United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, New York, NY, Employer
__________________________________________

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Appearances:
Alan E. Wolin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1523
Issued: May 15, 2017

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 July 22, 2016 appellant, through counsel, filed a timely appeal from a July 1, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective October 6, 2015; and (2) whether
appellant met his burden of proof to establish continuing disability after October 6, 2015 causally
related to the accepted July 17, 2013 employment injury.
FACTUAL HISTORY
On July 17, 2013 appellant, then a 49-year-old immigration enforcement agent, filed a
traumatic injury claim (Form CA-1) alleging that, on that date, he injured his back while picking
up a box of files in his cubicle. He stopped work on the date of injury. OWCP accepted the
claim for a thoracic strain. OWCP paid appellant wage-loss compensation from September 1,
2013 to February 7, 2015 on the supplemental rolls, and on the periodic rolls commencing
February 8, 2015.
On August 25, 2014 OWCP referred appellant to Dr. Jeffrey Lakin, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding appellant’s current condition and
disability status.3
In a report dated September 8, 2014, Dr. Lakin reviewed the statement of accepted facts
and the medical record, and provided results on examination. He noted minimal tenderness in
the upper midline thoracic. Dr. Lakin reviewed magnetic resonance imaging (MRI) scans. A
May 28, 2009 MRI scan showed T6-7 and T8-9 disc bulges and no significant myelopathy or
spinal stenosis while a May 24, 2013 MRI scan showed T8-9 central posterior herniated disc.
Dr. Lakin noted appellant’s minimal thoracic tenderness was the only objective finding and there
were no objective findings of a thoracic disc herniation. He reported that appellant’s symptoms
were consistent with the diagnosis of a thoracic sprain. Dr. Lakin noted that, while appellant had
a preexisting thoracic pathology, based on prior MRI scans, he saw no aggravation caused by the
accepted July 17, 2013 work injury. Dr. Lakin opined that appellant’s accepted thoracic sprain
had resolved without residual. Regarding appellant’s disability status, he related that appellant
had been disabled from July 17, 2013 until his examination. However, appellant could now
return to full-duty work with no restrictions and that no further medical treatment was required.
In disability notes dated October 3 and 31 and December 5, 2014, Dr. John Joseph Smith,
a Board-certified internist and treating physician, related that appellant would continue to be
disabled from work until January 9, 2015.

3

OWCP, in a July 24, 2014 letter, had referred appellant for a second opinion evaluation with Dr. Dana Mannor,
a Board-certified orthopedic surgeon, on August 7, 2014 at 12:00 p.m. Appellant failed to appear for the
appointment. Following an August 11, 2014 notice proposing to suspend his benefits for failing to attend a
scheduled examination under 5 U.S.C. § 8123(d), appellant advised OWCP that he had been out of the country on
the date of the examination. He provided copies of his airline tickets showing that he had been traveling outside the
country. OWCP subsequently referred appellant to Dr. Lakin.

2

On November 5, 2014 OWCP requested a supplemental report from Dr. Lakin clarifying
his opinion regarding whether appellant continued to have residuals of the accepted thoracic
sprain due to conflicting answers and findings in his report.
Dr. Lakin, in a November 6, 2014 addendum, reiterated that appellant had objective
evidence of minimal upper midline thoracic tenderness; however, appellant had excellent spinal
motion and was neurologically intact.
On November 19, 2014 OWCP requested further clarification from Dr. Lakin as to why
he determined that appellant was capable of returning to full-duty work based on the objective
finding of minimal upper thoracic tenderness and why he concluded that appellant’s thoracic
sprain had resolved.
In a December 3, 2014 second addendum, Dr. Lakin reported that appellant’s thoracic
tenderness on palpation was minimal and would not impact his ability to work. He explained
that appellant’s intact upper and lower extremity neurological function and no limitation of his
thoracic motion or strength, established that he could return to full-duty, full-time work.
Dr. Lakin also explained that appellant had sustained a thoracic sprain, based on clinical findings
and history. Appellant’s thoracic sprain had resolved with no residuals or disability because
appellant lacked any significant findings which would require further treatment.
On January 8, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Lakin’s opinion that his thoracic sprain had
resolved without residuals or disability.
In a January 19, 2015 progress note, Dr. Dhimant J. Balar, an examining osteopath
Board-certified in internal medicine, related appellant’s history of injury, symptoms, and recent
medical treatment. He noted appellant’s constant upper back pain following the accepted
July 2013 work injury. Dr. Balar also noted that a May 24, 2013 MRI scan showed T8-9 disc
herniation without root compression and right-sided C5-6 herniated nucleus pulposus, as well as
scattered degenerative changes. He explained that appellant’s physical examination findings
included tenderness on palpation of the lower cervical muscles, marked limited cervical range of
motion due to pain, paraspinal muscle spasm, positive Spurling’s test, decreased bilateral
shoulder range of motion, and tenderness on palpation bilateral deltoid muscles. Dr. Balar
diagnosed cervical radiculopathy, cervical intervertebral disc degeneration, C5-6 herniated disc,
shoulder impingement syndrome, shoulder/arm sprain/strain, and intervertebral disc
displacement. He recommended that appellant not return to work due to his cervical and back
pain. However, Dr. Balar also noted that appellant was currently not working based on a treating
psychiatrist’s recommendation.
By letter dated February 5, 2015, counsel disagreed with OWCP’s proposal to terminate
appellant’s compensation benefits. He contended that appellant’s disability extended beyond his
back condition and that he also suffered from a disabling post-traumatic stress disorder (PTSD).
On February 11, 2015 OWCP received additional evidence. In an April 24, 2013 report,
Dr. Jacob Jacoby, a treating psychiatrist, provided a history of appellant’s illness and that he was

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upset due to being passed over for promotion.
disorder, and dependent personality traits.

