United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, CUMBERLAND
CARRIER FACILITY, Marietta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Lonnie Boylan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0819
Issued: June 17, 2021

Case Submitted on the Record

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

JURISDICTION
On March 3, 2020 appellant, through counsel, filed a timely appeal from a December 23,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 23, 2019 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish disability from work,
commencing October 27, 2017, causally related to his accepted March 17, 2014 employment
injury.
FACTUAL HISTORY
On March 17, 2014 appellant, then a 53-year-old carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date his right knee popped when he was descending stairs while
in the performance of duty. He stopped work on March 17, 2014 and returned on March 18, 2014.
OWCP accepted appellant’s claim for aggravation of localized primary osteoarthritis of the right
lower leg and tear of the medial meniscus of the right knee. On December 17, 2014 appellant
underwent OWCP-approved total right knee replacement surgery. OWCP paid him wage-loss
compensation and placed him on the periodic rolls, effective February 8, 2015. On August 24,
2015 appellant returned to full-time, limited duty, but stopped work again on October 5, 2015.4
He retired from federal employment, effective July 26, 2016.
On September 11, 2017 OWCP referred appellant, along with a copy of the case record
and a series of questions, to Dr. James E. Butler, III, a Board-certified orthopedic surgeon, for a
second opinion evaluation regarding appellant’s work status and residuals of his March 17, 2014
employment injury from September 2, 2015 to the present. In an October 12, 2017 report,
Dr. Butler noted his review of the statement of accepted facts (SOAF)5 and that appellant’s claim
was accepted for aggravation of localized primary right osteoarthritis of the lower leg and right
knee medial meniscus tear. He recounted appellant’s current complaints of bilateral knee and
lower back pain. Upon physical examination, Dr. Butler observed a slow and guarded gait.
Examination of appellant’s right knee revealed tenderness and no temperature change or redness.
Dr. Butler diagnosed aggravation of localized primary right lower leg osteoarthritis and right knee
medial meniscus tear.
In response to OWCP’s questions, Dr. Butler indicated that appellant continued to suffer
residuals of his March 17, 2014 employment injury. He reported that he had reviewed the job
description for a postal carrier included in the SOAF and opined that appellant was unable to
perform his usual duties as a postal carrier without restrictions. Dr. Butler concluded that, since
September 2, 2015, appellant was only capable of performing full-time sedentary duty. He
completed a work capacity evaluation form (Form OWCP-5c), which noted restrictions of: lifting,
pushing, and pulling up to 10 pounds for two hours; standing and walking for two hours; and no
twisting, stooping, squatting, climbing, and kneeling.
Appellant received medical treatment from Eric R. Naifeh, a nurse practitioner. In
treatment notes dated October 23, 2017 through June 19, 2018, Mr. Naifeh noted the March 17,
4

On August 6, 2015 OWCP offered appellant a limited-duty job offer as a modified city carrier. The physical
requirements of the position included simple grasping, pushing, and pulling, and fine manipulation intermittently for
four to eight hours per day, speaking on the telephone (sedentary job) for six to eight hours per day, and sitting in an
office chair with supportive back and occasional standing intermittently for eight hours per day.
5

The most recent SOAF was dated October 27, 2015.

2

2014 work injury and indicated appellant’s active problems of bilateral knee osteoarthritis, right
knee medial meniscus tear, and hypertension. Upon examination of appellant’s bilateral knees, he
observed diffuse tenderness of the patellar tendon and distal IT band and pain and guarding on
range of motion. Mr. Naifeh diagnosed right knee osteoarthritis and right knee medial meniscus
tear. He indicated that appellant could work with restrictions.
OWCP also received duty status reports (Form CA-17) dated November 13 and
December 18, 2017 and February 15, March 22, July 17, and August 28, 2018 co-signed by
Mr. Naifeh and Dr. James Galbraith, who specializes in family medicine. Dr. Galbraith noted the
March 17, 2014 work injury and recounted appellant’s complaints of gradual left knee pain
secondary to right knee pain. He diagnosed right knee osteoarthritis. Dr. Galbraith recommended
that appellant work with restrictions.
In an August 6, 2018 letter, appellant, through counsel, explained that appellant had
submitted an election of benefits form and requested to be placed back on OWCP’s periodic rolls
based on Dr. Butler’s October 12, 2017 second-opinion report.
Appellant submitted an election of benefits form dated July 30, 2018, which indicated that
he elected to receive FECA wage-loss compensation benefits in lieu of Federal Employees’
Retirement System (FERS) retirement benefits, effective July 31, 2018.
In a September 20, 2018 letter, appellant, through counsel, indicated that this was his
second request to be placed back on OWCP’s periodic rolls.
Appellant submitted treatment notes and CA-17 forms dated September 27 and
November 29, 2018 and February 5, 2019 signed by Mr. Naifeh and/or Dr. Galbraith.
Dr. Galbraith described the March 17, 2014 work injury and appellant’s current complaints of
bilateral knee pain. He provided examination findings and diagnosed right knee osteoarthritis and
right knee medial meniscus tear. Dr. Galbraith reported that appellant could work with restrictions.
In letters dated January 8 and February 8, 2019, appellant, through counsel, again requested
that appellant be placed back on OWCP’s periodic rolls. He noted that Dr. Butler had determined
in his October 12, 2017 second-opinion report that appellant was unable to perform his postal
carrier duties.
In a January 14, 2019 letter, OWCP informed appellant that it had received his request to
be placed back on the periodic rolls, effective July 31, 2018. It noted that he was not on the
periodic rolls at the time of his request and that no evidence had been submitted to support that he
had sustained a recurrence of disability. OWCP advised appellant that, if he was claiming a
recurrence of his injury, he should file a notice of recurrence (Form CA-2a) and claim for wageloss compensation (Form CA-7), along with relevant medical evidence from a qualified physician.
Appellant subsequently submitted treatment notes dated January 3, March 5, and April 4,
2019 by Mr. Naifeh regarding continued treatment for his right knee injury.
On May 15, 2019 appellant filed a Form CA-7, claiming wage-loss compensation for
disability during the period October 27, 2017 through April 20, 2019. On the reverse side of the
claim form a human resource and management specialist for the employing establishment noted
that appellant elected disability retirement on July 26, 2016. In an attached time analysis form
3

