United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Topeka, KS, Employer
__________________________________________

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Appearances:
Brett E. Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1516
Issued: May 8, 2019

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 August 3, 2018 appellant, through counsel, filed a timely appeal from a May 17, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On June 6, 2017 appellant, then a 58-year-old retired sales/distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed shoulder, knee, and feet
conditions while working in various positions as a clerk and city mail carrier due to factors of her
federal employment. She noted that she first became aware of her claimed conditions on
February 27, 2015 and first related them to her federal employment on November 28, 2016.
Appellant retired from the employing establishment on February 27, 2015.
In an undated narrative statement, appellant described the duties she performed in the
various positions she held during her approximate 30 years of federal employment, noting that
they were repetitive in nature. She described her duties as a letter sorting machine (LSM)
clerk/floor clerk, city carrier, distribution clerk, and window clerk.3
In a February 9, 2017 report, Dr. John W. Ellis, a Board-certified family practitioner, noted
that on November 28, 2016 he had initially examined appellant and had obtained a history of
injury. He documented her work as a city carrier and a mail clerk and reported that such work
required a lot of gripping, lifting, sorting, and casing of mail and repetitive work with her hands.
Dr. Ellis noted that appellant’s city carrier work also involved sorting and delivering mail with a
lot of rapid, repetitive movements of her hands and that because she was stationed in the downtown
area she dealt with a heavy amount of mail. He reported that she last worked on February 27, 2015.
Dr. Ellis noted that appellant’s shoulder and knee pain began in the early 2000’s and, in 1990, she
had pain in the arch and in the ball of both feet. He also reported a history of her employmentrelated injuries under previous claims, reviewed medical records, and presented examination
findings. Dr. Ellis diagnosed traumatic arthritis of both shoulders, tendinitis of both shoulders,
traumatic arthritis of both knees, and flattening arch of both feet, which he opined that were
employment related. He explained that appellant’s employment, which required a lot of standing
and walking on concrete, caused repetitive strains on the muscles and tendons in the joints and
arch of her feet which caused the arches to fall. Dr. Ellis explained that standing and carrying a
bag as well as climbing stairs and steps while carrying a bag placed additional abnormal stresses
on her knees and on the cartilage and ligaments of her knees and caused traumatic arthritis,
tendinitis, and chondromalacia in both knees. He also explained that casing and delivering mail
caused repetitive strains of the shoulder muscles and ligaments which caused traumatic arthritis
and tendinitis in the shoulders.

3

Appellant alleged that her duties included keying letter mail on a LSM, casing mail, sitting on a stool, reaching
over her head continuously to insert mail into the letter case, standing on a hard cement floor, bending, lifting up to
70 pounds, loading a truck, pushing equipment, carrying trays of mail, delivering mail, walking 10 miles per day,
carrying a satchel weighing 30 to 40 pounds, walking on uneven terrain in all types of weather, and walking up and
down stairs.

2

In a development letter dated July 7, 2017, OWCP noted that Dr. Ellis had not explained
how appellant’s specific employment activities caused, contributed to, or aggravated her medical
conditions. It advised her of the type of factual and medical evidence needed to establish her claim
and provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the
necessary evidence. It also requested additional information from the employing establishment.
In response, appellant submitted factual and medical evidence, including a response to the
provided questionnaire. In her July 31, 2017 statement, she noted that she first learned that her
knee, shoulder, and foot conditions were work related from Dr. Ellis’ consultation. Appellant
described her activities outside of work prior to and after her retirement.4 In another statement,
she provided her work history from February 1985 to 2014, her prior employment injuries, the
treatments she received, and her current symptoms. The record reflects that appellant worked
limited duty with restrictions intermittently5 from 2004 until her retirement on February 27, 2015.6
Appellant submitted diagnostic reports. A March 31, 2009 x-ray of her right foot revealed
no acute process. A September 11, 2010 right knee x-ray showed no acute fracture or dislocation.
A June 2, 2011 ultrasound of appellant’s bilateral lower extremities was predominately normal.
An August 23, 2011 right knee x-ray and a June 3, 2016 left knee x-ray revealed minimal/mild
osteoarthritis. A September 27, 2011 magnetic resonance imaging (MRI) scan report of right knee
showed no evidence of meniscal, cruciate, or collateral ligament tear, chondromalacia with small
cartilaginous defect, and distal femoral chondromalacia.
OWCP received medical evidence dating from 2007 to 2016. In a May 15, 2007 report,
Dr. Joseph G. Sankoorikal, a Board-certified physiatrist, diagnosed tendinitis and opined that
repetitious-type activities and heavy lifting “seem to be aggravating the symptoms.”
In an April 2, 2009 report, Dr. Christopher Brodine, a podiatrist, discussed treatment
options for compression of neuroma of fourth interspace right and arthralgia right fourth
metatarsocuneilform joint. He injected the fourth interspace right for neuroma on April 17, 2009.
In a September 17, 2010 report, Dr. Aileen C. McCarthy, a Board-certified internist, noted
that appellant was seen in the emergency room with acute knee pain. She assessed prepatellar,
suprapatella bursitis “most likely,” and that appellant could have tendinitis. In a September 21,
2011 report, Dr. McCarthy indicated that the x-rays were consistent with some arthritis of the knee.

4
Appellant indicated that after she retired from the employing establishment she began work at Topeka Independent
Living Resource Center, 30 hours a week, where she cared for clients by driving to appointments, performing
housekeeping and laundry chores, as well as assisting clients with feeding, bathing, dressing, grooming, and mobility
transfers.
5
Appellant submitted copies of work restrictions, return to work reports, offers of modified assignments and
requests for light-duty work due to her carpal tunnel syndrome.
6

Under OWCP File No. xxxxxx599, appellant has an April 26, 2004 work injury accepted for left hamstring strain.
Under OWCP File No. xxxxxx083, she has an occupational disease claim accepted for bilateral carpal tunnel
syndrome and bilateral synovitis and tenosynovitis. Under OWCP File No. xxxxxx617, appellant has an accepted
condition for bilateral carpal tunnel syndrome and right cubital tunnel syndrome.

