United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 21-0968
Issued: March 18, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 10, 2021 appellant filed a timely appeal from a March 18, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 18, 2021 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On November 30, 2020 appellant, then a 49-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 23, 2020 she injured her right hand/wrist
when a large parcel slipped from her hand and caused her hand to bend backward while in the
performance of duty. On the reverse side of the claim form, the employing establishment
acknowledged that her injury had occurred in the performance of duty. It also indicated that
appellant had previously sustained a nonoccupational hand injury. Appellant stopped work on the
date of injury.
In a November 23, 2020 statement, appellant noted that she injured her right hand at work
earlier that day when she was lifting a large box off of a skid, which was at least two feet off the
floor. She explained that the box slipped from her hand, causing her hand to bend backward, which
caused pain in her wrist. Appellant noted that she yelled out in pain and that her supervisor came
to check on her. She indicated that she drafted a statement that would be seeking medical attention.
In a separate statement of even date, appellant noted that when she was lifting a large parcel, it
slipped and injured her right wrist.
In an undated witness statement, C.D., appellant’s supervisor, noted that, on November 23,
2020 at approximately 6:30 p.m., she saw appellant return to the office with a large parcel on a
skid. She stated that she witnessed appellant yell out in pain and saw the parcel was no longer on
the skid. C.D. asserted that appellant was holding her arm and notified her that she had tried
moving the parcel to the floor when it slipped out of her hands and hurt her right wrist. Appellant
also informed C.D. that she previously had surgery on the same wrist, which was the reason why
she was currently on restrictions. C.D. noted that a coworker helped appellant write her statement
before she signed it.
On November 23, 2020 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16).
In a November 24, 2020 medical report, Dr. Paul Saccone, a cosmetic, plastic, and
reconstructive surgeon, reported that a heavy box slipped onto appellant’s right hand and wrist,
and bent them backward at work on November 23, 2020. Appellant complained that she
experienced pain in her wrist when she moved it. Dr. Saccone conducted a physical examination
and diagnosed a right wrist sprain. He noted that her right hand and wrist showed some mild
swelling, but no ecchymosis. Dr. Saccone also noted that appellant had decreased flexion and
extension of her wrist. He indicated that she previously underwent a carpal tunnel release on
September 24, 2018. In a disability certification of even date, Dr. Saccone noted that appellant
was totally incapacitated and required an x-ray to further determine the extent of her injury.
A November 25, 2020 x-ray of the right wrist revealed no fracture or dislocation. In an
attending physician’s report, Part B of the Form CA-16, also dated November 25, 2020,
Dr. Saccone again noted that a heavy box slipped onto appellant’s right hand and wrist, bending
them backward, at work on November 23, 2020. He reported that her right wrist was swelling
with decreased flexion and extension. Dr. Saccone diagnosed right wrist sprain and checked a box
marked “Yes,” indicating that appellant’s condition was caused or aggravated by the described
employment activity. He indicated that she was unable to work.

2

In a December 1, 2020 medical report, Dr. Saccone reiterated his findings and diagnosed
right wrist sprain and pain. In a disability certification of even date, he released appellant to return
to work on December 21, 2020, but indicated that her restrictions would be reevaluated on
December 15, 2020.
In a December 15, 2020 medical report, Dr. Saccone noted that appellant still experienced
pain and cramping in her right wrist. He conducted a physical examination and reiterated his
diagnoses. In a prescription slip of even date, Dr. Saccone prescribed occupational therapy and
again diagnosed a right wrist sprain.
Appellant underwent occupational therapy treatment on December 21 and 23, 2020.
In a January 8, 2021 medical report, Dr. Saccone reported that appellant was feeling better
since she began occupational therapy and that she wanted to return to work. He reiterated his
findings and diagnoses. In a prescription slip of even date, Dr. Saccone again prescribed
occupational therapy. In a disability certification of even date, he indicated that appellant could
return to work on January 9, 2021 with restrictions.
An undated report of work status (Form CA-3) completed by the employing establishment
indicated that appellant returned to full-time modified-duty work with restrictions on
January 9, 2021.
In a February 5, 2021 medical report, Dr. Saccone noted that appellant was doing well after
undergoing occupational therapy. He reiterated his findings and diagnoses. In a prescription slip
of even date, Dr. Saccone recommended that appellant continue occupational therapy. In a
disability certification of even date, he noted that appellant returned to work on January 9, 2021
with restrictions.
In a February 11, 2021 development letter, OWCP requested that appellant submit
additional medical evidence in support of her claim. It afforded her 30 days to respond. No
additional evidence was submitted.
By decision dated March 18, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between the accepted November 23, 2020 employment incident and her diagnosed right wrist
sprain.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
3

Supra note 1.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 7 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident that allegedly occ urred.8 The
second component is whether the employment incident caused a personal injury. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. 11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition, and the
accepted employment incident. 12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.
In Part B of the Form CA-16, attending physician’s report, dated November 25, 2020,
Dr. Saccone diagnosed a right wrist sprain indicated by checking a box marked “Yes” that the
5

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Id.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

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condition was caused or aggravated by an employment activity. The Board has held that a report
that addresses causal relationship with a checkmark, without medical rationale explaining how the
employment incident caused the alleged injury, is of diminished probative value and insufficient
to establish causal relationship. 14 Dr. Saccone did not provide any rationale in support of his
opinion. This report is, therefore, of diminished probative value and insufficient to establish
appellant’s claim.
In medical reports dated November 24, and December 1 and 15, 2020, and January 8 and
February 5, 2021, Dr. Saccone reported that a heavy box slipped onto appellant’s right hand and
wrist, bending it backward, at work on November 23, 2020. He conducted a physical examination
and consistently diagnosed a right wrist sprain. Similarly, in his December 15, 2020 prescription
slip, he diagnosed a right wrist sprain. However, Dr. Saccone did not address causation in his
reports. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship. 15
Moreover, the Board has consistently held that complete medical rationalization is particularly
necessary when there is a preexisting condition involving the same body part, and has required
medical rationale differentiating between the effects of the work-related injury and the preexisting
condition in such cases. 16 For these reasons, these reports are insufficient to establish appellant’s
claim.
OWCP received disability certifications and prescription slips from Dr. Saccone dated
November 24 and December 1, 2020, and January 8 and February 5, 2021. However, Dr. Saccone
did not offer a medical diagnosis or provide an opinion as to whether a diagnosed condition was
causally related to the accepted employment incident. The Board has held that medic al evidence
that does not include a firm diagnosis or an opinion regarding the cause of an employee’s condition
is of no probative value on the issue of causal relationship. 17 This evidence is, therefore,
insufficient to establish appellant’s claim.
Appellant also submitted occupational therapy reports dated December 21 and 23, 2020,
and January 20, 2021. These documents do not constitute competent medical evidence because
an occupational therapist is not considered a “physician” as defined under FECA. 18 Consequently,

14

D.S., Docket No. 21-0037 (issued May 27, 2021); S.C., Docket No. 20-0327 (issued May 6, 2021); A.R., Docket
No. 19-0465 (issued August 10, 2020); Gary J. Watling, 52 ECAB 278 (2001).
15

See O.N., Docket No. 20-0902 (issued May 21, 2021); R.C., Docket No. 19-0376 (issued July 15, 2019).

16

Supra note 13. See also J.H., Docket No. 20-1645 (issued August 11, 2021).

17

R.Q., Docket No. 20-0585 (issued September 10, 2021); S.C., Docket No. 20-0492 (issued May 6, 2021).

18

Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 5
U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 13 at Chapter 2.805.3a(1) (January 2013); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA); S.J., Docket No. 20-1061 (issued December 22, 2020); see also
J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not considered a physician under
FECA).