(Form CA-7a), appellant claimed 3,056 hours of leave without pay (LWOP). He indicated that his
reason for leave use was “TNR -- physical therapy.”
In a May 24, 2019 development letter, OWCP informed appellant that the documentation
received to date was insufficient to establish his claim for wage-loss compensation benefits
commencing October 27, 2017 and continuing. It advised him of the type of medical evidence
necessary to establish his disability claim and afforded him 30 days to submit the necessary
evidence.
Appellant submitted additional treatment notes dated June 3 through 25, 2019 by
Mr. Naifeh who indicated that appellant was treated for problems of bilateral knee osteoarthritis,
right knee medial meniscus tear, and essential hypertension. Mr. Naifeh reviewed appellant’s
history and provided examination findings. He indicated that appellant could work with
restrictions.
OWCP also received OWCP-5c forms by Dr. Galbraith dated May 6 through August 3,
2019, which reported that appellant could work sedentary duty for four to six hours per day with
restrictions of lifting up to 20 pounds for 2 hours, walking and standing for 1 hour, operating a
motor vehicle for 30 minutes per day, and no squatting, kneeling, or climbing.
By decision dated August 8, 2019, OWCP denied appellant’s claim for wage-loss
compensation due to disability, commencing October 27, 2017. It found that the medical evidence
of record was insufficient to establish that he was disabled from work due to a material change or
worsening of his accepted March 17, 2014 employment injury.
On August 26, 2019 appellant, through counsel, requested a review of the written record
by a representative of OWCP’s Branch of Hearings and Review.
In a September 4, 2019 statement, counsel requested that appellant’s election of benefits
and his request for monetary compensation be considered as interrelated. He alleged that OWCP
failed to follow up with appellant’s case after the October 12, 2017 second opinion examination
and caused undue delay. Counsel contended that Dr. Butler had determined that appellant was
unable to perform his usual duties as a postal carrier.
Appellant submitted an October 5, 2019 treatment note and OWCP-5c forms dated
August 12 through November 14, 2019 by Dr. Galbraith who provided examination findings and
diagnosed right knee osteoarthritis and right knee medial meniscus tear. Dr. Galbraith indicated
that appellant could work sedentary duty for four to six hours per day with specific restrictions.
In treatment notes dated August 12 through November 14, 2019, Mr. Naifeh recounted
appellant’s history of persistent right knee and ankle pain. He provided examination findings and
diagnosed right knee osteoarthritis and right knee medial meniscus tear. Mr. Naifeh indicated that
appellant could work with restrictions.
By decision dated December 23, 2019, OWCP’s hearing representative affirmed the
August 8, 2019 decision.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that any disability or specific condition
for which compensation is claimed is causally related to the employment injury.7 The term
disability is defined as the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of the injury.8 For each period of disability claimed, the
employee has the burden of proof to establish that he or she was disabled from work as a result of
the accepted employment injury.9 Whether a particular injury causes an employee to become
disabled from work, and the duration of that disability, are medical issues that must be proven by
a preponderance of the reliable, probative, and substantial medical evidence.10
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the claimed disability and the specific employment factors
identified by the claimant.11
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.12
ANALYSIS
The Board finds that this case is not in posture for decision.
On August 28, 2017 OWCP referred appellant to Dr. Butler for a second opinion
evaluation regarding his work status and residuals of his March 17, 2014 employment injury from
September 2, 2015 to the present. In an October 12, 2017 report, Dr. Butler noted his review of
the SOAF, including a job description for a postal carrier. He provided examination findings and
diagnosed aggravation of localized primary right lower leg osteoarthritis and right knee medial
meniscus tear. Dr. Butler opined that appellant continued to suffer residuals of his March 17, 2014
6

Supra note 2.

7

S.W., Docket No. 18-1529 (issued April 19, 2019); B.K., Docket No. 18-0386 (issued September 14, 2018);
Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).
8

20 C.F.R. § 10.5(f); S.T., Docket No. 18-412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).
9

K.C., Docket No. 17-1612 (issued October 16, 2018); William A. Archer, 55 ECAB 674 (2004).

10

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

11

K.H., Docket No. 19-1635 (issued March 5, 2020); V.A., Docket No. 19-1123 (issued October 29, 2019).

12
K.A., Docket No. 19-1564 (issued June 3, 2020); J.B., Docket No. 19-0715 (issued September 12, 2019);
William A. Archer, 55 ECAB 674 (2004).

5

employment injury and that he was unable to perform his usual duties as a postal carrier without
restrictions. He indicated that, since September 2, 2015, appellant was only capable of performing
full-time sedentary duty with restrictions. Dr. Butler completed a Form OWCP-5c and reported
that appellant could work with restrictions of lifting, pushing, and pulling up to 10 pounds for 2
hours, standing and walking for 2 hours, and no twisting, stooping, squatting, climbing, and
kneeling.
Although Dr. Butler opined that appellant could not perform his date-of-injury position, he
failed to provide an opinion on appellant’s ability to work the modified-duty position in effect
during the claimed period of disability.13 Moreover, while Dr. Butler advised that appellant could
work sedentary duty as of September 2, 2015, the physical restrictions that he provided do not
comport with those in effect when the period of claimed disability began. The most recent city
carrier job description that appellant worked, dated August 6, 2015, provided restrictions of sitting
in an office chair with occasional standing intermittently for eight hours, simple grasping, pushing
and pulling, and lifting up to five pounds intermittently for four to eight hours. Dr. Butler,
however, limited appellant to lifting, pushing, and pulling up to 10 pounds for two hours.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.14 While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.15 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in a manner that will resolve the relevant issues in the case.16 In
this case, Dr. Butler, the second opinion physician, failed to provide an opinion regarding
appellant’s ability to work the modified-duty position in effect during the claimed period of
disability. The Board notes that the most recent SOAF that Dr. Butler relied on did not include
the position description for the modified city carrier position. It is OWCP’s responsibility to
provide a complete and proper frame of reference for a physician by preparing a SOAF.17
On remand OWCP shall provide an updated SOAF, which includes a job description of
appellant’s most recent modified-duty position and obtain a supplemental opinion from Dr. Butler,
which contains adequate medical rationale explaining whether appellant was able to work his
modified-duty position commencing October 27, 2017 due to his March 17, 2014 employment
injury. If Dr. Butler is unavailable or unwilling to provide a supplemental opinion, OWCP shall
refer appellant, together with an updated SOAF and a list of specific questions, to a second opinion
physician in the appropriate field of medicine to resolve the issue. Following this and any other

13

See R.G., Docket No. 20-0364 (issued March 8, 2021); see also J.C., Docket No. 19-1849 (issued
November 17, 2020).
14

N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A.,
Docket No. 17-1360 (issued January 10, 2018).
15

Id.; see also Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

16

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

17
A.M., Docket No. 19-1602 (issued April 24, 2020); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).

6

further development as deemed necessary, OWCP shall issue a de novo decision on appellant’s
occupational disease claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this opinion of the Board.
Issued: June 17, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF TRANSPORTATION,
)
FEDERAL AVIATION ADMINISTRATION,
)
Atlantic City, NJ, Employer
)
___________________________________________ )
B.M., Appellant

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

Docket No. 06-1747
Issued: February 21, 2007

Case Submitted on the Record

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

JURISDICTION
On July 25, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated March 1, 2006 in which a hearing representative
affirmed a prior decision granting her a schedule award for five percent permanent impairment of
the right arm. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant has more than a five percent permanent impairment of the
right upper extremity for which she has received a schedule award.
FACTUAL HISTORY
On February 6, 2001 appellant, then a 51-year-old secretary, filed an occupational disease
claim alleging that she developed bilateral carpal tunnel syndrome as a result of performing her