He related appellant’s diagnoses as panic

In a January 20, 2015 report, Angelo F. Contino, Ph.D. and clinical psychologist, advised
that appellant was under his care for treatment of PTSD. He noted appellant’s symptoms, work
duties, and work assignments. Dr. Contino attributed appellant’s PTSD to appellant’s work
duties and assignments as an immigration enforcement agent. He reported that appellant felt
frustrated due to his lack of promotion, which he attributed to cronyism and ethnic prejudice.
Dr. Patrick Rowan, a treating psychiatrist, and Christopher Nackos, a licensed certified
social worker, in a January 21, 2015 report noted that appellant had been treated for major
depression, PTSD, and obsessive-compulsive disorder. He had first been admitted to the
treatment program on January 12, 2014 and had been hospitalized from December 30, 2014
through January 8, 2015.
In a January 24, 2015 report, Dr. Thomas D’Amato, a treating psychiatrist, noted that he
had treated appellant for major depression and PTSD since February 18, 2014. He reported that
appellant had periods of hospitalizations for these conditions. Dr. D’Amato opined that
appellant was disabled from work due to past work incidents and the diagnosed conditions.
Progress notes from Dr. Anatoliy Yanovskiy, a treating psychiatrist, dated January 26,
2015, diagnosed PTSD exacerbated by marital and work factors. He provided a history of
appellant’s treatment and hospitalizations. Dr. Yanovskiy opined that appellant was totally
disabled from work due to his PTSD caused by his work and home stress.
In a February 3, 2015 report, Dr. Smith provided a history of the July 17, 2013 work
injury and opined that it caused cervical, right shoulder, and thoracic injuries. He opined that
appellant was unable to perform the duties of an immigration enforcement agent. Dr. Smith
noted that appellant continued to have cervical and thoracic pain, herniated cervical and thoracic
discs as well as lumbago and right shoulder problems. He diagnosed panic disorder, PTSD,
depression, cervical sprain/strain due to herniated discs and osteoarthritis/osteoarthrosis, thoracic
herniated discs, persistent mechanical strain/sprain syndrome, low back pain, lumbago, and
myofascial pain. Dr. Smith noted that appellant had experienced two mental breakdowns and
had been institutionalized twice. He concluded that appellant currently was disabled from work
due to his psychiatric conditions and musculoskeletal issues.
On June 25, 2015 OWCP referred appellant to Dr. Dean Carlson, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Dr. Smith,
appellant’s treating physician, and Dr. Lakin, an OWCP referral physician, as to whether
appellant had residuals or disability due to the accepted employment injury, and whether there
was a causal relationship between any other current condition and the accepted July 17, 2013
work injury.
In a July 16, 2015 report, Dr. Carlson concluded that appellant no longer had any
residuals or disability due to the accepted thoracic strain based on a review of the statement of
accepted facts, the medical record, medical history, and physical examination. He observed that
appellant injured his thoracolumbar back on July 17, 2013 while moving file boxes, that

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appellant stopped work that day, and that he had not returned. Dr. Carlson noted that appellant
had related that his back pain prevented him from working and had impacted his daily personal
activities. Appellant also had related feelings of depression due to his back pain.
Appellant’s physical examination revealed no cervical muscle local tenderness, normal
cervical range of motion, diffuse tenderness on palpation of the second thoracic spinous process
to the fourth lumbar spinous process, normal upper and lower extremity sensory testing, and
normal upper extremity motor power. Review of a May 24, 2013 MRI scan showed a nonworkrelated T8-9 central posterior herniated disc, which was now resolved. Dr. Carlson reported
appellant’s accepted diagnosis as thoracic strain. Nonwork-related diagnoses included cervical
radiculopathy, cervical intervertebral disc degeneration, C4-5 herniated disc, shoulder
impingement syndrome, shoulder and arm sprain/strain, and intervertebral disc displacement.
Dr. Carlson concluded that appellant’s accepted thoracic strain had resolved based on full
cervical range of motion and no cervical or thoracic osteoarthritis findings on examination. He
further found no disability or residuals from working due to the accepted July 17, 2013 work
injury. Next, Dr. Carlson opined that appellant’s claim should not be expanded to include
additional conditions.
On August 17, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on the opinion of the impartial medical examiner
(IME), Dr. Carlson, that appellant’s accepted employment injury had resolved without residuals
or disability.
In a September 15, 2015 letter, counsel disagreed with OWCP’s proposal to terminate
appellant’s benefits. He contended that appellant’s disability extended beyond his back
condition and requested that appellant’s claim be expanded to include additional unspecified
conditions.
In a September 10, 2015 updated report, Dr. D’Amato related appellant’s complaints,
medical history, treatment provided, and mental status examination. Diagnoses included rule out
PTSD, major depression, panic disorder, generalized anxiety disorder, and obsessive-compulsive
disorder. Dr. D’Amato noted that appellant had complaints of chronic thoracic herniated disc
pain. He reviewed appellant’s job description and opined that appellant was unable to perform
the duties of his position, and was disabled from any work activity. Dr. D’Amato also opined
that if appellant returned to work he would decompensate.
Dr. Smith, in a September 15, 2015 report, reiterated his opinion that appellant was
totally disabled from performing his usual employment due to his orthopedic and psychiatric
conditions. He attributed appellant’s psychiatric conditions to his duties, and the dangers
inherent in the job, as an immigration enforcement agent. Dr. Smith again opined that appellant
was totally disabled from performing any type of work currently or in the future.
By decision dated October 6, 2015, OWCP finalized the termination of appellant’s
compensation benefits, effective that date. It found the report of Dr. Carlson, the IME,
constituted the special weight of the medical opinion evidence and established that appellant’s
thoracic condition had resolved without residuals. OWCP also found the evidence insufficient to

5

establish that appellant sustained a psychiatric condition due to the accepted July 17, 2013
employment injury.
On October 22, 2015 appellant and counsel requested an oral hearing before an OWCP
hearing representative, which was held on January 27, 2016.
By decision dated March 1, 2016, the hearing representative affirmed the October 6, 2015
decision terminating appellant’s benefits. She found the weight of the medical opinion evidence
rested with Dr. Carlson, the impartial medical examiner, who concluded that appellant no longer
had any residuals or disability due to the accepted July 17, 2013 work injury.
Counsel requested reconsideration on April 5, 2016. In support of his request, he
resubmitted a January 19, 2015 report and submitted a March 28, 2016 report by Dr. Balar.
Dr. Balar, in a March 28, 2016 report, briefly noted appellant’s history and treatment. He
reported that appellant was not currently working based on his treating psychiatrist’s opinion that
he was totally disabled due to PTSD. Dr. Balar reported that appellant had a fall a few months
ago which caused increased back, shoulder, and neck pain.
By decision dated July 1, 2016, OWCP denied modification. It found that the evidence
submitted by appellant was insufficient to establish that OWCP erred in terminating his
compensation benefits or that he had any continuing disability and residuals on or after the date
benefits had been terminated.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.5 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8

4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

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Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a thoracic strain due to the accepted July 17,
2013 employment injury and paid benefits. Appellant stopped work on the date of the injury and
was subsequently placed on OWCP’s periodic compensation rolls. OWCP terminated his wageloss compensation and medical benefits on October 6, 2015 based on the report of Dr. Carlson,
the IME. By decision dated March 1, 2016, an OWCP hearing representative affirmed OWCP’s
October 6, 2015 termination decision. OWCP denied modification of the termination in a July 1,
2016 decision. The Board finds that OWCP met its burden of proof.
OWCP determined that a conflict in the medical opinion evidence existed between
appellant’s treating physician, Dr. Smith, who continued to support appellant’s need for
treatment of his accepted thoracic sprain, and Dr. Lakin, a second opinion physician, who found
that he was capable of returning to his regular-duty position and had no residuals or disability
due to the accepted thoracic sprain. It referred appellant to Dr. Carlson for an impartial medical
examination to resolve the conflict in medical opinion evidence regarding whether he continued
to suffer residuals of his accepted employment injury and was unable to work due to the accepted
employment injury.
In a July 16, 2015 report, Dr. Carlson described the July 17, 2013 employment injury and
upon physical examination, reported no cervical muscle local tenderness, normal cervical range
of motion, diffuse tenderness on palpation of the second thoracic spinous process to the fourth
lumbar spinous process, normal upper and lower extremity sensory testing, and normal upper
extremity motor power. Based on review of a May 24, 2013 MRI scan, Dr. Carlson reported a
nonwork-related T8-9 central posterior herniated disc, which had resolved. He opined that
appellant’s accepted thoracic strain had also resolved. Dr. Carlson noted that his opinion was
based on objective findings of full cervical range of motion and no cervical or thoracic
osteoarthritis findings on examination. Thus, he found that appellant was capable of performing
his usual work and there were no residuals of the accepted July 17, 2013 work injury. Finally,
Dr. Carlson concluded that appellant’s claim should not be expanded to include additional
conditions.
The Board finds that Dr. Carlson’s report is well rationalized and based on a complete
and accurate history, a complete statement of accepted facts, physical examination and review of
the medical record. He examined appellant thoroughly, reviewed the medical records, and
reported accurate medical and employment histories. Thus, the Board finds that Dr. Carlson’s
9