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In a September 27, 2010 report, Dr. J. Douglas Gardner, Board-certified in rheumatology
and internal medicine, reported that appellant’s right knee started to hurt approximately two weeks
prior with no history of trauma or injury. He assessed right knee pain with no clear cut
abnormalities. Dr. Gardner noted that it was possible that appellant could have had prepatellar
bursitis or tendinitis, but that there were no clinical findings that allowed for a more firm diagnosis.
In a May 17, 2011 report, Dr. Gardner noted that approximately three weeks prior appellant
had turned to the left at work and felt popping and pain in her left knee. He provided an assessment
of knee pain and possible small meniscal tear. Dr. Gardner noted that appellant’s right knee pain
from the previous fall had resolved. In an August 23, 2011 report, he indicated that she had right
knee pain and swelling since the prior Sunday. Dr. Gardner diagnosed right knee effusion and
pain, unknown etiology. He noted that appellant had twisted her left knee earlier that year and that
those symptoms had resolved. In an August 29, 2011 report, Dr. Gardner assessed right knee
pain and swelling of unclear cause. In his September 21, 2011 report, he provided an assessment
of right knee pain. Dr. Gardner noted that an x-ray was consistent with some arthritis. In an
October 9, 2012 report, he indicated that appellant had recurrent right knee pain and swelling.
Dr. Gardner diagnosed recurrent right knee pain and effusion likely related to underlying
osteoarthritis and hip pain likely bursitis.
In an October 14, 2012 emergency room report, Dr. P. Marcus Bassett, an emergency
medicine specialist, noted that appellant had right knee pain, with no injury reported, and swelling
that started two weeks ago with increased pain that day. No diagnosis was provided.
In a December 22, 2014 duty status report (Form CA-17), a neurologist with an illegible
signature, diagnosed bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome.
In a June 3, 2016 report, Dr. Gardner noted that appellant had left knee pain for the prior
one to two weeks with no injury. An assessment of left knee pain, unspecified chronicity, with
radiographic evidence of left knee mild osteoarthritis was provided.
In an October 17, 2016 report, Dr. McCarthy diagnosed appellant with acute pain of the
right shoulder. Other active problems included degenerative joint disease of the lower leg and
osteoarthritis.
In an August 24, 2017 report, Dr. Ellis noted that he initially saw appellant on
November 28, 2016 and that he had provided additional medical rationale in a February 9, 2017
report.7 With regard to the shoulders, he noted that appellant’s many years of working as a city
carrier required her to carry a bag and she had to use both shoulders, which put abnormal additional
stresses on the muscles and ligaments of her shoulders. Dr. Ellis noted that her work also required
a lot of repetitive pulling and pushing and reaching above shoulder height, which caused the
muscles and tendons in her shoulders to become hypertrophied. He related that tendinitis in
appellant’s shoulders developed into traumatic arthritis with continued overuse once the muscles
and tendons were hypertrophied in the shoulder ligaments. With regards to the knees, Dr. Ellis
noted that her prolonged years of standing put extra additional stressors on the cartilage of the
femurs and tibias of both knees, which caused a more rapid degeneration of the cartilage. The loss
7

This report is not of record.

4

of cartilage in the knees caused abnormal joint space in the knees, which caused abnormal
movement of the knees, which caused subsequent traumatic arthritis in the bones of the knees.
Dr. Ellis also opined that prolonged standing caused abnormal additional stresses on the muscles
and tendons in the arch of appellant’s feet and the joints of bones in her ankles and feet, which
caused flattening of the arches.
In a second August 24, 2017 report, Dr. Ellis indicated that, after about 10 years of working
at the employing establishment, appellant began to notice pain in the lower back. He diagnosed
muscle tendon unit strain of the lumbar spine, arthritis of the lumbar spine, and bilateral S1 spinal
nerve impingement. Dr. Ellis opined that appellant’s prolonged standing and working caused
abnormal increased pressures on the lower lumbar discs. He explained that her prolonged lifting
of boxes, in front of the body and then put into hampers or vehicles, put leverage on the upper
arms and increased pressure and abnormal stresses on the iliolumbar and sacroiliac ligaments of
the lumbar spine.
On September 14, 2017 OWCP received an occupational disease claim (Form CA-2) dated
September 5, 2017 in which appellant alleged that her federal duties caused or aggravated her back
condition.
By decision dated December 6, 2017, OWCP denied appellant’s occupational disease
claim. It found that there was no rationalized medical evidence sufficient to establish that the
diagnosed medical conditions were causally related to the accepted employment factors.
On January 10, 2018 OWCP received appellant’s request for a review of the written record
before an OWCP hearing representative, postmarked January 5, 2018.
Additional evidence included discharge instructions dated April 3, 2009 and emergency
room encounter summaries dated September 27, 2011, January 10 and October 14, 2012, and
April 25 and May 1, 2013.
By decision dated May 17, 2018, an OWCP hearing representative affirmed the
December 6, 2017 decision. The hearing representative found that the medical evidence of record
was insufficient to establish causal relationship between the diagnosed medical conditions and the
accepted factors of appellant’s federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,8 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

8
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

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to the employment injury.9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.11
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.12 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is 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.13
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant submitted reports by Dr. Ellis in support of his claim. In his February 9 and
August 24, 2017 reports, Dr. Ellis noted appellant’s employment history, her employment-related
injuries under previous claims, reviewed medical records, and presented examination findings. He
diagnosed traumatic arthritis of both shoulders, tendinitis of both shoulders, traumatic arthritis of
both knees, flattening arch of both feet, muscle tendon unit strain of the lumbar spine, arthritis of
the lumbar spine, and bilateral S1 spinal nerve impingement, all of which he attributed to her
employment duties.
In his February 9, 2017 report, Dr. Ellis explained that appellant’s employment, which
required a lot of standing and walking on concrete, caused repetitive strains on the muscles and
tendons in the joints and the arch of her feet which caused the arches to fall. He further explained
that standing and carrying a bag as well as climbing stairs and steps while carrying a bag placed
9

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
10
S.C., Docket No. 18-1242 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
11

C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

12

M.B., Docket No. 17-1999 (issued November 13, 2018).

13

M.L., Docket No. 18-1605 (issued February 26, 2019).

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additional abnormal stresses on her knees and on the cartilage and ligaments of her knees and
caused traumatic arthritis, tendinitis, and chondromalacia in both knees. Dr. Ellis also explained
that casing and delivering mail caused repetitive strains of the shoulder muscles and ligaments
which caused traumatic arthritis and tendinitis in the shoulders.
In his August 24, 2017 report, Dr. Ellis explained that appellant’s many years of working
as a city carrier required her to carry a bag and she had to use both shoulders, which put abnormal
additional stresses on the muscles and ligaments of her shoulders. He noted that her work also
required a lot of repetitive pulling and pushing and reaching above shoulder height, which caused
the muscles and tendons in her shoulders to become hypertrophied. Dr. Ellis related that tendinitis
in appellant’s shoulders developed into traumatic arthritis due to continued overuse once the
muscles and tendons had hypertrophied in the shoulder ligaments. With regard to the knees, he
noted that her prolonged years of standing put extra additional stressors on the cartilage of the
femurs and tibias of both knees, which caused a more rapid degeneration of the cartilage. The loss
of cartilage in the knees caused abnormal joint space in the knees, which resulted in abnormal
movement of the knees, which caused subsequent traumatic arthritis in the bones of the knees.
Dr. Ellis also opined that prolonged standing caused abnormal additional stresses on the muscles
and tendons in the arch of appellant’s feet and the joints of bones in her ankles and feet, which
caused flattening of the arches. He also addressed her lumbar condition. Dr. Ellis opined that
appellant’s prolonged standing and working caused abnormal increased pressures on the lower
lumbar discs of her spine. He explained that her prolonged lifting of boxes, in front of the body
and then put into hampers or vehicles, put leverage on the upper arms and increased pressure and
abnormal stresses on the iliolumbar and sacroiliac ligaments of the lumbar spine.
The Board finds that Dr. Ellis provided an affirmative opinion on causal relationship which
describes the mechanism of injury, findings upon examination, and explained how the accepted
factors of employment produced mechanical forces which caused appellant’s diagnosed medical
conditions. The Board finds that his opinion, while not sufficiently rationalized to meet her burden
of proof, is sufficient, given the absence of opposing medical evidence, to require further
development of the case record.14
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to of proof establish entitlement to compensation. However,
OWCP shares responsibility in the development of the evidence to see that justice is done.15
On remand, OWCP should refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts for an evaluation and rationalized medical opinion
regarding whether her diagnosed conditions were caused or aggravated by the accepted factors of
her federal employment. After such further development of the case record as deemed necessary,
OWCP shall issue a de novo decision.