secretary duties. She did not stop work at that time. The Office accepted appellant’s claim for
bilateral carpal tunnel syndrome and later authorized bilateral carpal tunnel releases.
Appellant came under the treatment of Dr. Henry J. Greenwood, a Board-certified
orthopedist, from February 8 to December 17, 2001, who diagnosed bilateral carpal tunnel
syndrome and recommended surgical intervention. Dr. Greenwood noted performing a right
carpal tunnel release on December 17, 2001 and a left carpal tunnel release on February 11, 2002
and diagnosed bilateral carpal tunnel syndrome. In reports dated February 26 to June 26, 2002,
he noted that appellant was progressing well post surgery and recommended continued physical
therapy. On June 26, 2002 Dr. Greenwood returned appellant to work light duty four hours per
day. Thereafter, in the course of developing the claim, the Office referred appellant to several
second opinion physicians and also to an impartial medical examiner to determine if appellant
was totally disabled from work.
On May 20, 2004 appellant filed a claim for a schedule award. She submitted an
electromyograph (EMG) dated July 29, 2003, which revealed right-sided C5, C6 radiculopathy
with evidence of denervation with subsequent reinnervation on the right-side bicep and
brachioradialis muscles. Appellant also submitted a report from Dr. David Weiss, an osteopath,
dated February 16, 2004, who noted that appellant reached maximum medical improvement on
February 16, 2004. Dr. Weiss noted that physical examination of the right wrist revealed a wellhealed mid palmar surgical scar, positive Tinel’s sign, positive Phalen’s sign, with normal range
of motion for dorsiflexion, palmar flexion, radial deviation and ulnar deviation. Examination of
the left wrist revealed a well-healed mid palmar surgical scar, positive Tinel’s sign and positive
Phalen’s sign. Dr. Weiss further noted grip strength testing on the right via Jamar Hand
Dynamometer at Level III revealed 12 kilogram (kg) of force strength versus 36 kg of force
strength on the left which equated into a 65 percent strength deficit to the right hand. He noted
that sensory examination of the left hand revealed no abnormalities but examination of the right
hand revealed a marked hyperesthesia to cotton whisk and pinprick sensation involving the
palmar service of the right hand and no abnormalities over the median or ulnar nerves.
Dr. Weiss diagnosed cumulative and repetitive trauma disorder, bilateral carpal tunnel syndrome,
status post bilateral carpal tunnel syndrome release and sympathetic mediated pain syndrome to
the right hand. He noted that, based on the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment,1 (A.M.A., Guides) that appellant had 30
percent impairment on the right for grip strength deficit,2 31 percent impairment for sensory
abnormality of the right median nerve3 and 3 percent for pain-related impairment.4
Dr. Weiss’ report of February 16, 2004 and the case record were referred to the Office’s
medical adviser. In a report dated July 20, 2004, the Office medical adviser determined that
appellant was not entitled to a schedule award for the upper extremities based on Dr. Weiss’
report. The medical adviser indicated that carpal tunnel syndrome was a compression
1

A.M.A., Guides (5th ed. 2001).

2

Id. at 509, Table 16-34.

3
4

Id. at 482, 492, Table 16-10, 16-15.
Id. at 574, Figure 18-1.

2

neuropathy and that Dr. Weiss documented no specific median nerve motor or sensory deficit
and only noted a decreased grip strength deficit. The medical adviser indicated that there is no
award for grip strength deficit in a compression neuropathy under the A.M.A., Guides and Office
procedures.
On January 13, 2005 Dr. Weiss’ report of February 16, 2004 and the case record were
referred to another Office medical adviser. In a report of the same date, the medical adviser
noted that Dr. Weiss found a significant sensory deficit; however, he advised that his review did
not support this impairment. The medical adviser noted that appellant would be entitled to a five
percent permanent impairment of the right upper extremity for mild postoperative residuals as
noted on the EMG and for a positive Tinel’s sign.5
On January 31, 2005 the Office determined that a conflict of medical opinion had been
established between Dr. Weiss, appellant’s treating physician, and the Office medical adviser,
regarding whether appellant sustained a permanent impairment due to her work-related injury.
To resolve the conflict, on January 31, 2005, the Office referred appellant to a referee physician,
Dr. George P. Glenn, Jr., a Board-certified orthopedic surgeon.
In a report dated February 15, 2005, a different Office medical adviser determined that
appellant was entitled to a schedule award for 10 percent permanent impairment of the right arm,
based on Dr. Weiss’ report, due to sensory deficits of the median nerve below the mid forearm.
Dr. Glenn indicated, in a report dated February 24, 2005, that he reviewed the records
provided to him and performed a physical examination of appellant. He noted a history of
appellant’s work-related injury and advised that appellant had reached maximum medical
improvement on July 29, 2003. Dr. Glenn noted findings upon physical examination on the right
of virtually nonexistent grip strength although there did not appear to be any evidence of thenar,
hypothenar, intrinsic or forearm atrophy and he opined that appellant was exerting less than
maximal effort. He noted that appellant manifested a positive Tinel’s sign over the right wrist,
the Phalen’s test revealed burning in the palm and the third, fourth and fifth digit; however, there
was no evidence of coldness, pallor, or increased sweating, the reflexes on both sides were brisk
and symmetrical, there was no pathological reflexes and no areas of muscle atrophy. Dr. Glenn
indicated that it was not unusual that appellant had residual electrical findings following the
bilateral carpal tunnel syndrome surgeries; however, he found appellant’s subjective complaints
in the ulnar nerve hand distribution disturbing because the postsurgical EMG reported this as
completely normal. He opined that he could not explain appellant’s persistent subjective
complaints on the basis of any residual carpal tunnel syndrome or any physiological reason and
believed they were exaggerated. Dr. Glenn noted that appellant’s physical findings do not
incriminate either sensory or motor deficit involving the median nerve and under the A.M.A.
Guides the dynametric grip test was invalid. He opined that, in accordance with the A.M.A.
Guides, page 495, scenario two provides that normal sensory and/or motor latencies or abnormal
EMG testing of the thenar muscles infers a residual carpal tunnel syndrome was present and an
impairment rating not to exceed five percent may be justified. Dr. Glenn opined that appellant’s
subjective complaints with regard to the ulnar distribution were not associated with the carpal
5

See 16.5d Entrapment/Compression Neuropathy, Carpal Tunnel Syndrome, page 495, A.M.A. Guides.

3

tunnel syndrome or the treatment thereof. He opined that appellant did not have complex
regional pain syndrome, as there were no findings to substantiate such a diagnosis. In a
March 17, 2005 addendum, Dr. Glenn noted that he referred appellant for a triple-phase bone
scan to completely rule out complex regional pain syndrome and the study revealed no
abnormalities.
Dr. Glenn’s report of February 24, 2005 and the case record were referred to the Office’s
medical adviser. In a report dated August 7, 2005, the Office medical adviser concurred in
Dr. Glenn’s determination that appellant was entitled to a schedule award for five percent
permanent impairment of the right upper extremity, in accordance with 16.5d, page 495, of the
A.M.A. Guides.
In a decision dated August 9, 2005, the Office granted appellant a schedule award for five
percent permanent impairment of the right upper extremity. The period of the award was from
February 24 to June 13, 2005.
By letter dated August 12, 2005, appellant, through her attorney, requested an oral
hearing before an Office hearing representative. The hearing was held on December 19, 2005.
In a decision dated March 1, 2006, the Office affirmed its decision dated August 9, 2005.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulation7 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 to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.8
ANALYSIS
On appeal appellant alleges that she is entitled to a 55 percent of permanent impairment
of the right upper extremity as set forth by Dr. Weiss in his report dated February 16, 2004. The
Office accepted appellant’s claim for bilateral carpal tunnel syndrome and authorized bilateral
carpal tunnel releases on December 17 and February 11, 2002 and paid appellant a schedule
award for a five percent impairment of the right upper extremity. The Office determined that a
conflict existed in the medical evidence between appellant’s attending physician, Dr. Weiss, who
disagreed with the Office medical adviser concerning whether appellant had permanent
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404 (1999).