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

10

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

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opinion as set forth in his July 16, 2015 report is probative and reliable evidence and entitled to
the special weight of the evidence accorded to an IME.11 Accordingly, Dr. Carlson’s opinion is
sufficient to justify OWCP’s termination of his compensation benefits effective October 6, 2015.
The additional medical evidence submitted in response to Dr. Carlson’s report is
insufficient to overcome the special weight accorded to him as an impartial medical specialist
regarding this issue. While Dr. Smith submitted a September 15, 2015 report reiterating that
appellant was totally disabled due to his orthopedic and psychiatric conditions, he had been on
one side of the conflict in medical opinion regarding whether there were any residuals of the
employment-related conditions and whether they were disabling. Reports from a physician who
was on one side of the medical conflict that an IME was obtained to resolve, are generally
insufficient to overcome the special weight accorded to the opinion of the impartial physician or
to create a new conflict.12
Appellant also relies upon the medical opinions of his treating psychiatrists and
psychologist, Drs. D’Amato, Jacoby, Contino, Rowan, Yanovskiy, to establish that he was
totally disabled due to an employment condition. Dr. Jacoby diagnosed panic disorder,
dependent personality traits, upset due to being passed over for a promotion, and overwhelming
panic. Dr. Contino diagnosed PTSD which he attributed to appellant’s immigration enforcement
work duties. Similarly, Dr. Rowan diagnosed PTSD, major depression, and obsessivecompulsive disorder and noted that appellant had been hospitalized twice. Dr. D’Amato also
diagnosed PTSD and major depression which he attributed to work incidents and opined that
appellant was totally disabled. Dr. Yanovskiy diagnosed PTSD which he attributed to
appellant’s marital discord and work and opined that appellant was totally disabled due to his
PTSD. OWCP has not, however, accepted the currently diagnosed psychiatric conditions as
causally related to the accepted July 17, 2013 employment injury. As previously noted, it has
accepted only a thoracic strain in this case. For conditions not accepted by OWCP as being
employment related, it is the employee’s burden of proof to provide rationalized medical
evidence sufficient to establish causal relationship.13 None of physicians attributed the
diagnosed psychiatric conditions to the accepted July 17, 2013 employment injury nor contain
any rationale explaining how these conditions had been caused or aggravated by the accepted
July 17, 2013 employment injury. Thus, the reports are insufficient to create a conflict with
Dr. Carlson’s report. Regarding the request to expand the claim to include psychiatric
conditions, as discussed above, none of the reports appellant submitted attribute these conditions
to the accepted July 17, 2013 employment injury. Thus, these reports are insufficient to create a
conflict with Dr. Carlson’s opinion.
Appellant also relied upon a January 19, 2015 progress note by Dr. Balar in support of his
claim that he remained totally disabled due to an employment injury condition. Dr. Balar
provided examination findings and reviewed objective and medical evidence. He diagnosed
11

See E.H., Docket No. 08-1862 (issued July 8, 2009); Bryan O. Crane, 56 ECAB 713 (2005).

12

S.J., Docket No. 09-1794 (issued September 20, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004).

13

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, supra note 12; Alice J. Tysinger, 51 ECAB
638 (2000).

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cervical radiculopathy, cervical intervertebral disc degeneration, C5-6 herniated disc, shoulder
impingement syndrome, shoulder/arm sprain/strain, and intervertebral disc displacement.
According to Dr. Balar appellant’s current work disability was based on recommendations from
his treating psychiatrist. He recommended that appellant not return to work due to his cervical
and back pain, but provided no opinion on the cause of the conditions. Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value.14 As discussed above, it is the employee’s burden of proof to provide rationalized medical
evidence sufficient to establish causal relationship for conditions not accepted by OWCP as
being employment related.15 Dr. Balar also did not offer a rationalized medical opinion
explaining how the conditions he diagnosed were causally related to the accepted July 17, 2013
employment injury, or why any of these conditions would cause disability.16 Thus, his report is
of diminished probative value and insufficient to create a conflict with Dr. Carlson’s opinion.
Therefore, the Board finds that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective October 6, 2015, as the special weight of the
competent medical evidence established that the accepted thoracic sprain had resolved without
residuals or disability. The Board further finds that OWCP properly denied expanding the claim
to include additional conditions.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to appellant to establish that he had any disability causally related to his accepted
injury.17
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established any continuing residuals or disability
from his accepted July 17, 2013 thoracic sprain injury, on or after October 6, 2015.
Following the termination of compensation benefits on October 6, 2015 and OWCP’s
hearing representative’s decision affirming the termination on March 1, 2106, appellant
submitted a new March 28, 2016 report by Dr. Balar. Dr. Balar reported that due to a recent fall
appellant had increased neck, shoulder and back pain and was currently totally disabled due to
his PTSD, based on a treating psychiatrist’s opinion. He did not address causal relationship
between appellant’s disability and continuing residuals and the accepted thoracic sprain.18 Thus,
Dr. Balar’s report is insufficient to create a conflict with Dr. Carlson’s report.

14

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

15

Supra note 13.

16

See I.J., supra note 5.

17

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

18

See Ricky S. Storms, 52 ECAB 349 (2001).

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Consequently, appellant has failed to establish an employment-related condition or
disability after October 6, 2015.
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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective October 6, 2015. The Board further finds that
appellant has not established continuing disability after October 6, 2015, causally related to the
accepted July 17, 2013 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 1, 2016 is affirmed.
Issued: May 15, 2017
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Bentonville, AR, Employer
__________________________________________

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

Docket No. 09-240
Issued: July 23, 2009

Case Submitted on the Record

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

JURISDICTION
On November 3, 2008 appellant, through her representative, filed a timely appeal from
the September 30, 2008 merit decision of the Office of Workers’ Compensation Programs, which
found her at fault in an overpayment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant was at fault in creating a $1,583.11 overpayment from
July 6 through August 2, 2008.
Appellant’s representative argues that the Office’s
September 30, 2008 decision is contrary to fact and law.
FACTUAL HISTORY
On March 17, 2006 appellant, then a 28-year-old transportation security screener,
sustained an injury in the performance of duty while moving bags from a table to x-ray
equipment. The Office accepted her claim for sprain/strain shoulder/arm unspecified right, and