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their medical findings and/or opinions will not suffice for purposes of establishing entitlement to
compensation benefits. 19
Lastly, appellant submitted a November 25, 2020 x-ray of the right wrist. The Board has
explained, however, that diagnostic studies, standing alone, lack probative value as they do not
address whether the employment incident caused any of the diagnosed conditions. 20 Thus, this
report is also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between her right wrist condition and the accepted November 23, 2020 employment
incident, the Board finds that she has not met her burden of proof to establish her claim. 21
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

19

Id.

20

M.B., Docket No. 19-1638 (issued July 17, 2020); T.S., Docket No. 18-0150 (issued April 12, 2019).

21

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee direct ly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No. 191904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the March 18, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 12-611
Issued: September 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 19, 2012 appellant filed a timely appeal from the December 6, 2011 Office of
Workers’ Compensation Programs’ (OWCP) decision, which denied her request for merit
review. She also timely appealed a merit decision dated July 26, 2011, in which OWCP denied
her claim for compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these issues.
ISSUE
The issues are: (1) whether appellant met her burden of proof to establish that she was
entitled to three hours of compensation for a medical appointment on May 7, 2010; and
(2) whether OWCP properly refused to reopen appellant’s case for further consideration of the
merits of her claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 23, 2007 appellant, then a 60-year-old clerk, filed a traumatic injury claim
alleging that on that same date she sustained an injury after she tripped over a carpet while in the
performance of duty. OWCP accepted her claim for bilateral knee and lower leg contusions as
well as a right knee meniscus tear. It also authorized March 26, 2008 right knee partial
meniscectomy and a June 17, 2009 total left knee arthroplasty. Appellant missed work
intermittently and received disability compensation for appropriate periods.
In an April 19, 2010 disability certificate, Dr. Richard Hindes, a Board-certified
orthopedic surgeon and treating physician, noted that appellant was seen on that date for her left
knee. In a report of the same date, his physician’s assistant noted appellant’s complaints of
continuing left knee pain and indicated that appellant should undergo a magnetic resonance
imaging (MRI) scan of the left lower extremity. In a May 10, 2010 disability certificate,
Dr. Hindes asked that appellant be excused from work on May 7, 2010 for “her MRI [scan]”
appointment.
On May 12, 2010 appellant filed a Form CA-7 claiming compensation for three hours of
leave without pay on May 7, 2010. In a May 21, 2010 telephone call memorandum, the
employing establishment informed OWCP that she was “injured at work” as a reason for the
leave without pay of three hours.
By letter dated March 4, 2011, OWCP requested additional information from appellant
regarding compensation claimed on May 7, 2010. Appellant was advised that if her time lost
was due to a medical condition, she must submit medical evidence that explained how her injury
or condition worsened on that date.
OWCP received a confirmation from Comprehensive MRI dated March 15, 2011
verifying that appellant was seen on March 7, 2010 for an MRI scan of the left knee. Also
received was a note from Dr. Hindes advising that appellant was seen on April 4, 2010 for left
knee pain and it was recommended that she have an MRI scan of the left knee.
By decision dated July 26, 2011, OWCP denied appellant’s claim for disability
compensation on May 7, 2010. It found that the evidence of record failed to support disability
for the claimed period and that appellant did not submit the MRI scan report.
On September 1, 2011 appellant requested reconsideration. She indicated that she
contacted her physician’s office and was informed that “the test was not completed due to metal
artifacts present.” Appellant explained that she was submitting a copy of the letter that she
received from her physician via facsimile that noted that the test was unable to be completed due
to metal artifacts. OWCP received a January 15, 2008 MRI scan read by Dr. Hindes, who noted
that it revealed synovial effusion and anteromedial reticulated soft tissue edema.
In a decision dated December 6, 2011, OWCP denied appellant’s request for
reconsideration on the grounds that the evidence was irrelevant and insufficient to warrant merit
review of the prior decision. It found that, without a copy of the MRI scan report, she had not

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provided sufficient evidence that her absence on May 7, 2010 was related to her accepted
condition.
LEGAL PRECEDENT -- ISSUE 1
For each period of disability claimed, the employee has the burden of proving that he or
she was disabled for work as a result of the accepted employment injury.2 As used in FECA, the
term “disability” means incapacity, because of an employment injury, to earn the wages that the
employee was receiving at the time of injury.3 Disability is thus, not synonymous with physical
impairment, which may or may not result in an incapacity to earn wages.4 Whether a particular
injury caused an employee disability from employment is a medical issue, which must be
resolved by competent medical evidence.5
With respect to claimed disability for medical treatment, section 8103 of FECA provides
for medical expenses, along with transportation and other expenses incidental to securing
medical care, for injuries.6 Appellant would be entitled to compensation for any time missed
from work due to medical treatment for an employment-related condition.7 However, OWCP’s
obligation to pay for medical expenses and expenses incidental to obtaining medical care, such
as loss of wages, extends only to expenses incurred for treatment of the effects of any
employment-related condition. Appellant has the burden of proof, which includes the necessity
to submit supporting rationalized medical evidence.8
OWCP’s procedure manual provides that wages lost for compensable medical
examination or treatment may be reimbursed.9 It notes that a claimant who has returned to work
following an accepted injury or illness may need to undergo examination or treatment and such
employee may be paid compensation for wage loss while obtaining medical services and for a
reasonable time spent traveling to and from the medical provider’s location.10 As a rule, no more
than four hours of compensation or continuation of pay should be allowed for routine medical

2

William A. Archer, 55 ECAB 674 (2004).

3

Patricia A. Keller, 45 ECAB 278 (1993); Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37
ECAB 528 (1986); Elden H. Tietze, 2 ECAB 38 (1948); 20 C.F.R. § 10.5(17).
4

See Fred Foster, 1 ECAB 21 (1947).

5

See Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

6

5 U.S.C. § 8103(a).

7

Vincent E. Washington, 40 ECAB 1242 (1989).

8

Dorothy J. Bell, 47 ECAB 624 (1996); Zane H. Cassell, 32 ECAB 1537 (1981).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16
(December 1995).
10

See also Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

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appointments. Longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care.11
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for bilateral knee and lower leg contusions. Appellant
filed a claim for wage-loss compensation on May 7, 2010 for three hours of leave without pay.
In support of her claim for three hours of wage-loss compensation on May 7, 2010,
appellant submitted a March 15, 2011 certificate from Comprehensive MRI. The disability
certificate contained a notation that she was seen on May 7, 2010 for an MRI scan of the left
knee. Also submitted was a May 10, 2010 disability certificate from Dr. Hindes who asked that
appellant be excused from work on May 7, 2010 for her MRI scan appointment. OWCP found
that appellant did not support her claim of disability, as a copy of the MRI scan had not been
provided and the evidence did not establish that her disability was due to her accepted work
injury.
The record reflects, however, that she was advised by her physician to have an MRI scan
of the left knee that she was indeed seen on May 7, 2010 for an MRI scan of the left knee, that
she has an accepted left knee condition and had authorized left knee surgery on June 17, 2009.
The evidence reflects that appellant attended a medical appointment on May 7, 2010 related to
her accepted condition on May 7, 2010.
As noted, OWCP procedures provide that wage loss for compensable medical
examinations or treatment may be reimbursed. The Board has held that for a routine medical
appointment, a maximum of four hours of compensation is usually allowed.12 Despite the fact
that appellant failed to provide the letter from the MRI scan facility to explain the reason there
was no report, the evidence reflects that appellant was attending a medical appointment for her
accepted condition. Accordingly, the Board finds that appellant is entitled to three hours of
compensation on May 7, 2010 for her appointment with her physician to obtain an MRI scan, as
she requested.
CONCLUSION
The Board finds that appellant has established entitlement to three hours of compensation
on May 7, 2010.

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
12

William A. Archer, 55 ECAB 674 (2004). See id.

