United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
New Orleans, LA, Employer
__________________________________________

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)

Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-76
Issued: March 22, 2013

Case Submitted on the Record

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

JURISDICTION
On October 12, 2012 appellant, through her representative, filed a timely appeal from
July 20 and August 24, 2012 merit decisions 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 that she sustained an
injury in the performance of duty on October 25, 2010.
FACTUAL HISTORY
On October 27, 2010 appellant, then a 36-year old Veterans Administration (VA) claims
examiner, filed a traumatic injury claim (Form CA-1) alleging that on October 25, 2010 she
1

5 U.S.C. § 8101 et seq.

sustained a back strain when she was placing a file in a cabinet and the entire cabinet fell
forward. She stated that she and another coworker prevented the cabinet from falling on her.
Appellant stopped work on October 25, 2010 and notified her supervisor on October 27, 2010.
The employing establishment controverted the claim.
In an October 25, 2010 return to work form, Dr. Harvey L. Malone, Board-certified in
emergency medicine, reported that appellant could return to work on October 27, 2010 with
restrictions of no heavy lifting.
By letter dated November 1, 2010, OWCP informed appellant that her claim was
reopened for consideration because she had not returned to work in full-time capacity. Appellant
was advised of the medical and factual evidence needed in support of her claim and was asked to
respond to the questions provided in the letter within 30 days.
Appellant submitted an October 29, 2010 work capacity evaluation (Form OWCP-5(c))
from Dr. Dean Paschal, a treating physician, who reported that appellant could not perform the
usual duties of her job and that she was being scheduled for a magnetic resonance imaging
(MRI) scan.
By decision dated December 3, 2010, OWCP denied appellant’s claim for failing to
establish fact of injury.
On March 16, 2011 appellant requested reconsideration of OWCP’s decision. She stated
that she had a herniated disc and sciatica as a result of the October 25, 2010 employment injury.
In a November 4, 2010 medical report, Dr. Paschal reported that appellant had a history
of an abnormal MRI scan two years ago and has had chronic back pain ever since. This chronic
back pain was recently severely exacerbated when a filing cabinet fell on her.
Dr. Jash Patel, a Board-certified diagnostic radiologist, reported on November 4, 2010
that appellant had a history of chronic back pain and had an abnormal MRI scan two years ago.
Based on a November 4, 2010 MRI scan of the lumbar spine, Dr. Patel diagnosed left L4-5
foraminal disc herniation.
In a December 10, 2010 return to work form, Dr. Marlene Zekoski, Board-certified in
internal medicine, reported that appellant was restricted from working until December 17, 2010
and could not lift files, sit for an extended period of time or bend over. She diagnosed disc
radiculopathy and sciatica.
By letter dated January 27, 2011, Dr. Colibri Jenkins, Board-certified in psychiatry,
reported that appellant had continued complaints of extensive pain in her back, hip and shoulder,
which was causing her a considerable amount of anxiety.
In a March 14, 2011 certification of health care provider form (WH-380-E),
Dr. Dwight L. McKenna, Board-certified in emergency medicine, reported that appellant’s
condition commenced on October 25, 2010 when a file cabinet fell on her at work. He stated
that he treated appellant for this condition on March 14, 2011. Dr. McKenna noted that appellant
was unable to perform her employment duties and diagnosed herniated disc at L4-5, sciatica,
2

anxiety, depression and right knee pain. He opined that appellant was totally disabled as a result
of her herniated disc condition.
On March 16, 2011 Dr. Eugenio Guevara, a Board-certified neurologist, diagnosed
lumbar radiculopathy secondary to left L4-5 and right knee pain secondary to mild degenerative
joint disease (DJD).
By letter dated May 3, 2011, the employing establishment contested the claim stating that
the medical evidence appellant submitted was over six months past the date of incident and that
she was a disabled veteran with a previous lower back condition.
In a letter dated May 20, 2011, appellant stated that she had submitted the required
documentation in support of her claim, including medical reports which document her herniated
disc and sciatica.
By decision dated June 15, 2011, OWCP affirmed the December 3, 2010 decision, as
modified, finding that the evidence of record failed to establish that appellant’s herniated disc
and sciatica conditions were caused or aggravated by the accepted October 25, 2010 employment
incident.
On May 2, 2011 appellant, through counsel, requested reconsideration of OWCP’s
June 15, 2011 decision and stated arguments in support of her claim.
In an undated medical report, Dr. Benjamin J. McNeil, a chiropractor, reported that he
had examined appellant on March 27, 2012 and diagnosed displacement of intervertebral disc
without myelopathy, degeneration of lumbar or lumbosacral intervertebral disc, cervicalgia,
cervicobrachial syndrome, lumbago, spasm of muscle, cervical segmental dysfunction and
lumbar segmental dysfunction. The medical history noted that, following the October 25, 2010
incident, an MRI scan revealed herniation of the L4-5 disc. Dr. McNeil opined that the heavy
cabinet that fell on appellant caused her injuries and that her employment duties exacerbated her
neck and hand problems.
On May 2, 2012 Dr. Shannon Ceasar, a treating physician, reported that she had read
Dr. McNeil’s report and agreed with his initial examination and evaluation of appellant.2
By decision dated July 20, 2012, OWCP affirmed the June 15, 2011 decision finding that
the evidence of record failed to establish that appellant’s diagnosed medical condition was
causally related to the accepted October 25, 2010 employment incident.
On July 25, 2012 appellant, through counsel, requested reconsideration and provided
arguments in support of her claim.
Dr. McNeil’s undated medical report was resubmitted and signed by Dr. Ceasar.