8

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

4

impairment of the right upper extremity.
Dr. Glenn to resolve the conflict.

Consequently, the Office referred appellant to

Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.9
The Board finds that, under the circumstances of this case, the opinion of Dr. Glenn is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant has no more than five percent impairment of the
right arm.
Dr. Glenn reviewed appellant’s history, reported findings and noted an essentially normal
physical examination. He noted that appellant reached maximum medical improvement on
July 29, 2003. Dr. Glenn noted that his examination of February 24, 2005 revealed well-healed
bilateral scars for the carpal tunnel surgical incisions, no tenderness over the incision sites, a
positive Tinel’s sign over the right wrist, the Phalen’s test revealed burning in the palm and the
third, fourth and fifth digit; however, there was no evidence of coldness, pallor, or increased
sweating; the reflexes on both sides were brisk and symmetrical and there were no areas of
muscle atrophy. He opined that he could not explain appellant’s persistent subjective complaints
on the basis of any residual carpal tunnel syndrome or any physiological reason and believed
they were exaggerated. Dr. Glenn further noted that appellant’s physical findings did not
incriminate either sensory or motor deficit involving the median nerve and under the A.M.A.
Guides the dynametric grip test was invalid. He determined that appellant’s impairment fell
within section 16.5d Entrapment/Compression Neuropathy, Carpal Tunnel Syndrome, page 495,
of the A.M.A. Guides, which provides:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias, and/or difficulties in
performing certain activities, three possible scenarios can be present:
2. Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG testing of the thenar muscles: a
residual CTS is still present, and an impairment rating not to exceed five
percent of the upper extremity may be justified.”10
Dr. Glenn opined that, based on the A.M.A. Guides, appellant had a five percent
impairment of the right arm. In an addendum report dated March 17, 2005, he noted that he
referred appellant for a triple-phase bone scan to completely rule out complex regional pain
syndrome and the study revealed no abnormalities.
Dr. Glenn properly applied the A.M.A., Guides and reached an impairment rating of five
percent of the right upper extremity. His report is reasoned, based on a thorough examination
and offers no basis for more than five percent impairment. The Board finds that Dr. Glenn’s
9

Aubrey Belnavis, 37 ECAB 206 (1985). See 5 U.S.C. § 8123(a).

10

A.M.A. Guides 495.

5

report is entitled to special weight and establishes that appellant has no more than a five percent
of the right upper extremity.
On appeal appellant asserts that Dr. Weiss properly applied the A.M.A., Guides and
established that appellant sustained 30 percent impairment on the right for lost grip strength,11 31
percent impairment for sensory abnormality of the right median nerve12 and 3 percent for painrelated impairment13 for a total impairment of 55 percent of the right arm. She asserted that
Dr. Glenn identified abnormal sensibility and abnormal apposition strength but failed to factor
these abnormalities in to his calculation. The Board finds these arguments without merit.
Merely reasserting that the report of Dr. Weiss, who was on one side of the conflict resolved by
Dr. Glenn, establishes greater impairment is not persuasive.14 As noted above, Dr. Glenn
explained the reasons for his calculation and the Board found that his opinion is entitled to
special weight.
Furthermore, Office procedures15 specifically provide that upper extremity impairment
secondary to carpal tunnel syndrome and other entrapment neuropathies should be calculated
using section 16.5d and Tables 16-10, 16-11 and 16-15.16 Under the fifth edition of the A.M.A.,
Guides, schedule awards for carpal tunnel syndrome are predicated on motor and sensory
impairments only.17 Although Dr. Weiss determined that appellant sustained 31 percent
impairment for sensory abnormality of the right median nerve,18 he did not identify a grade of
sensory deficit between 1 and 5 as set forth in the A.M.A., Guides19 and failed to properly
explain how he calculated specific impairment values using Table 16-15 on pages 492 of the
A.M.A., Guides.20 Regarding Dr. Weiss’ finding of 30 percent impairment for grip strength
deficit, the Board notes that section 16.5d of the A.M.A., Guides provides: “In compression
neuropathies, additional impairment values are not given for decreased grip strength.”21 Finally,
11

Id. at 509, Table 16-32, 16-34.

12

Id. at 482,492, Table 16-10, 16-15.

13

Id. at 574, Figure 18-1.

14

Cf., Kathryn E. Demarsh, 56 ECAB ___ (Docket No. 05-269, issued August 18, 2005) (a report from
appellant’s physician reiterating a previously stated opinion, where that physician was one side of the conflict
resolved by the impartial medical specialist, is insufficient to create a new conflict where he essentially repeated his
opinion).
15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

16

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

17

Kimberly M. Held, 56 ECAB ___ (Docket No. 05-1050, issued August 16, 2005); Robert V. Disalvatore, 54
ECAB 351 (2003).
18

A.M.A., Guides (5th ed. 2001) at 482, 492, Table 16-10, 16-15.

19

Id. at 482, Table 16-10a.

20

Id. at 492, Table 16-15.

21

See id. at 494-95. See Kimberly M. Held, supra note 17.

6

Dr. Weiss attributed three percent impairment for pain for the right arm under Chapter 18 of the
A.M.A., Guides. This is also without merit as Office procedures state that this chapter should
not be used to rate pain-related impairment for any condition that can be adequately rated on the
basis of the body and organ impairment systems given in other chapters of the A.M.A., Guides.22
Consequently, there is not medical evidence conforming with the A.M.A., Guides
establishing that appellant has more than five percent impairment of her right arm.
CONCLUSION
The Board finds that the Office properly determined that appellant had no more than a
five percent permanent impairment of the right upper extremity for which she received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 1, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 21, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

22

See supra note 15; see also Philip A. Norulak, 55 ECAB 690 (2004); Mark A. Holloway, 55 ECAB 321 (2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1556
Issued: January 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 12, 2012 appellant, through his attorney, filed a timely appeal from a June 28,
2012 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 the case.
ISSUE
The issue is whether appellant has greater than a 10 percent impairment of the left leg for
which he received a schedule award.
On appeal his attorney asserts that appellant is entitled to the impairment rating found by
the attending physician.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In an April 10, 2012 decision, the Board
found that the case was not in posture for decision as a conflict in medical evidence arose
between Dr. David Weiss, an attending osteopath, and Dr. Christopher R. Brigham, an OWCP
medical adviser, who is Board-certified in family and preventive medicine. The Board set aside
a July 11, 2011 schedule award decision and remanded the case for OWCP to refer appellant to
an impartial medical specialist to resolve the conflict, to be followed by a de novo decision.2
In June 2012 OWCP referred appellant to Dr. Andrew J. Collier, Jr., a Board-certified
orthopedic surgeon, for an impairment evaluation in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides).3 In a June 6, 2012 report, Dr. Collier reviewed the medical record and the
statement of accepted facts. He noted that appellant was no longer receiving treatment for his
left knee injury but reported that he would have knee swelling at the end of the day with an
occasional feeling that the knee would buckle and that he had difficulty going up and down
stairs. Dr. Collier stated that appellant moved around the room and on and off the table well and
had a bilateral, nonantalgic symmetrical gait. Left knee examination demonstrated no synovitis,
effusion, erythema or warmth and no ligamentous laxity. Lachman’s, drawer and McMurray’s
signs were negative. Dr. Collier indicated that appellant had medial osteophytes on the femur
and the tibia that caused discomfort. Range of motion was good and equal to the right, with no
crepitus or ankylosis and no thigh atrophy. Appellant could squat to approximately 90 percent
holding on and could step up and down onto a stool with the left leg without difficulty.
Dr. Collier diagnosed tears of the left knee medial and lateral menisci, status postsurgical
arthroscopy.
He advised that appellant reached maximum medical improvement on
September 8, 2010, when he returned to full duty.
Dr. Collier rated impairment under Table 16-3, Knee Regional Grid, of the A.M.A.,
Guides. He identified a diagnosis of meniscal injury with subtotal medial and lateral
meniscectomies, which he rated at class 1 with a default grade of C or a 10 percent impairment
of the left leg. Dr. Collier applied grade modifiers, noting that, as appellant had a normal gait,
functional history adjustment was zero; since he also had no crepitus and minimal pain, his
adjustment for physical examination was 1; and, as he had no relevant clinical studies, this
modifier was not applicable. He then used the net adjustment formula, which gave a net
adjustment of -1 which, under Table 16-3, moved the default grade to the left to B for an eight
percent impairment of the left lower extremity. Dr. Collier explained that his rating was in
agreement with that of Dr. Brigham except for the physical examination modifier. He noted that
Dr. Brigham based his modifier of 2 on Dr. Weiss’ report and findings, but that, as he found
2

