Board finds that the Office properly determined that appellant was physically and
vocationally capable of performing the constructed position of optometric assistant.14 The Office
properly found that the medical reports of Dr. Scott, an attending physical medicine and
rehabilitation physician, showed that appellant was able to perform the optometric assistant
position around the time his compensation was adjusted in 2007.
On July 30, 2006 Dr. Scott discussed appellant’s medical conditions which mostly
involved the cervical and thoracic areas. He indicated that appellant could perform full-time
work but was restricted from overhead work, lifting over 25 pounds and repetitive or prolonged
cervical motions or posturing. Dr. Scott noted that appellant needed to be able to change
positions, i.e., alternate between sitting and standing at will.15 In January 8, February 21 and
April 17, 2007 reports, he indicated that appellant’s disability status had not changed since the
time of his July 30, 2006 report.
The Board finds that these work restrictions would allow appellant to perform the
position of optometric assistant. The position involves performing duties in support of an
optometrist such as helping to carry out visual examinations, assisting customers and performing
various clerical duties. It is described as a sedentary position in the Department of Labor,
Dictionary of Occupational Titles.16 According to this description, an optometric assistant would
not be required to lift more than 10 pounds and there is no indication that an optometric assistant
would be required to work overhead or engage in repetitive or prolonged cervical motions or
posturing. Appellant argued that he could not physically perform the optometric assistant
position because Dr. Scott had restricted him from “prolonged sitting” but the position required
“sitting most of the time.” The Board notes that Dr. Scott’s restriction from prolonged sitting is
not meant to preclude appellant from sitting for a substantial portion of the workday but rather is
14

Appellant did not have any actual wages on which to base his wage-earning capacity. The Office only based
his wage-earning capacity on a constructed position after he failed to be placed in a position through participation in
a vocational rehabilitation program. Appellant’s rehabilitation counselor indicated that he did not make any
discernable effort to contact potential employers on his own. See supra notes 9 through 12 and accompanying text
regarding the bases for wage-earning capacity determinations.
15

Dr. Scott first provided similar restrictions in a March 2, 2006 report. In another portion of the July 30, 2006
report, he indicated that appellant should not engage in prolonged sitting or standing.
16

The Department of Labor, Dictionary of Occupational Titles describes a sedentary position as one that requires
the exertion of up to 10 pounds of force occasionally (occasionally meaning up to 1/3 of the time) and exertion of a
negligible amount of force frequently (frequently meaning up to 2/3 of the time) to lift, carry, push, pull, or
otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may
involve walking or standing for brief periods of time. In addition, employers contacted in a May 7, 2007 labor
market survey also characterized the optometric assistant position as sedentary in nature.

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meant to convey that he should be able to change positions, i.e., alternate between sitting and
standing. Although the description of a sedentary position notes substantial sitting during the
workday, the description also provides for alternating sitting with standing and walking.
Appellant’s vocational rehabilitation counselor determined that appellant had the
experience and skills to perform the position of optometric assistant and found that state
employment services showed that the position was available in sufficient numbers so as to make
it reasonably available within his commuting area.17 The Office properly relied on the opinion of
the rehabilitation counselor that appellant was vocationally capable of performing the optometric
assistant position. Appellant did not submit any evidence or argument showing that he could not
vocationally or physically perform the optometric assistant position.
The Office considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the position of optometric assistant represented his wage-earning capacity.18
The weight of the evidence of record establishes that appellant had the requisite physical ability,
skill and experience to perform the position of optometric assistant and that such a position was
reasonably available within the general labor market of his commuting area.19 Therefore, the
Office properly reduced appellant’s compensation effective September 2, 2007 based on his
capacity to earn wages as an optometric assistant.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, its regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.21 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his
application for review within one year of the date of that decision.22 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.23 The Board has held that the submission of evidence
20

17

Appellant’s vocational rehabilitation counselor conducted a labor market survey in May 2007, which confirmed
that the optometric assistant position was reasonably available and that the entry pay level for the position was
$11.75 per hour or $470.00 per week. The Board further notes that the record reveals that appellant gained
extensive work experience in the optometry field for a variety of employers between 1986 and 2001.
18

See supra note 9 and accompanying text.

19

In addition, the Office properly applied the principles set forth in the Shadrick decision to calculate the
reduction in appellant’s compensation. See supra note 13 and accompanying text.
20

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
21

20 C.F.R. § 10.606(b)(2).

22

Id. at § 10.607(a).

23

Id. at § 10.608(b).

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or argument which repeats or duplicates evidence or argument already in the case record24 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.25
ANALYSIS -- ISSUE 2
In connection with his October 2007 reconsideration request, appellant, through his
counselor, argued that he could not physically perform the optometric assistant position because
Dr. Scott had restricted him from “prolonged sitting” but the position required “sitting most of
the time.” However, the submission of this argument would not require reopening of appellant’s
claim because he had already presented this argument and the Office had already considered and
rejected it. As noted above, the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record does not constitute a basis for reopening a case.26
Appellant argued that the medical evidence of record showed that he could not perform the
optometric assistant position and that the optometric assistant position required more standing
than indicated by the Office. This argument would not be relevant as he would not be competent
to provide a medical opinion and he did not provide any support for his assertions regarding the
nature of the optometric assistant position. The Board has held that submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.27
Appellant has not established that the Office improperly denied his request for further
review of the merits of its August 16, 2007 decision under section 8128(a) of the Act, because
the evidence and argument he submitted did not to show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
September 2, 2007 based on his capacity to earn wages as an optometric assistant. The Board
further finds that the Office properly denied appellant’s request for further review of the merits of
his claim pursuant to 5 U.S.C. § 8128(a).

24

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

25

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

26

See supra note 24 and accompanying text.

27

See supra note 25 and accompanying text. The Board has held that a nonphysician cannot render an opinion on a
medical matter. Arnold A. Alley, 44 ECAB 912, 920-21 (1993). Appellant submitted a July 30, 2006 report of
Dr. Scott but this report had already been in the record. He also submitted an August 7, 2007 report of Dr. Scott but
this report was similar to other reports of Dr. Scott which were already in the record.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 7 and August 16, 2007 decisions are affirmed.
Issued: November 17, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, TX, Employer
__________________________________________

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

Docket No. 08-1978
Issued: March 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 9, 2008 appellant filed a timely appeal of the September 24, 2007 and
February 13 and May 23, 2008 merit decisions of the Office of Workers’ Compensation
Programs, finding that he did not sustain an injury on July 7, 2007 in the performance of duty.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant sustained an injury on July 7, 2007 in the performance of
duty.
FACTUAL HISTORY
On July 23, 2007 appellant, then a 60-year-old city electroplater, filed a traumatic injury
claim (Form CA-1) alleging that on July 7, 2007 he experienced sharp pain in his left knee and
leg when he misstepped and lost his balance while walking down a flight of stairs at work. He
submitted a copy of his position description.