14

S.S., Docket No. 17-0332 (issued June 26, 2018). See also John J. Carlone, 41 ECAB 354 (1898); Horace
Langhorne, 29 ECAB 820 (1978).
15

C.M., Docket No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).

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CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 17, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
the decision of the Board.
Issued: May 8, 2019
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Brooklyn Center, MN, Employer
__________________________________________

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

Docket No. 09-860
Issued: November 2, 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 February 11, 2009 appellant filed a timely appeal from an October 17, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
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 established that he sustained an injury on December 11,
2006 in the performance of duty.
FACTUAL HISTORY
On January 25, 2007 appellant, then a 55-year-old computer assistant, filed a traumatic
injury claim (Form CA-1) alleging that on December 11, 2006 he sustained a low back, right
shoulder and neck injury. He lifted a computer monitor from the bottom shelf of a cart when he
started to lose his balance. Appellant set the computer down immediately, triggering back and

shoulder pain. He did not stop work. The Office adjudicated appellant’s claim as a minor,
uncontroverted case without time lost from work and authorized medical expenses up to
$1,500.00.
Appellant submitted treatment records dated December 13, 2006 through July 26, 2007
from Dr. Sheldon M. Osvold, a chiropractor, who treated appellant for neck, jaw, upper and
lower back and shoulder pain and headaches. On December 13, 2006 Dr. Osvold noted the
history that appellant experienced pain while moving a computer monitor at work. He thereafter
noticed pain in the right jaw, low back and shoulder aggravated by heavy lifting or twisting.
Dr. Osvold diagnosed cervical, thoracic, lumbar and sacrum and sacroiliac joint subluxations and
strains in the cervical, thoracic and lumbar back, sacroiliac region and rotator cuff. He opined
that the incident at work agitated appellant’s diagnosed conditions.
On February 9, 2007 Dr. Osvold determined that x-rays of the cervical, thoracic and
lumbar regions were necessary. A March 2, 2007 x-ray of the cervical spine revealed a mild left
list of the upper thoracic and cervical spines, mild head incline to the left, mild or moderately
diminished cervical lordosis, mild anterior carriage of the head, moderate degenerative disc
space narrowing from C4-5 through C6-7 with associated spondylosis and uncovertebral
arthrosis and moderate facet arthrosis. An x-ray of the thoracic spine revealed mild left
convexity of the mid to lower thoracic spine and mild right convexity of the upper thoracic spine
and mild degenerative disc space narrowing with associated anterior spondylosis. An x-ray of
the lumbar spine revealed approximately one centimeter discrepancy in the heights of the
femoral heads with associated moderate pelvic unleveling, mild lateral deviations through the
lumbar spine, a shifted thoracolumbar junction to the midline and mild facet arthrosis from L2-3
through L5-S1.
On June 24, 2008 Dr. Osvold stated that appellant was still experiencing regular shoulder
and hip pain which has caused him to wake from sleep. He opined that, based on duration and
intensity, appellant sustained permanent injuries. Dr. Osvold diagnosed subluxations of the
cervical, thoracic, and lumbar spine and of the sacrum and sacroiliac joints. He also diagnosed
sprain and strain of the cervical, thoracic and lumbar spine, sacroiliac region and bilateral rotator
cuff. Dr. Osvold submitted a duty status report indicating that appellant could not perform
regular work.
By letter dated September 8, 2008, the Office notified appellant that his claim was
adjudicated as a minor injury with no lost time from work. However, it was now required to
determine whether he sustained an employment injury on December 11, 2006. The Office
advised appellant that the medical evidence of record was insufficient to support his traumatic
injury claim and requested additional evidence.
In an October 3, 2008 report, Dr. Osvold described the December 11, 2006 incident
reiterated appellant’s complaint of pain to the low and mid back, neck and shoulders. He stated
that on December 13, 2006 appellant underwent usual orthopedic, neurological and chiropractic
tests indicating injuries consistent with the incident at work. Palpation of the cervical, thoracic
and lumbosacral spine indicated deep and superficial muscle hypertonicity, loss of range of
motion and palpatory tenderness. Dr. Osvold reported that in addition to the findings listed on
the radiology report, appellant had structural changes in his cervical, thoracic and lumbar

2

vertebra which included left lateral flexion at C4 and right lateral flexion of C6, with ipsolateral
rotation, T4-10 right lateral flexion with contralateral rotation and L1-2 left rotation, with pelvic
unleveling. He concluded that these x-rays showed evidence of vertebral subluxation.
Dr. Osvold attached a copy of the March 2, 2007 x-rays and a March 3, 2007 report which
summarized the x-rays. Although appellant had complaints in the past, none were as substantial
as those arising from the December 11, 2006 incident. Dr. Osvold diagnosed subluxations of the
cervical, thoracic, and lumbar spine and of the sacrum and sacroiliac joints. Due to the duration
of the pain following the injury, Dr. Osvold expected intermittent exacerbations of pain that may
require future care. He was also currently treating appellant for injuries related to a June 2008
automobile accident that aggravated his work-related injuries and resulted in additional injuries.
In an October 17, 2008 decision, the Office denied the traumatic injury claim. It found
that the December 11, 2006 incident occurred as alleged; however, appellant did not provide
sufficient medical evidence to establish injury. The Office noted that, because there was not a
diagnosis of a subluxation of the spine as demonstrated by x-ray, Dr. Osvold did not qualify as a
physician as defined under the Federal Employees’ Compensation Act.
LEGAL PRECEDENT
An employee seeking compensation under the Act1 has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence,2
including that he is an “employee” within the meaning of the Act3 and that he filed his claim
within the applicable time limitation.4 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.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. The employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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the time, place and in the manner alleged.6 The employee must also submit evidence, in the form
of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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 employee.8
The term “physician” includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary.9
ANALYSIS
The Office accepted that, on December 11, 2006, appellant lifted a computer monitor
from a cart at work and experienced pain. The issue is whether appellant established that he
sustained an injury causally related to the incident.
Appellant submitted treatment records from Dr. Osvold, a chiropractor. The Board notes
that a chiropractor is a physician as defined under the Act to the extent that the reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist.10 Under the Office’s implementing federal
regulations, a chiropractor may interpret his or her x-rays to the same extent as any other
physician.11 To be given any weight, the report must state that x-rays support the finding of
spinal subluxation.12
Dr. Osvold noted that he first treated appellant on December 13, 2006 and provided a
history of the December 11, 2006 incident accepted in this case. On February 9, 2007 he noted
that x-rays were necessary which were obtained on March 2, 2007. Based on x-rays of the
6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
9

Paul Foster, 56 ECAB 208 (2004). See 5 U.S.C. § 8101(2).

10

See 20 C.F.R. § 10.311(a).

11

Id. at § 10.311(c).

12

The Office will not necessarily require submittal of the x-rays but the report must be made available on request.

Id.