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ORDER
IT IS HEREBY ORDERED THAT the July 26, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with the Board’s decision.13
Issued: September 12, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

13

In light of the Board’s finding on the first issue, a finding of whether OWCP properly denied her request for a
merit review is necessary.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Berryville, AR, Employer
__________________________________________

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

Docket No. 10-2305
Issued: August 3, 2011

Case Submitted on the Record

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

JURISDICTION
On September 14, 2010 appellant filed a timely appeal from an August 23, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) which found that she received an
overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $4,512.71 because she concurrently received Social Security Administration (SSA)
benefits from December 1, 2007 through July 3, 2010 while receiving FECA benefits;
(2) whether OWCP properly found that appellant was at fault in the creation of the overpayment
and therefore it was not subject to waiver; and (3) whether OWCP properly required repayment
of the overpayment by deducting $130.00 every 28 days from appellant’s continuing
compensation.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 10, 1999 OWCP accepted that appellant, then a 63-year-old food inspector
who worked an intermittent schedule, sustained employment-related bilateral carpal tunnel
syndrome.2 She stopped work on August 25, 1999 when she underwent bilateral carpal tunnel
releases. Appellant returned to full duty on October 5, 1999. She sustained a recurrence of
disability on March 6, 2000 and was placed on the periodic compensation rolls.
Other than working a few days in January 2001, appellant did not return to federal
employment. She underwent transposition of the ulnar nerve at the right elbow on August 7,
2000 and of the left on September 18, 2000. Appellant had left thumb surgery on November 8,
2000 and January 24, 2002 and right thumb surgery on October 10, 2002. She was referred for
vocational rehabilitation in January 2003 and returned to private employment as a hotel clerk on
August 7, 2003.
By decision dated November 19, 2003, OWCP found that appellant’s actual part-time
earnings fairly and reasonably represented her wage-earning capacity and reduced her wage-loss
compensation accordingly.
On October 6, 2009 SSA informed OWCP that from January 1996 to December 2007
appellant received widow’s benefits based on her husband’s employment record and,
December 2007, she began receiving retirement benefits on her record. SSA noted that she was
not receiving disability benefits. SSA forwarded worksheets showing appellant’s SSA rate with
and without federal retirement (FERS) benefits from December 2007 through December 2009.
OWCP thereafter reduced appellant’s FECA benefits to reflect the contribution to her SSA
benefits, effective July 4, 2010. A June 18, 2010 OWCP worksheet indicated that the 28-day
FERS offset for this period totaled $4,512.71.
On July 19, 2010 OWCP issued a preliminary finding that a $4,512.71 overpayment of
compensation had been created. It explained that the overpayment occurred because a portion of
appellant’s SSA benefits that she began receiving in December 2007 was based on credits earned
while working in the Federal Government and constituted a prohibited dual benefit. OWCP
noted that appellant’s FECA benefits were adjusted effective July 4, 2010 but she was overpaid
from December 1, 2007 through July 3, 2010. Appellant had received SSA benefits on her
husband’s employment record until December 2007, at which time she began receiving benefits
based on her own federal employment. OWCP found her at fault in the creation of the
overpayment because she had responded “no” on OWCP EN1032 forms which asked whether
she was in receipt of benefits from SSA based on federal service. It explained that appellant
should have been aware of the need to report SSA benefits based on federal service. On EN1032
forms signed by appellant on September 7, 2007, September 18, 2008, October 19, 2009 and
November 4, 2010, she answered “no” to the form question: “Do you receive benefits from the
SSA as part of an annuity for Federal Service?” Each form covered the 15 months prior to its
completion and had a certification clause which required appellant to report any change in
income from federally assisted disability or benefit programs.
2

Appellant worked as a chicken inspector at Tysons Foods. Additional accepted conditions are bilateral ulnar
nerve neuritis and left trigger thumb.

2

On August 12, 2010 appellant requested that OWCP make a decision based on the
written record. She disagreed that the overpayment occurred, with the amount of the
overpayment and with the fault determination, stating that she did not start drawing SSA benefits
on her employment record until June 2008. Appellant did not know SSA had anything to do
with FERS and that she was told that she did not have to report the SSA benefit. She attached a
completed overpayment questionnaire in which she reported monthly income of $1,631.27,
expenses of $1,926.10 and that she intended to file for bankruptcy.
In an August 23, 2010 decision, OWCP found appellant at fault in the creation of the
overpayment because she did not report receipt of SSA benefits based on federal service. It
directed repayment by deducting $130.00 every four weeks from her continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.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 of the implementing
regulations provide that an employee may not receive compensation for total disability
concurrently with separation pay.5 FECA Bulletin No. 97-9 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.6 When OWCP discovers concurrent
receipt of benefits, it must find an overpayment in compensation and give the usual due process
rights.7
ANALYSIS -- ISSUE 1
The record establishes that appellant received FECA wage-loss compensation based on a
November 19, 2003 wage-earning capacity determination and SSA benefits from September 1,
2007 through July 3, 2010. The portion of the SSA benefits she earned as a federal employee
was part of her FERS retirement package and the receipt of benefits under FECA and federal
retirement benefits concurrently is a prohibited dual benefit.8 The SSA notified OWCP of the
applicable SSA rates for appellant and their effective dates. Based on these rates, OWCP was
able to calculate the dual benefit she received from December 1, 2007 through July 3, 2010. The
Board has reviewed these calculations and finds that OWCP properly determined that appellant
3

5 U.S.C. § 8102(a).

4

Id. at § 8116(a).

5

20 C.F.R. § 10.421(c); see L.J., 59 ECAB 264 (2007).

6

FECA Bulletin No. 97-9 (issued February 3, 1997).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.d(4) (April 1996).

8

Supra note 6.

3

received dual benefits totaling $4,512.71 for this period, thus creating an overpayment in
compensation in that amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”9
Section 10.433(a) of OWCP’s regulations provide that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”10
In determining whether a claimant is at fault in creating an overpayment, OWCP will
consider the circumstances surrounding the overpayment. The degree of care expected by a
recipient of compensation may vary with the complexity of the circumstances and the
individual’s capacity to realize that he or she is being overpaid.11
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the overpayment in
compensation because she failed to provide information which she knew or should have known
to be material. Each recipient of compensation benefits is responsible for taking all reasonable
measures to ensure that payments he or she receives are proper.12 The recipient must show good
faith and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits.13
9

5 U.S.C. § 8129; see Joan Ross, 57 ECAB 694 (2006).

10

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

11

Id. at § 10.433(b); see Neill D. Dewald, 57 ECAB 451 (2006).

12

Danny E. Haley, 56 ECAB 393 (2005).

13

Sinclair L. Taylor, supra note 10.

4

On OWCP EN1032 forms signed on September 7, 2007, September 18, 2008,
October 19, 2009 and November 4, 2010, appellant failed to report receipt of her SSA benefits.
On each form she responded “no” in response to a specific form question regarding whether she
had received benefits from the SSA as part of an annuity for federal employment. Each form
covered the 15 months prior to its completion and had a certification clause which required
appellant to report any change in income from federally assisted disability or benefit programs.
As appellant did not report her SSA benefit when clearly instructed to on OWCP’s EN1032
forms she certified by her signature, the Board finds that she failed to provide information which
she knew or should have known to be material. OWCP properly found her at fault in the
creation of the $4,512.71 overpayment. Under section 10.433(a) of OWCP’s regulations,
appellant is at fault and is not entitled to waiver of the overpayment in compensation.14
LEGAL PRECEDENT -- ISSUE 3
OWCP’s implementing regulations provide that, if an overpayment of compensation has
been made to an individual entitled to further payments and no refund is made, OWCP shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.15
ANALYSIS -- ISSUE 3
The Board finds that OWCP did not give due regard to the relevant factors noted above in
setting a rate of recovery of $130.00 per compensation period. Appellant’s 28-day FECA
compensation was reduced to $136.16 on July 4, 2010. The record indicates that she has no
discretionary income. The August 23, 2010 decision does not address how any of the factors
pertaining to appellant’s financial circumstances were considered in setting the repayment
schedule. The Board finds that OWCP abused its discretion in finding that appellant should
repay her overpayment at the rate of $130.00 per compensation period. The case will be
remanded for OWCP to further develop the issue of recovery. After appropriate further
development, OWCP shall issue a final decision on an appropriate rate of recovery from
continuing compensation.
Lastly, the Board notes that OWCP’s procedures require that the potential for a
permanent impairment is to be monitored by OWCP claims examiner and if it appears that a
schedule award may be payable, the claims examiner should advise the claimant of his or her
possible entitlement to such an award.16 The record does not indicate that such was done in this
case.