On appellant’s CA-1 form, Benny Gunter, a supervisor, stated that he did not witness the
alleged injury. Mr. Gunter advised that the alleged injury was questionable as appellant probably
had a heart problem. In an August 16, 2007 letter, the employing establishment controverted
appellant’s claim on the grounds that he did not provide notice of the injury until July 23, 2007,
when he submitted the CA-1 form to his supervisor.
By letters dated August 24, 2007, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It addressed the additional factual and medical
evidence he needed to submit.
In a September 5, 2007 narrative statement, appellant described the July 7, 2007 incident.
He was walking downstairs to his locker at a fast pace when he became a little unbalanced on his
left leg as he turned around the next set of stairs. Appellant had not experienced any disability or
symptoms related to his knee prior to the alleged injury. Immediately, after sustaining the injury,
he mentioned it to Eugenio Reyna, a coworker, who signed a statement in support of appellant’s
claim of injury. Appellant then informed his supervisor about the injury. The supervisor advised
him that, since it was Saturday, he should go to the employing establishment’s dispensary if his
knee was still hurting on Monday.
Dispensary records from the employing establishment’s medical unit noted that appellant
was evaluated from July 9 to August 20, 2007 for knee pain and that he could work with
restrictions. In an August 14, 2007 x-ray report, Dr. David D. Wilson, a Board-certified
radiologist, stated that appellant had a normal left knee. An August 14, 2007 report, of a nurse
practitioner whose signature is illegible, stated that appellant had suffered from left knee pain
since June 2007. In an August 30, 2007 medical report, Dr. Thomas T. Nguyen, an aerospace
medicine specialist, provided a history that appellant sustained a left knee injury in June 2007.
He diagnosed left knee pain. Dr. Nguyen ordered a magnetic resonance imaging (MRI) scan to
rule out internal derangement of the left knee.
By decision dated September 24, 2007, the Office denied appellant’s claim on the
grounds that the medical evidence failed to establish that he sustained an injury causally related
to the July 7, 2007 employment incident.
On October 10, 2007 appellant requested a review of the written record by an Office
hearing representative.
In a November 20, 2007 report, Dr. Rufino H. Gonzalez, a Board-certified orthopedic
surgeon, who stated that appellant sustained a torn meniscus of the left knee and was scheduled
to undergo surgery in January 2008. He recommended that appellant avoid prolonged squatting
and climbing and carrying heavy weights.
By decision dated February 13, 2008, an Office hearing representative affirmed the
September 24, 2007 decision, as modified. The hearing representative found the medical
evidence sufficient to establish that appellant sustained a torn meniscus of the left knee.
However, the evidence was insufficient to establish that the diagnosed condition was causally
related to the accepted July 7, 2007 employment incident.

2

By letter dated February 21, 2008, appellant requested reconsideration. In a January 15,
2008 operative report, Dr. Gonzalez stated that he performed an arthroscopy and partial medial
meniscectomy of the left knee, chondroplasty of the medial femoral condyle and patella and an
excision of plica. He stated that appellant’s postoperative diagnoses included a degenerative tear
of the medial meniscus of the left knee, Grade 1 and 2 chondromalacia of the medial femoral
condyle and patella and plica. A January 17, 2008 hospital record reiterated the diagnoses. It
noted that appellant had synovitis and hypertension not otherwise specified and diabetes that was
either Type 2 or an unspecified type that was uncontrolled. A February 19, 2008 dispensary
record from the employing establishment noted that appellant returned to work with restrictions
following left knee surgery.
By decision dated May 23, 2008, the Office denied modification of the February 13, 2008
decision.
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
filed within applicable time limitation; that an injury was sustained while 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.2 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The evidence required to establish
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 2.
4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).

3

causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.7 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.8
ANALYSIS
The record supports that on July 7, 2007 appellant misstepped and lost his balance as he
walked down stairs to his locker. The Board, however, finds that the medical evidence is
insufficient to establish that the accepted employment incident caused a left knee injury.
The employing establishment’s dispensary records covering the period July 9 through
August 20, 2007 note that appellant was evaluated for left knee pain. Dr. Nguyen’s August 30,
2007 report stated that appellant experienced left knee pain. However, he listed a history of
injury June 2007. Dr. Nguyen ordered an MRI scan to rule out internal derangement of the knee.
His diagnosis of pain, without more by way of an explanation, does not constitute a basis for
payment of compensation.9 Neither the employing establishment’s dispensary notes nor
Dr. Nguyen’s report provide any medical rationale explaining how appellant’s left knee
symptoms were caused by or contributed to by the July 7, 2007 employment incident.10 The
Board notes that the record does not contain an MRI scan confirming a diagnosis of internal
derangement of the left knee and stating that the condition was caused or contributed to by the
accepted employment incident.
Dr. Wilson’s August 14, 2007 x-ray report found that appellant had a normal left knee.
The employing establishment’s February 19, 2008 dispensary note stated that appellant was
returning to work with restrictions following left knee surgery. Neither of these medical
documents support that appellant sustained a left knee injury that required surgery due to the
July 7, 2007 employment incident.
Dr. Gonzalez’ November 20, 2007 report stated that appellant sustained a torn meniscus
of the left knee, which required surgery and physical restrictions. His January 15, 2008 report
and the January 17, 2008 hospital record provided diagnoses of a degenerative tear of the medial
meniscus of the left knee, Grade 1 and 2 chondromalacia of the medial femoral condyle and
patella and plica. The hospital record also noted that appellant had synovitis and hypertension
not otherwise specified and diabetes that was either Type 2 or an unspecified type that was
uncontrolled. This evidence also failed to address how the diagnosed conditions and resultant
surgery were caused or contributed to by the July 7, 2007 employment incident.

7

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

8

Charles E. Evans, 48 ECAB 692 (1997).

9

Robert Broome, 55 ECAB 0493 (2004).