sprain/strain of neck. Appellant received compensation for temporary total disability on the
periodic rolls.
On June 15, 2006 the Office outlined the conditions under which appellant would receive
compensation. It advised her that compensation benefits for total disability were payable only
while she could not perform the duties of her regular job because of her injury at work and that
she was expected to return to work, including light-duty or part-time work, if she was no longer
totally disabled because of her injury. The Office further notified appellant, as follows:
“To minimize the possibility of an overpayment of compensation, NOTIFY THIS
OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK. Each payment
shows the period for which payment is made. If you have worked for any portion
of this period, return the payment to this office, even if you have already advised
the Office that you are working. (Emphasis in the original.)
On July 29, 2008 appellant advised the Office that she had returned to work on
July 6, 2008.
On August 28, 2008 the Office made a preliminary determination that appellant was at
fault in creating a $1,583.11 overpayment from July 6 through August 2, 2008. It found that she
was aware, or reasonably should have been aware, that she was not entitled to further
compensation after she returned to work. The Office found that appellant knowingly accepted
compensation to which she was not entitled. It noted its June 15, 2006 letter advising her to
return any payment if she worked for any portion of the period covered by that payment. The
Office explained how it calculated the overpayment.
Appellant did not respond to the preliminary overpayment determination. She did not
request waiver and did not complete the overpayment recovery questionnaire.
In a decision dated September 30, 2008, the Office finalized the overpayment
determination. It found that she was at fault in creating a $1,583.11 overpayment from July 6
through August 2, 2008 because she knew or should have known that she was not entitled to
further compensation benefits after she returned to work.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act places limitations on the right to receive
compensation: While an employee is receiving compensation, she may not receive salary, pay or
remuneration of any type from the United States, with certain exceptions.1 It is therefore well
established that an employee is not entitled to compensation for temporary total disability after
returning to work.2 “Temporary total disability” is defined as the inability to return to the
1

5 U.S.C. § 8116(a).

2

E.g., Tammi L. Wright, 51 ECAB 463, 465 (2000) (where the record established that the employee returned to
work at the employing establishment for four hours per day from August 7, 1996 to January 8, 1997 but received
compensation for total disability for that same period, the Board found that the employee received an overpayment
of compensation).

2

position held at the time of injury or earn equivalent wages or perform other gainful
employment.3
When an overpayment of compensation has been made because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled. Section 8129(b) describes the only exception:
“Adjustment or recovery by the United States may not be made when incorrect
payment had been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of [the Act] or would be against
equity and good conscience.”4
The Office may 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 she receives
from the Office 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 with respect to creating an
overpayment: (1) Made an incorrect statement as to a material fact which she knew or should
have known to be incorrect; or (2) Failed to provide information which she knew or should have
known to be material; or (3) Accepted a payment which she knew or should have known to be
incorrect.5
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that she is being overpaid.6
ANALYSIS
The Board finds that appellant received an overpayment from July 6 through
August 2, 2008. No employee is entitled to compensation for total disability after returning to
work. Appellant returned to full-time work on July 6, 2008 and the Office continued to pay
compensation for total disability through August 2, 2008. Fact of overpayment is established.
In its August 28, 2008 preliminary determination, the Office noted that appellant received
periodic payments of $1,583.11 every 28 days. Because the period of the overpayment was
exactly 28 days, the overpayment was the full amount of a periodic payment. The Office also
showed how deducting premiums for health and life insurance from $1,780.00 in gross

3

20 C.F.R. § 10.400(b) (1999).

4

5 U.S.C. § 8129(b).

5

20 C.F.R. § 10.433(a) (1999).

6

Id. at § 10.433(b).

3

compensation gave the same figure. The record supports that appellant received an overpayment
of $1,583.11. The amount of overpayment is established.
When the Office placed appellant on the periodic rolls, it wrote her a letter outlining the
conditions under which she would receive compensation. It explicitly advised her to notify them
“immediately” when she went back to work and to return any payment if she worked any portion
of the period covered thereby. This supports the Office’s finding that appellant knew or at least
should have known that she was not entitled to the receipt of compensation for total disability
when she was no longer totally disabled and returned to work. Further, she did not promptly
notify the Office that she would be going back to work. Had appellant done so, the Office might
have been able to prevent the overpayment. Instead, she waited until a July 29, 2008 telephone
call to advise that she had returned to work over three weeks earlier on July 6, 2008. Appellant
did not exercise a high degree of care in reporting events which affected her entitlement to or the
amount of benefits. Therefore, under the circumstances, the Office properly found her to be at
fault.7 The Board will affirm the Office’s September 30, 2008 decision.
CONCLUSION
The Board finds that appellant was at fault in creating a $1,583.11 overpayment from
July 6 through August 2, 2008.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7

The Office’s finding reasonably supports fault under both the second and third criteria, either for failing to
provide information that she knew or should have known was material, or for accepting a payment that she knew or
should have know to be incorrect.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1238
Issued: January 18, 2019

Case Submitted on the Record

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

JURISDICTION
On June 4, 2018 appellant, through counsel, filed a timely appeal from a March 29, 2018
merit decision and an April 26, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that the
acceptance of his claim should be expanded to include the additional conditions of right hip
1

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

5 U.S.C. § 8101 et seq.

osteoarthritis, cervical myelopathy with radiculopathy, and lumbar radiculopathy causally related
to the accepted December 10, 2015 employment injury; and (2) whether OWCP properly denied
his request for an oral hearing pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On January 8, 2016 appellant, then a 64-year-old electrician, filed a traumatic injury claim
(Form CA-1) alleging that on December 10, 2015 he sustained a bruised right hip in the
performance of duty when he tripped and fell, landing on a two-way radio in his right pocket.
Appellant’s supervisor completed a medical referral form dated December 10, 2015 noting
that appellant had “slight pain” in his right thigh and that it was occupational in nature.
On December 18, 2015 an emergency department nurse diagnosed a thigh bruise.3
An August 2, 2016 magnetic resonance imaging (MRI) scan study of the lumbar spine
revealed foraminal stenosis from L3 to S1, central canal stenosis, and grade one anterolisthesis
from L3 to L5 with advanced facet arthropathy. A cervical spine MRI scan dated November 15,
2016 revealed advanced cervical degenerative disc disease with cord impingement, findings
suggestive of myelomalacia, and high-grade foraminal stenosis with nerve root impingement
bilaterally.
In a November 16, 2016 form report, Dr. Karl F. Bowman, Jr., a Board-certified orthopedic
surgeon, diagnosed right foot drop, right hip osteoarthritis, and lumbar facet arthropathy. He
related that appellant’s symptoms began on April 5, 2016 and found that he was disabled from
employment.
In a December 7, 2016 duty status report (Form CA-17), Dr. Bowman diagnosed facet
arthropathy of the lumbar spine, lumbar spinal stenosis and spondylosis, and right hip
osteoarthritis. He indicated that appellant was unable to work.
In December 7, 2016 and January 17, 2017 attending physician’s reports (Form CA-20),
Dr. Bowman diagnosed lumbar spine pain and facet arthropathy, cervical radiculopathy, bilateral
carpal tunnel syndrome, right hip osteoarthritis, and stenosis of the lumbar spine. He did not
respond to the question on the form regarding whether the diagnosed conditions resulted from an
employment activity.4
In a December 13, 2016 Form CA-20, Dr. Mark B. Kerner, a Board-certified orthopedic
surgeon, diagnosed cervical myelopathy and checked a box marked “yes” that the condition was
caused or aggravated by employment, noting that appellant’s symptoms began after an
employment injury. In a subsequent January 20, 2017 Form CA-20, he diagnosed cervical
myelopathy and radiculopathy and again checked a box marked “yes” that the condition was
caused or aggravated by the described employment activity of a fall at work. Dr. Kerner related
3

On January 11, 2016 Dr. Mark Haggerty, an osteopath, advised that appellant could return to work on January 12,
2016 with restrictions on climbing stairs.
4

In a December 13, 2016 Form CA-17 and work note, Dr. Bowman found that appellant was totally disabled.

