United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, MERCHANDISE
MART POST OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 21-0060
Issued: March 17, 2022

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 October 13, 2020 appellant filed a timely appeal from a May 27, 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
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 23
percent permanent impairment of the right lower extremity or greater than 16 percent permanent

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 27, 2020 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.

impairment of the left lower extremity for which she previously received schedule award
compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decisions and order are incorporated herein by reference. The
relevant facts are as follows.
On December 28, 1998 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 26, 1998 she sustained a right knee injury when she
slipped and fell to the floor while in the performance of duty. OWCP assigned the claim OWCP
File No. xxxxxx040 and accepted it for right knee contusion, right knee strain, and right knee
chondromalacia.
Appellant had previously filed a traumatic injury claim (Form CA-1) on January 15, 1992
that was accepted by OWCP for bilateral frostbite of the feet and bilateral plantar fibromatosis.4
OWCP assigned OWCP File No. xxxxxx102 to the claim. It later expanded acceptance of that claim
to include the additional conditions of bilateral tarsal tunnel syndrome and bilateral lesion of the
plantar nerve as work related.
By decision dated May 30, 2013, under OWCP File No. xxxxxx102, OWCP granted
appellant 16 percent permanent impairment of the left lower extremity and 23 percent permanent
impairment of the right lower extremity under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5
On December 5, 2013, under OWCP File No. xxxxxx102, OWCP referred appellant for a
second opinion examination and impairment rating with Dr. Allan Brecher, a Board-certified
orthopedic surgeon. In a January 20, 2014 report, Dr. Brecher reported the findings of his
January 14, 2014 examination. He referred to the sixth edition of the A.M.A., Guides and noted
that for the right knee, appellant’s chondromalacia warranted a of Class 1 based under Table 16-3
(Knee Regional Grid), page 511, the class of diagnosis (CDX) the right knee chondromalacia
resulted in a Class 1 impairment with a default value of seven.6 Dr. Brecher assigned a grade
modifier for functional history (GMFH) of 2, a grade modifier for physical examination (GMPE)
of 1, and a grade modifier for clinical studies (GMCS) of 2. He utilized the net adjustment formula,
3

Docket No. 14-1689 (issued July 2, 2015); Docket No. 16-1826 (issued May 15, 2017); Order Remanding Case,
Docket No. 19-0525 (issued March 20, 2020).
4

Appellant also has a prior claim for a traumatic injury on April 12, 1985, which was accepted by OWCP under
OWCP File No. xxxxxx224 for lumbosacral strain.
5
A.M.A., Guides (6 th ed. 2009). OWCP indicated that it had previously awarded appellant schedule awards for a
total of 20 percent permanent impairment of the right lower extremity and 13 percent permanent impairment of the
left lower extremity. Therefore, the May 30, 2013 award granted an additional award of six percent permanent
impairment of the right lower extremity a nd three percent permanent impairment of the left lower extremity.
6

Dr. Brecher indicated that appellant had reached maximum medical improvement (MMI) by the time of his
January 14, 2014 examination.

2

(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (1 - 1) + (2 - 1) = 2, which resulted
in a grade D or eight percent permanent impairment of the right lower extremity. As for appellant’s
right plantar fibromatosis, Dr. Brecher referenced Table 16-2 (Foot and Ankle Regional Grid),
page 501, and found the CDX resulted in a Class 1 with a default value of one. He assigned a
GMFH of 2, GMPE of 2, and GMCS of 1. Dr. Brecher utilized the net adjustment formula,
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (2 - 1) + (1 - 1) = 2, which resulted
in a grade D or two percent permanent impairment of the right lower extremity. He added the 8
percent and 2 percent values to yield a rating of 10 percent permanent impairment for the right
lower extremity. Dr. Brecher indicated that, for the left lower extremity, left plantar fibromatosis
was accepted, but a left knee condition was not accepted. Therefore, using the same criteria as the
right side, he determined that appellant would have two percent permanent impairment of the left
lower extremity due to plantar fibromatosis.
OWCP then referred OWCP File No. xxxxxx102 to Dr. Cristopher Gross, a Board-certified
orthopedic surgeon serving as an OWCP district medical adviser (DMA). In a February 24, 2014
report and a March 17, 2014 supplemental report, Dr. Gross concurred with the impairment rating
of Dr. Brecher. He found that appellant had 10 percent permanent impairment of the right lower
extremity comprised of 8 percent permanent impairment due to right knee deficits and 2 percent
permanent impairment due to plantar fibromatosis. Dr. Gross also found that appellant had two
percent permanent impairment of the left lower extremity due to plantar fibromatosis.
By decision dated April 7, 2014, under OWCP File No. xxxxxx102, OWCP denied
modification of the May 30, 2013 decision, finding that appellant had not established greater than
16 percent permanent impairment of the left lower extremity and 23 percent permanent impairment
of the right lower extremity.
Appellant appealed the April 7, 2014 decision to the Board and, by decision dated July 2,
2015,7 under OWCP File No. xxxxxx102, the Board set aside the April 7, 2014 decision and remanded the
case to OWCP for further development of the medical evidence.
During the pendency of the Board appeal, under OWCP File No. xxxxxx102, OWCP again
referred the case to Dr. Gross, serving in his role as a DMA. In a May 3, 2014 report, Dr. Gross
again found that appellant had a total of 10 percent permanent impairment of the right lower
extremity, comprised of 8 percent permanent impairment due to right knee deficits and 2 percent
permanent impairment due to plantar fibromatosis. He also found that appellant had two percent
permanent impairment of the left lower extremity due to plantar fibromatosis. With respect to
impairment of the right lower extremity due to right knee arthritis, Dr. Gross explained that
appellant’s right knee arthritis warranted eight percent permanent impairment of the right lower
extremity due to three millimeters of cartilage interval (CDX of Class 1) when utilizing Table 163, page 511, of the sixth edition of the A.M.A., Guides. He assigned a GMFH of 2 because she
used a cane and assigned a GMPE of 1 due to normal range of motion (ROM) of the right knee
and minimal tenderness on palpation. Dr. Gross noted that a GMCS was not applicable because
clinical studies were used in the determination of the diagnosis. He indicated that, utilizing the net
adjustment formula, (GMFH - CDX) + (GMPE - CDX) = (2-1) + (1-1) = +1, corresponded to
7

Supra note 3.