14

Id.

15

20 C.F.R. § 10.441(a).

16

Federal (FECA) Procedure Manual, supra note 7, Evaluating Potential Permanent Disability or Impairment,
Chapter 2.808.3 (January 2010).

5

CONCLUSION
The Board finds that OWCP properly found appellant at fault in the creation of an
overpayment in compensation in the amount of $4,512.71 for the period December 1, 2007
through July 3, 2010 and was thus not entitled to waiver. The Board, however, finds that OWCP
abused its discretion by recovering $130.00 every 28 days from appellant’s continuing FECA
compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, in part and set aside, in part. The case is
remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: August 3, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, SPRINGFIELD POST
OFFICE, Springfield, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1193
Issued: March 15, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 2, 2021 appellant, through counsel, sought an appeal from a purported July 27,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Boards assigned Docket No. 21-1193.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act
(FECA).3 This jurisdiction encompasses any final decision issued by OWCP within 180 days of

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

The case record also contains March 24 and June 30, 2021 decisions of OWCP. As counsel did not appeal from
those decisions, the Board will not consider them in this appeal. See 20 C.F.R. § 501.3; see also D.E., Docket No. 210531 (issued June 16, 2021).
3

5 U.S.C. § 8101 et seq; 20 C.F.R. §§501.2(c) and 501.3(a).

the date appellant filed his appeal.4 The Board notes that the case record does not contain a final
adverse decision of OWCP dated July 27, 2021.5
As there is no final adverse decision of OWCP, appealed by counsel within 180 days of
the filing of this appeal, the Board concludes that the appeal docketed as No. 21-1193 must be
dismissed.6
Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1193 is dismissed.
Issued: March 15, 2022
Washington, DC

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

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

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

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
4

5

By order dated July 27, 2021, the Board dismissed, at counsel’s request, a timely appeal from the March 24, 2021
merit decision. Order Dismissing Appeal, Docket No. 21-0762 (issued July 27, 2021). That order became final upon
the expiration of 30 days from the date of its issuance and is not subject to further review. 20 C.F.R. § 501.6(d).
6

Id.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, New York, NY, Employer
__________________________________________

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Appearances:
Willie Jones, for the appellant
No appearance, for the Director

Docket No. 09-2026
Issued: February 16, 2010

Oral Argument December 3, 2009

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

JURISDICTION
On August 4, 2009 appellant, through her representative, filed a timely appeal from a
June 3, 2009 merit decision of the Office of Workers’ Compensation Programs denying her
schedule award claim and a July 16, 2009 nonmerit decision denying her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether appellant has established that she is entitled to a schedule
award; and (2) whether the Office properly denied her request for further review of the merits of
her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On December 22, 1999 appellant, then a 45-year-old secretary, filed a claim alleging that
she sustained a traumatic injury to her neck and the right side of her arm, back and leg on that

date while shooting at a firing range. The Office accepted the claim, assigned file number
xxxxxx399, for neck strain and lumbosacral strain.1
On May 1, 2009 the Office requested that appellant submit an impairment evaluation
from her attending physician in accordance with the American Medical Association, Guides to
the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides). It provided her 30
days to submit the requested impairment evaluation.
By decision dated June 3, 2009, the Office denied appellant’s claim for a schedule award.
It noted that she had not submitted an impairment evaluation in support of her claim.
In a letter dated June 5, 2009, submitted in reference to subsidiary file number
xxxxxx428, Dr. Michael Katz, a Board-certified orthopedic surgeon, informed the Office that he
was waiting to receive the sixth edition of the A.M.A., Guides before evaluating the extent of
appellant’s permanent impairment.
On June 25, 2009 appellant requested reconsideration. She noted that her attending
physician, Dr. Katz, had requested clarification from the Office regarding how to complete the
schedule award evaluation forms. In a decision dated July 16, 2009, the Office denied
appellant’s request for reconsideration after finding that the evidence submitted was insufficient
to warrant reopening the case for further merit review.
On appeal appellant argues that the Office erred in denying her claim because on June 5,
2009, Dr. Katz, her attending physician, had requested additional time to perform his impairment
evaluation under the sixth edition of the A.M.A., Guides.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing federal regulations,3 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all

1

In a decision dated August 11, 2005, the Board set aside January 27 and April 29, 2003 decisions issued under
file number xxxxxx428 and December 18, 2002 and April 7, 2003 decisions issued under file number xxxxxx887.
The Board noted that appellant had sustained prior work injuires on May 6 and December 22, 1999, assigned file
numbers xxxxxx428 and xxxxxx399. The Board remanded the case for the consolidation of all her prior claims
relevant to the same body part. Docket Nos. 03-1741 & 03-1874. On January 4, 2006 the Office informed appellant
that claims xxxxxx399, xxxxxx428 and xxxxxx887 had been consolidated under file number xxxxxx428.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

claimants.4 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.5
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.6 Office
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.7
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for neck strain and lumbosacral strain. Appellant
requested a schedule award; however, the Office denied her schedule award claim after finding
that she did not establish that she sustained a permanent impairment resulting from her work
injury.
Appellant has not submitted sufficient evidence to establish that, as a result of her
employment injury, she sustained any permanent impairment to a scheduled member such that
she would be entitled to a schedule award. On May 1, 2009 the Office informed her of the type
of evidence necessary to establish her schedule award claim and specifically requested that she
submit an impairment evaluation from her attending physician in accordance with the sixth
edition of the A.M.A., Guides. Appellant did not submit an impairment evaluation. It is her
burden of proof to establish that she sustained a permanent impairment of a scheduled member
as a result of an employment injury.8 The medical evidence must include a description of any
physical impairment in sufficient detail so that the claims examiner and others reviewing the file
would be able to clearly visualize the impairment with its resulting restrictions and limitations.9
Appellant did not submit such evidence and thus the Office properly denied her schedule award
claim.
On appeal appellant argues that, on June 5, 2009, Dr. Katz requested additional time to
perform his impairment evaluation under the sixth edition of the A.M.A., Guides. She contends
that the Office should not have denied the claim as her physician requested additional
information. The Office, however, did not receive Dr. Katz’s June 5, 2009 letter until June 8,

4

Id. at § 10.404(a).

5

FECA Bulletin No. 09-03 (issued March 15, 2008).

6

Tammy L. Meehan, 53 ECAB 229 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6(b) (August 2002).
8

See Tammy L. Meehan, supra note 6.

9

See A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009).

3

2009, subsequent to its June 3, 2009 decision denying her schedule award. Further, as discussed,
it is appellant’s burden to establish medical evidence showing a permanent impairment.10
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,11 the Office’s regulations provide that 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) submit relevant and pertinent new evidence not
previously considered by the Office.12 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.13 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.14
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.15 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.16 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.17
ANALYSIS -- ISSUE 2
In its June 3, 2009 decision, the Office determined that appellant had not established a
permanent impairment of a scheduled member such that she would be entitled to a schedule
award. It found that she had not submitted an impairment evaluation as requested.
In her request for reconsideration, appellant contended that her attending physician,
Dr. Katz, had requested clarification from the Office regarding how to perform an impairment
evaluation. Her argument, however, is not relevant to the pertinent issue of whether the medical
evidence establishes that she has a permanent impairment of a scheduled member. The issue in
this case is medical in nature and can only be resolved through the submission of probative
10

See Tammy L. Meehan, supra note 6.