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cervical, thoracic and lumbar regions, the chiropractor’s subsequent reports diagnosed spinal
subluxations. He diagnosed off-centering and misalignments in each of the regions for which
x-rays were obtained. The Office’s implementing federal regulations define subluxation as an
incomplete dislocation, off-centering, misalignment, fixation or abnormal spacing of the
vertebrae which must be demonstrable on any x-ray film.13 For this reason, the Office
improperly determined that Dr. Osvold did not qualify as a physician under the Act.14 The
October 17, 2008 decision merely stated that the “chiropractor’s report did not diagnose a spinal
subluxation.” It is apparent that the Office did not conduct a thorough review of the evidence
submitted by Dr. Osvold. Based on the evidence as submitted, appellant has submitted a prima
facie claim of injury. There is no contradictory medical evidence of record.15 For this reason,
the case will be remanded to the Office for further development and a determination as to
whether appellant sustained an injury in the performance of duty on December 11, 2006.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

20 C.F.R. § 10.5(bb).

14

See Mary A. Ceglia, 55 ECAB 626 (2004) (as the chiropractor qualified as a physician under the Act, the
question was whether he provided sufficient evidence to establish the causal relationship between the diagnosed
subluxation and the accepted incident).
15

Compare Kathryn Haggerty, 45 ECAB 383 (1994).

5

ORDER
IT IS HEREBY ORDERED THAT the October 17, 2008 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded to the Office for further
action in conformance with this decision.
Issued: November 2, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
Yellowstone National Park, WY, Employer
__________________________________________

)
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)
)
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)
)
)

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

Docket No. 20-1533
Issued: May 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 17, 2020 appellant filed a timely appeal from a June 5, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $10,436.69, for the period July 23, 2006 through
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 5, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

March 3, 2018, because he concurrently received Social Security Administration (SSA) agerelated retirement benefits while also receiving FECA benefits without an appropriate offset;
(2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment; and (3) whether OWCP
properly required recovery of the overpayment by deducting $308.00 from appellant’s continuing
compensation every 28 days.
FACTUAL HISTORY
On May 16, 2006 appellant, then a 67-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on May 15, 2006 he sustained a crush injury to his left
lower extremity when a hand truck he was operating carrying a commercial water heater tipped
over, causing the water heater to fall onto his left lower leg while in the performance of duty.3 He
stopped work on May 15, 2006 and did not return. Appellant’s retirement coverage was listed as
Federal Employees Retirement System (FERS) with a service computation date of
March 16, 1993.
On June 27, 2006 OWCP accepted the claim for a crush injury of the left ankle. It
subsequently expanded its acceptance of the claim to include contusion of the left lower leg,
crushing injury of the left ankle, and lymphedema. OWCP paid appellant wage-loss compensation
on the supplemental rolls commencing July 30, 2006 and on the periodic rolls commencing
August 6, 2006.4
On February 5, 2018 OWCP provided SSA a dual benefits calculation form. It listed the
computation period as May 15, 2006 onward.
On March 12, 2018 SSA forwarded a FERS/SSA dual benefits calculation form, wherein
SSA calculated SSA benefit rates with a FERS offset and without a FERS offset from
January 2003 through December 2017. Beginning January 1, 2003, the SSA rate with FERS was
$924.90 and without FERS was $865.30. Beginning December 1, 2003, the SSA rate with FERS
was $944.20 and without FERS was $883.40. Beginning December 1, 2004, the SSA rate with
FERS was $969.70 and without FERS was $907.20. Beginning December 1, 2005, the SSA rate
with FERS was $1,009.40 and without FERS was $944.30. Beginning December 1, 2006, the
SSA rate with FERS was $1,042.70 and without FERS was $975.40. Beginning December 1,
2007, the SSA rate with FERS was $1,066.60 and without FERS was $997.80. Beginning
December 1, 2008, the SSA rate with FERS was $1,128.40 and without FERS was $1,055.60.
Beginning December 1, 2009, the SSA rate with FERS was $1,128.40 and without FERS was
$1,055.60. Beginning December 1, 2010, the SSA rate with FERS was $1,128.40 and without
FERS was $1,055.60. Beginning December 1, 2011, the SSA rate with FERS was $1,169.00 and
without FERS was $1,093.50. Beginning December 1, 2012, the SSA rate with FERS was
3
Prior to the present claim, under OWCP File No. xxxxxx590, OWCP accepted that on May 30, 2004 appellant
sustained a left rotator cuff tear and closed fracture of the left shoulder, necessitating authorized arthroscopic surgery
performed on June 23, 2004. On June 22, 2007 it administratively combined the present claim, with OWCP File No.
xxxxxx590 as the master claim number.
4
By decision dated July 18, 2008, OWCP reduced appellant’s wage-loss compensation effective that day based on
his ability to earn wages in the constructed position of customer service representative.

2

$1,188.80 and without FERS was $1,112.10. Beginning December 1, 2013, the SSA rate with
FERS was $1,206.50 and without FERS was $1,128.70. Beginning December 1, 2014, the SSA
rate with FERS was $1,227.10 and without FERS was $1,147.80. Beginning December 1, 2015,
the SSA rate with FERS was $1,227.10 and without FERS was $1,147.80. Beginning December 1,
2016, the SSA rate with FERS was $1,230.70 and without FERS was $1,151.20. Beginning
December 1, 2017, the SSA rate with FERS was $1,255.30 and without FERS was $1,174.20.
In a letter dated March 16, 2018, OWCP notified appellant that SSA had confirmed his
receipt of age-related retirement benefits attributable, in part, to his federal service. It explained
that the portion of SSA age-related retirement benefits attributable to his federal service would be
deducted from his 28-day periodic rolls compensation payments beginning March 4, 2018, in the
amount of $74.86 every 28 days.
In a letter dated March 26, 2018, appellant acknowledged that he received $1,268.00 a
month in SSA benefits. He contended that OWCP should not have reduced his FECA payments
as he did not receive FERS retirement.
In a letter dated April 9, 2018, OWCP noted that, while appellant had not received FERS
retirement benefits through the Office of Personnel Management, he had received a prohibited
dual benefit as his SSA benefits were based in part on FERS service. It explained that it had
reduced his FECA benefits based on the FERS portion of SSA benefits that were attributable to
federal service.
OWCP completed a FERS offset calculation worksheet on April 2, 2020. It calculated the
overpayment amount by determining the daily FERS offset amount and multiplying that amount
by the number of days in each period July 23 through March 3, 2018 for a total overpayment
amount of $10,436.69. OWCP determined: during the period July 23 through November 30,
2006, an overpayment had been created in the amount of $281.15; for the period December 1,
2006 through November 30, 2007, an overpayment had been created in the amount of $809.82; for
the period December 1, 2007 through November 30, 2008, an overpayment had been created in
the amount of $830.14; for the period December 1, 2008 through November 30, 2009, an
overpayment had been created in the amount of $876.00; for the period December 1, 2009 through
November 30, 2010, an overpayment had been created in the amount of $876.00; for the period
December 1, 2010 through November 30, 2011, an overpayment had been created in the amount
of $876.00; for the period December 1, 2011 through November 30, 2012, an overpayment had
been created in the amount of $910.98; for the period December 1, 2012 through November 30,
2013, an overpayment had been created in the amount of $922.93; for the period December 1,
2013 through November 30, 2014, an overpayment had been created in the amount of $937.37; for
the period December 1, 2014 through November 30, 2015, an overpayment had been created in
the amount of $954.21; for the period December 1, 2015 through November 30, 2016, an
overpayment had been created in the amount of $956.83; for the period December 1, 2016 through
November 30, 2017; an overpayment had been created in the amount of $956.62; and for the period
December 1, 2017 through March 3, 2018, an overpayment had been created in the amount of
$248.65. It added the overpaid amounts to equal $10,436.69.
In a preliminary overpayment determination dated April 2, 2020, OWCP notified appellant
that he had received an overpayment of compensation in the amount of $10,436.69, for the period