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grade D under Class 1 on Table 16-3 and warranted eight percent permanent impairment of the
right lower extremity due to right knee deficits. Dr. Gross further found that, utilizing Table 162, appellant had two percent permanent impairment of each lower extremity due to her bilateral
plantar fibromatosis.
OWCP, under OWCP File No. xxxxxx102, then referred appellant for a second opinion
examination and evaluation with Dr. James Elmes, a Board-certified orthopedic surgeon. In a
March 24, 2016 report, Dr. Elmes considered the impairment caused by appellant’s bilateral
plantar fibromatosis and referred to the sixth edition of the A.M.A., Guides, utilizing Table 16-2,
page 501, he noted a CDX of Class 1 for bilateral plantar fibromatosis with a default value of one
percent. He assigned a GMFH of 2, noting that she used a cane and limped. Dr. Elmes assigned
a GMPE of 2 noting moderate palpable findings and tenderness with normal ROM. He indicated
that the GMCS was not applicable. Dr. Elmes utilized the net adjustment formula, (GMFH - CDX)
+ (GMPE - CDX) = (2-1) + (2-1) = +2, which resulted in a grade D or two percent permanent
impairment of each lower extremity.
With regard to the right knee, Dr. Elmes noted that, according to Table 16-3, page 511,
appellant’s three-millimeter cartilage interval related to primary knee joint arthritis resulted in a
CDX of Class 1 with a default value of seven. He assigned a GMFH of 2 because appellant was
known to utilize a cane and assigned a GMPE of 1 due to normal ROM with minimal tenderness
on palpation. Dr. Elmes noted that a GMCS was not applicable. He utilized the net adjustment
formula, (GMFH - CDX) + (GMPE - CDX) = (2-1) + (1-1) = +1, which resulted in a grade D or
eight percent permanent impairment of the right lower extremity. Dr. Elmes noted that, when this
8 percent value was added to the above-described 2 percent impairment due to plantar
fibromatosis, appellant had 10 percent permanent impairment of the right lower extremity. As
noted above, he determined that appellant’s left lower extremity permanent impairment was two
percent.
OWCP, under OWCP File No. xxxxxx102, then referred the case to Dr. Michael M. Katz,
a Board-certified orthopedic surgeon serving as DMA. On April 29, 2016 Dr. Katz reviewed
Dr. Elmes’ calculations and concluded that he correctly determined impairment. However, he
noted that appellant’s right knee conditions were accepted under a different claim and, therefore,
Dr. Elmes’ determination of eight percent permanent impairment for the right lower extremity
pertaining to the right knee should not be considered. By decision dated May 13, 2016, OWCP
found that appellant had not established greater than 16 percent permanent impairment of her left
lower extremity and 23 percent permanent impairment of her right lower extremity for which she
previously received schedule awards. Appellant appealed to the Board and, by decision dated
May 15, 2017, the Board affirmed OWCP’s May 13, 2016 decision.8
On April 30, 2018, under the present claim, OWCP File No. xxxxxx040, appellant filed a
claim for compensation (Form CA-7) for an increased schedule award. She submitted medical
reports dated January 15, 2016 through September 8, 2017 regarding her accepted right knee
condition(s).

8

Id.

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On June 12, 20218 OWCP administratively combined the present claim, OWCP File No.
xxxxxx040, with OWCP File No. xxxxxx102, with the latter file designated the master file.9
On June 12, 2018 OWCP referred the combined case file, including a May 20, 2014
statement of accepted facts (SOAF), to Dr. Katz, serving as a DMA, to determine if appellant
was entitled to additional impairment of the right knee. It indicated that the relevant case files
had been administratively combined.
In a June 13, 2018 report, Dr. Katz noted that he previously had not recommended payment
of a schedule award for right knee impairment in his April 29, 2016 report regarding OWCP File
No. xxxxxx102 as he was not then aware that the case files were combined. He reported that, based
on his current review, if prior awards paid for the right lower extremity included eight percent
permanent impairment based on the conditions of the right knee, then there would be no
additional award. Dr. Katz reported that a schedule award for 10 percent permanent impairment
of the right lower extremity due to a right knee condition had been recommended in a medical
report dated October 4, 2002, under OWCP File No. xxxxxx040, and so it would be reasonable to
assume that at some point appellant was paid at least 8 percent permanent impairment for her right
knee condition. As such, he determined that appellant would be entitled to no further award for
impairment of the right knee.
On August 20, 2018 OWCP requested an addendum report from Dr. Katz as to whether
appellant had additional permanent impairment of the right lower extremity. It noted that he should
review the SOAF dated May 20, 2014. OWCP noted again that appellant had received schedule
award compensation for 23 percent permanent impairment of the right lower extremity. It
instructed Dr. Katz that, in providing a rating of appellant’s current permanent impairment of the
right knee, he should stipulate whether the rating was included in the prior percentage awarded or
if there should be consideration of an additional award.
In an August 31, 2018 report, Dr. Katz related that, while medical evidence had been
received in OWCP File No. xxxxxx102 regarding appellant’s right knee permanent impairment
and an eight percent permanent impairment rating had been proposed, he had not recommended
acceptance of the proposed impairment rating in his April 29, 2016 report as the claims had not
been administratively combined. He concluded, however, that based on OWCP’s August 20,
2018 memorandum, it appeared that all prior recommended awards had been paid and, thus, the
prior awards paid with respect to the conditions of the right knee exceeded the present
impairment of eight percent permanent impairment of the right lower extremity.
By decision dated September 6, 2018, OWCP denied appellant’s claim for an increased
schedule award under OWCP File No. xxxxxx040, finding that she had no greater impairment of
the right lower extremity than the 23 percent previously awarded.
Appellant appealed to the Board and, by order dated March 20, 2020,10 the Board set aside
OWCP’s September 6, 2018 decision and remanded the case for further development. The Board
9

It is noted that OWCP File No. xxxxxx102 had previously been combined with OWCP File No. xxxxxx224.

10

Supra note 3.