2

that after the incident appellant experienced increasing neck pain and arm pain with numbness.
He indicated that the contusion resulted in a spinal cord injury with “central cord syndrome.”
In a March 9, 2017 development letter, OWCP advised appellant that it had paid a limited
amount of medical expenses as his injury appeared minor and had not been controverted. It
informed him that it was now formally adjudicating his claim and requested that he submit
additional factual and medical information, including a rationalized report from his attending
physician addressing the causal relationship between a diagnosed condition and the identified work
incident. OWCP afforded appellant 30 days to submit the necessary evidence.
Thereafter, appellant submitted unsigned chart notes from Dr. Bowman dated May through
August 2016. On May 16, 2016 Dr. Bowman discussed complaints of neck and upper extremity
pain and right hip and leg stiffness. He advised that appellant described “no particular injury.”
Dr. Bowman diagnosed lumbar facet arthropathy, low back pain, cervical radiculopathy, bilateral
carpal tunnel syndrome, and right hip osteoarthritis.
In a November 22, 2016 report, Dr. Kerner noted that appellant experienced increasing
neck pain and arm pain and numbness after a fall at work. He found that appellant had severe
cervical stenosis and “areas of gliosis, clearly myelopathic with ongoing cervical stenosis with a
cord contusion causing what appears to be a cord injury with central cord syndrome.” Dr. Kerner
recommended a decompression and fusion.
On December 2, 2016 Dr. Kerner performed an anterior cervical discectomy and fusion
and multiple levels.5
Dr. Kerner, in a December 13, 2016 Form CA-17, diagnosed cervical myelopathy and
checked a box marked “yes” that the history provided by appellant corresponded to that on the
form of a neck injury in a fall.
By decision dated April 17, 2017, OWCP denied appellant’s traumatic injury claim. It
found that the medical evidence submitted was insufficient to establish that he sustained a
diagnosed condition caused or aggravated by the accepted employment incident.
Subsequent to OWCP’s decision, appellant submitted additional unsigned chart notes from
Dr. Bowman. In a March 23, 2017 chart note, he evaluated appellant for cervical radiculopathy
and carpal tunnel syndrome. Dr. Bowman noted that his symptoms began after a work fall, but
that “he was uncertain whether the fall had caused his symptoms or whether it was due to a
preexisting condition.” He advised that diagnostic studies showed a chronic condition which “may
have been acutely exacerbated” by appellant’s employment injury.
In an April 27, 2017 report, Dr. Bowman related that he initially evaluated appellant on
May 16, 2016 for cervical radiculopathy, cervical arthritis, and carpal tunnel syndrome. He noted
that an x-ray showed advanced cervical arthritis that compressed the spinal cord necessitating
surgery. Dr. Bowman discussed appellant’s history of a fall on December 10, 2015 at work. He
indicated that diagnostic studies revealed that he had preexisting cervical arthritis, but opined that
5

Dr. Kerner provided progress reports subsequent to the surgery on January 20 and May 16, 2017.

3

the “fall certainly could have aggravated his preexisting medical condition to the point that it would
have exceeded a symptom threshold requiring an intervention for his resolution of neurological
symptoms.”
On May 23, 2017 appellant requested reconsideration. He submitted the first page of the
December 18, 2015 emergency department Care Nurse Triage report which noted that he had
fallen seven days earlier with a two-way radio in his pocket and had pain in his right upper leg.
In a July 27, 2017 CA-20 form, Dr. Kerner diagnosed cervical myelopathy and
radiculopathy and checked a box marked “yes” that the condition was caused or aggravated by the
described employment activity of a fall at work. He found that the injury to the spinal cord resulted
in central cord syndrome.
By decision dated August 21, 2017, OWCP denied modification of its April 17, 2017
decision. It found that appellant had not submitted sufficient evidence to establish that he sustained
a diagnosed condition causally related to the December 10, 2015 employment incident.6
In a January 30, 2018 report, Dr. David D. Alcantara, a Board-certified physiatrist, noted
that appellant had experienced an employment-related fall on December 10, 2015 causing cervical
myelopathy due to severe cord compression treated with a decompression and fusion at multiple
levels.7 Subsequent to the injury, he “presented as myelopathic, meaning an upper motor neuron
injury, concordant with [a] neck injury, resulting in signs of decreased strength, sensation, and
hyperflexia.” Dr. Alcantara related that appellant had preexisting cervical spinal stenosis that was
often an asymptomatic condition. He asserted that his fall caused a nerve injury, noting that the
“forces sustained during a fall combined with central stenosis can compress and/or strike the spinal
cord with sufficient force to injure it.” Dr. Alcantara indicated that appellant had symptoms in all
the extremities, but less on the left lower extremity, which suggested an injury to the right central
cervical spine. He related, “In short, his impairment/disability is related directly to the injury
sustained by his fall. Degenerative and genetic factors predisposed to this injury. There are other
aforementioned factors that contribute to his full breadth of symptoms, but their contribution is
limited and for all intents and purposes can be disregarded.”
Dr. Bowman, on February 1, 2018, noted that he had treated appellant for a right leg and
hip injury after he tripped and fell on December 10, 2015, landing on a two-way radio in his right
front pocket. He experienced pain in his right hip and difficulty with ambulation. Dr. Bowman
noted that appellant’s symptoms had progressed. He related:
“It is of my opinion that his persistent right hip pain, weakness, disturbance of gait,
and his limp requiring the use of a cane in his left hand can be directly attributed to
the work injury he sustained while at [the employing establishment] on
December 10, 2015. I feel that the diagnosis is likely a significant high-grade tear
6

In its decision, OWCP referred to the reports from Dr. Bowman as completed by Dr. Arthur W. Wardell, a Boardcertified orthopedic surgeon and an associate of Dr. Bowman.
7
Dr. Alcantara, on July 24, 2017, evaluated appellant for right lower extremity weakness, noting that he complained
of weakness on the right side after a fall.

4

of [the] hip abductor musculature as well as a permanent exacerbation of
preexisting right hip osteoarthritis.”
Appellant, through counsel, on February 8, 2018 requested reconsideration.
By decision dated March 29, 2018, OWCP modified in part and affirmed in part its
August 21, 2017 decision. It accepted that appellant sustained a contusion of the right thigh.
OWCP found, however, that the medical evidence of record was insufficient to establish that he
sustained right hip osteoarthritis, cervical myelopathy with radiculopathy, or lumbar radiculopathy
causally related to his December 10, 2015 employment injury.
On April 9, 2018 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative.
By decision dated April 26, 2018, OWCP denied appellant’s request for a telephone
hearing under 5 U.S.C. § 8124(b). It found that he had previously requested reconsideration under
5 U.S.C. § 8128(a) and thus was not entitled to a hearing as a matter of right. OWCP considered
the matter within its discretion and determined that the issue could be equally well addressed by
appellant submitting a request for reconsideration with evidence supporting that the claimed
conditions were causally related to the December 10, 2015 employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed is causally related to the employment injury.9
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.10 To establish causal relationship between the
condition, as well as any attendant disability claimed and the employment event or incident, the
employee must submit rationalized medical opinion evidence based on a complete factual and
medical background, supporting such a causal relationship.11 The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by

8

See supra note 2.