Docket No. 11-1686 (issued April 10, 2012). On February 12, 2012 appellant, a letter carrier, sustained bilateral
contusions of the knees and lower legs, and left lateral and medial meniscus tears, when he tripped while delivering
mail. In a January 25, 2011 report, Dr. Weiss advised that appellant had a 13 percent left lower extremity
impairment. Dr. Brigham, an OWCP medical adviser, reviewed Dr. Weiss’ report and concluded that appellant had
a 10 percent left leg impairment. By decision dated July 11, 2011, appellant was granted a schedule award for a 10
percent impairment of the left leg based on the opinion of Dr. Brigham.
3

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

2

minimal findings on his examination, he found that appellant was entitled to a modifier of 1 for
physical examination.
By decision dated June 28, 2012, OWCP found that appellant was not entitled to a
schedule award greater than the 10 percent previously awarded.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 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,
FECA 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, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition will be used.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).11 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.12
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 494-531.

11

Id. at 521.

12

Id. at 23-28.

3

the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.13
ANALYSIS
OWCP accepted that appellant sustained left lateral and medial meniscus tears. On
July 11, 2011 it granted him a schedule award for 10 percent impairment of the left lower
extremity, based on the opinion of Dr. Brigham, an OWCP medical adviser. In an April 10,
2012 decision, the Board set aside the July 11, 2011 schedule award decision, finding that a
conflict in medical opinion had been created between Dr. Weiss, an attending osteopath, and
Dr. Brigham regarding the extent of the left lower extremity impairment. OWCP thereafter
referred appellant to Dr. Collier.
The Board finds that Dr. Collier’s opinion is thorough and well rationalized and
represents the weight of the medical evidence.14 In a report dated June 6, 2012, Dr. Collier noted
his review of the statement of accepted facts and medical record. He provided physical
examination findings, diagnosed tears of the left medial and lateral menisci, status postsurgical
arthroscopy and provided an impairment evaluation in accordance with the A.M.A., Guides. As
noted by Dr. Collier, under Table 16-3, Knee Regional Grid,15 partial medial and lateral
meniscectomies are rated as a class 1 impairment with a default value of 10 percent. He then
properly applied the grade modifiers and net adjustment formula,16 finding a net adjustment of
-1. This moved the default grade of C, found under Table 16-3, one position to the left for a
grade of B which yielded an eight percent impairment of the left lower extremity.
The Board has carefully reviewed the opinion of Dr. Collier and finds that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue in the present case. Dr. Collier opinion is based on a proper factual and medical
history and he thoroughly reviewed the factual and medical history and accurately summarized
the relevant medical evidence.17 He provided medical rationale for his opinion by explaining
that he found minimal findings on his physical examination of appellant. Dr. Collier’s opinion is
consequently entitled to special weight as the impartial medical examiner and establishes that
appellant has an eight percent impairment of the left lower extremity.
Appellant therefore did not meet his burden of proof to establish that he is entitled to
impairment for his left lower extremity greater than the 10 percent previously awarded.

13

Manuel Gill, 52 ECAB 282 (2001).

14

Barry Neutuch, 54 ECAB 313 (2003).

15

A.M.A., Guides, supra note 3 at 509.

16

Id. at 515-21.

17

See Melvina Jackson, 38 ECAB 443 (1987)

4

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award greater than the 10
percent previously awarded.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Omaha, NE, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1567
Issued: December 9, 2008

Case Submitted on the Record

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

JURISDICTION
On March 28, 2008 appellant filed a timely appeal of the May 30, 2007 merit decision of
the Office of Workers’ Compensation Programs, finding that she did not sustain an injury while
in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has established that she sustained a left shoulder injury
while in the performance of duty.

FACTUAL HISTORY
On August 21, 2003 appellant, then a 71-year-old food service worker, filed a traumatic
injury claim alleging that on August 19, 2003 she sustained a contusion to her left upper arm
when she struck it on faucet handles.1
By letter dated March 2, 2006, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested a medical report which provided a diagnosis
and an explanation as to how the diagnosed condition was caused by the August 19, 2003
incident.
A December 9, 2005 treatment note of Dr. James V. Ortman, a Board-certified internist,
stated that he discussed appellant’s disability and its relationship to her job performance. In a
February 2, 2006 treatment note, Dr. Ortman stated that she experienced shoulder pain dating
back to an injury sustained at work in August 2003. He noted her medical treatment.
A March 20, 2006 narrative statement of Vicki L. McCarville, a coworker, related that
appellant ran into a water faucet handle in the dish room on August 19, 2003. She stated that
appellant sustained a very large bruise on the left upper arm/shoulder. Ms. McCarville took her
to see the employing establishment’s nurse on the date of injury. Months later appellant showed
Ms. McCarville her arm/shoulder which was still discolored.
By decision dated March 30, 2006, the Office denied appellant’s claim. It found that the
August 19, 2003 incident occurred at the time, place and in the manner alleged. However, the
medical evidence was insufficient to establish that appellant’s left shoulder condition was
causally related to the accepted employment incident.
In an October 17, 2005 treatment notes, Dr. Ortman reported appellant’s symptoms,
which included left arm and bilateral shoulder pain. He stated that she continued to have
manifestations of Raynaud’s disease.
On March 19, 2007 appellant filed claims for a schedule award and a recurrence of
disability commencing June 17, 2005. A June 17, 2005 treatment note of Dr. Kiran K. Lassi and
Dr. Scott F. Menolascino, both Board-certified internists, reported normal findings on
examination of appellant’s hands. They found no focal deficits or signs of mononeuropathy.
Appellant had a negative Babinsky reflex and Phalen’s and Tinel’s signs bilaterally. Her
sensation was intact. Dr. Lassi and Dr. Menolascino stated that appellant sustained bilateral
numbness with color change that was most likely Raynaud’s disease induced due to stress. In a
March 2, 2007 report, Dr. Leonard E. Weber, a Board-certified neurologist, provided the results
of electromyogram (EMG) and nerve conduction testing. He reported bilateral median nerve
injuries within the carpal tunnels, mild-to-moderate on the right and mild on the left. Dr. Weber
stated that the test was otherwise normal in the right upper extremity. There was no evidence of
any injuries at a peripheral nerve, brachial plexus or a cervical nerve root level.