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found that the SOAF provided to Dr. Katz was inaccurate, as it did not list the schedule awards
appellant had previously received for her lower extremities and did not clarify whether the
awards were paid for permanent impairment caused by appellant’s right knee condition or for
permanent impairment caused by conditions of other regions of appellant’s right lower
extremity. The Board directed OWCP to prepare a complete and accurate SOAF and request that
Dr. Katz submit a clarifying report regarding appellant’s right lower extremity permanent
impairment. Following this and any further development deemed necessary, OWCP was to issue
a de novo decision.
On remand OWCP referred the case record to Dr. Katz, in his capacity as a DMA, and
provided him with an updated SOAF dated May 14, 2020, which referenced appellant’s combined
claims for the lower extremities and noted only, that appellant had received schedule awards for
23 percent permanent of the right lower extremity and 16 percent permanent of the left lower
extremity.
In a May 20, 2020 report, Dr. Katz indicated that he reviewed the submitted records
including the May 3, 2014 report of Dr. Gross and the updated SOAF of May 14, 2020. He noted
that on May 3, 2014 Dr. Gross reviewed the impairment evaluation of Dr. Brecher, dated
January 20, 2014, in which Dr. Brecher determined eight percent permanent impairment of the
right lower extremity on the basis of a CDX due to impairment under the key factor of primary
knee arthritis resulting in a Class 1 impairment, grade D. Dr. Katz advised that Dr. Gross
concurred with Dr. Brecher’s rating and recommended the same level of impairment, i.e., 10
percent permanent impairment of the right lower extremity (knee and foot) and 2 percent
permanent impairment of the left lower extremity (foot). He advised that Dr. Gross reviewed prior
records in arriving at his conclusions and appeared to have done so correctly. Dr. Katz noted that
the case record, including the updated SOAF, demonstrated that at least 10 percent of the
permanent impairment awarded for each extremity stemmed from foot impairment. He indicated
that it appeared that, given the prior “overlapping award” of 23 percent for the right lower
extremity, there would be no net additional award due for the right lower extremity on the basis of
Dr. Gross’ May 3, 2014 assessment, since his recommended impairment of 8 (constancy within
the same sentence) percent for the right lower extremity “does not exceed the prior overlapping
award.” Dr. Katz noted, likewise, his recommendation of 2 percent permanent impairment for the
left lower extremity does not exceed the prior overlapping award of 16 percent permanent
impairment for the left lower extremity. Therefore, he found there is no net additional award now
due for the left lower extremity based on his recommendation of May 13, 2014.
By decision dated May 27, 2020, OWCP determined that appellant had not met her burden
of proof to establish greater than 23 percent permanent of the right lower extremity or greater than
16 percent permanent of the left lower extremity for which she previously received schedule award
compensation.

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LEGAL PRECEDENT
The schedule award provisions of FECA 11 and its implementing federal regulations 12 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 b e 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 and the Board has
concurred in such adoption.13 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards. 14
ANALYSIS
The Board finds that this case is not in posture for decision.
On remand from the Board’s March 20, 2020 order, OWCP provided Dr. Katz with a
May 14, 2020 SOAF, which briefly discussed appellant’s combined claims for the lower
extremities and noted, without elaboration, that appellant had received schedule awards for 23
percent permanent of the right lower extremity and 16 percent permanent of the left lower
extremity. The May 14, 2020 SOAF did not identify each individual schedule award that appellant
received, nor did it explain what portions of each schedule award represented impairment caused
by deficits in different areas of the lower extremities (e.g., knee deficits versus foot deficits).
It is OWCP’s responsibility to provide a complete and proper frame of reference for a
physician by preparing a SOAF. 15 OWCP’s procedures dictate that when a DMA, second opinion
specialist, or referee physician renders a medical opinion based on a SOAF, which is incomplete
or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished or negated altogether. 16 OWCP did not
provide Dr. Katz with a complete SOAF as it did not list the previous individual schedule awards
appellant had received for her lower extremities and did not clarify whether the awards were paid
for permanent impairment of appellant’s right knee or for permanent impairment of other areas of
appellant’s lower extremities. Thus, the Board finds that the May 27, 2020 report produced by

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id.; see V.J., Docket No. 1789 (issued April 8, 2020); Jacqueline S. Harris, 54 ECAB 139 (2002).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
15

J.N., Docket No. 19-0215 (issued July 15, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

16

R.W., Docket No. 19-1109 (issued January 2, 2020); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.3 (October 1990).

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Dr. Katz was not based on an accurate factual framework and cannot represent the weight of the
medical evidence sufﬁcient to deny appellant’s claim for an additional schedule award.17
Once OWCP undertakes to develop the medical evidence, it has the responsibility to do so
in a manner that will resolve the relevant issues in the case. 18 Accordingly, the Board finds that
the case must be remanded to OWCP. On remand OWCP shall prepare a complete and accurate
SOAF and request that Dr. Katz, the DMA, submit a clarifying report regarding appellant’s lower
extremity permanent impairment. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 27, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: March 17, 2022
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

17

G.C., Docket No 18-0842 (issued December 20, 2018).

18

D.S., Docket No. 19-0292 (issued June 21, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Evansville, IN, Employer
__________________________________________

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

Docket No. 16-1736
Issued: March 7, 2018

Case Submitted on the Record

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

JURISDICTION
On August 30, 2016 appellant, through counsel, filed a timely appeal from a June 20,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to the accepted April 11, 2013 employment incident.
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.