3

July 23, 2006 through March 3, 2018, because the SSA/FERS offset was not applied to payments
for this period. It determined that he was with fault in the creation of the overpayment because he
accepted a payment which he knew, or reasonably should have known, to be incorrect. OWCP
requested that appellant submitted a completed overpayment recovery questionnaire (Form
OWCP-20) to determine a reasonable repayment method, and advised him that he could request a
waiver of recovery of the overpayment. It requested financial information, including copies of
income tax returns, bank account statements, bills, pay slips, and any other records to support
income and expenses. OWCP advised appellant that it would deny waiver if he failed to furnish
the requested financial information within 30 days. It further notified him that, within 30 days of
the date of the letter, he could contest the overpayment and request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing.
In response, appellant provided an overpayment action request form requesting that OWCP
issue a decision on the issues of fault and possible waiver based on the written evidence of record.
He contended that he did not report SSA benefits received as they were based only on private
sector employment. Appellant also submitted a statement dated April 8, 2020, noting that OWCP
did not indicate any problem with his benefits in its communications to him from 2006 through
2020. He also provided a statement dated April 14, 2020, contending that his SSA benefits were
based on 42 years of private sector employment. Appellant did not complete the overpayment
recovery questionnaire or otherwise provide the financial information requested.
By decision dated June 5, 2020, OWCP finalized the preliminary overpayment
determination finding that appellant had received an overpayment of compensation in the amount
of $10,436.69, for the period July 23, 2006 through March 3, 2018, because the SSA/FERS offset
had not been applied to his wage-loss compensation. It further found that he was with fault in the
creation of the overpayment, thereby precluding waiver of recovery of the overpayment, because
he accepted payments which he knew or should have known to be incorrect. Recovery of the
overpayment would be accomplished by deducting $308.00 every 28 days from appellant’s
continuing compensation payments.
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.5 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.6
Section 10.421(d) of OWCP’s implementing regulations requires OWCP reduce the
amount of compensation by the amount of SSA age-related retirement benefits that are attributable
to federal service of the employee.7 FECA Bulletin No. 97-09 provides that FECA benefits have
5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

4

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.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $10,436.69, for the period July 23, 2006 through March 3, 2018,
as he concurrently received SSA age-related retirement benefits and FECA wage-loss
compensation benefits without appropriate offset.
As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA
age-related retirement benefits attributable to federal service for the same period.9 The information
provided by SSA established that appellant had received SSA age-related retirement benefits that
were attributable to his federal service from July 23, 2006 through March 3, 2018. Consequently,
the fact of the overpayment has been established.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amount of SSA age-related retirement
benefits that were attributable to federal service. SSA provided its rate with FERS and without
FERS during the specific period July 23, 2006 through March 3, 2018. OWCP provided its
calculation for each relevant period based on SSA’s worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period July 23, 2006 through March 3, 2018 and finds that an overpayment of compensation in the
amount of $10,436.69 has been established.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) 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 be against equity and
good conscience.”10 No waiver of payment is possible if appellant is with fault in helping to create
the overpayment.11
On the issue of fault, section 10.433(a) of OWCP’s regulations provides that an individual
is with fault in the creation of an overpayment who: (1) made an incorrect statement as to a
material fact which the individual knew or should have known to be incorrect; (2) failed to furnish
8

FECA Bulletin No. 97-09 (February 3, 1997).

9

Supra note 5. M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., Docket No. 18-0795 (issued
January 4, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019).
10

5 U.S.C. § 8129; see A.S., Docket No. 17-0606 (issued December 21, 2017).

11

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

5

information which the individual knew or should have known to be material; or (3) with respect
to the overpaid individual only, accepted a payment which the individual knew or should have
been expected to know was incorrect.12 With respect to whether an individual is without fault,
section 10.433(b) provides that whether or not OWCP 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 he or she is being overpaid.13
OWCP’s procedures provide that, if a claimant receives benefits from SSA as part of an
annuity under FERS concurrently with disability/wage loss compensation, in such a case, the
claimant should be found without fault unless there is evidence on file that the claimant was aware
that the receipt of full SSA benefits concurrent with disability/wage-loss compensation was
prohibited.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the $10,436.69 overpayment of compensation.
The Federal (FECA) Procedure Manual identifies that, regarding an SSA dual benefits
scenario, where the claimant receives SSA benefits as part of an annuity under FECA, which
results in an overpayment, the claimant should be found not at fault unless there is evidence on file
that the claimant was aware that the receipt of full SSA benefits concurrent with disability/wageloss compensation was prohibited.15 Because of the complex nature of SSA benefits
administration, appellant could not have been expected to be able to calculate the amount of an
offset. Therefore, he could not reasonably have been aware during the relevant period that his
concurrent receipt of SSA benefits constituted an actual prohibited dual benefit.16
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.17 Therefore, based on the circumstances described, the Board finds
12

20 C.F.R. § 10.433(a); see K.F., Docket No. 19-1016 (issued February 14, 2020); C.L., Docket No. 19-0242
(issued August 5, 2019).
13

Id. at § 10.433(b); L.L., Docket No. 19-1690 (issued February 25, 2020); C.L., id.

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment,
Chapter 6.300.4g(4) (September 2018).
15

Id.

16
See J.B., Docket No. 19-1244 (issued December 20, 2019); see also G.G., Docket No. 19-0684 (issued
December 24, 2019) (The Board affirmed OWCP’s finding that, due to the complexity of SSA age-related retirement
benefits administration, appellant was not with fault in the creation of the overpayment because he could not have
reasonably known that an improper payment had occurred. OWCP determined that appellant was not expected to be
able to calculate the amount of the offset prior to receipt of information for SSA).
17

J.S., Docket No. 19-0824 (issued October 4, 2019).

6

that OWCP has not met its burden of proof to establish that appellant was at fault in the creation
of the overpayment for the period July 23, 2006 through March 3, 2018.
The Board will, therefore, reverse OWCP’s finding of fault and remand the case for
consideration of whether appellant is entitled to a waiver of recovery of the overpayment. After
any further development as deemed necessary, OWCP shall issue a de novo decision.18
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $10,436.69, for the period July 23, 2006 through March 3, 2018,
as he concurrently received SSA age-related retirement benefits and FECA wage-loss
compensation without appropriate offset. The Board further finds that OWCP improperly
determined that he was at fault in the creation of the overpayment of compensation.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2020 decision of the Office of Workers’
Compensation Programs is affirmed in part and reversed in part, and the case is remanded to
OWCP for further proceedings consistent with this decision of the Board.
Issued: May 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE NAVY,
Camp Lejeune, NC, Employer
__________________________________________

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

Docket No. 14-1363
Issued: October 2, 2014

Case Submitted on the Record

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

JURISDICTION
On May 22, 2014 appellant filed a timely appeal from a November 27, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from the date of the last merit decision dated May 20, 2013 to the filing of the appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely under 5 U.S.C. § 8124.