10

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

4

The August 14, 2007 report of a nurse practitioner, whose signature is illegible has no
probative value in establishing appellant’s claim. A nurse practitioner is not a “physician” as
defined under the Act.11
Appellant did not submit sufficient medical evidence to establish a causal relationship
between his left knee condition and the accepted July 7, 2007 employment incident. The Board
finds that there is insufficient rationalized medical evidence of record to establish that appellant
sustained an injury in the performance of duty on July 7, 2007. Therefore, appellant has failed to
meet his burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an injury on July 7,
2007 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 23 and February 13, 2008 and
September 24, 2007 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See 5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208 (2004); Thomas R. Horsfall, 48 ECAB 180 (1996).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PATROL,
Chicago, IL, Employer
__________________________________________

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Appearances:
James R. Linehan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-456
Issued: October 14, 2009

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 5, 2008 appellant, through counsel, filed a timely appeal from an
October 20, 2008 merit decision of the Office of Workers’ Compensation Programs denying his
emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant’s preexisting post-traumatic stress disorder was aggravated
by factors of his federal employment.
FACTUAL HISTORY
On June 23, 2005 appellant, then a 34-year-old seized property specialist, filed an
occupational disease claim alleging that on June 13, 2005 he realized his stress had been
aggravated by work factors. He first became aware of his condition in July 2004. Appellant
stopped work on June 15, 2005 and has not returned.

In a June 16, 2005 report, Dr. Jadwiga A. Kuszynska, a treating Board-certified
psychiatrist, indicated that appellant had been under her care since July 2004 for “severe stress
related to his work situation.” She indicated that appellant was totally disabled for the period
June 15 to July 5, 2005.
On July 5, 2005 the employing establishment controverted appellant’s claim. It noted
that appellant averaged approximately 3.6 hours of overtime per month over the past year.
By letter dated July 19, 2005, the Office informed appellant that the evidence was
insufficient to support his claim. Appellant was advised to submit medical and factual
information to support his emotional condition claim.
In a June 22, 2005 attending physician’s report (Form CA-20), Dr. Kuszynska diagnosed
post-traumatic stress disorder. She checked “yes” to whether the condition was employment
related, noting that appellant had a stressful and hostile job environment.
On August 11, 2005 appellant related that he had a stress reaction during a March 2004
paintball training exercise. His heart rate increased and he began to have trouble breathing when
paint balls hit a car he used to cover his position. Appellant’s daily routine at work required
inputting information into files that were identified by 16 digit numbers and he was responsible
for the storage, safekeeping and witnessing to the destruction of sensitive and high value items.
He alleged that his days were unpredictable and that he was always on call. Appellant noted that
the merger with Homeland Security added new duties. He became frustrated due to the
additional assigned duties and believed he was a burden and weak link to his team because of his
mistakes. Appellant felt closed in and paranoid by the cameras at work.
Dr. Samson Seplow, a resident in psychiatry at the Veterans Administration, noted that
appellant was seen on June 15, 2005 for stress. He had a history of post-traumatic stress disorder
following return from the Persian Gulf. In June 3, 2005 progress notes, Dr. Seplow noted that
appellant had a history of post-traumatic stress disorder and was seen because he has not been
feeling well and experienced weird dreams. Appellant related that he had been making mistakes
at work and had poor concentration, “seeing numbers in reverse.” He informed Dr. Seplow that
he had been having panic attacks since his last appointment.
In progress notes dated June 11, 2005, Dr. Kuszynska noted that appellant was seen for a
panic attack which occurred the prior day and that he turned in his gun. Appellant related being
“under extreme stress at work lately and that he does not think he can continue working there.”
Dr. Kuszynska diagnosed post-traumatic stress disorder and referred him for group treatment.
Dr. Kim Dong, in June 15, 2005 progress notes, reported that appellant was seen for chest
pain, palpitation and shortness of breath. He indicated that appellant had a history of depression
and stated that he had “been under stress [at] work.”
In progress notes dated June 16, 2005, Dr. Saeed Salehinia, a psychiatric resident,
diagnosed post-traumatic stress disorder, possible depression and panic attack. He noted
appellant’s history of post-traumatic stress disorder and that appellant was seen for a panic attack
that day.

2

By decision dated April 14, 2006, the Office denied appellant’s claim. It accepted that
appellant attended physical training which included paintball exercise, but found the medical
evidence insufficient to establish that his psychiatric condition was causally related to the
accepted work factor.
In a letter dated March 28, 2007, appellant’s counsel requested reconsideration. He
submitted additional records from the Veterans Administration.
In a February 6, 2006 report, Dr. John P. Bair, a clinical psychologist, and Dr. Kuszynska
concluded that appellant was disabled due to his generalized anxiety disorder and severe posttraumatic stress disorder. They indicated that appellant was unable “to engage in competitive
employment.” Appellant was attending regular psychotherapy sessions once or twice a week.
In a February 16 2007 progress note, Dr. Paul Dave Whitaker, Ph.D., a clinical
psychologist at the Veterans Administration, diagnosed post-traumatic stress disorder. He noted
that appellant discussed his job as a customs officer and how the job was ended by his posttraumatic stress disorder and a harsh work environment. Dr. Whitaker opined that appellant’s
ability to concentrate and tolerate stress had been significantly impaired as a result of his anxiety
disorder. In a March 22, 2007 report, he noted appellant was physically capable of performing
his usual work duties, but that his anxiety, depression and post-traumatic stress disorder
interfered with his ability to concentrate or perform in employment.
By decision dated October 20, 2008, the Office affirmed the denial of appellant’s claim.
It found that none of the medical records submitted provided a report addressing how the
accepted work factor had caused or aggravated appellant’s medical condition.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for the payment of compensation
benefits for injuries sustained in the performance of duty. To establish a claim that he sustained
an emotional condition in the performance of duty, an employee must submit the following:
(1) factual evidence identifying compensable employment factors or incidents alleged to have
caused or contributed to his condition; (2) medical evidence establishing that he has an emotional
or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to his emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.3 In the case of Lillian Cutler,4 the Board
explained that there are distinctions in the type of employment situations giving rise to a
1

5 U.S.C. §§ 8101-8193.

2

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008); D.L., 58 ECAB ___ (Docket No. 06-2018,
issued December 12, 2006.
3

L.S., 58 ECAB ___ (Docket No. 06-1808, issued December 29, 2006).

4

28 ECAB 125 (1976).

3

compensable emotional condition under the Act. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
coverage under the Act.5 When an employee experiences emotional distress in carrying out his
employment duties and the medical evidence establishes that the disability resulted from his
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from an emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of his work.6 On the other hand, the disability is not
covered where it results from such factors as an employee’s fear of a reduction-in-force or his
frustration from not being permitted to work in a particular environment or to hold a particular
position.7 Generally, actions of the employing establishment in administrative matters, unrelated
to the employee’s regular or specially assigned work duties, do not fall within coverage of the
Act.8 However, an administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment.9
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.10 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.11
ANALYSIS
Appellant attributed his disability commencing June 13, 2005 was due to increased duties
and intense assignments following the merger with Homeland Security, that his workdays were
unpredictable and that he began to feel paranoid and closed in by the cameras located inside and
outside a vault where items were processed and stored for safekeeping. By decisions dated
April 14, 2006 and October 20, 2008, the Office denied his emotional condition claim. It found
that he established an employment factor, the physical training exercise in March 2004 but that

5

A.K., 58 ECAB ___ (Docket No. 06-626, issued October 17, 2006).