FACTUAL HISTORY
On April 11, 2013 appellant, then a 40-year-old senior individual tax advisory specialist,
filed a traumatic injury claim (Form CA-1) alleging that on April 11, 2013 he was reaching
across a counter while assisting a handicapped taxpayer when he felt a pop in his neck and back.
He did not initially stop work.
In a May 8, 2013 report, Dr. Mike W. Chou-Evv, a neurologist, noted that appellant was
seen for evaluation following a computerized tomography (CT) scan performed on May 6, 2013.
He explained that appellant had a two-level “ACDF” (anterior cervical discectomy and fusion)
on January 17, 2013. Dr. Chou-Evv indicated that appellant injured his neck at work on
April 11, 2013 and had a current pain level of 10 out of 10 without pain medication. He
explained that the CT scan revealed a completely solid fusion between C5-6 and C6-7.
Dr. Chou-Evv advised that appellant was status post lateral fusion for pseudoarthrosis in January.
He noted that appellant underwent an electromyography (EMG) scan performed by Dr. Eric
Weisman, a Board-certified neurologist, who noted that the results were bilateral carpal tunnel
syndrome, left C7 cervical radiculopathy, and right radial axonopathy. Dr. Chou-Evv advised
that the lower extremity EMG revealed axonal demyelinating polyneuropathy without evidence
of lumbar radiculopathy. He explained that appellant had chronic pain issues and opined that the
left C7 radiculopathy was “probably neuropathic in origin i.e., not compressive since the last
surgery included bilateral foraminotomies for decompression of the nerve root. Also the pain is
more of a paraesthetic burning type of pain.” Dr. Chou-Evv indicated that appellant’s
polyneuropathy was “probably diabetic in origin and clearly not a surgical issue.”
OWCP received several reports from Dr. Joseph Waling, Board-certified in physical
medicine and rehabilitation, dating from June 17, 2013 and continuing. In his June 17, 2013
report, Dr. Waling advised that appellant’s chief complaint was left neck and shoulder pain,
which extended down to his hips. He indicated the “onset began several years ago with no
particular injury or event.” Dr. Waling noted that appellant had neck surgery in August 2010 and
the second one in January 2012, which was a bilateral C5-7 fusion by Dr. Chou-Evv. He
provided diagnoses and noted that appellant underwent a posterior cervical laminectomy and
fusion with instrumentation and bone graft on January 17, 2013. In reports dated July 11 and 24,
2013, Dr. Waling diagnosed: postlaminectomy syndrome of the cervical spine; left upper
extremity pain D/T (due to) myofascial pain from the cervical into the thoracic spine; S/P (status
post) cervical surgery in 2010 and January 2013 per Dr. Chou-Evv; cervical spondylosis without
myelopathy with facet-mediated pain; history of pancreatitis; hyperlipidemia; back pain; cervical
radiculopathy; neck pain; history of fusion of cervical spine by Dr. Chou-Evv, tachycardia
postoperative state; and lumbar back pain and lumbar radicular pain. He noted that appellant had
symptoms which included left-sided neck pain that radiated to the left shoulder and back pain in
the middle lumbar region, which radiated to the lateral hips, down to the posterior legs equally.
Dr. Waling diagnosed cervical radiculopathy, thoracic or lumbosacral neuritis or radiculitis,
lumbar back pain, and left shoulder pain.
A January 7, 2013 report from Dr. Andrei Croitoru, Board-certified in internal medicine,
revealed a history of chronic pain (cervical, “s/p spinal surgery,” local infiltrations, opioid
dependent), fibromyalgia, uncontrolled “DM” (diabetes mellitus), and recent episode of acute
pancreatitis. In a July 25, 2013 treatment note, Dr. Croitoru indicated that appellant was

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admitted for hypertriglyceridemia and acute pancreatitis. Appellant underwent anterior cervical
discectomy and fusion followed by a posterior decompression, and epidural steroid injection. He
provided notes dated July 26, 2013 and indicated that appellant was discharged.
In a letter dated September 12, 2013, OWCP noted that appellant’s claim initially
appeared to be a minor injury that resulted in minimal or no lost time from work. Furthermore, it
noted that because the employing establishment did not controvert continuation of pay (COP) or
challenge the merits of the case, payment of a limited amount of medical expenses was
administratively approved. However, appellant’s claim was now being reopened because he
requested authorization for a surgically-related treatment. OWCP informed him of the type of
evidence needed to support his claim and requested that he submit such evidence within 30 days.
In an April 17, 2013 report, Dr. Jeffrey Miller, a Board-certified vascular and
interventional radiologist, diagnosed stable anterior and posterior fusion lower cervical spine,
mild degenerative disc and posterior spurring and spondylosis posterior aspect of the disc C4-5,
with minimal widening anteriorly at the same level.
In an undated attending physician’s report (Form CA-20), Dr. Waling checked a box
marked “no” with regard to whether there was evidence of preexisting history or disease and
diagnosed cervical radiculopathy, back pain, lumbar radicular pain, and history of fusions of the
cervical spine. He checked a box marked “no” in response to whether he believed the condition
found was caused or aggravated by an employment activity. Dr. Waling noted that the date of
his first examination was June 17, 2013 and that appellant was treated on July 11, 24,
and 31, 2013. He indicated that appellant was never taken off work.
OWCP received copies of previously submitted reports.
By decision dated November 4, 2013, OWCP denied appellant’s claim finding that he did
not establish an injury as alleged. It found that the medical evidence was insufficient to establish
his claim as there were no medical reports providing sufficient rationale to support causal
relationship between the claimed injury and the accepted employment incident. OWCP also
explained that Dr. Waling responded “no” in response to whether the condition was caused or
aggravated by the alleged work events.
On November 15, 2013 appellant, through counsel, requested a telephonic hearing, which
was held before an OWCP hearing representative on May 8, 2014.
By decision dated July, 24, 2014, OWCP’s hearing representative affirmed the
November 4, 2013 decision.
On October 15, 2014 and February 19, 2015 appellant, through counsel, requested
reconsideration and submitted new medical evidence from Dr. Waling.
In July 11, 2013 treatment notes, Dr. Waling diagnosed postlaminectomy syndrome of
the cervical spine, left upper extremity pain, “D/T” myofascial pain from the cervical into the
thoracic spine, and status post (S/P) cervical surgery times 2010 and January 2013 per

3

Dr. Chou-Evv. He found back pain, cervical radiculopathy, neck pain, history of cervical fusion
of cervical spine, tachycardia postoperative state, lumbar back pain and lumbar radicular pain.
In a July 31, 2013 treatment note, Dr. William M. Roberts, a Board-certified
anesthesiologist, found that appellant was status post anterior cervical discectomy and fusion
followed by a posterior decompression. He advised that appellant had neck and left shoulder
pain that did not respond to cervical medial branch blocks. Dr. Roberts provided a cervical
epidural to appellant.
In an August 20, 2013 treatment note, Dr. Waling diagnosed: lumbar spondylosis
without myelopathy and facet-mediated pain; lower extremity pain; postlaminectomy syndrome
cervical spine; left upper extremity pain “D/T” myofascial pain from the cervical to the thoracic
spine, S/P cervical surgery times 2010 and January 2013 per Dr. Chou-Evv, cervical spondylosis
without myelopathy with facet-mediated pain; history of pancreatitis, and hyperlipidemia. He
referenced back pain, cervical radiculopathy, neck pain, and history of fusion of cervical spine
by Dr. Chou-Evv, tachycardia, postoperative state, lumbar back pain and lumbar radicular pain.
Dr. Waling provided appellant with a caudal epidural steroid block. He noted that appellant was
having difficulty with driving long distances and wished to speak with his supervisor as he
needed to work in a closer facility until the bridge into Owensboro, KY was completed.
In an October 23, 2013 treatment note, Dr. Waling noted appellant’s history. He repeated
his diagnoses. Dr. Waling advised that appellant was having difficulties driving an hour to work
due to cervical and lumbosacral pain. He recommended a functional capacity evaluation to
determine whether the one-hour driving time was causing the increased spinal pain.
In a letter dated May 12, 2016, counsel for appellant repeated his request for
reconsideration and noted that his original request was made on October 10, 2014.
By decision dated June 20, 2016, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a
3

See supra note 2.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

4

personal injury.6 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.7
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.8 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.9 Additionally, the physician’s opinion
must be expressed in terms of a reasonable degree of medical certainty, and must be supported
by medical rationale, explaining the nature of the relationship between the diagnosed condition
and appellant’s specific employment factor(s).10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.12
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury causally related to the accepted April 11, 2013 employment incident. A
treating physician, Dr. Waling, indicated that appellant’s condition was not caused or aggravated
by his employment activity. Furthermore, the record reveals that appellant had preexisting
cervical conditions. In a January 7, 2013 report, Dr. Croitoru reported a history of chronic pain
in the cervical area and spinal surgery,” opioid dependency, fibromyalgia, uncontrolled “DM,”

6

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

7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Robert G. Morris, 48 ECAB 238 (1996).