1

This appeal was received by the Board on May 29, 2014. As the date of receipt would render the appeal
untimely filed, pursuant to the Board’s Rules of Procedure the appeal will be considered to have been filed as of the
date of the postmark. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 53-year-old contract surveillance representative, filed a Form CA-2 claim
for benefits on February 27, 2013, alleging that he developed an emotional condition causally
related to employment factors.
In a February 28, 2013 report, Dr. Shayna Walker, a specialist in family medicine and a
treating psychiatrist, stated that appellant had anxiety symptoms which were exacerbated and
worsened by work-related stressors. She diagnosed major depression disorder and panic disorder
without agoraphobia. Dr. Walker submitted reports excusing appellant from work on January 25
and February 8, 2013.
In a letter received by OWCP on March 11, 2013, the employing establishment
challenged appellant’s claim.
By letter dated March 13, 2013, OWCP asked appellant to submit a comprehensive
medical report from his treating physician describing his symptoms and the medical reasons for
his condition. It requested an opinion as to whether his claimed condition was causally related to
his federal employment. OWCP requested that appellant submit the additional evidence within
30 days.
In a March 27, 2013 report, Dr. Walker stated that she initially examined appellant on
January 18, 2013, at which time she performed a psychiatric evaluation. She related that he
experienced work-related anxiety a few days prior to his first evaluation in mid-January because
of harassment at work. Appellant had stressors from work-exacerbated chronic panic symptoms
and depressive symptoms. Dr. Walker advised that he displayed symptoms of panic attacks,
insomnia, depressed mood, poor interest in things, poor concentration, excessive worries and
racing thoughts during his initial evaluation. She opined that appellant’s mental health concerns
were causally related to work stressors and interpersonal difficulties.
By decision dated May 20, 2013, OWCP denied appellant’s claim. It found that he failed
to submit sufficient factual evidence to establish a compensable factor of employment.
On June 20, 2013 appellant requested an oral hearing.
In a decision dated November 27, 2013, OWCP denied the request as untimely filed
pursuant to 5 U.S.C. § 8124. It informed appellant that his case had been considered in relation
to the issues involved and that the request was further denied for the reason that the issue in this
case could be addressed by requesting reconsideration from the district office and submitting
evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary ... is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the

2

Secretary.3 Section 10.615 of the federal regulations implementing this section of FECA
provides that a claimant shall be afforded a choice of an oral hearing or a review of the written
record.4 The request must be sent within 30 days (as determined by postmark or other carrier’s
date marking) of the date of the decision for which a hearing is sought.5 A hearing is a review of
an adverse decision by an OWCP hearing representative. Initially, the claimant can choose
between 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.6 A
request for either an oral hearing or a review of the written record must be submitted, in writing,
within 30 days of the date of the decision for which the hearing is sought.7 A claimant is not
entitled to a hearing as a matter of right if the request is not made within 30 days from the date of
the decision.8 OWCP has discretion, however, to grant or deny a request that is made after this
30-day period.9 In such a case, it will determine whether a discretionary hearing should be
granted and, if not, will so advise the claimant with reasons.10
While a claimant may not be entitled to a hearing as a matter of right if the request is
untimely, OWCP has the discretionary authority to grant the request and must properly exercise
such discretion.11
ANALYSIS
On June 20, 2013 appellant requested an oral hearing. Because he did not request the
hearing within 30 days of the May 20, 2013 decision, he was not entitled to a hearing as a matter
of right under section 8124(b)(1). OWCP considered whether to grant a discretionary review
and properly advised appellant that his case had been considered and denied for the reason that
the issue in the case could be addressed by requesting reconsideration from the district office and
submitting evidence not previously considered.
When OWCP neglected to issue a decision on appellant’s request for oral hearing or
review of the written record in a timely fashion, it effectively exhausted his opportunity to obtain
a merit review of the May 20, 2013 decision before the Board.12 Appellant’s May 20, 2013
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

Id. at § 10.616(a).

6

Supra note 4.

7

Supra note 5.

8

James Smith, 53 ECAB 188 (2001).

9

20 C.F.R. § 10.616(b).

10

Supra note 8.

11

See id.; Cora L. Falcon, 43 ECAB 915 (1992); Mary B. Moss; 40 ECAB 640 (1989); Rudolph Bermann, 26
ECAB 354 (1975).
12

See D.M., Docket No. 08-1814 (issued July 16, 2009).

3

request for review of the written record went unanswered for more than six months. By the time
OWCP issued its November 27, 2013 decision denying the request for an oral hearing, he did not
have the time to appeal the merits of OWCP’s May 20, 2013 decision denying his emotional
condition claim to the Board. The Board finds that OWCP abused its discretion by waiting over
six months to issue its decision denying appellant’s request for hearing. As such, the case will be
remanded to OWCP to issue a de novo decision on the claim to protect appellant’s appeal
rights.13
CONCLUSION
The Board finds that OWCP abused its discretion by delaying its decision on appellant’s
request for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the November 27, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: October 2, 2014
Washington, DC

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

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

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

13

Marilyn F. Wilson, 51 ECAB 234, 235 (1999); Brian R. Leonard, 43 ECAB 255, 259-60 (1991) (the Board
held that OWCP’s delay in processing the employee’s request for a hearing effectively precluded the opportunity to
obtain merit review of the claim and constituted an abuse of discretion).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

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)
)
)

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

Docket No. 06-2114
Issued: February 12, 2007

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 September 15, 2006 appellant filed a timely appeal from the June 15, 2006 merit
decision of the Office of Workers’ Compensation Programs, which denied a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the schedule award decision.
ISSUE
The issue is whether appellant is entitled to a schedule award for impairment resulting
from authorized surgery.
FACTUAL HISTORY
On June 7, 2005 appellant, then a 46-year-old clerk, injured her right shoulder in the
performance of duty when she lifted a tub of magazines, heard a pop in her right arm and felt a
burning sensation. The Office accepted her claim for sprain/strain rotator cuff, right. It notified
appellant that her preexisting acromioclavicular joint arthritic degenerative joint disease and
degenerative ganglion cyst were not covered.