6

Lillian Cutler, supra note 4

7

Id.

8

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

9

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

10

Dennis J. Balogh, 52 ECAB 232 (2001).

11

T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006).

4

the medical evidence did not establish that appellant’s emotional condition was caused or
contributed to this factor.
Appellant attributed his emotional condition to work-related stress. Specifically, he listed
his employment duties and stated that the overwhelming pressure of those activities was
stressful. Appellant contended that the merger with Homeland Security added new work duties
and intense assignments. He has the burden of establishing by the weight of the reliable,
probative and substantial evidence that the condition for which he claims compensation was
caused or adversely affected by employment factors.12 This burden includes the submission of a
detailed description of the employment factors or conditions which he believes caused or
adversely affected the condition or conditions for which compensation is claimed.13 Appellant
provided a general listing of his employment duties. While he contended that the merger with
Homeland Security increased his work duties and involved more intense assignment, he did not
provide a detailed explanation as to those duties he was required to perform following the merger
or a description of those assignments he considered more intense. The employing establishment
generally denied that any duties were added following the merger with Homeland Security,
noting only that he averaged 3.6 hours of over time in the year prior to his disability. Appellant
made only general references to his workday also being unpredictable. Therefore, the Board
finds that appellant has not substantiated that his employment duties caused or contributed to his
claimed emotional condition.
The Office accepted that appellant was required to attend physical training in
March 2004. As appellant substantiated a compensable work factor, the Board must review the
medical evidence to determine if this factor caused or contributed to her diagnosed emotional
condition. To establish his occupational disease claim for an emotional condition, appellant
must submit rationalized medical evidence establishing that he has an emotional or psychiatric
disorder and that such disorder is causally related to the accepted compensable employment
factor.14
Appellant submitted extensive medical records related to his treatment at the Veteran’s
Administration for a preexisting post-traumatic stress disorder and anxiety. However, none of
the treatment records provides an opinion by a physician addressing how the accepted work
factors in March 2004 caused or contributed to appellant’s disability for work commencing
June 13, 2005. The weight of medical opinion is determined by the opportunity for and
thoroughness of examination, the accuracy and completeness of physician’s knowledge of the
facts of the case, the medical history provided, the care of analysis manifested and the medical
rationale expressed in support of stated conclusions.15 In a February 6, 2006 note, Dr. Bair, a
treating clinical psychologist, and Dr. Kuszynska, a psychiatrist, diagnosed severe post-traumatic
12

Pamela R. Rice, 38 ECAB 838, 841 (1947).

13

Effie O. Morris, 44 ECAB 470 473-74 (1993).

14

See M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007; William P. George, 43 ECAB 1159
(1992) (Where the claimant alleges compensable factors of employment, he or she must substantiate such
allegations with probative and reliable evidence).
15

See Anna C. Leanza, 48 ECAB 115 (1996).

5

stress and generalized anxiety disorder which was attributed to appellant’s prior military service.
Dr. Kuszynska did not provide any opinion addressing the March 2004 training exercise as a
causative or aggravating factor of his diagnosed emotional condition. The physicians did not
address how appellant’s preexisting condition or anxiety were causally related to the March 2004
training required in his job as a customs agent. There is insufficient medical evidence of record
to support that appellant’s emotional condition was work related. The Board finds that appellant
did not submit sufficient medical evidence to establish that he sustained an emotional condition
causally related to his compensable work factor.
The progress notes from the other treating physicians at the Veterans Administration are
similarly insufficient to establish causal relationship. They each treated appellant for either
depression or post-traumatic stress disorder. On February 16, 2007 Dr. Whitaker stated that
appellant had trouble with his concentration and the ability to tolerate stress due to his anxiety
condition. However, there is no opinion addressing how the accepted training exercise or other
duties required as a customs agent had aggravated appellant’s condition such that he could no
longer work as of June 13, 2005. The Board has held that 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.16 This evidence is insufficient to establish that appellant’s condition
was caused or aggravated by the compensable work factor.
On appeal appellant’s counsel contends that appellant’s post-traumatic stress disorder
was aggravated by his federal employment, specifically the training incident of March 2004.
Appellant contends that the claim should be compensable as the medical evidence of record
“strongly suggests a cause and effect relationship” to his working conditions.” [Emphasis added.]
As noted, appellant’s burden of proof includes the necessity to submit rationalized medical
opinion evidence explaining the causal relationship between the accepted factor of employment
and his disability for work. The treatment records submitted by appellant do not address how
appellant’s preexisting post-traumatic stress disorder was aggravated by the training exercise.
The medical evidence of record reflects treatment for depression, anxiety and post-traumatic
stress disorder. However, the Veterans Administration physicians did not provide any opinion
supported by rationale explaining how appellant’s training in March 2004 contributed to his
disability such that he could no longer work as of June 13, 2005. The Board finds that he has not
met his burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that his preexisting post-traumatic
stress disorder was aggravated by the accepted compensable factor.

16

S.E.., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 20, 2008 is affirmed.
Issued: October 14, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbia, VA, Employer
__________________________________________

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

Docket No. 19-1485
Issued: August 14, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 1, 2019 appellant filed a timely appeal from a March 22, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $10,421.59 because she concurrently received Office of Personnel Management (OPM)
retirement benefits and FECA wage-loss compensation benefits for the period October 1, 2018
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 22, 2019 decision, OWCP and the Board received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