9

See C.W., Docket No. 17-1636 (issued April 25, 2018); Tracey P. Spillane, 54 ECAB 608 (2003).

10

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

11

See S.A., Docket No. 18-0399 (issued October 16, 2018).

5

the claimant.12 The weight of medical evidence is determined by its reliability, its probative value,
its convincing quality, the care of analysis manifested, and the medical rationale expressed in
support of the physician’s opinion.
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include the additional conditions of right hip
osteoarthritis, cervical myelopathy with radiculopathy, or lumbar radiculopathy causally related to
the accepted December 10, 2015 employment injury.
As noted, if a claimant alleges that a condition not accepted or approved by OWCP resulted
from an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury through the submission of rationalized medical
evidence.13
Appellant submitted chart notes from Dr. Bowman dated May 16, 2016 through
March 23, 2017. In a May 16, 2016 chart note, Dr. Bowman discussed his complaints of neck and
upper extremity pain and stiffness in his right hip and leg. He advised that appellant related that
he had not experienced a specific injury. Dr. Bowman diagnosed multiple conditions, including
cervical radiculopathy. As he did not attribute appellant’s condition to the December 10, 2015
employment injury, his opinion is of diminished probative value.14
In a March 23, 2017 chart note, Dr. Bowman noted that appellant had informed him that
his symptoms began after a fall at work. He indicated that he had a chronic condition that may
have been aggravated by the work injury. Dr. Bowman’s finding, however, that appellant’s fall
may have aggravated or exacerbated his condition is speculative in nature and thus of little
probative value.15
Dr. Bowman, in a November 16, 2016 form report, diagnosed right foot drop, right hip
osteoarthritis, and lumbar facet arthropathy, noting that appellant’s symptoms began on
April 4, 2016. In CA-20 reports dated December 7, 2016 and January 17, 2017, he diagnosed
lumbar facet arthropathy, cervical radiculopathy, bilateral carpal tunnel syndrome, right hip
osteoarthritis, and lumbar stenosis. Dr. Bowman did not respond to the questions on the forms
with regard to causation. Medical evidence that does not offer an opinion on the cause of an

12

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

13

See supra note 11.

14

See C.H., Docket No. 17-0266 (issued May 17, 2018).

15
See M.D., Docket No. 18-0195 (issued September 13, 2018) (the Board has held that medical opinion that are
speculative or equivocal in character are of diminished probative value).

6

employee’s condition is of no probative value on the issue of causal relationship.16 Thus, these
reports are insufficient to meet appellant’s burden of proof regarding expansion of his claim.17
On November 22, 2016 Dr. Kerner noted that appellant had experienced neck and arm pain
with numbness subsequent to a fall at work. He diagnosed severe cervical stenosis and a cord
contusion causing central cord syndrome. While Dr. Kerner indicated that appellant’s neck and
arm pain began after an employment-related fall, he did not specifically attribute the cervical
stenosis and central cord syndrome to the accepted December 10, 2015 work injury and thus his
opinion is of little probative value.18
Dr. Kerner, in a December 13, 2016 Form CA-20, diagnosed cervical myelopathy and
checked a box marked “yes” that the condition was caused or aggravated by employment. He
provided as a rationale that the symptoms began after an employment injury. In a Form CA-17
dated December 13, 2016, Dr. Kerner diagnosed cervical myelopathy and checked a box marked
“yes” that the history provided by appellant corresponded to that on the form of a neck injury after
a fall. In January 20 and July 27, CA-20 forms, he diagnosed cervical myelopathy and
radiculopathy and again checked a box marked “yes” that the condition was caused or aggravated
by the described employment activity of a fall at work. Dr. Kerner noted that following the
incident appellant had experienced worsening neck pain and arm pain and numbness. He opined
that he sustained a spinal cord injury and central cord syndrome. The Board has held, however,
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.19 While Dr. Kerner noted that appellant’s
symptoms began after a work injury, an opinion that a condition is causally related to an incident
because the employee was asymptomatic before the injury is insufficient, without adequate
rationale, to establish causal relationship.20
On April 27, 2017 Dr. Bowman noted that appellant had fallen at work on December 10,
2015 and that diagnostic studies showed cervical arthritis compressing the spinal cord. He opined
that the fall at work “could have” aggravated his preexisting cervical arthritis. Dr. Bowman’s
opinion on causation is speculative and thus, as previously noted, of diminished probative value.21
Dr. Alcantara, in a January 30, 2018 report, reviewed appellant’s history of a fall at work
on December 10, 2015 with a subsequent diagnosis of cervical myelopathy due to severe cord
compression requiring a decompression and fusion at multiple levels. He advised that after the
injury, appellant experienced symptoms of an upper motor neuron injury. Dr. Alcantara diagnosed
preexisting cervical spinal stenosis. He opined that appellant’s fall resulted in a nerve injury to
16

See O.C., Docket No. 17-1175 (issued October 29, 2018); L.B., Docket No. 18-0533 (issued August 27, 2018).

17

See supra note 12.

18

See L.A., Docket No. 15-1136 (issued March 2, 2016).

19

See R.A., Docket No. 17-1472 (issued December 6, 2017); Sedi L. Graham, 57 ECAB 494 (2006).

20

See J.R., Docket No. 18-0206 (issued October 15, 2018).

21

See K.M., Docket No. 18-0185 (issued September 7, 2018).

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the right central spine from forces compressing or striking the spinal cord. Dr. Alcantara opined
that his disability was due to his employment injury and that degenerative and genetic factors
predisposed him to the injury. While he found that appellant’s fall caused a compression injury to
the spine, he did not provide a sufficient explanation of the mechanism of injury or address the
delay in the onset of the cervical symptoms following the incident.22 Such rationale is particularly
important given his history of an underlying, preexisting cervical condition.23
On February 1, 2018 Dr. Bowman discussed his treatment of appellant for a right leg and
hip injury after a December 10, 2015 fall at work. He diagnosed a tear of the hip abductor and an
exacerbation of right hip osteoarthritis. Dr. Bowman, however, did not provide any rationale for
his causation finding. A mere conclusion without the necessary rationale explaining how and why
the physician believes that a claimant’s accepted exposure could result in a diagnosed condition is
insufficient to meet a claimant’s burden of proof.24
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.25 Appellant failed to provide
reasoned medical evidence demonstrating that he sustained right hip osteoarthritis, cervical
myelopathy with radiculopathy, and lumbar radiculopathy causally related to the accepted
December 10, 2015 employment injury. Accordingly, the Board finds that he has failed to meet
his burden of proof to establish expansion of the accepted conditions of his claim.26
Appellant may submit new evidence or argument with a written request for reconsideration,
to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of
this section is entitled, on request made within 30 days after the date of the issuance of the decision,
to a hearing on his claim before a representative of the Secretary.27 A hearing is a review of an
adverse decision by an OWCP hearing representative. Initially, the claimant can choose between

22

See S.F., Docket No. 18-0444 (issued October 4, 2018); L.B., Docket No. 14-1687 (issued June 10, 2015).