On July 7, 2005 the Office authorized “right shoulder arthroscopy/surgery” and “right
repair of tendon(s).” On August 5, 2005 the Office authorized “right repair of shoulder.” On
August 30, 2005 appellant underwent an open rotator cuff repair and acromioplasty, a distal
clavicle resection and an arthroscopic extensive glenohumeral joint debridement of the right
shoulder. Postoperative findings included a large full-thickness rotator cuff tear; severe
acromioclavicular joint degenerative joint disease with large intraosseous distal clavicle cyst and
degenerative ganglion cyst superior to the acromioclavicular joint; and mild adhesive
capsulitis/synovitis, right shoulder glenohumeral joint and labral tears. On February 2, 2006 the
Office notified appellant that the request for authorization for August 30 to September 30, 2005
was approved for “repair of shoulder,” “shoulder arthroscopy/surgery” and “partial removal,
collar bone.”
Dr. Robert P. Fogolin, appellant’s orthopedic surgeon, reported maximum medical
improvement on February 28, 2006. Appellant noted pain in her shoulder with 10-hour days.
There was no snapping sensation, no radiating pain or paresthesias or numbness down the arm
and no neck pain. Dr. Fogolin described his findings on physical examination:
“Patient has function range of motion of the right shoulder with full forward
flexion, abduction and adduction extension. Internal and external rotation were
each 90 percent when abducting the arm to 90 degrees. This was equal to
contralateral side. The strength of the rotator cuff was full with internal and
external rotators and almost a 5/5 strength of the supraspinatus and elevators with
no scapula winging. Incisions are well healed.”
X-rays showed evidence of acromioplasty to a Type I, adequate distal clavicle resection
with no bony overgrowth, glenohumeral joint reduced, subacromial space acceptable and a mild
down-sloping acromion. Dr. Fogolin rated the impairment of appellant’s right upper extremity:
“Based on [the American Medical Association,] Guides [to] the Evaluation of Permanent
Impairment, 5th edition, she has a 10 percent upper extremity impairment based on the distal
clavicle resection right shoulder which is noted on Table 16-12.” On May 17, 2006 Dr. Fogolin
reported that appellant’s June 7, 2005 injury resulted in a 10 percent permanent impairment of
the upper extremity.
On June 1, 2006 appellant filed a claim for a schedule award. An Office medical adviser
reviewed Dr. Fogolin rating, stating:
“Claimant had combined arthroscopic open repair rotator cuff tear and
acromioplasty and debridement of glenohumeral joint and open distal clavicle
resection for degenerative arthritis and distal clavicle cyst and degenerative
ganglion cyst of right acromioclavicular joint. Full range of motion right shoulder
was regained postop[erative]. Case was accepted for sprain right shoulder.
Arthritis and degenerative cyst of distal right clavicle is not part of accepted
condition. Attending physician gave 10 percent right upper extremity permanent
partial impairment for distal resection of right clavicle, which is not valid since
not of accepted condition. Therefore, impairment right upper extremity based on
accepted condition is equal to zero percent.”

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In a decision dated June 15, 2006, the Office denied appellant’s claim for a schedule
award. The Office found that the medical evidence failed to demonstrate a measurable
impairment based on the accepted condition.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.2
Authorization by the Office for medical examination or treatment constitutes a
contractual agreement to pay for the services, regardless of whether a compensable injury or
condition exists. Moreover, any medical condition resulting from authorized examination or
treatment, such as residuals from surgery, may form the basis of a compensation claim for
impairment or disability, regardless of the compensability of the original injury.3
ANALYSIS
On February 2, 2006 the Office authorized “partial removal, collar bone.” In approving
the surgery, appellant became eligible for claiming compensation for any residual impairment. It
does not matter that the reason for the distal clavicle resection -- severe acromioclavicular joint
degenerative joint disease with large intraosseous distal clavicle cyst and degenerative ganglion
cyst superior to the acromioclavicular joint -- was not an accepted condition. The Office
expressly authorized removal of the bone. Consistent with Office procedures, any impairment
resulting from this authorized surgery may form the basis of a compensation claim.4 The Board
therefore finds that the Office denied appellant’s schedule award claim on erroneous grounds.
Dr. Fogolin, the attending orthopedic surgeon, reported that appellant had a 10 percent
impairment of the right upper extremity based on the distal clavicle resection. There was no
decreased motion. Table 16-27, page 506 of the A.M.A., Guides confirms that a distal clavicle
resection arthroplasty represents a 10 percent permanent impairment of the upper extremity. The
medical evidence establishes that appellant has, as a result of authorized surgery, a 10 percent
permanent impairment of the right upper extremity which is a scheduled member of the body.5
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999). Effective February 1, 2001 the Office began using the A.M.A., Guides (5th ed.
2001). FECA Bulletin No. 01-05 (issued January 29, 2001).
3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.0300.2.c (October 1990). Cf. Melody Friery, 48 ECAB 525, 528 (1997) (the Board has held that surgery, which is
performed as a result of an employment injury and which causes further impairments, constitutes a consequential
injury and any disability resulting therefrom is compensable).
4

Federal (FECA) Procedure Manual, supra note 3.

5

5 U.S.C. § 8107(c)(1) (arm).

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The Board will reverse the Office’s June 15, 2006 decision finding no entitlement to a schedule
award.
CONCLUSION
The Board finds that appellant is entitled to a schedule award for impairment resulting
from her authorized surgery. The impairment resulting from the distal clavicle resection
provides a proper basis for a schedule award. The weight of the medical evidence establishes
that appellant has a diagnosis-based 10 percent permanent impairment of the right upper
extremity.
ORDER
IT IS HEREBY ORDERED THAT the June 15, 2006 decision of the Office of
Workers’ Compensation Programs is reversed. The case is remanded for payment of an
appropriate schedule award.
Issued: February 12, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Columbia, SC, Employer
__________________________________________

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

Docket No. 08-2306
Issued: May 14, 2009

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 August 11, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated August 17, 2007 denying her entitlement to
continuation of pay and a decision dated August 1, 2008 denying her request for an oral hearing
as untimely filed. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant’s claim for continuation of pay was timely and
(2) whether the Office properly denied appellant’s request for an oral hearing as untimely filed.
FACTUAL HISTORY
On June 19, 2007 appellant, then a 58-year-old dental hygienist, filed a traumatic injury
claim and claim for continuation of pay, Form CA-1, alleging that on April 24, 2007 she
sustained an instrument stick to her right index finger after cleaning up instruments following

treatment of a human immunodeficiency virus (HIV) positive patient. Appellant indicated that
the date of the notice was June 19, 2007 which was also the date that appellant signed the form.
Appellant’s supervisor reported having notice of the injury on June 19, 2007, the date that he
signed the form. The employing establishment advised that the injury was not reported on a
Form CA-1 within 30 days. Appellant stopped work on April 25, 2007 and returned to work on
April 30, 2007.
Appellant submitted several treatment reports from Billy Joe Hansford, a physician’s
assistant, and Dr. Anne Ruderman, a Board-certified internist. In an April 26, 2007 report,
Dr. Ruderman advised that appellant would be unable to work from April 25 to 30, 2007, due to
the side effect of medications used to treat the instrument stick injury.
After the Office requested additional information, appellant and the employing
establishment provided further evidence, including another Form CA-1 received by the Office on
July 23, 2007. On this form, appellant reported the date of injury and the date of the notice as
April 24, 2007. However, she signed the form on June 19, 2007. The employing establishment
also indicated that it received notice on April 24, 2007 but appellant’s supervisor signed the form
on June 19, 2007. In the receipt of notice section of the form, appellant’s supervisor signed the
form on July 17, 2007. A witness statement on the form was dated July 2, 2007 and indicated
that appellant notified her on the date of injury of the instrument stick incident.
In a statement dated July 17, 2007, appellant noted that she had reported her injury to her
supervisor who was new and did not know of the Office’s filing policies and procedures. She
was also not aware of the filing requirements.
On August 1, 2007 the Office accepted appellant’s claim for an open wound of the right
finger without complications.
By decision dated August 17, 2007, the Office denied appellant’s claim for continuation
of pay finding that she did not file her claim within 30 days of April 24, 2007, the date of her
injury. The Office further advised appellant that its decision concerned entitlement to
continuation of pay only and did not affect her entitlement to other compensation benefits,
including her possible entitlement to wage-loss compensation.
In a May 21, 2008 letter, addressed to the Office’s Branch of Hearings and Review,
appellant noted that she had verbally informed her supervisor of her injury. She indicated that
she and her supervisor were not aware of the written notice requirement. The Office treated this
letter as a request for an oral hearing.
By decision dated August 1, 2008, the Office denied appellant’s request for an oral
hearing finding that she did not file her request within 30 days. It also exercised its discretion
and determined that appellant’s case could be equally well addressed by requesting
reconsideration and submitting evidence not previously considered.