1

Appellant retired from the employing establishment on August 31, 2005.

2

By letter dated March 21, 2007, the Office advised appellant that no action would be
taken on her schedule award and recurrence of disability claims as it had denied her claim.
Appellant was instructed to review the appeal rights attached to the March 30, 2006 decision if
she disagreed with it.
On April 2, 2007 appellant requested reconsideration of the March 30, 2006 decision. By
decision dated May 30, 2007, the Office denied modification of this decision.2
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7 Neither the fact that appellant’s condition became apparent during a

2

Following the issuance of the Office’s May 30, 2007 decision, the Office received additional evidence. The
Board may not consider evidence for the first time on appeal which was not before the Office at the time it issued
the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office with a formal
written request for reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Gary J. Watling, 52 ECAB 357 (2001).

6

See Alvin V. Gadd, 57 ECAB 172, 175 (2005); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Solomon Polen, 51 ECAB 341 (2000).

3

period of employment nor her belief that the condition was caused by her employment, is
sufficient to establish a causal relationship.8
ANALYSIS
The record establishes that on August 19, 2003 appellant struck her left upper arm on
faucet handles while performing her work duties. The Board finds, however, that the medical
evidence submitted is insufficient to establish that her diagnosed left upper extremity conditions
were caused or aggravated by the August 19, 2003 employment incident.
On December 9, 2005 Dr. Ortman discussed with appellant her disability and its
relationship to her job. He did not provide a firm medical diagnosis related to the August 19,
2003 employment incident. Further, Dr. Ortman did not opine that appellant’s disability was
caused by the accepted employment incident. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.9 In subsequent reports, Dr. Ortman stated that appellant
suffered from bilateral shoulder and left arm pain and manifestations of Raynaud’s disease. On
February 2, 2006 he stated that her shoulder pain dated back to an August 2003 work injury.
Again, Dr. Ortman did not provide a firm medical diagnosis or explain how her symptoms
related to the August 19, 2003 employment incident. He did not provide any medical rationale
explaining how appellant’s bilateral shoulder or left arm pain or Raynaud’s disease were caused
or aggravated by the accepted employment incident.10
Dr. Lassi’s and Dr. Menolascino’s June 17, 2005 treatment note reported normal findings
on examination of appellant’s hands. They found no focal deficits or signs of mononeuropathy,
a negative Babinsky reflex and Phalen’s and Tinel’s signs bilaterally and intact sensation. They
stated that she experienced bilateral numbness with color changes that were most likely
Raynaud’s disease due to stress. Dr. Weber’s March 2, 2007 EMG and nerve conduction test
results demonstrated bilateral median nerve injuries within the carpal tunnels, mild to moderate
on the right and mild on the left. He stated that the test was otherwise normal in the right upper
extremity as there was no evidence of any peripheral nerve, brachial plexus or a cervical nerve
root injury. The physicians, however, did not address whether appellant’s bilateral hand
conditions were caused by the accepted employment incident.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a left upper extremity condition causally related to the accepted
August 19, 2003 employment incident. Appellant did not meet her burden of proof.

8

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

9

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

10

Id.

4

CONCLUSION
The Board finds that appellant has failed to establish that she sustained a left upper
extremity injury while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2008
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF TRANSPORTATION, U.S.
COAST GUARD AIR STATION, Cape Cod, MA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1567
Issued: December 22, 2017

Case Submitted on the Record

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

JURISDICTION
On July 11, 2017 appellant filed a timely appeal from an April 6, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $47,003.18 because he concurrently received
Social Security Administration (SSA) benefits and FECA benefits for the period January 3, 2000
through December 10, 2016; (2) whether it properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required repayment of the overpayment by
deducting $475.00 every 28 days from appellant’s continuing compensation.

1

5 U.S.C. § 8101 et seq.

On appeal appellant contends that the currently structured repayment would impose a
significant financial hardship on him and his wife.
FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On September 14, 1999 appellant, then a 62-year-old refrigeration/air conditioning
mechanic, sustained an employment-related low back strain. A recurrence of disability on
September 30, 1999 was also accepted. Appellant returned to four hours of modified duty per
day on January 5, 2000, stopped work on February 27, 2000, did not return, and was placed on
the periodic compensation rolls. On February 5, 2002 he underwent authorized decompressive
laminectomy at L4-5.
EN1032 forms signed by appellant from September 22, 2000 to September 22, 2016
indicated that he was not receiving SSA benefits as part of an annuity for federal service.
In reports dated May 31 and October 12, 2016, Dr. David P. Gannon, Board-certified in
anesthesiology, pain and internal medicine, noted appellant’s complaint of low back pain. He
described examination findings and diagnosed low back pain, postlaminectomy syndrome, and
spondylosis without myelopathy or radiculopathy of the lumbar region and lumbosacral region.
OWCP forwarded a Federal Employees Retirement System (FERS)/SSA dual benefits
calculation form to SSA on October 13, 2016. SSA returned the form on December 19, 2016,
noting that appellant received SSA retirement benefits beginning in October 1999. It indicated
that beginning in January 2000 appellant’s SSA rate with FERS was $955.80 and without FERS
$679.40. Each year the rates increased through December 2016.
By letter dated December 29, 2016, OWCP notified appellant that, based on information
provided by SSA regarding the amount his SSA benefit was attributable to federal service, his
FECA benefits had been adjusted.
On January 5, 2017 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $47,003.18 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits that he received from January 3, 2000 to
December 10, 2016 was based on credits earned while working in the Federal Government, and
that this portion of his SSA benefit was a prohibited dual benefit. OWCP found appellant not at
fault in creating the overpayment and provided an overpayment action request and an
overpayment recovery questionnaire (Form OWCP-20). Appellant was informed of the actions
he could take and was allotted 30 days to respond. The record contains overpayment worksheets
and computer printouts of compensation paid to appellant from January 3, 2000 to
December 10, 2016.

2

Docket No. 13-1729 (issued December 12, 2013).

2

Appellant requested a decision based on the record. He submitted an overpayment
recovery questionnaire which he had signed, but had not completed. An attached handwritten
statement noted monthly income of $4,098.30 and described monthly expenses. Financial
information was also enclosed. This included bank and brokerage statements listing assets in
excess of $50,000.00, and also indicated that appellant received additional monthly income of
approximately $135.00.
By decision dated April 6, 2017, OWCP finalized the preliminary overpayment
determination, finding that an overpayment of compensation in the amount of $47,003.18 had
been created. It explained that the overpayment occurred because a portion of appellant’s SSA
benefits that he received from January 3, 2000 to December 10, 2016 was based on credits
earned while working for the Federal Government, and that this portion of his SSA benefit was a
prohibited dual benefit. OWCP found appellant without fault and that he was not entitled to
waiver of recovery of the overpayment. It noted that there was no evidence to support that
recovery would be against good conscious or defeat the purpose of FECA. OWCP calculated
appellant’s monthly income from SSA, FECA, and other disbursements reported, for a total
monthly income of $4,233.00,3 and reported monthly expenses of $3,130.00. It further noted
that appellant had bank and brokerage assets totaling $56,264.00. OWCP set repayment at
$475.00, to be deducted each period from appellant’s continuing FECA compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 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.5
Section 10.421(d) of the implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA benefits that are attributable to federal
service of the employee.6 FECA Bulletin No. 97-9 provides 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.7