23

See E.D., Docket No. 16-1854 (issued March 3, 2017).

24

See T.T., Docket No. 17-0681 (issued March 13, 2018).

25

See supra note 11; E.P., Docket No. 16-0153 (issued August 24, 2016).

26

Id.

27

5 U.S.C. § 8124(b)(1).

8

two formats: an oral hearing or a review of the written record. In addition to the evidence of
record, the claimant may submit new evidence to the hearing representative.28
A claimant is entitled to a hearing or review of the written record as a matter of right only
if the request is filed within the requisite 30 days as determined by postmark or other carriers’ date
marking and before the claimant has requested reconsideration (whether or not reconsideration
was granted).29 Although there is no right to a review of the written record or an oral hearing as a
matter of right if a claimant had previously sought reconsideration, OWCP may, within its
discretionary powers, grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).30
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a telephone hearing
before an OWCP hearing representative under 5 U.S.C. § 8124(b)(1). As appellant had previously
requested reconsideration on May 23, 2017 and February 8, 2018, he was not entitled to an oral
hearing as a matter of right under section 8124(b)(1) of FECA.31
The Board further finds that OWCP did not abuse its discretion in denying appellant’s
request for an oral hearing.32 The Board has held that the only limitation on OWCP’s discretionary
authority is reasonableness. An abuse of discretion is generally shown through proof of manifest
error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to logic and
probable deduction from established facts.33 OWCP advised appellant that his case could be
equally well addressed by requesting reconsideration before OWCP and submitting new evidence
not previously considered supporting that he sustained additional conditions as a result of his
December 10, 2015 employment injury. The evidence of record does not support that OWCP
abused its discretion in its denial of appellant’s request for an oral hearing.34 Accordingly, the
Board finds that OWCP properly denied his request for an oral hearing.35
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include the additional conditions of right hip
28

20 C.F.R. § 10.615.

29

Id. at 10.616(a); L.S., Docket No. 18-0115 (issued May 10, 2018).

30

20 C.F.R. § 10.616(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.2(a) (October 2011); see also A.O., Docket No. 18-0558 (issued October 10, 2018).
31

See A.O., supra note 30.

32

See S.F., Docket No. 17-0463 (issued September 8, 2017).

33

See R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 (2006).

34

See L.S., supra note 29.

35

See C.A., Docket No. 17-0944 (issued May 15, 2018).

9

osteoarthritis, cervical myelopathy with radiculopathy, and lumbar radiculopathy causally related
to the accepted December 10, 2015 employment injury. The Board further finds that OWCP
properly denied his request for an oral hearing under 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the April 26 and March 29, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 18, 2019
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTER FOR MEDICARE &
MEDICAID SERVICES, Baltimore, MD,
Employer
__________________________________________

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

Docket No. 15-1788
Issued: April 26, 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 August 26, 2015 appellant filed a timely appeal from a May 12, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Since more than 180
days elapsed from the last merit decision of September 17, 2009 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.
1

Appellant timely requested an oral argument pursuant to 20 C.F.R. § 501.5 (b). On February 19, 2016 the Board
exercised its discretion and denied the request as the arguments on appeal could be adequately addressed in a
decision based on review of the record. Order Denying Request for Oral Argument, Docket No. 15-1788 (issued
February 19, 2016).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 By decision dated March 19, 2015, the
Board affirmed the April 1, 2014 OWCP decision which denied further merit review of
appellant’s case as his February 26, 2014 request for reconsideration was untimely filed and did
not demonstrate clear evidence of error. The facts and circumstances of the case as set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On June 5, 2007 appellant, then a 47-year-old health insurance specialist, filed both
traumatic injury (Form CA-1) and occupational disease (Form CA-2) claims alleging that he
experienced significant stress and sustained a traumatic mental injury as a result of harassment
and discrimination by the employing establishment and a verbally abusive and threatening work
environment. He noted that the employing establishment banned him from its buildings and
asserted that the employing establishment prevented him from filing a workers’ compensation
claim. In the occupational disease claim, appellant alleged that he developed a stress-related
condition and first realized that it was caused or aggravated by his employment in 1994. He was
terminated from employment on May 6, 1997.
In a June 12, 2007 statement, the employing establishment controverted the claim on the
basis that appellant did not file a timely notice of injury within three years of the claimed injury.
It also pointed out that none of his supervisors were available to confirm or refute his claims.
By letter dated June 15, 2007, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that appellant explain the delay in filing the
claim, describe the specific work factors he attributed to his claim, and explain the development
of his condition. OWCP also requested supporting documentation and a detailed medical report
addressing the causal relationship of the alleged work factors and his condition.
On June 5, 2007 appellant filed a claim for wage-loss compensation (Form CA-7)
benefits. On the back of the claim form, the employing establishment noted that there was no
record of any wage loss and that appellant was terminated on May 6, 1997.
In a nine-page statement dated July 30, 2007, appellant described various incidents at
work which he believed constituted a hostile, threatening, and racially insensitive environment,
the medical and psychological treatment he sought, and his attempts to complete the appropriate
forms and paperwork with the employing establishment. He noted that he first filed a complaint
with the employing establishment in 1994 but no action was taken. Appellant submitted various
notices of disciplinary action from the employing establishment, medical documents, Office of
Personnel Management (OPM) personnel records, and an affidavit from Kermit E. Lee, a
computer systems specialist at the employing establishment.
By decision dated August 31, 2007, OWCP denied appellant’s occupational disease claim
as it had not been timely filed. It found that he did not file his claim within the 3-year time
period of the alleged injury as required under FECA and the evidence of record did not establish
that appellant’s immediate supervisor had actual knowledge within 30 days of the date of injury.
3

Docket No. 14-1242 (issued March 19, 2015).