2

Dr. Ceasar simply attached a cover page to a copy of Dr. McNeil’s undated report. She did not discuss her own
findings on examination. Dr. Ceasar and Dr. McNeil both work at Superior Healthcare.

3

In a June 5, 2012 medical report, Dr. Ceasar reported that she evaluated appellant on that
same date for injuries stemming from an October 25, 2010 work-related incident. She reported
that appellant was placing a file in a file cabinet when the entire cabinet started to fall forward.
This caused appellant to grab the file cabinet to stop it from falling. Dr. Ceasar noted that
following the falling of the file cabinet, appellant began to experience pain in her lower back,
weakness in the right side and leg, sharp pain in the left side and leg, pain in the neck and
numbness in both hands at the fourth and fifth digits. She provided an activity of daily living
assessment and a palpation evaluation. Dr. Ceasar reported that, prior to the October 25, 2010
filing cabinet incident, appellant did not have any significant medical problems or complaints
related to her lumbar spine. She opined with reasonable medical certainty that the resulting
impact of the heavy filing cabinet falling forward, and the physical effort appellant used to
prevent it from falling, caused her displacement of intervertebral disc without myelopathy,
degeneration of lumbar or lumbosacral intervertebral disc, cervicalgia, cervicobrachial
syndrome, lumbago, spasm of muscle, cervical segmental dysfunction and lumbar segmental
dysfunction. Dr. Ceasar further stated that appellant’s required daily work exacerbated her
conditions which caused numbness in the hands and pain and discomfort in the lumbar spine.
Appellant had difficulty carrying files during her daily work due to pain and loss of proper hand
function. Dr. Ceasar opined with reasonable medical certainty that the resulting impact of the
heavy cabinet caused appellant’s injuries and the continued heavy work load and lifting
exacerbated the problem in her neck and hands.
By decision dated August 24, 2012, OWCP affirmed the July 20, 2012 decision finding
that the evidence of record failed to establish that appellant’s medical condition was causally
related to the accepted October 25, 2010 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an 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 which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

Elaine Pendleton, supra note 3.

4

component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
When an employee claims that he or she sustained an injury in the performance of duty
he or she must submit sufficient evidence to establish that he or she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He or she must also
establish that such event, incident or exposure caused an injury.6 Once an employee establishes
that he or she sustained an injury in the performance of duty, he or she has the burden of proof to
establish that any subsequent medical condition or disability for work, for which he or she claims
compensation is causally related to the accepted injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. In determining whether a case has
been established, such circumstances as late notification of injury, lack of confirmation of injury,
and failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on
the employee’s statements. The employee has not met his or her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.8
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.9 The opinion of the physician must be based on 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.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS
OWCP accepted that the October 25, 2010 employment incident occurred as alleged.
The issue is whether appellant established that the incident caused her multiple medical
conditions. The Board finds that she did not submit sufficient medical evidence to support that

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
7

Supra note 5.

8

Betty J. Smith, 54 ECAB 174 (2002).

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

10

James Mack, 43 ECAB 321 (1991).