3

The Board notes that OWCP did not recalculate appellant’s 28-day FECA benefit to a monthly amount, and
instead listed his 28-day FECA income of $2,107.00 rather than a monthly FECA income of approximately
$2,282.00.
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

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

7

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

3

Section 404.310 of SSA regulations provides that entitlement to SSA compensation
begins at 62 years.8 Section 404.409 of SSA regulations provides that for individuals born
before January 1, 1938, full retirement age is 65 years.9
ANALYSIS -- ISSUE 1
OWCP found that an overpayment of compensation was created in the amount of
$47,003.18 for the period January 3, 2000 to December 10, 2016. The overpayment was based
on the evidence received from SSA with respect to benefits paid to appellant. The record
indicates that, while appellant was receiving compensation for total disability under FECA, she
also received SSA age-based retirement benefits. A claimant cannot receive both compensation
for wage-loss and SSA retirement benefits attributable to federal service for the same period.10
The information provided by SSA indicated that appellant received age-based SSA benefits that
were attributable to federal service during the period January 3, 2000 to December 10, 2016.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received evidence from SSA with
respect to the specific amount of age-based SSA retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS, and without FERS for specific
periods commencing in October 1999 through December 2016. OWCP provided its calculations
for each relevant period based on the SSA worksheet. No contrary evidence was provided. The
Board has reviewed OWCP’s calculation of benefits received by appellant for the period
January 3, 2000 to December 10, 2016 and finds that an overpayment of compensation in the
amount of $47,003.18 was created.11
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment of 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.”12 Section 10.438 of OWCP regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery
on an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.13
8

20 C.F.R. § 404.310.

9

Id. at § 404.409.

10

Supra notes 6 and 7.

11

See G.T., Docket No. 15-1314 (issued September 9, 2016).

12

5 U.S.C. § 8129.

13

20 C.F.R. § 10.438.

4

The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections
10.434 to 10.437 of OWCP regulations.14
Section 10.436 provides that recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his
current income (including compensation benefits) to meet current ordinary and necessary living
expenses and, also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.15 To be eligible for waiver
because recovery would defeat the purpose of FECA, appellant must show that he needs
substantially all of his current income to meet current ordinary and necessary living expenses,
and that assets do not exceed the resource base.16 An individual is deemed to need substantially
all of his or her current income to meet current ordinary and necessary living expenses if
monthly income does not exceed monthly expenses by more than $50.00.17
OWCP procedure provides that the assets must not exceed a resource base of $4,800.00
for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent.18 An individual’s liquid assets include, but are not limited to, cash, the
value of stocks, bonds, saving accounts, mutual funds, and certificate of deposits. Nonliquid
assets include, but are not limited to, the fair market value of an owner’s equity in property such
as a camper, boat, second home, and furnishings/supplies.19
ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered. Repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.20
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because his assets exceed the resource base of $8,000.00, as provided in OWCP
procedures.21 Financial information of record submitted by appellant documents assets in excess
of $50,000.00. Because appellant has not met the second prong of the two-prong test of whether
recovery of the overpayment would defeat the purpose of FECA, it is unnecessary to consider the
14

Id. at §§ 10.434-10.437.

15

Id. at § 10.436.

16

Id.

17

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (June 2009).
18

Id.

19

Id.

20

20 C.F.R. § 10.436.

21

Id.

5

first prong of the test, i.e., whether his monthly income exceeded his monthly ordinary and
necessary expenses by more than $50.00.22 Appellant did not establish that he was entitled to
waiver on the basis of defeating the purpose of FECA.23
Appellant generally contends on appeal that recovery of the overpayment would create a
financial hardship and thus be against equity and good conscience. As described above, the
record does not support this contention.
Recovery of an overpayment is also considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.24 OWCP procedure
provides that to establish that a valuable right has been relinquished, it must be shown that the
right was in fact valuable, that it cannot be regained, and that the action was based chiefly or
solely in reliance on the payments or on the notice of payment.25 Donations to charitable causes
or gratuitous transfers of funds to other individuals are not considered relinquishments of
valuable rights.26 An individual must show that he or she made a decision he or she otherwise
would not have made in reliance on the overpaid amount and that this decision resulted in a
loss.27
Appellant submitted no evidence to show that he gave up a valuable right or changed his
position for the worse in reliance on anticipated compensation payments. Thus, he has not
shown that, if required to repay the overpayment, he would be in a worse position after
repayment than if he had never received the overpayment at all. OWCP properly found that he
was not entitled to waiver because recovery would not be against equity and good conscience.28
As appellant failed to establish that recovery of the overpayment in compensation would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
22

Id.; see M.H., Docket No. 17-0766 (issued July 3, 2017).

23

See K.K., Docket No. 09-0207 (issued October 2, 2009).

24

20 C.F.R. 10.437; see W.P., 59 ECAB 514 (2008).

25

Federal (FECA) Procedure Manual, supra note 17 at Chapter 2.600.b(3) (June 2009).

26

20 C.F.R. § 10.437(b)(1); see J.A., Docket No. 09-1678 (issued June 9, 2010).

27

Id. at § 10.437(b)(2); see Wayne G. Rogers, 54 ECAB 482 (2003).

28

Federal (FECA) Procedure Manual, supra note 17.

6

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 hardship.29
ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the relevant factors noted above in
setting a rate of recovery of $475.00 per compensation period. The record indicates that
appellant’s monthly income exceeds his reported monthly expenses by $1,278.00 per month.
OWCP therefore did not abuse its discretion in finding that appellant should repay the
overpayment at the rate of $475.00 per compensation period.30
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $47,003.18, and that OWCP properly denied waiver and
required recovery of the overpayment by deducting $475.00 every 28 days from his continuing
compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2017
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
29

20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

30

N.S., Docket No. 14-2081 (issued February 12, 2015).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
El Paso, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 22-0054
Issued: November 29, 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 October 14, 2021 appellant filed an appeal from a July 17, 2019 decision of the Office
of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards assigned
Docket No. 22-0054.
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 180 th day following the July 17, 2019 decision was January 13, 2020. As appellant
did not file an appeal with the Board until October 14, 2021, more than 180 days after the July 17,
2019 OWCP decision, the Board finds that the appeal docketed as No. 22-0054 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not offered a reason to
1

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

2

Id. at § 501.3(e).