through January 5, 2019; and (2) whether OWCP properly found appellant at fault in creation of
the overpayment, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On September 6, 2003 appellant, then a 44-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed lower extremity and lumbar conditions due
to factors of her federal employment including repetitive duties over the course of the past 10
years. She first stopped work and sought medical treatment on July 14, 2003. OWCP accepted
the claim for intervertebral disc disorder with myelopathy, thoracic region (T3-4, T7-9, and C4-5)
and intervertebral disc disorder with myelopathy, lumbar region (L4-5 and L5-S1). Appellant
returned to light-duty work on September 8, 2003 with permanent restrictions. On November 16,
2010 OWCP accepted her claim for a recurrence of total disability beginning October 23, 2010.
Appellant received wage-loss compensation on the supplemental rolls and on the periodic rolls
effective August 28, 2011.
In a letter dated September 7, 2011, OWCP advised appellant of her weekly compensation
rate on the periodic rolls. It further informed her that she must report any retirement income
received from any federal agency, as federal employees who receive wage-loss compensation
benefits under FECA are not permitted to concurrently receive benefits under certain other federal
programs, including the Civil Service Retirement System (CSRS) or the Federal Employees
Retirement System (FERS).
On January 22, 2019 OWCP received an election of benefits form, signed by appellant on
September 12, 2018 in which she indicated that, effective October 1, 2018, she was electing to
receive benefits from OPM under CSRS or FERS in preference to any benefits which she might
be entitled to under FECA. Appellant reported that a lump-sum annuity had not been paid from
OPM as part of an alternative annuity under CSRS, or as part of the death benefit under FERS.
The form was stamped as received on October 16, 2018.
On January 25, 2019 OWCP identified an overpayment in the claim as appellant elected
OPM benefits, effective October 1, 2018, yet continued to receive wage-loss compensation on the
periodic rolls.
In a letter dated January 28, 2019, OWCP informed OPM that appellant had elected to
receive OPM retirement benefits, effective October 1, 2018, in lieu of wage-loss compensation
benefits under FECA. It requested that OPM commence monthly annuity payments, effective
October 1, 2018, and to process her health benefits enrollment forms which it was transferring to
OPM. OWCP indicated that it terminated appellant’s FECA compensation benefits, effective
January 5, 2019, the date it last deducted her health and life insurance benefits. It attached a copy
of the election form completed by appellant on September 12, 2018.
On February 8, 2019 OWCP issued a preliminary determination that an overpayment of
compensation was created in the amount of $10,421.59 because appellant received prohibited dual
benefit payments for the period October 1, 2018 through January 5, 2019. It explained that the
overpayment occurred because she concurrently received both FECA benefits and OPM retirement
benefits during this period, which resulted in a prohibited dual benefit payment. Appellant was

2

found to be at fault in the creation of the overpayment because she was aware or should have been
aware that she was not entitled to FECA compensation subsequent to the effective date of her
election of OPM retirement benefits. OWCP provided her an overpayment action request and an
overpayment recovery questionnaire (Form OWCP-20) and afforded her 30 days to respond.
Records of telephone conversations (Form CA-110) dated February 15 through 25, 2019,
indicated that appellant notified OWCP that, although she had elected OPM retirement benefits,
effective October 1, 2018, she was never paid by OPM and had yet to receive any retirement
payments. Appellant further explained that her election form was not received by OPM until 2019.
The claims examiner noted that OWCP provided OPM the election forms on January 28, 2019 and
notified them that OWCP would no longer be processing appellant’s compensation payments,
effective October 1, 2018.
In a letter dated February 26, 2019, OWCP informed OPM that on January 28, 2019 it had
previously provided notification that appellant had elected to receive retirement benefits in lieu of
FECA compensation benefits effective October 1, 2018. It resubmitted the election form and prior
letter for processing of her benefit payments. OWCP further requested that OPM advise OWCP
if it had paid any annuity payments to appellant.
In a completed overpayment action request dated February 20, 2019, received on March 5,
2019, appellant contested OWCP’s findings that an overpayment had occurred and that she was at
fault in the creation of the overpayment, and she requested a possible waiver of the overpayment.
She explained that she never received a dual benefit, stating that her election form was not sent to
OPM until January 28, 2019 which established that she could not have received OPM retirement
benefits since October 2018. Appellant further reported that OPM did not receive her election
form until 2019, rendering OPM incapable of issuing dual benefit payments for that time period
as OWCP failed to provide OPM any of the necessary information until January 28, 2019. She
explained that repayment would cause her financial hardship as she had not yet received retirement
benefit payments from OPM. Appellant completed the Form CA-20 documenting her financial
information, and also provided bank statements and check deposits from October 1, 2018 through
February 22, 2019 to document that she was not in receipt of OPM retirement payments, as alleged.
In a letter dated March 8, 2019, E.T., the employing establishment’s manager of health and
resource management, notified OWCP that the preliminary overpayment determination in
appellant’s claim was made in error. He explained that appellant attempted on at least three
occasions, around September 12, 2018, to transfer her beneﬁts to OPM using the election form.
However, OWCP had not received the election form until months later, on or around
January/February 2019, and incorrectly used the October 1, 2018 effective date to determine that
appellant had been receiving improper dual OPM benefits since that time. E.T. reported that
appellant had not been in receipt of OPM benefits and the current situation had created a financial
hardship for her. He provided a copy of the election form and stated that OWCP did not issue
benefit letters until January 28 and February 26, 2019, establishing that appellant could not have
been getting compensated by OPM prior to those dates.
In a letter dated March 21, 2019, OWCP again requested that OPM commence monthly
annuity payments, effective October 1, 2018, and to process appellant’s health benefits enrollment

3

forms which it transferred. It further requested that OPM reimburse OWCP in the amount of
$10,421.59 for FECA benefits paid during the period October 1, 2018 through January 5, 2019.
By decision dated March 22, 2019, OWCP finalized the preliminary overpayment
determination, finding that appellant received of an overpayment of compensation in the amount
of $10,421.59 for the period October 1, 2018 through January 5, 2019 and that she was at fault in
the creation of the overpayment, thereby precluding waiver of recovery of the overpayment. It
requested that she repay the overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment.3 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.4
Section 10.421(a) of OWCP’s implementing regulations provides that a beneficiary may
not receive wage-loss compensation concurrently with a federal retirement or survivor annuity.5
The beneficiary must elect the benefit that he or she wishes to receive.6 OWCP’s procedures also
explain that the employee must make an election between FECA benefits and OPM benefits. The
employee has the right to elect the monetary benefit which is the more advantageous. This policy
also applies to reemployed annuitants.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation, as alleged.8
OWCP based its overpayment finding on its determination that appellant had received a
prohibited dual benefit by receipt of OPM and FECA benefits for the period October 1, 2018
through January 5, 2019. While the record reflects that she received FECA benefits for this period,

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(a).

6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (January 1997); see also
R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued
March 30, 1994).
8

M.C., Docket No. 18-0074 (issued August 1, 2019).