2

On October 12, 2007 OWCP received appellant’s request for an oral hearing before an
OWCP hearing representative. In an attached 11-page statement, he requested tolling of the
three-year filing of claim requirement because he provided verbal and written notice to his
employer of a possible work-related injury. Appellant also alleged that the employing
establishment acted wrongly and cited various cases regarding error and abuse on the part of the
employing establishment. He described the harassment and hostile work environment he
believed contributed to his condition. Appellant further requested that the Branch of Hearings
and Review produce the presence of specific witnesses and documents. He resubmitted his
July 30, 2007 statement and various documents.
In a July 8, 2008 letter, an OWCP hearing representative denied appellant’s request for
the issuance of a subpoena.
On July 29, 2008 a hearing was held. Appellant explained that he did not notify the
employing establishment sooner because he did not realize that he was injured at that time. He
asserted that various e-mails and discussions he had with his supervisors about work-related
events, specifically a November 19, 1996 incident, when he felt harassed and discriminated
against, put them on “notice” that the work incidents he described could have caused or resulted
in his condition. Appellant further alleged that his untimely filing should be excused under the
“equitable tolling rule” because the employing establishment showed misconduct in its actions
by barring him from the building, not assisting him or providing him with information, and
allowing the filing deadline to pass.
In a September 12, 2008 statement, appellant reiterated his allegations that the equitable
tolling rule should apply in this case and resubmitted various documents. He also provided
additional personnel records, Equal Employment Opportunity Commission (EEOC) complaints
and decisions, medical reports, and insurance billing statements.
By decision dated December 1, 2008, an OWCP hearing representative affirmed the
August 31, 2007 decision.
On August 7, 2009 OWCP received appellant’s request for reconsideration. In an 11page statement, appellant asserted that the date of injury was March 3, 1997 and that he had
notified various individuals and union representatives of the incidents at work which he
attributed to his emotional condition. He stated that he reported his injury on March 4, 2007 and
expressed interest in filing a workers’ compensation claim. Appellant indicated that his
emotional condition prevented him from being aware of the time limitation to file a claim. He
further alleged that OWCP erred in denying an “excusable neglect waiver” of the three-year time
limitation. Appellant noted several federal laws and court proceedings in support of his
contention.
Appellant submitted copies of the American with Disabilities Act of 2008; Executive
Orders 13078, 13163, 13217; various court and administrative decisions and documents; and
handwritten notations. He also resubmitted evidence previously of record.
In a decision dated September 17, 2009, OWCP affirmed the December 1, 2008 decision
denying his claim as untimely filed.

3

Appellant subsequently submitted multiple requests for reconsideration which OWCP
denied, finding that the evidence submitted was insufficient to warrant further merit review.
On June 20, 2013 appellant again requested reconsideration. He reiterated his previous
arguments and resubmitted medical reports, personnel records, and the MSPB decision. In a
nonmerit decision dated June 27, 2013, OWCP denied appellant’s June 20, 2013 reconsideration
request as it was untimely filed and failed to demonstrate clear evidence of error.
On February 26, 2014 appellant again requested reconsideration. He asserted that it was
inconsistent that the Secretary of the U.S. Department of Labor approved his disability claim
under an UnumProvident Settlement while OWCP continued to deny his workers’ compensation
claim. Appellant provided two pages of frequently asked questions about The UnumProvident
Settlement. By decision dated April 1, 2014, OWCP again denied appellant’s February 26, 2014
request for reconsideration. It determined that appellant’s request was untimely filed and failed
to establish clear evidence of error.
Appellant appealed to the Board. On March 19, 2015 the Board affirmed the April 1,
2014 OWCP decision denying appellant’s reconsideration request as untimely filed and failing to
establish clear evidence of error.
On March 28, 2015 appellant again requested reconsideration. He alleged that his
occupational disease claim should be considered timely based on federal employee misconduct,
human rights violations, federal and state employee trickery, and racial profiling. Appellant
explained that federal employees were aware of 5 U.S.C. §§ 8122 and 8128 regarding the time
limitations to file a workers’ compensation claim before he applied for workers’ compensation.
He cited Irwin v. Veterans Administration, 498 U.S. 89 (1990). Appellant also resubmitted a
copy of 5 U.S.C. § 8122, Executive Order 13107, the concurring opinion of Supreme Court
Justice Sandra O’Connor in the case Arizona v. Isaac Evans (issued March 1, 1995), Rules
Governing Petitions for Executive Clemency from the U.S. Department of Justice, and
Appointment Affidavits dated September 29, 1987 and February 17, 1989.
By decision dated May 12, 2015, OWCP denied appellant’s March 28, 2015
reconsideration request finding that it was untimely filed and failed to establish clear evidence of
error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit,
OWCP regulations provide that an application for reconsideration must be received by OWCP
within one year the last merit decision for which review is sought.4 The Board has found that the
imposition of the one-year time limitation does not constitute an abuse of the discretionary
authority granted OWCP under section 8128(a) of FECA.5

4

20 C.F.R. § 10.607.

5

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

4

OWCP, however, may not deny an application for review solely because the application
was not timely filed. When an application for review is not timely filed, it must nonetheless
undertake a limited review of the evidence previously of record to determine whether the new
evidence demonstrates clear evidence of error.6 OWCP regulations and procedures provide that
it will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation
set forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence
of error on the part of OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. The evidence must be positive, precise, and explicit, and it
must manifest on its face that OWCP committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10
ANALYSIS
In the last merit decision of appellant’s case, dated September 17, 2009, OWCP denied
appellant’s occupational disease claim on the basis that he did not file his claim within the threeyear limitation period provided in 5 U.S.C. § 8122(b). As it received appellant’s March 28, 2015
request for reconsideration more than one year after the September 17, 2009 merit decision, the
Board finds that OWCP properly determined that it was untimely filed. Consequently, appellant
must demonstrate clear evidence of error on the part of OWCP in denying his claim for
compensation.11
Along with his reconsideration request, appellant asserted that his claim should be
reopened due to federal employee misconduct. He alleged that federal employees were aware of
sections 5 U.S.C. §§ 8122 and 8128 regarding the time frame to file workers’ compensation
claims before he filed his claim. Appellant noted that federal employees were also aware of his
ineligibility, human rights violations, state and federal employee misconduct, state and federal
employee trickery, racial profiling, his being under the care of a mental health provider, and no
effective representation but still denied his claim. He provided a photocopy of part of the
decision Irwin v. Veterans’ Administration, 498 U.S. 89, which addressed equitable tolling.
6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(d)
(October 2011). OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical
report, which if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error.
8

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

9

Jimmy L. Day, 48 ECAB 652 (1997).

10

Id.

11

See Robert F. Stone, 57 ECAB 292 (2005); see also D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB
149 (2005).

5

This, however, does not raise a substantial question as to the correctness of OWCP’s
September 17, 2009 merit decision. The evidence submitted by appellant with his March 28,
2015 reconsideration request does not establish that appellant filed a timely occupational disease
claim or that the employing establishment had timely notice of his injury. He has not presented
any evidence to raise a substantial question as to the correctness of OWCP’s decision to deny his
claim. The Board finds, therefore, that appellant has not established clear evidence of error.
On appeal, appellant alleges that various federal agents and employees harassed and
discriminated against him. He submitted a copy of Rules Governing Petitions for Executive
Clemency, Article 2 Section 2 of the Constitution and various documents from the Federal
Register. None of these allegations or evidence submitted, however, raise a substantial question
concerning the correctness of OWCP’s decision or manifests on its face that OWCP’s decision
was in error.
As none of the evidence raises a substantial question concerning the correctness of
OWCP’s September 17, 2009 merit decision, appellant has failed to establish clear evidence of
error on the part of OWCP in denying further merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits as his reconsideration request was untimely filed and failed to demonstrate
clear evidence of error.

6

ORDER
IT IS HEREBY ORDERED THAT the May 12, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Socorro, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1176
Issued: August 20, 2021

Case Submitted on the Record

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

On July 27, 2021 appellant filed an appeal from an April 15, 2020 decision of the Office
of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned
Docket No. 21-1176.
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.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the April 15, 2020 decision was Monday, October 12, 2020. As
appellant did not file an appeal with the Board until July 27, 2021, more than 180 days after the
April 15, 2020 OWCP decision, the Board finds that the appeal docketed as No. 21-1176 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1176 is dismissed.
Issued: August 20, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 501.6(d).

2