11

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[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.”
12

20 C.F.R. § 10.606(b)(2).

13

Id. at § 10.607(a).

14

Id. at § 10.608(b).

15

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

16

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

17

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

4

medical evidence from a physician.18 Evidence that does not address the particular issue
involved does not warrant reopening a case for merit review.19
In a letter dated June 5, 2009, provided under file number xxxxxx428, Dr. Katz informed
the Office that he was awaiting receipt of the sixth edition of the A.M.A., Guides before
conducting his impairment evaluation. His letter, while informative, is not pertinent to the issue
of whether appellant has established a permanent impairment of a scheduled member such that
she is entitled to a schedule award; consequently, it is insufficient to warrant reopening her case
for further review of the merits.20
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advanced a relevant legal argument not previously considered by the Office or submitted
new and relevant evidence not previously considered. As she did not meet any of the necessary
regulatory requirements, she is not entitled to further merit review.21
CONCLUSION
The Board finds that appellant has not established that she is entitled to a schedule award.
The Board further finds that the Office properly denied her request for further review of the
merits of her claim under section 8128.

18

Gloria J. McPherson, 51 ECAB 441 (2000).

19

Freddie Mosley, 54 ECAB 255 (2002).

20

See Patricia G. Aiken, 57 ECAB 441 (2006); Johnnie B. Causey, 57 ECAB 359 (2006).

21

Appellant submitted new medical evidence subsequent to the Office’s July 16, 2009 decision, included in file
number xxxxxx428. The Board has no jurisdiction to review new evidence on appeal; see 20 C.F.R. § 501.2(c).
Appellant can resubmit this evidence to the Office and request reconsideration under 5 U.S.C. § 8128.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 16 and June 3, 2009 are affirmed.
Issued: February 16, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Hanover, MD, Employer
__________________________________________

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

Docket No. 16-0124
Issued: March 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 26, 2015 appellant filed a timely appeal from a May 1, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits, effective May 3, 2015, as she was no longer disabled due to her accepted
work-related conditions.
FACTUAL HISTORY
On September 5, 2013 appellant, then a 34-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) for an injury sustained on July 12, 2013 while boarding an airplane in
1

5 U.S.C. § 8101 et seq.

the performance of her federal duties. She had a backpack on her back and was pulling her
carry-on luggage when her foot caught onto the jet bridge. Appellant fell forward with all the
weight on her back. She stopped work on September 6, 2013 and claimed compensation from
that date forward. OWCP accepted the claim for degeneration of lumbar or lumbosacral
intervertebral disc, displacement of lumbar intervertebral disc without myelopathy, and sciatica.
Appellant received on the periodic rolls as of December 15, 2013.
In a May 2, 2014 report, Dr. Peter Rinaldi, a Board-certified family practitioner, opined
that appellant was unable to perform the essential functions of her position. In a work capacity
evaluation, he provided work restrictions. Dr. Rinaldi advised that appellant had major
psychological stress from her disability which affected her athletic lifestyle and ability to work.
He also noted that she was on narcotic pain medication which impacted driving and cognition.
In a June 5, 2014 report, Dr. Vivian M. Moise, a Board-certified physiatrist, noted
appellant’s history of injury and advised that the negative electromyelogram (EMG) and negative
magnetic resonance imaging (MRI) scan reports showed no significant nerve impingement or
disc touching the left L5 nerve root, which was thought to be a possible etiologic factor for her
ongoing pain. She indicated that even after biofeedback and left L5 nerve block treatment, she
did not believe appellant would ever be able to safely return to her prior occupation. On July 31,
2014 Dr. Moise opined that appellant was not a surgical candidate and would be at maximum
medical improvement (MMI) after a trial of biofeedback and repeat left L5 injections. She
opined that appellant would need a permanent lighter-duty job, without prolonged sitting.
Dr. Moise indicated that appellant’s lumbar strain was unchanged.
On May 12, 2014 OWCP referred appellant to Dr. Alfred I. Blue, a Board-certified
orthopedic surgeon, for a second opinion examination to determine appellant’s disability status.
Appellant underwent a functional capacity evaluation (FCE) on July 23, 2014 by
J. Zachary Strandy, a physical therapist. In this report Mr. Strandy noted that, while appellant
gave maximal effort, some symptom magnification appeared to be present. Appellant’s high
pain reports were not consistently supported by objective signs of discomfort, decline in
performance or acute signs of distress. Mr. Strandy related that appellant’s perception of her
abilities was less than what she actually could do. He further explained that appellant presented
with organic impairments secondary to her work injury, which resulted in functional limitations,
ultimately affecting her work tolerance and abilities. Mr. Strandy found that appellant
demonstrated full-time work ability, with restrictions. Restrictions were at the sedentary
physical demand level, with limited walking, standing, and sitting.
On August 14, 2014 OWCP received the second opinion report from Dr. Blue. Dr. Blue
noted appellant’s history of injury and his review of the statement of accepted facts and the
complete medical record. He provided examination findings (from a June 7, 2014 examination)
and diagnosed mechanical low back pain with degenerative changes aggravated by a July 12,
2013 work injury. Dr. Blue reported that appellant’s lower back had not returned to preinjury
status. He noted that there was no evidence of EMG changes and thus no definite permanent
weakness by EMG. Dr. Blue found appellant at MMI. He noted that appellant had undergone an
FCE and that, based on that evaluation, it was his opinion that appellant did not have any work
restrictions and should not require a work hardening program. Dr. Blue explained that there

2

were no restrictions related to the work injury based on his examination and the fact that the FCE
noted symptom magnification.
In an August 18, 2014 report, Dr. Rinaldi advised that appellant was incapable of ever
returning to her prior position as a federal air marshal. He advised that this opinion was
supported by Dr. Moise and by the July 23, 2014 the FCE.
OWCP determined that a conflict of medical opinion existed between appellant’s treating
physicians, Dr. Rinaldi and Dr. Moise, and OWCP’s second opinion physician, Dr. Blue,
regarding appellant’s ability to return to work. Therefore an impartial evaluation was arranged
with Dr. Lowell Anderson, a Board-certified orthopedic surgeon, to resolve the conflict in
medical opinion.
In an October 30, 2014 report, Dr. Anderson reviewed appellant’s history of injury, the
statement of accepted facts (SOAF), and appellant’s medical record. He thereafter set forth
examination findings. Dr. Anderson determined that, based on his examination findings and
inconsistency with her history and other sources of information, appellant did not have any
work-related disability from the July 12, 2013 work injury. He indicated that her history and
examination findings were inconsistent with subjective complaints. Dr. Anderson explained that
nonphysiologic findings, including symptom magnification indicated that she was capable of
performing her date-of-injury job. He indicated that appellant had no significant limitations that
could be documented with objective findings or contemporaneous medical records. No imaging
studies or diagnostic studies corroborated her subjective complaints. Dr. Anderson opined that
MMI had been reached but, due to appellant’s conviction that she was disabled, it was unlikely
that she would be able to return to full-time, full-duty work activity. He opined that appellant
had no significant limiting factors that would preclude her from returning to unrestricted work
activity. Dr. Anderson, therefore, opined that appellant could perform the physical activities
described in the job analysis.
On November 19, 2014 OWCP issued a notice of proposed termination of wage-loss
compensation benefits to appellant. It credited that Dr. Anderson’s impartial medical opinion
constituted the special weight of the medical evidence and established that appellant no longer
was disabled from work due to her work injury. Appellant was provided 30 days in which to
submit additional evidence or argument.
OWCP received a December 15, 2014 narrative statement from appellant. Appellant
expressed her concerns that both Dr. Anderson and Dr. Blue’s opinions, which found that she
could return to work, conflicted with the FCE performed by Mr. Strandy.
In a January 8, 2015 report, Dr. Rinaldi diagnosed subacute lumbar radiculopathy,
herniated lumbar intervertebral disc, anxiety, depression and insomnia unspecified and indicated
that appellant’s work capacity had not changed.
By decision dated May 1, 2015, OWCP terminated appellant’s wage-loss compensation
benefits, effective May 3, 2015, as the special weight of the medical evidence of file established
that she was no longer disabled from work as a result of the July 12, 2013 work injury.
Appellant’s claim remained open for medical treatment.