4

the Board finds that OWCP has not established that she also received OPM benefits for this
period.9
On September 12, 2018 appellant elected OPM retirement benefits, effective October 1,
2018, in lieu of FECA benefits. However, there is no evidence of record which establishes that
OWCP or OPM received the election forms in September or October 2018. On March 8, 2019 the
employing establishment explained that OPM and OWCP had not received appellant’s election
form until January 28 and February 26, 2019, establishing that she was never paid OPM retirement
benefits as alleged. Appellant asserted that she had yet to receive any monetary compensation
from OPM and provided bank documents in support of her claim. The record reflects that OWCP
did not transfer her health benefit enrollment forms, or request that OPM commence monthly
annuity payments, until January 28, 2019, citing an October 1, 2018 effective date. OWCP
resubmitted the request to OPM on February 26 and March 21, 2019 after OPM failed to process
the request with no annuity payments provided to appellant. Given the three requests sent to OPM
to commence annuity payments, it appears that OWCP was at least aware that appellant had not
received OPM benefits for the period in question to establish that her receipt of FECA benefits
amounted to prohibited dual payments.10
OWCP’s March 21, 2019 letter to OPM also requested that OPM reimburse OWCP in the
amount of $10,421.59 for FECA benefits paid during the period October 1, 2018 through
January 5, 2019. However, its final overpayment decision instructed that appellant submit
repayment in full. The record is also silent as to whether OPM reimbursed OWCP for FECA
benefits paid to her during the period in question.11
The Board thus finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $10,421.59 for the period October 1, 2018 through
January 5, 2019, as alleged.12
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation, as alleged.13

9

See R.R., Docket No. 18-0032 (issued May 3, 2018).

10

Id.

11

S.F., Docket No. 17-1935 (issued August 13, 2018).

12

G.M., Docket No. 17-0784 (issued August 23, 2017); D.O., Docket No. 15-1004 (issued July 28, 2015).

13

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

5

ORDER
IT IS HEREBY ORDERED THAT the March 22, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 14, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
PRISON SYSTEMS, Beaumont, TX, Employer
__________________________________________

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

Docket No. 10-1482
Issued: February 1, 2011

Case Submitted on the Record

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

JURISDICTION
On May 3, 2010 appellant filed a timely appeal from the November 2, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this nonmerit decision. The last merit decision was the Office’s June 1, 2009 decision
terminating appellant’s medical and compensation benefits. The Board lacks jurisdiction to
review the merits of this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

An appeal of Office decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e) (2008).

FACTUAL HISTORY
On August 4, 2003 appellant, a 36-year-old correctional officer, filed a claim alleging
that she sustained traumatic injury to her neck while moving heavy equipment. The Office
accepted her claim for cervicalgia and sprains of the neck, left shoulder and upper arm.
Appellant was placed on the periodic rolls.
The Office found a conflict in medical opinion between appellant’s treating physician,
Dr. Ishan Shanti, and a second opinion physician, Dr. James Hood, a Board-certified orthopedic
surgeon, as to whether she had residuals of her accepted conditions. Appellant was referred to
Dr. Grant R. McKeever, a Board-certified orthopedic surgeon, for an impartial medical
examination. In a March 28, 2008 report, Dr. McKeever found that appellant’s work-related
conditions had fully resolved.
On April 8, 2008 the Office issued a notice of proposed termination of appellant’s
medical and compensation benefits based upon Dr. McKeever’s referee report. By decision
dated June 1, 2009, it terminated her compensation benefits.
On June 23, 2009 appellant requested reconsideration. She contended that she was
unable to perform her date-of-injury job, as evidenced by the fact that Dr. McKeever
recommended work restrictions. Appellant noted that she was attending college in order to make
a career change and asked that her benefits be continued until December 2009, when she planned
to graduate. She submitted an April 23, 2009 letter from Lamar University reflecting that she
would graduate in December 2009 if all requirements were met.
The record contains a May 16, 2009 statement from appellant. Appellant noted that she
had just received the Office’s April 8, 2009 proposed notice of termination.2 She disagreed with
the proposed action based on her inability to perform her date-of-injury job.
On October 2, 2009 appellant reiterated her appeal for continued benefits. She
complained about her treatment by the Office and the physicians involved in her case,
contending that her case worker did not want her to get well.
By decision dated November 2, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant a merit
review.3
LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
2

The record contains an envelope which contained the May 16, 2009 letter. The postmark on the envelope bears
a July 9, 2009 date.
3

The Board notes that appellant requested an oral hearing on July 22, 2009. In a decision dated September 2,
2009, the Office denied her request as untimely.
4

5 U.S.C. § 8101 et seq.

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who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”5
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.6
A timely request for reconsideration may be granted if the Office determines that the
reconsideration is granted, the case is reopened and the case is reviewed on its merits.7 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.8
ANALYSIS
In a July 23, 2009 request for reconsideration, appellant contended that she was unable to
perform her date-of-injury job, as evidenced by the fact that Dr. McKeever recommended work
restrictions. She advised that she was attending college and asked that her benefits be continued
until December 2009. Appellant did not allege or demonstrate that the Office erroneously
applied or interpreted a specific point of law. She did not advance any relevant legal argument
not previously considered by the Office. Consequently, appellant is not entitled to further review
of the merits based on the first and second above-noted requirements under section 10.606(b)(2).
Appellant did not submit any relevant or pertinent new evidence with her request.9
Therefore, appellant failed to satisfy the third requirement under section 10.606(b)(2).
On appeal, appellant contends that she remained unable to perform the duties of her dateof-injury position, as established by Dr. McKeever. She requests that she be allowed to retain
her compensation benefits until she is able to begin a career that is within her restrictions.
Appellant’s argument repeats her earlier assertions which are insufficient to warrant merit
review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied her request for reconsideration.

5

20 C.F.R. § 10.605.

6

Id. at § 10.606.

7

Donna L. Shahin, 55 ECAB 192 (2003).

8

20 C.F.R. § 10.608.

9

Id. at § 10.606(b)(2).

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CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTH TEXAS HEALTH CARE SYSTEM,
Dallas, TX, Employer
__________________________________________