9

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

Id.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

13

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a
physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1).

5

and an episode of acute pancreatitis. The medical evidence contains no reasoned explanation of
how the specific employment incident on April 11, 2013 caused or aggravated an injury.14
OWCP received several reports from Dr. Waling dating from June 17, 2013 and
continuing. In an undated attending physician’s report, Dr. Waling checked a box marked “no”
with regard to whether there was evidence of preexisting history or disease and diagnosed
cervical radiculopathy, back pain, lumbar radicular pain and history of fusions of the cervical
spine. At first glance this report appears inaccurate as the record reflects a history of chronic
pain in the cervical area and spinal surgery. It is well established that medical reports must be
based on a complete and accurate factual and medical background, and medical opinions based
on an incomplete or inaccurate history are of little probative value.15 Dr. Waling also checked a
box marked “no” in response to whether he believed the condition found was caused or
aggravated by an employment activity. The Board finds that this report does not support that
appellant’s condition was work related. In his June 17, 2013 report, Dr. Waling advised that
appellant’s chief complaint was left neck and shoulder pain, which extended down to his hips.
He indicated that the “onset began several years ago with no particular injury or event.” The
Board notes that appellant had several neck conditions which existed prior to the established
incident of April 11, 2013. Furthermore, Dr. Waling referenced neck surgery in August 2010
and a second one in January 2012, which was a bilateral C5-C7 fusion performed by
Dr. Chou-Evv. He also noted that appellant underwent a posterior cervical laminectomy and
fusion with instrumentation and bone graft on January 17, 2013. Other than to support a
preexisting condition, this report does not offer any opinion that appellant’s condition was work
related.
Likewise, in reports dated July 11 and 24, 2013, Dr. Waling diagnosed:
postlaminectomy syndrome cervical spine; left upper extremity pain D/T myofascial pain from
the cervical into the thoracic spine; S/P cervical surgery time 2010 and January 2013 per
Dr. Chou-Evv; cervical spondylosis without myelopathy with facet-mediated pain; history of
pancreatitis; hyperlipidemia; back pain, cervical radiculopathy; neck pain; history of fusion of
cervical spine by Dr. Chou-Evv, tachycardia postoperative state; lumbar back pain and lumbar
radicular pain. He noted that appellant had symptoms which included left-sided neck pain that
radiated to the left shoulder and back pain in the middle lumbar region, which radiated to the
lateral hips, down to the posterior legs equally. Dr. Waling diagnosed cervical radiculopathy,
thoracic or lumbosacral neuritis or radiculitis, lumbar back pain, and left shoulder pain.
However, he did not attribute any of these conditions to the April 11, 2013 incident. In an
August 20, 2013 treatment note, Dr. Waling repeated his diagnoses. He provided appellant with
a caudal epidural steroid block. Dr. Waling advised that appellant was having difficulty with
driving long distances and wished to speak with his supervisor as he needed to work in a closer
facility until the bridge into Owensboro, KY was completed. However, he did not indicate that
appellant’s conditions were caused or aggravated by the April 11, 2103 incident. As noted
above, Dr. Waling responded “no” when asked if they were related to his employment.
Likewise, Dr. Chou-Evv also treated appellant and referred to his preexisting conditions
and history of surgery along with diabetes. In his May 8, 2013 report, he explained that he had a
14

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
15

Douglas M. McQuaid, 52 ECAB 382 (2001).

6

two level “ACDF” on January 17, 2013. Dr. Chou-Evv explained that the CT scan revealed
completely solid fusion between C5-6 and C6-7 and determined that appellant was status
postero lateral fusion for pseudoarthrosis in January. He also reviewed the EMG scan which
revealed bilateral carpal tunnel syndrome, left C7 cervical radiculopathy and right radial
axonopathy.
Dr. Chou-Evv advised that the lower extremity EMG revealed axonal
demyelinating polyneuropathy without evidence of lumbar radiculopathy. He explained that
appellant had chronic pain issues and opined that the left C7 radiculopathy was “probably
neuropathic in origin i.e., not compressive since the last surgery included bilateral
foraminotomies for decompression of the nerve root. Also the pain is more of a paraesthetic
burning type of pain.” Dr. Chou-Evv opined that appellant’s polyneuropathy was “probably
diabetic in origin and clearly not a surgical issue.” The Board finds that his report is of limited
probative value as he attributes the condition to probable diabetes and does not offer any opinion
that the condition was caused or aggravated by the April 11, 2013 incident at work.16
The record also contains July 31, 2013 treatment note from Dr. Roberts, who found that
appellant was status post anterior cervical discectomy and fusion followed by a posterior
decompression and provided a cervical epidural to appellant. However, this report is of limited
probative value on the relevant issue of the present case in that they do not contain an opinion on
causal relationship.
The record contains diagnostic reports to include an April 17, 2013 report from
Dr. Miller. However, these reports are insufficient because the physicians did not provide an
opinion on the causal relationship of the conditions found on x-rays or diagnostic testing.
Therefore, their reports have no probative value in establishing causal relationship.17
Because the medical reports submitted by appellant do not address how the April 11,
2013 activities at work caused or aggravated a neck or back condition, these reports are of
limited probative value18 and are insufficient to establish that the April 11, 2013 employment
incident caused or aggravated a specific injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish an injury
causally related to the accepted April 11, 2013 employment incident.