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. 22-0054 is dismissed.
Issued: November 29, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF AGRICULTURE,
U.S. FOREST SERVICE, Albuquerque, NM,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0226
Issued: March 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 18, 2015 appellant filed a timely appeal from a June 12, 2015 merit
decision and an October 16, 2015 nonmerit 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish an injury to his
right thigh in the performance of duty on August 19, 2014; and (2) whether OWCP properly
determined that appellant’s request for reconsideration was insufficient to warrant merit review
of the claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted a letter from Dr. Wesley Stevens, an osteopathic
physician, dated November 10, 2015.2
FACTUAL HISTORY
Appellant filed a traumatic injury claim (Form CA-1) on August 25, 2014 alleging that he
sustained an injury to his right thigh by overextending his leg while getting into a pick-up truck
on August 19, 2014. He reported that he worked as an engineering equipment operator in Modoc
National Forest in Alturas, California. Appellant listed his injury as “pulled tendon/muscle, right
thigh, backside.” He did not list any witnesses. Appellant’s supervisor noted by checking a box
that his knowledge of the facts of the injury agreed with appellant’s statement.
In a letter dated December 29, 2014, OWCP requested appellant provide additional
information. It, at that time, had no medical information about the claim and requested that
appellant supply a report from his treating physician with a diagnosis of the condition alleged.
OWCP further requested that a physician explain the causal relationship between the alleged
work incident and the diagnosed condition. The letter included a questionnaire for appellant to
complete. The questionnaire asked for details of the alleged incident, witness statements, and
appellant’s immediate symptoms following the injury. The questionnaire asked about other
injuries, the contact information for the doctor who first examined or treated appellant, and other
background information. Appellant was afforded 30 days in which to respond.
OWCP received a report from Dr. Stephens dated September 3, 2014. Dr. Stephens
recorded appellant’s history of the incident. “This 60[-]year[-]old white male … developed an
injury to the right leg on [August 18, 2014] while climbing into a one ton four-wheel drive
pickup truck. The pickup is very high off the ground. When [appellant] put his leg in and lifted
his body into the truck he felt a sharp twinge in the posterior right thigh that has been persistent.
It seems to be very localized to one spot now. Patient has continued to work every day.” He
noted that appellant could get up and down and walk normally. Dr. Stephens noted “a very
localized area of tenderness in the mid posterior right thigh on palpation.” He diagnosed
posterior right thigh pain and prescribed an ultrasound study. Dr. Stephens allowed appellant to
continue working.
In a report dated September 5, 2014, Dr. Timothy A. Gallagher, Board-certified in family
medicine, read and reported on a color flow duplex scan performed on appellant’s right thigh.
He noted a small tear in the right biceps femoris muscle with an apparent, organized hematoma,
but no evidence of active bleeding at the time of the examination. Dr. Gallagher’s report
mentioned that appellant “sustained blunt trauma to his right thigh shortly after surgery to his
right knee.” It contained no record of a physical examination (beyond the scan performed), no
review of the record, and no discussion of appellant’s condition. The report also showed the
signature of C. Bongiovanni, Ph.D., Director of Vascular laboratories, but was also signed by
Dr. Gallagher.

2

The Board lacks jurisdiction to consider evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (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).

2

In a January 26, 2015 decision, OWCP denied appellant’s claim. It found that he had
provided insufficient medical evidence to support a firm medical diagnosis or support causation
findings. OWCP determined that this medical evidence did not support appellant’s claim.
On February 27, 2015 appellant requested a review of the written record by OWCP’s
Branch of Hearings and Review.
OWCP received a letter from appellant on March 2, 2015. Appellant reported that his
doctor had kept him on light duty for approximately three weeks and that he desired only
payment of his medical bills. He asserted a letter from Dr. Bongiovanni, Ph.D., was supportive
of his claim.
In a decision dated June 12, 2015, the hearing representative noted that no additional
medical information had been provided. He affirmed the January 26, 2015 decision denying
appellant’s claim. The hearing representative also noted that the report of Dr. Gallagher noted a
conflicting mechanism of injury involving blunt trauma and a prior surgery to appellant’s right
knee.
Subsequent to the June 12, 2015 decision, appellant provided a report from
Dr. Bongiovanni, Ph.D., dated June 29, 2015 which sought to clarify the September 5, 2015
report of Dr. Gallagher.3 The report repeated the “blunt trauma” causation, but noted that the
condition of the right thigh was not related to a surgery on appellant’s left knee. In addition,
appellant provided a copy of a California State Compensation Insurance Fund form4 dated
September 3, 2014 and signed by Dr. Stevens. The form contained the same information on
history and medical treatment as was provided in the September 3, 2014 narrative report.
In a letter of July 9, 2015, received by OWCP on July 20, 2015, appellant requested
reconsideration of the June 12, 2015 decision. Appellant again stated that he was only pursuing
his claim for payment of his medical bills.
By decision dated October 16, 2015, OWCP denied merit review of the claim, pursuant
to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally

3

The signature of Dr. Gallagher does not appear as a counter-signature on this report.

4

“Doctor’s First Report of Occupational Injury or Illness.”

3

related to the employment injury.5 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of appellant, must be one
of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by appellant.9
ANALYSIS -- ISSUE 1
Appellant’s claim was initially denied by OWCP in a decision dated January 26, 2015.
That decision is not before the Board. Appellant requested a review of the written record which
resulted in a decision dated June 12, 2015 which affirmed the earlier denial of the claim. The
Board finds that he has not established a traumatic injury to his right thigh as alleged in his
claim.
The written record before the hearing examiner was unchanged from that previously
presented. That record does not explain the questions legitimately raised by Dr. Gallagher’s
September 5, 2014 report concerning a “blunt trauma” mechanism of injury and the existence of
a recent right knee surgery which constituted a preexisting condition. The report of September 3,
2014 by Dr. Stevens fails to explain how the action of stepping up into a vehicle with high
ground clearance caused appellant’s alleged injury to his right thigh. As such appellant did not
submit a rationalized medical opinion explaining how appellant’s diagnosed condition was
caused by the August 25, 2014 incident.

5

G.T., 59 ECAB 178 (2008).

6

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury
caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas
an occupational disease refers to an injury produced by employment factors which occur or are present over a period
longer than a single workday or work shift. 20 C.F.R. §§ 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
7

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

8

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

9

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

4

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.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA, OWCP has the discretion to reopen a case for review on
the merits. However, OWCP must exercise this discretion in accordance with the guidelines set
forth in its regulations.10 Section 10.606(b)(3) of OWCP’s regulations provides that an
application for reconsideration, including all supporting documents, must be submitted in writing
and set forth arguments and contain evidence that either: (1) shows OWCP erroneously applied
or interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.11
ANALYSIS -- ISSUE 2
Appellant requested a reconsideration of OWCP’s June 12, 2015 decision. He did not
show that OWCP made an error of law, nor did he advance a new legal theory. The record in the
case was essentially unchanged from the time of the January 26, 2015 decision. The form report
of Dr. Steven’s was factually identical to his earlier narrative report except in presentation. The
letter from Dr. Bongiovanni (a Ph.D.) dated June 29, 2015 is not medical evidence because there
is no indication that he is considered a physician under the definition found in FECA.12 His
attempt to clarify the report of Dr. Gallagher serves to increase the uncertainty in the file and
cannot be regarded as probative medical evidence. The evidence offered by appellant following
the June 12, 2015 review of the record was entirely cumulative or irrelevant and therefore fails to
establish that OWCP improperly denied a merit review under section 8128(a).
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury to his right thigh on August 19, 2014 in the performance of duty. OWCP also
properly denied merit review under 5 U.S.C. § 8128(a) on October 16, 2015.

10

E.B., 58 ECAB 681 (2007).

11

D.E., 58 ECAB 448 (2007).

12

5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See B.B., Docket No. 09-1858 (issued April 16, 2010); Roy L. Humphrey, 57 ECAB 238 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated October 16 and June 12, 2015 are affirmed.
Issued: March 28, 2016
Washington, DC

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

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

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

6