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

Docket No. 10-1901
Issued: March 21, 2011

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 July 13, 2010 appellant, through counsel, filed a timely appeal from a June 3, 2010
merit decision of the Office of Workers’ Compensation Programs denying his claim for an
employment-related emotional condition. Pursuant to the Federal Employees’ Compensation
Act1 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 appellant met his burden of proof to establish that he developed an
emotional condition as a consequence of his accepted carpal tunnel syndrome.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On December 18, 2006 appellant, then a
25-year-old medical support assistant, filed an occupational disease claim alleging that he
developed major depression with psychotic features due to factors of his federal employment.
The Office denied this claim on July 24, 2008. On June 5, 2009 the Board reviewed appellant’s
allegations that his supervisor’s actions caused or contributed to his claim, through a difficult
relationship and the processing of his occupational disease claim and discrimination.2 The Board
found that he had not substantiated any allegations and denied the emotional condition claim.
The Board also found that appellant’s emotional condition was not due to his accepted right
carpal tunnel syndrome. The January 29, 2007 report from Dr. Moses Ramos, a Board-certified
psychiatrist, was not sufficient to meet appellant’s burden of proof. The facts and circumstances
of the case as set forth in the Board’s prior decision are incorporated herein by reference.
Following the Board’s June 5, 2009 decision, appellant submitted a report dated
October 1, 2009 from Dr. Ramos, who stated that appellant’s clinical depression was precipitated
and caused by his carpal tunnel syndrome and disability from work. Dr. Ramos stated, “This
condition of carpal tunnel syndrome was his main precipitant, aggravated by job stressors related
to his carpal tunnel syndrome. Although it is difficult to establish a causal relationship between
this disorder and his depression there is a temporal relationship….” Dr. Ramos opined that the
constant chronic pain from carpal tunnel syndrome as well as in a lack of rest resulted in a
dramatic change in patience, behavior and personality. Appellant had a significant weight gain
as well as chronic fatigue. Appellant, through his attorney, requested reconsideration on
November 16, 2009.
The Office referred Dr. Ramos’ report to the district medical adviser. On March 9, 2010
the district medical adviser stated that there was a distinction between a temporal and a causal
relationship. He stated, “A temporal relation is one that occurs at the same time as another
incident. A temporal relationship does not a causal relationship make. In my opinion, pain can
be depressing, but carpal tunnel syndrome, in and of itself, does not cause a major depression
with psychotic features.”
The Office found a conflict in medical opinion between Dr. Ramos and the Office
medical adviser. On March 25, 2010 it referred appellant to Dr. Andrew Brylowski, a Boardcertified psychiatrist, to resolve the conflict of medical opinion. In an April 8, 2010 report,
Dr. Brylowski reviewed psychiatric testing and set fourth findings on examination. He noted
that appellant had a tendency toward exaggeration of current emotional problems as well as
severe personality disorder. Dr. Brylowski diagnosed undifferentiated somatoform pain
disorder. He advised that carpal tunnel syndrome could not cause a major depressive disorder
with psychotic features. Dr. Brylowski found that pain complaints or the side effects of pain
medication could not reasonably be supported as leading to appellant’s major depressive
disorder. He stated that appellant’s objective neuropsychiatric measures were consistent with
significant psychotic symptomatology or significant exaggeration of psychopathology and a
significant personality disorder. Dr. Brylowski concluded, “In short, carpal tunnel syndrome in
2

Docket No. 08-2273 (issued June 5, 2009).

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general does not cause a major depressive disorder with psychotic features in this case, in
reasonable medical probability, cannot cause major depressive disorder with psychotic features.”
By decision dated June 3, 2010, the Office reviewed the merits of appellant’s claim and
denied modification of its prior decision.
LEGAL PRECEDENT
Under the Act,3 a claimant has the burden of establishing by the weight of the reliable,
probative and substantial evidence that the condition or disability for which he claims
compensation was caused or adversely affected by employment factors.4 The general rule
respecting consequential injuries is that, when the primary injury is shown to have arisen out of
and in the course of employment, every natural consequence that flows from the injury is
deemed to arise out of the employment, unless it is the result of an independent intervening
cause, which is attributable to the employee’s own intentional conduct.5 The subsequent injury
is compensable if it is the direct and natural result of a compensable primary injury.6
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s 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 factor
identified by the claimant.7
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist. Section 8123(a) of the Act provides that, if there is
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 an
examination and resolve the conflict of medical evidence.8 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.9

3

Supra note 1.

4

N.M., Docket No. 08-2081 (issued September 8, 2009); Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Albert F. Ranieri, 55 ECAB 598 (2004).

6

Id. See Carlos A. Marrero, 50 ECAB 117 (1998).

7

Michael S. Mina, 57 ECAB 379 (2006).

8

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

9

R.C., 58 ECAB 238 (2006).

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The opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, will be given special weight.10
ANALYSIS
The Office accepted that appellant developed right carpal tunnel syndrome as a result of
employment factors and he underwent surgery to correct this condition. Appellant contends that
he developed a major depressive disorder with psychotic features as a consequence of his
accepted right carpal tunnel syndrome
The Board has held that an emotional condition related to chronic pain and limitations
resulting from an employment injury, maybe covered under the Act.11 To establish his claim,
appellant must submit rationalized medical evidence relating his claimed emotional condition to
his accepted physical condition.12 The Board finds that the medical evidence fails to establish
his claim for an employment-related emotional condition.
Appellant’s attending psychiatrist, Dr. Ramos, found that appellant’s carpal tunnel
syndrome caused or contributed to his diagnosed emotional condition. The Office medical
adviser reviewed his report and disagreed with Dr. Ramos. The Office medical adviser stated
that the temporal relationship between appellant’s accepted physical condition and his depressive
disorder was not sufficient to establish causal relationship. Due to this disagreement between a
physician for the employee and a physician for the United States, the Office properly found a
conflict of medical opinion evidence and referred appellant to Dr. Brylowski, a Board-certified
psychiatrist, to resolve the conflict.
Dr. Brylowski examined appellant on April 8, 2010 and reviewed the results of mental
state testing. He diagnosed undifferentiated somatoform pain disorder. Dr. Brylowski
concluded that appellant’s carpal tunnel syndrome did not cause a major depressive disorder with
psychotic features. He advised that neither appellant’s pain complaints or the side effects of
medication could lead to appellant’s major depressive disorder. Dr. Brylowski reported that
appellant’s test results were consistent with a significant personality disorder psychotic
symptomatology and significant exaggeration of psychopathology.
The Board finds that Dr. Brylowski’s report is entitled to the special weight of the
medical evidence. Dr. Brylowski was properly selected by the Office as the impartial medical
examiner and provided a comprehensive report with detailed test results. He opined that
appellant’s accepted condition of carpal tunnel syndrome did not cause or contribute to his
current emotional condition which was the result of a significant personality disorder and
psychotic symptomatology. As Dr. Brylowski provided an accurate history of injury, detailed
findings on examination and offered a clear opinion negating a causal relationship between
appellant’s physical condition and his emotional condition, his report establishes that appellant’s
10

Nathan L. Harrell, 41 ECAB 401-07 (1990).

11

N.M., supra note 4.

12

Charles D. Gregory, 57 ECAB 322 (2006).