3

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.2 Its burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.3
Section 8123(a) of FECA 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.4 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.5 In situations where there exist opposing medical reports of virtually
equal weight and rationale and the case is referred to an impartial medical specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.6
ANALYSIS
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
benefits as her accepted conditions no longer caused disability.7
OWCP accepted appellant’s claim for aggravation of sciatica, aggravation of
displacement of lumbar intervertebral disc without myelopathy, and aggravation of degeneration
of lumbar or lumbosacral intervertebral disc. It terminated her wage-loss compensation benefits
finding that the accepted employment-related conditions no longer caused disability based on the
opinion of the impartial medical examiner, Dr. Anderson. It is OWCP that bears the burden to
justify modification or termination of benefits.8
OWCP referred appellant to Dr. Anderson to resolve the conflict in medical opinion
between appellant’s treating physicians, Drs. Rinaldi and Moise, who opined that she continued
to be totally disabled, and the OWCP referral physician Dr. Blue, who found appellant was at
2

Jason C. Armstrong, 40 ECAB 907 (1989).

3

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

4

5 U.S.C. § 8123(a).

5

20 C.F.R. § 10.321.

6

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

7

See H.P., Docket No. 15-0568 (issued September 14, 2015).

8

See Curtis Hall, 45 ECAB 316 (1994); see also K.B., Docket No. 15-11 (issued April 7, 2015).

4

MMI and had no restrictions related to the work injury. OWCP referred appellant to
Dr. Anderson to resolve the conflict in medical opinion evidence, pursuant to 5 U.S.C. § 8123(a).
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits based on the October 30, 2014 referee opinion of Dr. Anderson.
Dr. Anderson reviewed the SOAF and the medical record, including the FCE, and set forth
examination findings. He noted that appellant’s history and examination findings were
inconsistent with subjective complaints and that nonphysiologic findings, symptom
magnification, and alternate source of information supported that she was capable of performing
her date-of-injury job. Dr. Anderson found no significant limitations that could be documented
with objective findings or contemporaneous medical records and the imaging studies and
diagnostic studies did not corroborate her subjective complaints. He opined that MMI had been
reached but, due to appellant’s disability conviction, it was unlikely that she would be able to
return to full-time, full-duty work activity. Dr. Anderson reiterated the significant discrepancy
between the subjective complaints and objective findings on physical examination, imaging
studies and electrodiagnostic studies, as well as observed activities. He opined that appellant had
no significant limiting factors that would preclude her from returning to unrestricted work
activity and opined that she could perform the physical activities described in the job analysis.
The Board finds that Dr. Anderson’s report represents the special weight of the medical
evidence and OWCP properly relied on his report in terminating appellant’s wage-loss
compensation benefits. The Board finds that he had full knowledge of the relevant facts and
evaluated the course of her condition, he is a specialist in the appropriate field, his opinion is
based on proper factual and medical history, and his report contained a detailed summary of this
history. Dr. Anderson addressed the medical records and made his own examination findings to
reach a reasoned conclusion regarding appellant’s condition and to support her full-duty release.9
At the time appellant’s wage-loss compensation benefits were terminated, he found no basis on
which to attribute continued disability to her accepted conditions. Dr. Anderson’s opinion as set
forth in his October 30, 2014 report is found to be probative evidence and reliable. The Board
finds that his opinion constitutes the special weight of the medical evidence and is sufficient to
justify OWCP’s termination of wage-loss compensation benefits.
In his January 8, 2015 report, Dr. Rinaldi opined that appellant’s work capacity had not
changed. However, he offered no objective findings to support such a conclusion and diagnosed
additional medical conditions, which have not been accepted by OWCP as causally related to the
July 12, 2013 employment injury.10 Thus, Dr. Rinaldi’s report is of diminished probative value
and is insufficient to overcome the special weight properly accorded to Dr. Anderson’s report as
the impartial medical examiner, or to create a new conflict.11 Reports from a physician who was
9

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).
10

See T.M., Docket No. 08-975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as
being due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence).
11

See Dorothy Sidwell, 41 ECAB 857 (1990); J.M., Docket No. 11-1257 (issued January 18, 2012).

5

on one side of a medical conflict that an impartial medical examiner resolved are generally
insufficient to overcome the weight of the impartial medical examiner, or to create a new
conflict.12
On appeal, and before OWCP, appellant argues that her treating physicians and the FCE
supports that she cannot return to her date-of-injury position. However, the Board finds that the
special weight of the medical opinion evidence rests with the opinion of Dr. Anderson who
opined that appellant was no longer disabled from work based on his review of the entire case
file, a thorough physical examination and provided a well-reasoned and unequivocal medical
opinion sufficient to resolve the conflict in medical opinion evidence.
CONCLUSION
The Board finds OWCP properly terminated appellant’s wage-loss compensation benefits
as she is no longer disabled from work due to her accepted conditions.
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

D.V., Docket No. 15-1895 (issued February 22, 2016); see also I.J., 59 ECAB 408 (2013).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brunswick, ME, Employer
__________________________________________

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

Docket No. 07-1814
Issued: June 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 28, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 30 and June 7, 2007 merit decisions finding that he did not
sustain an injury in the performance of duty on January 23, 2006. 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 in the performance of duty on
January 23, 2006.
FACTUAL HISTORY
On January 24, 2006 appellant, then a 63-year-old clerk, filed a traumatic injury claim for
compensation for a slip and fall on ice in the employing establishment’s parking lot on
January 23, 2006. He indicated that the injury occurred at 4:45 p.m. and that he landed on his
back. Appellant’s supervisor, Bobby-Jo Watson, checked a box on the form to indicate that he
was not considered to be in the performance of duty when the injury occurred. She reported that

appellant’s regular duty hours were 5:00 a.m. to 2:00 p.m. and that he had “clocked out for the
day” at 4:03 p.m. In support of his claim, appellant submitted reports of Dr. Timothy Manahan,
an attending osteopath, dated January 25 to November 24, 2006.
In a January 26, 2006 statement, appellant indicated that on January 23, 2006 he had
“clocked out” at the tenth-hour as he did not want to incur penalty time. He asserted that he
returned to his office and worked on pay statements regarding vehicle repairs for about
45 minutes. Appellant indicated that he was to retire on about February 3, 2006 and he wanted
to wrap up unfinished projects.
In an April 19, 2006 letter, the Office advised appellant of the factual and medical
evidence needed to establish his claim. In a May 2, 2006 letter, appellant reiterated that he
slipped on a patch of ice in the employing establishment’s parking lot and landed on his back.
He stated that two people witnessed the fall and helped him to get up. In an April 27, 2006
report, Dr. Manahan opined that appellant sustained muscle spasms, neck pain, thoracic pain and
lumbar pain as a result of his January 23, 2006 fall.
In a January 3, 2007 letter, the Office requested additional information from the
employing establishment. In a January 26, 2007 response, Doris Baker advised that penalty
overtime occurs when an employee works more than 10 hours in 1 day. She indicated that such
an employee would be paid double time in wages. Ms. Baker stated that appellant incurred three
minutes of penalty overtime on January 23, 2006. She stated that she was not aware that
appellant was working “off the clock” and noted that he was not authorized by management to
work beyond 10 hours per day. Ms. Baker indicated that appellant retired 10 days after the
injury and pointed out that he “stated he wanted to make sure that all work was complete prior to
his retirement.”
In a January 30, 2007 decision, the Office denied appellant’s claim. It found that
appellant was not injured in the performance of duty on January 23, 2006 as he was not required
or authorized to work the additional time of 45 minutes just prior to the claimed injury.
On February 16, 2007 appellant requested a review of the written record by an Office
hearing representative. In a February 16, 2007 letter, he indicated that the work he did off the
clock was part of his regular duties and the additional accounting duties he took over. Appellant
stated that such work had to be completed before his February 3, 2006 retirement. In a
February 5, 2007 letter, he stated that Ms. Baker was not working at the employing establishment
on January 23, 2006 and would not have had knowledge of what transpired on that date.
Appellant asserted that his supervisor, Ms. Watson, knew that he was “working over” to finish
the necessary paperwork and was well aware that he had been working a minimum of 10 hours
per day to perform his regular duties along with the additional accounting duties.
In a February 13, 2007 statement, Richard Barrett, a coworker, noted that he was
employed from 1981 to 2005 and “during this time frame, on numerous occasions, management
was aware of [appellant] working off the clock.” In a February 13, 2007 statement, another
coworker1 noted that he worked with appellant for 13 years prior to his retirement and indicated
1