5

her neck, back, leg and hand conditions are causally related to the October 25, 2010 employment
incident.11
On appeal appellant states that Dr. Ceasar’s comprehensive report, along with the prior
medical reports of record, provide an uncontroverted inference of causal relationship.
The Board finds that the opinion of Dr. Ceasar is not well rationalized. Dr. Ceasar’s
June 5, 2012 report establishes multiple diagnoses, including displacement of intervertebral disc
without myelopathy, degeneration of lumbar or lumbosacral intervertebral disc, cervicalgia,
cervicobrachial syndrome, lumbago, spasms of muscle, cervical segmental dysfunction and
lumbar segmental dysfunction. She failed, however, to explain how stopping a file cabinet from
falling could have caused appellant her injuries other than offering a generalized opinion that this
caused appellant to use physical effort. Dr. Ceasar merely recounted the incident as described by
appellant and failed to provide a sufficient explanation as to the mechanism of injury and how
the accepted October 25, 2010 employment incident caused or contributed to any injury. Her
statement that appellant suffered an injury at work is equivocal in nature and of limited probative
value.12
The Board further notes that Dr. Ceasar failed to provide an adequate and detailed
medical history. In the undated report which was initially created by Dr. McNeil and later signed
by Dr. Ceasar, the medical history noted that, following the October 25, 2010 incident, an MRI
scan revealed herniation of the L4-5 disc. Dr. Ceasar did not indicate a date when the MRI scan
was taken and made no mention of this diagnostic testing in her June 5, 2012 report. She failed
to provide any other details regarding appellant’s medical history and stated that her opinion on
causal relationship was based on the fact that there were no prior complaints or injuries leading
to the October 25, 2010 employment incident. Contrary to Dr. Ceasar’s assertion, it has already
been established that appellant suffered from a preexisting back condition. Dr. Patel and
Dr. Paschal both reported that appellant had a history of chronic back pain and an abnormal MRI
scan two years ago. Dr. Ceasar did not provide an accurate medical history of appellant’s
condition when providing her diagnoses. She failed to review appellant’s diagnostic test results
and did not explain whether, or how, appellant’s current MRI scan results could determine that
the conditions were a result of the accepted employment incident. It is unclear if appellant’s
current conditions are a result of a preexisting condition or were caused or aggravated by the
October 25, 2010 employment incident.
With respect to appellant’s hand and neck injuries, Dr. Ceasar opined that appellant’s
daily work duties of carrying files exacerbated her October 25, 2010 injuries and caused her pain
in the lumbar spine and numbness in the hands. Dr. Ceasar is attributing appellant’s neck and
hand injury to an occupational injury produced by appellant’s work environment over a period
longer than a single workday or shift rather than an injury from a single occurrence within a

11

See Robert Broome, 55 ECAB 339 (2004).

12

S.W., Docket 08-2538 (issued May 21, 2009).

6

single workday as alleged by appellant in this claim.13 Moreover, the Board has consistently
held that pain is a description of a symptom rather than a compensable medical diagnosis.14
Thus, this medical report does not support that appellant’s neck and hand conditions were caused
by a traumatic incident on October 25, 2010.
Dr. Ceasar did not evaluate appellant until over seven months after the October 25, 2010
employment incident. Her history of the October 25, 2010 employment incident merely repeated
appellant’s factual assertions. Dr. Ceasar noted no additional details about the mechanism of the
alleged injury, failed to address appellant’s prior medical history and did not explain how the
accepted October 25, 2010 incident caused or contributed to her multiple injuries. Medical
reports without adequate rationale on causal relationship are of diminished probative value and
do not meet an employee’s burden of proof.15 The opinion of a physician supporting causal
relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record and provide medical
rationale explaining the relationship between the diagnosed condition and the established
incident or factor of employment.16 Without medical reasoning explaining how the October 25,
2010 employment incident caused or contributed to her injuries, especially in light of the
preexisting back condition. Dr. Ceasar’s reports are insufficient to meet appellant’s burden of
proof.17
The remaining medical evidence of record is also insufficient to establish a causal
relationship between appellant’s injuries and the October 25, 2010 employment incident.
In a November 4, 2010 medical report, Dr. Paschal reported that appellant had a history
of abnormal MRI scan two years ago and has had chronic back pain ever since. He noted that
this chronic back pain was recently severely exacerbated when a filing cabinet fell on her.
Dr. Paschal’s diagnosis of chronic back pain is a description of a symptom rather than a clear
diagnosis of a medical condition.18 It is not possible to establish the cause of a medical
condition, if the physician has not stated a diagnosis, but only notes pain. Thus, Dr. Paschal’s
report is insufficient to establish appellant’s claim.
In a November 4, 2010 diagnostic report, Dr. Patel reported that appellant had a history
of chronic back pain and had an abnormal MRI scan two years ago. He stated that appellant’s
current MRI scan of the lumbar spine revealed left L4-5 foraminal disc herniation. While
13

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined 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).
14

C.F., Docket No. 08-1102 (issued October 10, 2008).