16

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
17

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

18

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

7

ORDER
IT IS HEREBY ORDERED THAT the June 20, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wimberely, TX, Employer
__________________________________________

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

Docket No. 15-554
Issued: May 27, 2015

Case Submitted on the Record

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

JURISDICTION
On January 12, 2015 appellant filed a timely appeal from an October 31, 2014 merit
decision and a November 24, 2014 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 to review the merits of this case.
ISSUES
The issues are: (1) whether appellant has established a recurrence of disability from
January 25 to 29, 2014 causally related to her November 6, 2001 employment injury; and
(2) whether OWCP properly denied her request for a prerecoupment hearing as untimely.
On appeal, appellant contends that she was entitled to 30 days from October 4, 2014, in
which to respond. The postmark date of OWCP’s September 25, 2014 letter regarding its
preliminary overpayment determination was October 4, 2014. Appellant further contends that
OWCP delayed in mailing the letter which she did not receive it until October 6, 2014.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 6, 2001 appellant, then a 37-year-old rural carrier
associate, sustained a lumbar sprain/strain while reaching for a package at work. On
February 25, 2003 appellant underwent authorized lumbar surgery to treat her herniated nucleus
pulposus at L4-5.
Appellant returned to part-time modified duty four hours a day, six days a week on
August 19, 2003 and stopped work again on August 20, 2003. On August 26, 2003 she
underwent a lumbar myelogram.
On October 16, 2003 appellant returned to part-time modified duty for four hours a day,
six days a week. She stopped work again on March 19, 2011 because the employing
establishment could no longer accommodate her medical restrictions under the National
Reassessment Program. OWCP paid total disability compensation. On December 13, 2013
appellant returned to a modified rural carrier position, four hours a day, six days a week.
On February 21, 2014 appellant filed claims for compensation (Form CA-7) for leavewithout-pay (LWOP) compensation from January 11 to February 7, 2014. Time analysis forms
(Form CA-7a) dated February 21, 2014 indicated that she used 8 hours of LWOP on January 11
and 13, 2014 due to the flu based on a doctor’s note, 12 hours of LWOP from January 22 to 24,
2014, and 16 hours of LWOP from January 25 to 29, 2014 per her physician regarding her back
condition. Appellant worked at least four hours each day from January 14 to 18, 2014 and on
January 21, 2014 she was off for a federal holiday. The employing establishment contended that
she was not entitled to LWOP compensation for temporary total disability during the claimed
period because she did not submit any supportive medicals.
In a January 22, 2014 duty status report (Form CA-17), Dr. Anthony M. Hicks, an
attending Board-certified internist, placed appellant off work until her follow-up evaluation on
January 28, 2014. In a referral form dated January 29, 2014, he ordered pain management and
acute physical medicine modalities for her diagnosed conditions which included
fusion/derangement of the spine, neuropathy of the lower extremity, muscle spasm disorders and
fascia, lumbar/lumbosacral dysfunction, lumbar pain with radiculopathy, lumbar sprain/strain,
sprain/strain of the sacroiliac region, sacroiliac dysfunction, myofascial pain, numbness, burning,
hyper/hypo paresthesia, neuropathic pain (radiculitis and nerve root neuritis), sacroilitis inflamed
joint tissue, and reactive depression. In a duty status report and treatment note dated January 29,
2014, Dr. Hicks listed findings on examination and reviewed appellant’s medical records. He
advised that she had been unable to work due to severe physical dysfunction and lack of pain
control by medications. Dr. Hicks released appellant to return to modified work with
restrictions, eight hours a day on January 29, 2014. He determined that she had not reached
maximum medical improvement. Dr. Hicks advised that her complaints were likely related to
her work-related physical activities. On February 13, 2014 he reported that appellant had
moderate pain. Dr. Hicks diagnosed lumbar intervertebral disc without myelopathy, lumbar or
lumbosacral intervertebral disc, and anxiety disorder in conditions.
In a January 29, 2014 report, Dr. J. Lowell Haro, an attending Board-certified
anesthesiologist, provided a history of the November 6, 2001 employment injury and appellant’s

2

medical treatment and findings on examination.
He assessed appellant as having
postlaminectomy syndrome of the lumbar region, displacement of a lumbar intervertebral disc
without myelopathy, obesity, chronic pain syndrome, and long-term drug use. By letter dated
January 29, 2014, Dr. Haro stated that appellant was under his care on that day. He requested
that she be excused from work.
Laboratory reports dated January 24 and 31, 2014 provided drug test results.
By letter dated March 4, 2014, OWCP advised appellant that her request for
compensation for the period January 11 to 24, 2014 was not payable as the employing
establishment had not certified any hours of wage loss for the claimed period. It further advised
her that the evidence submitted was insufficient to establish her claim for compensation for the
period January 25 to February 7, 2014. OWCP requested that appellant to submit rationalized
medical evidence in support of her disability claim.
In reports dated February 13 to August 27, 2014, Dr. Hicks addressed appellant’s lumbar
conditions and advised that she could work with restrictions. In a March 27, 2014 report, he
advised that appellant had been unable to work from January 25 through February 7, 2014 due to
an unstable lumbar medical condition (she recently experienced several episodes of complete
dysfunction and her lumbar spine necessitated strict bed rest), severe pain (she was minimally
able to physically function due to severe pain), therapeutic rest trial, and ongoing oral pain
medications that affected her capacity to mentally function with certitude and completion of
other invasive therapeutic option(s). Dr. Hicks stated that his long-term, short-term, and overall
goal(s) were for appellant to work with restriction(s). In light of the above, he removed her from
work to stabilize her multiple ongoing severe chronic complaints and improve her physical
function, and reduce her complaints. Dr. Hicks related that appellant’s removal from work had
helped her conditions stabilize and that she had been returned to productive work with
restrictions.
In reports dated February 28 to August 27, 2014, Dr. Haro addressed appellant’s back
conditions, long-term drug use, and ability to work full time at the employing establishment.
By preliminary determination dated September 25, 2014, OWCP advised appellant that
she received an overpayment of compensation in the amount of $18,436.11 because she was paid
compensation at an incorrect pay rate for the period October 16, 2003 through March 9, 2013. It
explained the calculation of the overpayment and found her not at fault in its creation as she was
not aware or could not have been reasonably expected to know that it had incorrectly paid
compensation. OWCP afforded appellant 30 days to submit financial information and to request
either a telephone conference, decision on the written evidence, or a prerecoupment hearing.
In an overpayment action request form dated October 22, 2014, postmarked October 28,
2014, and received on October 30, 2014 by OWCP, appellant disagreed with the amount of the
overpayment, and requested waiver of recovery of the overpayment and a prerecoupment hearing
with an OWCP hearing representative. She submitted an overpayment recovery questionnaire
and additional financial documents. Appellant provided arguments in a narrative statement dated
October 22, 2014.