The name is not entirely legible.

2

that he “consistently worked in the Brunswick Post Office Building, with supervisor and
postmaster knowledge, while he was not on the clock. He was doing vehicle paperwork on
supplies in the basement.”
In a June 7, 2007 decision, the Office hearing representative affirmed the Office’s
January 30, 2007 decision. He found that appellant’s January 23, 2006 injury was not sustained
in the performance of duty as it occurred at an unreasonable interval of time after his work shift
ended.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides for the payment of compensation
for “the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.”3 The phrase “sustained while in the performance of duty” has been
interpreted by the Board to be the equivalent of the commonly found prerequisite in workers’
compensation law of “arising out of and in the course of employment.”4 The phrase “in the
course of employment” is recognized as relating to the work situation and more particularly,
relating to elements of time, place and circumstance. To arise in the course of employment, an
injury must occur at a time when the employee may reasonably be said to be engaged in the
master’s business, at a place where he may reasonably be expected to be in connection with the
employment and while he was reasonably fulfilling the duties of his employment or engaged in
doing something incidental thereto.”5 This alone is not sufficient to establish entitlement to
benefits for compensability. The concomitant requirement of an injury “arising out of the
employment” must be shown and this encompasses not only the work setting but also a causal
concept, the requirement being that the employment caused the injury.6
As to employees having fixed hours of work, injuries occurring on the premises of the
employing establishment, while the employee is going to or from work, before or after working
hours or at lunch time, are compensable. Given this rule, the Board has noted that the course of
employment for employees having a fixed time and place of work includes a reasonable time
while the employee is on the premises engaged in incidental acts and is based on the
circumstance of the employee’s activity.7 However, presence at the employing establishment’s
premises during work hours or a reasonable period before or after a duty shift, is insufficient, in
and of itself, to establish entitlement to benefits for compensability. The claimant must also
establish the concomitant requirement of an injury arising out of the employment. This
encompasses not only the work setting, but also the causal concept that some factor of the
employment caused or contributed to the claimed injury. In order for an injury to be considered
2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8102(a).

4

Charles Crawford, 40 ECAB 474, 476-77 (1989).

5

Mary Keszler, 38 ECAB 735, 739 (1987).

6

Eugene G. Chin, 39 ECAB 598, 602 (1988).

7

Maryann Battista, 50 ECAB 343 (1999).

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as arising out of the employment, the facts of the case must show substantial employer benefit is
derived or an employment requirement gave rise to the injury.8
In cases in which coverage has been extended, some substantial employer benefit or
requirement has been shown. In Catherine Callen,9 coverage was extended to a legal secretary
who sustained a fractured left wrist after she fell over a chair. The injury occurred at 11:00 p.m.,
following her regular tour of duty which stopped at 5:00 p.m. The Board noted that the
employee’s presence on the premises that Friday evening was to complete a project for an
attorney at the employing establishment which had been requested earlier that day in order that
she could work on it during the weekend as the materials were needed the following Monday.
That Friday was her last day at the employing establishment prior to her relocation to a
U.S. Attorney’s office across the country. The Board noted that there was no express prohibition
concerning her overtime work and the record established a substantial employer benefit from her
presence at work.
ANALYSIS
In the present case, appellant had fixed hours from 5:00 a.m. to 2:00 p.m. On January 23,
2006 he “clocked out” at 4:03 p.m. after working approximately 10 hours, which the employing
establishment verified. Thus, the evidence establishes that on January 23, 2006 appellant’s
workday ended at 4:03 p.m. Appellant’s injury, a slip and fall in the employing establishment’s
parking lot, occurred at 4:45 p.m., approximately 45 minutes after the workday ended. As noted
above, a claimant’s presence at the employing establishment’s premises, a reasonable period
after a duty shift, would be insufficient, in and of itself, to establish entitlement to benefits for
compensability. A claimant must also establish the concomitant requirement of an injury arising
out of the employment, i.e., the causal concept that some factor of the employment caused or
contributed to the claimed injury.10
The Board notes that it would be instructive to compare the circumstances of the present
case with those of the above-cited case of Callen. In both cases, it is clear that some type of
regular or specially assigned duties were performed. In Callen, the employee was completing a
project for an attorney on her last day at the employing establishment prior to her relocation to a
U.S. Attorney’s office across the country. In the present case, appellant worked on pay
statements regarding vehicle repairs and performed other regular and specially assigned
accounting duties that had to be finished before he retired in about 10 days. Given the nature of
the duties in both instances and urgent need for them to be completed, it can be said that
substantial employer benefit was derived in both instances. In Callen, the employee’s supervisor
did not have direct knowledge of the employee’s presence on site after hours, but on the same
day he did specifically assign her the task she was working on when she was injured. In the
present case, it is not entirely clear whether appellant’s supervisor, Ms. Watson, knew that he
was working after hours on January 23, 2006. However, too much emphasis should not be
8

Cheryl Bowman, 51 ECAB 519 (2000); Shirlean Sanders, 50 ECAB 299 (1999).

9

47 ECAB 192 (1995).

10

See supra note 8 and accompanying text.

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placed on whether there was actual knowledge by appellant’s supervisor that appellant was
working after hours on January 23, 2006. In Callen, the Board emphasized that, regardless if
there was actual knowledge of the employee’s working after hours, there was no express
prohibition concerning the performance of such work.
In the present case, there is no evidence that appellant was expressly prohibited from
working after hours. Statements from appellant’s coworkers suggest that management knew that
employees were performing after-hours work and generally tolerated it. Much like in Callen,
appellant was performing work of an urgent nature which was of substantial benefit to the
employer. In Callen, the accepted injury occurred a full five hours after the employee had
clocked out for the day. In the present case, appellant’s claimed injury on January 23, 2006
occurred only about 45 minutes after he clocked out for day. The Board finds that, particularly
when one considers the incidental nature of appellant’s activity, the claimed injury occurred
during a reasonable interval after the end of his workday. Given the high level of the benefits of
appellant’s work to the employer, the fact that his working after hours was not expressly
prohibited and the occurrence of the alleged incident within a reasonable interval after clocking
out for the day, the Board finds that appellant’s fall on January 23, 2006 occurred in the
performance of duty.
CONCLUSION
The Board finds that the alleged incident on January 23, 2006 occurred in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 7 and January 30, 2007 decisions are reversed and the case is remanded for further action
consistent with this decision.
Issued: June 19, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF COMMERCE, 2010
DECENNIAL CENSUS, Dallas, TX, Employer
__________________________________________