15

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

16

See Lee R. Haywood, 48 ECAB 145 (1996).

17

C.B., Docket No. 08-1583 (issued December 9, 2008).

18

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
supra note 14.

7

Dr. Patel provided a diagnosis of left L4-5 foraminal disc herniation, he did not explain whether
or how the accepted October 25, 2010 incident caused or contributed to any back condition. The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.19 Thus,
Dr. Patel’s report is insufficient to meet appellant’s burden of proof.
In a March 14, 2011 certification of health care form, Dr. McKenna reported that
appellant’s condition commenced on October 25, 2010 when a file cabinet fell on her at work.
He stated that he treated appellant for this condition on March 14, 2011. Dr. McKenna noted
that appellant was unable to perform her employment duties and diagnosed herniated disc at L45, sciatica, anxiety, depression and right knee pain. He opined that appellant was totally disabled
as a result of her herniated disc condition. While Dr. McKenna provided a diagnosis of herniated
disc and sciatica, he did not explain whether or how the accepted October 25, 2010 incident
caused or contributed to any back condition. He merely recounted the incident as alleged by
appellant but failed to provide an opinion on the cause of appellant’s injury. Moreover,
Dr. McKenna did not treat appellant until approximately five months after the employment
incident and failed to provide a medical history. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.20 Thus, Dr. McKenna’s report is insufficient to meet
appellant’s burden of proof.
There is no indication that Dr. McNeil, appellant’s chiropractor, obtained or reviewed xrays in rendering his diagnosis.21 As he does not meet the statutory definition of a physician, his
reports lack probative value. Dr. Malone’s October 25, 2010 note and Dr. Jenkins’ January 27,
2011 report failed to provide medical diagnoses.
Dr. Zekowski’s December 10, 2010 report provided a diagnosis of disc radiculopathy and
sciatica and Dr. Guevara’s report provided a diagnosis of lumbar radiculopathy secondary to left
L4-5 and right knee pain secondary to degenerative joint disease. While these physicians did
provide a firm medical diagnosis, they failed to state any opinion on causal relationship.22 Thus,
the additional medical reports are of limited probative value.
Appellant’s counsel argues that the medical reports submitted are sufficient to establish
her claim, referencing Dr. Ceasar’s June 5, 2012 report. While OWCP shares responsibility in
the development of the evidence to see that justice is done, it is appellant’s burden of proof to
submit the evidence necessary to establish her claim.23 The Board has reviewed the medical
19

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

20

Id.

21

5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 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 xray to exist and subject to regulation by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).
22

Supra note 18.

23

Phillip L. Barnes, 55 ECAB 426 (2004).

8

evidence and no physician has provided a completely rationalized opinion that the October 25,
2010 employment incident caused or aggravated appellant’s medical conditions. The single,
generalized statement by Dr. Ceasar that causal connection exists is not sufficient to meet
appellant’s burden of proof.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between the October 25, 2010 employment incident and appellant’s injuries. Thus,
appellant has failed to meet her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her back,
leg, neck and hand injuries are causally related to the October 25, 2010 employment incident, as
alleged.
ORDER
IT IS HEREBY ORDERED THAT the August 24 and July 20, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 22, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
M.B., Appellant
)
)
and
)
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FEDERAL AVIATION ADMINISTRATION,
)
Rapid City, SD, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-672
Issued: June 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On January 16, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated November 29, 2006 finding that she failed to establish
an injury as alleged. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the issue in this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained an injury in the performance of duty on October 11, 2006.
FACTUAL HISTORY
On October 12, 2006 appellant, then a 47-year-old airway transportation services
specialist, filed a traumatic injury claim alleging that on October 11, 2006 she was struck on the
driver’s side by another motor vehicle while in the performance of duty. She alleged that she
injured her neck and had backaches and headaches with tingling in her arms and hands.
Appellant did not stop work.

By letter dated October 25, 2006, the Office advised appellant and the employing
establishment that additional factual and medical evidence was needed. The Office allotted 30
days within which to submit the requested information.
On October 27, 2006 the Office received a diagram and accident report which contained
a drawing and representation of how appellant’s injury occurred.
In an October 31, 2006 disability certificate, a chiropractor, whose signature is illegible,
recommended chiropractic treatments and physical therapy.
In a November 1, 2006 statement, the employing establishment confirmed that appellant
was on official duty at the time of the accident.
In a November 8, 2006 statement, Carrol Hansen, a program analyst, noted that the
November 1, 2006 employing establishment statement was signed by Mrs. Larson, the acting
manager at the time of appellant’s accident. She submitted an updated form to reflect
Mrs. Larson’s signature.
By decision dated November 29, 2006, the Office denied appellant’s claim. The Office
found that the evidence of file supported that the claimed motor vehicle accident occurred as
alleged. However, there was no medical evidence that provided a diagnosis connected to the
incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 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
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. An employee