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LEGAL PRECEDENT -- ISSUE 1
Section 81181 of the Federal Employees’ Compensation Act2 provides for payment of
continuation of pay, not to exceed 45 days, to an employee “who has filed a claim for a period of
wage loss due to traumatic injury with his immediate supervisor on a form approved by the
Secretary of Labor within the time specified in section 8122(a)(2) of this title.” Section
8122(a)(2) provides that written notice of injury must be given as specified in section 8119.3
The latter section provides in part that notice of injury shall be given in writing within 30 days
after the injury.4
Section 10.205 of the Office’s regulations provide in pertinent part that to be eligible for
continuation of pay, a person must: (1) have a traumatic injury which is job related and the
cause of the disability, and/or the cause of lost time due to the need for medical examination and
treatment; (2) file Form CA-1 within 30 days of the date of the injury; and (3) begin losing time
from work due to the traumatic injury within 45 days of the injury.5
ANALYSIS -- ISSUE 1
The record reflects that the earliest written claim filed by appellant is the Form CA-1,
dated June 19, 2007. As appellant filed her claim more than 30 days after her April 24, 2007
injury, she is barred from receiving continuation of pay.6 Although appellant submitted another
Form CA-1, received by the Office on July 23, 2007, this form is insufficient to establish that a
timely Form CA-1 was filed. Appellant again reported the date of injury as April 24, 2007 and
the employing establishment also indicated that it received notice on April 24, 2007. However,
appellant signed this form on June 19, 2007 as did her supervisor. In another section of the form,
regarding receipt of the notice, appellant’s supervisor signed the form on July 17, 2007. The
supervisor did not indicate that he received written notice before June 19, 2007. This form
supports that appellant’s supervisor was aware of the injury on April 24, 2007; however, it does
not establish that an actual Form CA-1, or any other written claim for continuation of pay, was
filed within 30 days of April 24, 2007. The fact that appellant’s immediate supervisor had actual
knowledge of the injury does not waive appellant’s requirement under 5 U.S.C. § 8118 to
provide written notice of the claim.7 There is no evidence that a CA-1 form was filed within 30
days of April 24, 2007.

1

5 U.S.C. § 8118.

2

Id. at §§ 8101-8193.

3

Id. at § 8122(a)(2).

4

Id. at § 8119. See Gwen Cohen-Wise, 54 ECAB 732 (2003).

5

20 C.F.R. § 10.205(a).

6

Teresa Samilton, 40 ECAB 955 (1989).

See Robert E. Kimzey, 40 ECAB 762 (1989); see also Russell P. Chambers, 32 ECAB 550 (1981) (where the
Board held that oral notice is insufficient to satisfy the requirements of the law).
7

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Appellant contends that she failed to file the claim form within the 30-day time limit
because she was unaware of the form and filing requirement. However, the fact that appellant
may have been unaware of the applicable time limitation is not sufficient to toll the running of
the 30-day filing requirement. There is no provision under the Act for excusing an employee’s
failure to file a claim for continuation of pay within 30 days of the date of injury.8 With respect
to appellant’s contention on appeal that she was too sick to file a claim within the 30-day
requirement, the Board has held that section 8122(d)(3)9 of the Act, which allows the Office to
excuse failure to comply with the time limitation provision for filing a claim for compensation
because of “exceptional circumstances,” is not applicable to section 8118(a), which sets forth the
filing requirements for continuation of pay.10 Appellant also contends that she was prejudiced
because her supervisor failed to advise her of the appropriate procedure and deadline to file a
claim. However, as noted, the fact that appellant’s immediate supervisor had actual knowledge
of the injury does not waive appellant’s requirement under 5 U.S.C. § 8118 to provide written
notice of the claim. The Board has held that the responsibility for filing a claim rests with the
injured employee.11
Consequently, appellant is barred from receiving continuation of pay because she failed
to file a written claim within the time specified in the Act. This decision only affects appellant’s
entitlement to continuation of pay and does not affect her possible entitlement to other benefits
under the Act for her accepted injury.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant not satisfied with a decision of the
Office is entitled to a hearing before an Office hearing representative when the request is made
within 30 days after issuance of the Office’s decision.12 Under the implementing regulations, a
claimant who has received a final adverse decision by the Office is entitled to a hearing by
writing to the address specified in the decision within 30 days (as determined by postmark or
other carrier’s date marking) of the date of the decision for which a hearing is sought.13 If the
request is not made within 30 days or if it is made after a reconsideration request, a claimant is
not entitled to a hearing or a review of the written record as a matter of right.14

8

Robert E. Kimzey, supra note 7.

9

5 U.S.C. § 8122(d)(3).

See William E. Ostertag, 33 ECAB 1925 (1982) (where the Board held that appellant’s claim did not qualify as
an “exceptional circumstance” as it would be inconsistent with the legislative intent of sections 8118(a),
8122(a)(2) and 8122(d)(3) of the Act).
10

11

See supra note 7.

12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. § 10.616(a); 5 U.S.C. § 8124(b)(1).

14

Teresa Valle, 57 ECAB 542 (2006).

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The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing. The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of Board precedent.15
ANALYSIS -- ISSUE 2
The Office denied appellant’s claim on August 17, 2007. Appellant’s request for an oral
hearing was dated May 21, 2008 and postmarked on July 2, 2008. Because the hearing request
was made more than 30 days after the August 17, 2007 decision, the Board finds that the Office
properly denied appellant’s request for a hearing as untimely filed. Appellant is not entitled to a
hearing as a matter of right. The Board has held that section 8124(b)(1) is unequivocal in setting
forth the time limitation in requests for hearing.16
The Office exercised its discretionary authority under section 8124 in considering
whether to grant a hearing. It found that appellant’s request could be equally well addressed
through a request for reconsideration under section 8128 and the submission of new evidence.
The Board has held that it is an appropriate exercise of discretion for the Office to apprise
appellant of the right to further proceedings under the reconsideration provisions of section
8128.17 The Board finds that the Office properly exercised its discretion in denying appellant’s
request for an oral hearing.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for continuation of pay
as untimely. The Board further finds that the Office properly denied appellant’s request for an
oral hearing as untimely filed.

15

D.E., 59 ECAB ___ (Docket No. 07-2334, issued April 11, 2008).

16

Ella M. Garner, 36 ECAB 238 (1984); Charles E. Varrick, 33 ECAB 1746 (1982).

17

See Andre Thyratron, 54 ECAB 257 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated August 1, 2008 and August 17, 2007 are affirmed.
Issued: May 14, 2009
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

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