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

Docket No. 13-937
Issued: August 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 11, 2013 appellant, though counsel, filed a timely appeal from an October 23,
2012 merit decision of the Office of Workers’ Compensation Programs terminating her
compensation effective June 20, 2011. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation for wage loss
effective June 20, 2011.
On appeal appellant, through counsel, contends that medical documentation verifies fulltime permanent disability status based on her hip fracture.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 2, 2009 appellant, then a 47-year-old enumerator, sustained injury to her spine,
back and neck. While map spotting and driving, she slid down a hill on gravel into an
embankment. On January 11, 2010 OWCP accepted appellant’s claim for closed dislocation of
the fifth, sixth and seventh cervical vertebrae, a closed dislocation of the thoracic vertebra at T1
and closed dislocations of the third and fifth lumbar vertebrae. It subsequently accepted her
claim for subluxations of the spine and right sacral fracture.
In a July 6, 2010 report, Dr. Margaret O. Burke, a treating Board-certified physiatrist
with a subspecialty in spinal cord injury medicine, diagnosed a sacral alar insufficiency fracture
that appeared to be well healed. She recommended physical therapy for appellant’s bursitis.
Dr. Burke opined that appellant remained able to work a light-duty job under restrictions as an
enumerator. She did not believe that appellant was at maximum medical improvement. In an
October 1, 2010 progress report, Dr. Burke noted that appellant had residual pain after sacral
fracture, but a magnetic resonance imaging (MRI) scan showed that it had healed. She found
that appellant was at maximum medical improvement.
By decision dated December 1, 2010, OWCP terminated appellant’s wage-loss
compensation effective that date. In a decision dated March 15, 2011, an OWCP hearing
representative reversed the termination decision. The hearing representative noted that no
development was taken by OWCP to determine how long appellant’s commute would be and or
to establish that the physical requirements of the position were within her medical restrictions.
On March 31, 2011 OWCP referred appellant to Dr. Glenn L. Scott, a Board-certified
orthopedic surgeon, for a second opinion. It noted that appellant’s work as an enumerator
involved lifting and carrying a maximum weight of 5 pounds up to 3 hours a day; sitting
(including driving) up to 3.5 hours a day; standing and walking up to 2 hours a day; climbing up
to .50 hours per day; bending/stooping/twisting/pulling/pushing up to .25 hours per day; simple
grasping up to 3 hours a day, fine manipulation (including keyboarding) up to 2 hours a day and
driving a vehicle up to 3 hours a day.
In a May 11, 2011 report, Dr. Scott listed his impressions as multilevel degenerative
cervical spine disease, multilevel lumbar spondylosis and healed sacral insufficiency fracture.
He opined that appellant had mild residuals of her accepted cervical, thoracic and lumbar
subluxation, probably representing aggravation of preexisting conditions. Dr. Scott agreed with
Dr. Burke that appellant’s fracture was, within reasonable medical certainty, healed. He found it
difficult to explain her complaints of pain on a residual basis from the fracture, noting that her
complaints were primarily subjective. The objective findings were difficult to evaluate due to
appellant’s clinical presentation. Dr. Scott found that she could return to the full duties of her
date-of-injury position as a census enumerator as far as her cervical, thoracic, and lumbar
subluxation or sacral fracture were concerned. He also opined that appellant had reached
maximum medical improvement from her accepted injuries of May 2, 2009.
In an
accompanying work capacity evaluation, Dr. Scott listed her limitations as four hours of sitting,
three hours each of walking and standing, one hour of bending/stooping, three hours of operating
a motor vehicle at work, pushing/pulling/lifting limited to 10 pounds for three hours a day, and
squatting, kneeling and climbing limited to one hour a day.

2

On May 13, 2011 OWCP proposed terminating appellant’s wage-loss compensation
benefits based on the opinion of Dr. Scott. It noted that her medical benefits would remain open
for treatment of her accepted conditions. By decision dated June 20, 2011, OWCP terminated
appellant’s wage-loss compensation benefits effective that date.
On June 30, 2011 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative that was held on October 6, 2011.2
Following the telephonic hearing, appellant submitted an October 31, 2011 report from
Dr. Sarah J. Danninger, a Board-certified family practitioner, who diagnosed chronic pain
syndrome. Dr. Danninger also noted chronic problems with anxiety, chronic fatigue and
fibromyalgia. She noted that appellant’s conditions impaired her functioning significantly, but
was unprepared to gauge how much.
Dr. Danninger noted that, without supporting
documentation, she was only able to report what appellant told her and conduct a single limited
examination. She noted that another physician mentioned that appellant had right-sided hip
pain/strain after a motor vehicle accident and mentioned the diagnoses of restless leg syndrome,
tremor, fibrocystic breast disease, abdominal adhesions and status post right lower abdomen
hernia repair, premenstrual syndrome and hot flashes.
In a decision dated December 14, 2011, the hearing representative affirmed the
December 14, 2011 termination decision.
On December 22 2011 appellant, through counsel, requested reconsideration. As OWCP
did not respond to this reconsideration request on May 7, 2012 appellant filed another request for
reconsideration.
In an October 23, 2012 decision, OWCP denied modification of the prior decisions.
LEGAL PRECEDENT
Once OWCP 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.3 It may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.4 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5

2

Appellant’s attorney asked for 30 more days to submit additional medical evidence, which the hearing
representative granted. On November 4, 2011 her attorney asked for another 30-day extension to submit further
medical evidence.
3

See Kathryn E. Demarsh, 56 ECAB 677 (2005); see also Beverly Grimes, 54 ECAB 543 (2003).

4

Id.

5

James M. Frasher, 53 ECAB 794 (2002).

3

ANALYSIS
OWCP accepted appellant’s claim for subluxations of the cervical, thoracic and lumbar
spine as well as right sacral fracture. It paid wage-loss compensation and paid for medical
treatment. OWCP terminated appellant’s wage-loss compensation effective June 20, 2011 as the
medical evidence established that her disability had ceased.
The Board finds that the medical evidence supports OWCP’s termination of appellant’s
compensation. Dr. Scott, the second opinion physician, found that appellant could return to her
full duties of her date-of-injury position as a census enumerator as far as residuals from the
accepted conditions of cervical, thoracic and lumbar subluxation or sacral fracture were
concerned. He noted that there was no objective evidence to explain her subjective complaints.
Dr. Scott added that her sacral fracture was well healed as noted by appellant’s treating
physician, Dr. Burke, and that she was at maximum medical improvement.
Appellant’s treating physician, Dr. Burke, in a July 6, 2010 report, opined that appellant’s
fracture appeared to be well healed and that appellant remained able to work her light-duty
position as an enumerator.
Appellant submitted an October 31, 2011 medical report by Dr. Danninger but
Dr. Danninger did not provide a rationalized medical opinion giving an opinion as to appellant’s
ability to perform her duties as a census enumerator. In fact, Dr. Danninger specifically
indicated that she was not prepared to gauge how much appellant’s conditions affected her
functioning. She noted that another doctor had diagnosed numerous conditions, but her first
hand observations with regard to appellant’s medical condition were limited.
OWCP terminated appellant’s wage-loss compensation after determining that her
disability for work had ceased. As used in FECA, the term disability means incapacity because
of an injury in employment to earn the wages the employee was receiving at the time of the
injury, i.e., a physical impairment resulting in loss of wage-earning capacity.6
The weight of medical evidence of record establishes that appellant is capable of
performing the duties of her date-of-injury position as an enumerator with restrictions.
Therefore, she is no longer disabled and OWCP properly terminated her wage-loss compensation
as of June 20, 2011.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation for wage loss
effective June 20, 2011.

6

5 U.S.C. § 8102.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 23, 2012 is affirmed.
Issued: August 26, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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