3

In an October 31, 2014 decision, OWCP denied appellant’s claim for compensation from
January 25 to 29, 2014, finding that the medical evidence did not establish that she was totally
disabled during the claimed period due to her accepted November 6, 2001 employment injury.
By decision dated November 24, 2014, OWCP’s Branch of Hearings and Review denied
appellant’s request for a prerecoupment hearing as untimely.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.3
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative, and substantial evidence a recurrence of total
disability and to show that he or she cannot perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.4
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.5
ANALYSIS -- ISSUE 1
OWCP accepted that on November 6, 2001 appellant sustained a lumbosacral
sprain/strain while in the performance of duty and underwent authorized back surgery on
November 26, 2002. Thereafter, appellant worked intermittently and underwent additional
lumbar surgeries. On December 13, 2013 appellant returned to a modified rural carrier position,
four hours a day, six days a week. She claimed a recurrence of disability from January 25 to 29,
2

20 C.F.R. § 10.5(x).

3

Id.

4

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
5

James H. Botts, 50 ECAB 265 (1999).

4

2014 due to her accepted injury. Appellant does not allege that this disability was a result of a
change in the nature and extent of her limited-duty job requirements. Therefore, she must show
a change in the nature and extent of her injury-related condition.
The Board finds that appellant has not submitted sufficient medical opinion evidence to
support her claimed period of disability. Dr. Hicks’ reports do not contain a rationalized opinion
explaining how she had become disabled from January 25 to 29, 2014 due to a worsening of her
accepted work-related condition. He opined in his March 27, 2014 report that appellant was
unable to work from January 25 through February 7, 2014. Dr. Hicks diagnosed an unstable
lumbar medical condition and noted that she recently experienced several episodes of complete
dysfunction and her lumbar spine necessitated strict bed rest. He also identified severe pain
because she was barely able to function. Dr. Hicks prescribed therapeutic rest trial. He
determined that ongoing oral pain medications affected her capacity to mentally function.
Dr. Hicks identified various conditions, but did not explain how they were caused by the
accepted November 6, 2001 employment injury.
Similarly, in his January 22, 2014 Form CA-17 report, Dr. Hicks offered no medical
rationale explaining why appellant’s disability for work through January 28, 2014 was causally
related to the work injury. The Board has held that a medical opinion not fortified by medical
rationale is of diminished probative value.6
In his duty status report and treatment note dated January 29, 2014, Dr. Hicks released
appellant to return to modified work with restrictions, and stated that she had been unable to
work due to severe physical dysfunction and lack of pain control by medications. He explained
that appellant’s complaints were “likely” related to her work required physical activities. The
Board finds, however, that his opinion concerning causal relation is speculative and is, therefore,
of diminished probative value.7 Dr. Hicks’ remaining reports addressed appellant’s lumbar
conditions and work capacity, but did not offer a medical opinion on whether her diagnosed
conditions and any resultant disability were caused by the accepted work injury. The Board has
held that medical evidence offering no opinion regarding the cause of an employee’s condition is
of limited probative value on the issue of causal relationship.8 The Board finds that Dr. Hicks’
submissions are insufficient.
Dr. Haro’s January 29, 2014 report and letter found lumbar postlaminectomy syndrome,
displacement of a lumbar disc, obesity, chronic pain syndrome, and long-term drug use. He
6

F.T., Docket No. 09-919 (issued December 7, 2009); Elizabeth H. Kramm, 57 ECAB 117, 124 (2005);
Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports without
containing rationale on causal relationship are entitled to little probative value).
7

Rickey S. Storms, 52 ECAB 349, 352 (2001) (the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty but must not be speculative or equivocal. The opinion should be expressed in
terms of a reasonable degree of medical certainty); see also D.D., 57 ECAB 734, 739 (2006). See Samuel Senkow,
50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease was not definite and was
unsupported by medical rationale, it was insufficient to establish causal relationship).
8

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697 (2002);
Michael E. Smith, 50 ECAB 313 (1999).

5

requested that she be excused from work that same day, but offered no opinion stating that the
conditions or disability were caused by the employment-related injury.9 Dr. Haro’s remaining
reports do not provide an opinion addressing a causal relationship between her conditions and
disability for work during the claimed period.10
The January 24 and 31, 2014 laboratory reports failed to establish any causal relationship
between appellant’s disability during the claimed period and her accepted employment injury.11
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
OWCP regulations on the recovery of overpayments provide that, before collecting the
overpayment, it must provide the claimant with written notice of the fact and amount of the
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or
finding of fault and the right to request waiver of the overpayment.12 The regulations further
provide that a claimant may request a prerecoupment hearing with respect to an overpayment.13
Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right
to a hearing.14 The only right to a review of a final overpayment decision is to the Board.15 The
hearing provisions of 5 U.S.C. § 8124(b) do not apply to a final overpayment decision.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely. OWCP notified appellant of its preliminary determination that she received
an overpayment of compensation on September 25, 2014. It informed her that she could request
a telephone conference, a prerecoupment hearing or a final decision based on the written
evidence within 30 days of the date of the letter. OWCP’s implementing regulations are specific
as to the 30-day time limitation in which to request a prerecoupment hearing. The 30-day time

9

Id.

10

Id.

11

Id.

12

20 C.F.R. § 10.431; see also J.J., Docket No. 13-1905 (issued April 8, 2014); A.G., 58 ECAB 625 (2007).

13

Id. at § 10.432.

14

Id., J.J., supra note 12; L.C., 59 ECAB 569 (2008).

15

Id. at § 10.440(b).

16

Id.; J.J., supra note 12.

6

period is determined by the request’s postmark or other reliable date of marking.17 The
regulation does not measure timeliness based on the date of receipt, but instead on the
postmark.18 Appellant’s request for a prerecoupment hearing was postmarked October 28, 2014
more than 30 days after OWCP’s notification of overpayment dated September 25, 2014. As
provided in OWCP regulations, her hearing request was therefore untimely and she waived her
right to a prerecoupment hearing.19
On appeal, appellant contended that she should have been given 30 days from October 4,
2014, the postmark date of the OWCP’s September 25, 2014 letter regarding its preliminary
overpayment determination. She contended that OWCP delayed in mailing the letter which she
did not receive until October 6, 2014. Appellant has not submitted any evidence to substantiate
her allegation of a delay by OWCP. Moreover, OWCP regulations are clear that the postmark
date is used to determine the timeliness of a request for a prerecoupment hearing. As appellant’s
request was postmarked October 28, 2014, more than 30 days after OWCP issued its
September 25, 2014 preliminary overpayment determination, it was untimely filed.
CONCLUSION
The Board finds that appellant has failed to establish a recurrence of disability from
January 25 to 29, 2014 causally related to her November 6, 2001 employment injury. The Board
further finds that OWCP properly denied appellant’s request for a prerecoupment hearing as
untimely.