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carpal tunnel syndrome or resulting medical treatment did not result in the alleged emotional
condition.
CONCLUSION
The Board finds that appellant did not establish that he developed an emotional condition
as a result of his accepted right carpal tunnel syndrome.
ORDER
IT IS HEREBY ORDERED THAT June 3, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 21, 2011
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Miami, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1583
Issued: September 17, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On August 13, 2018 appellant filed a timely appeal from a May 16, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned Docket No. 18-1583.
On April 22, 2013 appellant, then a 29-year-old transportation security officer, injured his
lower back while in the performance of duty. OWCP accepted his traumatic injury claim for
lumbar sprain and herniated disc at L5-S1 and assigned File No. xxxxxx033.2
On May 12, 2017 appellant filed a new traumatic injury claim (Form CA-1) alleging that
on May 14, 2013 he aggravated his prior lumbar condition when dragging luggage while in the

1
The Board notes that, following the May 16, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id
2

On April 1, 2014 appellant underwent lumbar surgery.

performance of duty.3 OWCP assigned the claim File No. xxxxxx403. By decision dated
January 26, 2018, an OWCP hearing representative found that appellant had established his claim
for aggravation of a herniated disc at L5-S1 as a result of employment duties on May 14, 2013.
He also found that sufficient medical evidence had been presented to merit referral to a second
opinion physician on the issue of whether appellant had developed a consequential right knee
injury due to either of his accepted lumbar injuries. The January 26, 2018 decision referenced
several reports, including, but not limited to reports from Dr. Samy F. Bishai, an attending Boardcertified orthopedic surgeon, dated June 17, 2017, as well as a June 12, 2013 magnetic resonance
imaging (MRI) scan report, which do not appear in the current case record under File No.
xxxxxx403.
On May 22, 2017 appellant filed a traumatic injury claim (Form CA-1) alleging that on
August 6, 2014 he injured his right knee when reportedly doing lunging exercises as part of
physical therapy/work-condition program while in the performance of duty. OWCP assigned the
claim OWCP File No. xxxxxx404. By decision dated July 7, 2017 OWCP denied appellant’s
claim. On August 14, 2017 appellant requested reconsideration and submitted additional medical
evidence. By decision dated September 20, 2017 OWCP modified the prior decision to find that
appellant had established a diagnosed medical condition, however, the claim remained denied as
to causal relationship. Appellant timely appealed the September 20, 2017 decision to the Board.
By order dated April 9, 2018 the Board set aside and remanded the case for OWCP to incorporate
evidence from File No. xxxxxx033 into File No. xxxxxx404. On remand, by decision dated July 9,
2018 OWCP denied the claim finding that the medical evidence of record was insufficient to
establish causal relationship. Appellant appealed to the Board and by decision dated August 2,
2019 the Board affirmed the July 9, 2018 decision.
On February 8, 2018 OWCP accepted appellant’s claim for aggravation of L5-S1 herniated
lumbar disc.
In further development of the claim for a right knee condition in File No. xxxxxx043,
appellant was referred to a second opinion examination with Dr. Clinton G. Bush, III, a Boardcertified orthopedic surgeon. In its questions to Dr. Bush, dated March 21, 2018, OWCP requested
that he address whether appellant had developed a right knee condition causally related to either
the initial back injury of April 22, 2013 under OWCP File No. xxxxxx033 or to the claim that had
been accepted under OWCP File No. xxxxxx403.
In a second opinion report dated April 12, 2018, Dr. Bush noted that there had been an
initial injury on April 22, 2013, followed by an aggravating injury on May 14, 2013. He listed
OWCP’s case record relevant to his report as File No. xxxxxx403. Dr. Bush noted that the first
record presented in the documents provided was dated May 13, 2013. He noted that appellant
provided him with two MRI scan reports dated April 23, 2015 and March 31, 2016, as well as
medical reports dated October 5, 2015 and June 14, 2017, which are not of record under OWCP
File No. xxxxxx403. Dr. Bush observed that there was reasonable evidence of primary intraarticular pathology of the knee, referencing the MRI scans of April 23, 2015 and March 31, 2016,
which had been provided by appellant. He opined that, within a reasonable degree of medical
3

Effective April 14, 2016, appellant was removed from service.

2

certainty, there was no objective or logical basis for stating a causal relationship between
appellant’s right knee symptoms and the work-related injury of April 22, 2013.
By decision dated May 16, 2018, OWCP denied appellant’s claim for a right knee
consequential injury due to his accepted aggravation of an L5-S1 herniated lumbar disc on May 14,
2013 based on the second opinion examination by Dr. Bush..
The Board finds that this case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), 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. Decisions on claims are based on the written record,
which may include forms, reports, letters, and other evidence of various types such as photographs,
videotapes, or drawings.4 Evidence may not be incorporated by reference, nor may evidence from
another claimant’s case file be used.5 Evidence contained in another of the claimant’s case files
may be used, but a copy of that evidence should be placed into the case file being adjudicated.6
All evidence that forms the basis of a decision must be in that claimant’s case record.7
For a full and fair adjudication of appellant’s claim, the Board finds that the case records
under OWCP File Nos. xxxxxx033, xxxxxx403, and xxxxxx404 must be combined.8 The Board
finds both the hearing representative’s decision dated January 26, 2018 and Dr. Bush in his report
of April 12, 2018 referenced medical evidence that does not appear in the case record under OWCP
File No. xxxxxx403. OWCP has not combined the case records related to appellant’s claims, nor
did it incorporate all referenced evidence into the current case record.9 Because it neglected to
include evidence that helped to form the basis for its determination regarding appellant’s
consequential right knee claim in the current case record (including evidence from OWCP File
No. xxxxxx033), the Board is not in a position to make an informed decision regarding appellant’s
claim.10
Therefore, the case shall be remanded to OWCP to administratively combine OWCP File
Nos. xxxxxx033, xxxxxx403, and xxxxxx404. Following this and any necessary further

4
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
5

Id.

6

Id.

7

Id.

8

See K.T., Docket No. 17-0432 (issued August 17, 2018); L.Z., Docket No. 11-1415 (issued December 12, 2011).

9

See supra note 4 at Chapter 2.400.8c (February 2000) (noting cases should be doubled/combined when correct
adjudication of the issues depends on frequent cross-reference between files).
10
See L.H., Docket No. 17-1960 (issued August 16, 2018); K.P., Docket No. 15-1945 (issued February 10, 2016);
M.C., Docket No. 15-1706 (issued October 22, 2015).

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development, OWCP shall issue a de novo decision on appellant’s claim for a consequential right
knee condition under OWCP File No. xxxxxx403.11
IT IS HEREBY ORDERED THAT the May 16, 2018 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for proceedings consistent
with this opinion of the Board.
Issued: September 17, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

11

See M.M., Docket No. 17-1150 (issued January 28, 2018).

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