17

20 C.F.R. § 10.616(a). OWCP has administratively decided that the test used in 20 C.F.R. § 10.616(a) for
determining the timeliness of hearing requests should apply to requests for prerecoupment hearings. 20 C.F.R.
§ 10.439. Accordingly, timeliness is determined by the postmark of the envelope, if available.
18

Id. See also S.E., Docket No. 11-1632 (issued April 12, 2012); T.W., Docket No. 11-732 (issued
November 29, 2011).
19

J.J., supra note 12.

7

ORDER
IT IS HEREBY ORDERED THAT the November 24 and October 31, 2014 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 27, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 16-1284
Issued: February 14, 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 June 3, 2016 appellant filed a timely appeal from a May 16, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a bilateral knee
condition causally related to factors of her federal employment.
FACTUAL HISTORY
On October 9, 2015 appellant, then a 61-year-old retired customer services supervisor,
filed an occupational disease claim (Form CA-2) alleging a bilateral knee condition due to

1

5 U.S.C. § 8101 et seq.

factors of her federal employment. She identified June 23, 2009 as the date she first became
aware of her condition.
In a narrative statement, appellant specified that she had retired on October 1, 2015 and
prior to her retirement she worked as a supervisor which required constant walking to the
window unit, parcel area, and box section and sometimes in the automated areas. She indicated
that she performed these duties at least eight hours per day, five days per week. Appellant
alleged that her federal duties affected both of her knees, right worse than left, and noted that she
never had a problem with her knees prior to working for the employing establishment and had no
hobbies that would have caused or aggravated her conditions.
In a November 2, 2015 letter, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
By decision dated December 3, 2015, OWCP denied the claim as the medical evidence of
record failed to establish a diagnosis in connection with the alleged injury and/or events.
On December 11, 2015 appellant requested a review of the written record by a
representative of the Branch of Hearings and Review and submitted a November 19, 2015
narrative statement indicating that her job as a supervisor required constant walking in order to
check areas of responsibilities and also required her to bend and stoop in the performance of
duty.
In a September 15, 2015 report, Dr. Steven Inbody, a Board-certified neurologist, noted
that appellant had been employed by the employing establishment as a supervisor for the past 35
years and on or about June 23, 2009 she first became aware of an aggravation of a preexisting
injury of the right knee and sustained a new injury to the left knee while performing her
repetitive duties of walking, standing, stooping, and bending. He reported that appellant
eventually underwent right knee total replacement surgery and in 2006 a right knee meniscal tear
was noted and treated arthroscopically with medial collateral ligament tear also noted and
repaired. As appellant continued to work on her feet with significant walking required, her pain
evolved and required knee injections. Dr. Inbody noted that appellant’s pain continued to
progress making activities at work difficult with end-of-the-day exacerbations to the point where
she was unable to complete her activities of daily living at home with pain no longer responding
to after-work rest. Appellant was scheduled for a total knee replacement on April 6, 2015 and
had been going through gradual rehabilitation since. Dr. Inbody diagnosed bilateral internal
derangement of the knees and opined that appellant’s condition was a result of the repetitive
traumas she experienced in her federal employment which required walking throughout the day
with prolonged standing and very little time to sit.
On April 22, 2016 the employing establishment controverted appellant’s claim alleging
that she did not walk or stand for eight hours per day and used a yard stick to measure the mail
which required no bending or stooping. It noted that appellant’s job required two hours of
intermittent walking and standing. The employing establishment submitted a position
description and noted that appellant did not perform any physical exertion of lifting, pushing,
pulling, bending, or stooping at work.

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By decision dated May 16, 2016, an OWCP hearing representative affirmed the
December 3, 2015 decision, finding that the medical evidence of record established fact of
injury, but failed to establish a causal relationship between appellant’s condition and factors of
her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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, and that an injury3 was sustained in the performance
of duty. These are the essential elements of each compensation claim, regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. 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.6
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that factors
of her federal employment caused or aggravated her bilateral knee condition. Appellant
identified the factors of employment that she believed caused the condition, including walking
and standing while supervising areas at work, which OWCP accepted as factual. However, in
order to establish a claim that she sustained an employment-related injury, she must also submit

2

Id.

3

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
4

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

5

See D.R., Docket No. 09-1723 (issued May 20, 2010).

6

See O.W., supra note 4.

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rationalized medical evidence which explains how her medical condition was caused or
aggravated by the accepted employment factors.7
In his September 15, 2015 report, Dr. Inbody diagnosed bilateral internal derangement of
the knees and opined that appellant’s condition was a result of the repetitive traumas she
experienced in her federal job which required walking throughout the day with prolonged
standing and very little time to sit. He failed to provide a rationalized opinion explaining how
factors of appellant’s federal employment, her walking and prolonged standing at work, caused
or aggravated her bilateral knee condition. Dr. Inbody failed to provide an opinion adequately
addressing how appellant’s history of knee issues, including a June 23, 2009 incident, caused or
contributed to her bilateral internal knee derangement. The Board has held that medical opinions
based on an incomplete history have diminished probative value.8 Dr. Inbody noted that
appellant’s condition occurred while she was at work, but such generalized statements do not
establish causal relationship because they merely repeat appellant’s allegations and are
unsupported by adequate medical rationale explaining how her physical activity at work actually
caused or aggravated the diagnosed condition.9 The Board has held that the mere fact that
appellant’s symptoms arise during a period of employment or produce symptoms revelatory of
an underlying condition does not establish a causal relationship between appellant’s condition
and her employment factors.10 Thus, the Board finds that Dr. Inbody’s report is insufficiently
rationalized to establish that appellant’s condition was caused or aggravated by factors of her
federal employment.
On appeal, appellant contends that there was an error of fact or law and argues that her
claim should have been approved based on the medical evidence she submitted. For the reasons
set forth above, the Board finds appellant’s arguments are without merit. As appellant has not
submitted any rationalized medical evidence to support her allegation that she sustained an injury
causally related to the accepted employment factors, she failed to meet her burden of proof to
establish a claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a bilateral
knee condition causally related to factors of her federal employment.

7

See A.C., Docket No. 08-1453 (issued November 18, 2008).

8

See Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value). See also Douglas M. McQuaid, 52 ECAB 382
(2001); N.H., Docket No. 13-849 (issued July 17, 2013).
9

See K.W., Docket No. 10-98 (issued September 10, 2010).

10

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the May 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 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

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