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

2

has the burden of establishing the occurrence of an injury at the time, place and in the manner
alleged by a preponderance of the reliable, probative and substantial evidence.5
The second component is whether the employment incident caused a personal injury and
generally this can be established only by medical evidence.6 The employee must also submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7 The medical evidence required to establish
causal relationship is usually rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8
ANALYSIS
Appellant alleged that on October 11, 2006 she was injured in an automobile accident in
the performance of duty. There is no dispute that she was in an automobile accident while in the
performance of duty on that date. The incident occurred while appellant was on official time and
was not disputed by the employing establishment.
However, the medical evidence is insufficient to establish that the October 11, 2006
automobile accident caused an injury. Appellant has not submitted any medical evidence which
establishes that the accident caused a personal injury.
Appellant provided a disability certificate from a chiropractor. In assessing the probative
value of chiropractic evidence, the initial question is whether the chiropractor is considered a
physician under section 8101(2) of the Act.9 A chiropractor cannot be considered a physician
under the Act unless it is established that there is a subluxation as demonstrated by x-ray to
exist.10 Where x-rays do not demonstrate a subluxation, a chiropractor is not considered a
“physician,” and his or her reports cannot be considered as competent medical evidence under
the Act.11 In this case, the record does not establish that x-rays were obtained or that subluxation

5

Charles B. Ward, 38 ECAB 667 (1987).

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

7

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

8

Id.

9

5 U.S.C. § 8101(2).

10

Thomas R. Horsfall, 48 ECAB 180 (1996).

11

See Thomas W. Stevens, 50 ECAB 288(1999); see also Susan M. Herman, 35 ECAB 669 (1984). George E.
Williams, 44 ECAB 530, 534 (1993).

3

of the spine was diagnosed. Therefore, the chiropractor is not considered a physician as defined
and his report is of no probative value.
Appellant did not submit any medical evidence to support that she sustained an injury on
October 11, 2006. Absent medical evidence to establish that her medical condition was causally
related to the October 11, 2006 work-related incident, appellant failed to carry her burden of
proof.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty on October 11, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated November 29, 2006 is affirmed.
Issued: June 12, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


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

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0701
Issued: March 3, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 1, 2021 appellant, through counsel, filed a timely appeal from a February 23,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 23, 2021 decision, OWCP received additional evidence, and
appellant submitted additional evidence upon appeal. However, the Board ’s Rules of Procedure provides: “The
Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final
decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R.
§ 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $16,873.21 during the periods July 1, 2014 through
July 20, 2019 and February 3 through April 15, 2020, for which she was without fault, as she
concurrently received Social Security Administration (SSA) age-related retirement benefits and
FECA wage-loss compensation benefits without appropriate offset; and (2) whether OWCP
properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On June 3, 1992 appellant, then a 40-year-old data transcriptionist, filed a claim for
occupational disease (Form CA-2) alleging that she sustained injuries due to factors of her federal
employment. OWCP accepted her claim for calcifying tendinitis of the right shoulder, right
complete rotator cuff tear, and right tenosynovitis of the hand and wrist.
By decision dated September 2, 1999, OWCP finalized a proposed reduction of appellant’s
compensation, finding that she was not totally disabled and capable of earning wages in the
constructed position of a hostess.
Appellant began working as a self -employed childcare provider in January 2001. OWCP
compensation history records indicate that she received payments for loss of wage -earning
capacity (LWEC) on the periodic rolls as of June 16, 2002.4
On July 16, 2020 OWCP provided SSA with a FERS/SSA dual benefits form to obtain
information regarding appellant’s receipt of SSA age-related retirement benefits.
On July 29, 2020 SSA completed the dual benefits form, which reported appellant’s SSA
age-related retirement benefit rates with a FERS offset and without a FERS offset from July 2014
through December 2019. Beginning July 2014, the SSA rate with FERS was $718.20 and without
FERS was $481.20. Beginning December 2014 and December 2015, the SSA rate with FERS was
$730.40 and without FERS was $489.30. Beginning December 2016, the SSA rate with FERS
was $732.50 and without FERS was $490.80. Beginning December 2017, the SSA rate with FERS
was $747.10 and without FERS was $500.60. Beginning December 2018, the SSA rate with FERS
was $795.10 and without FERS was $514.50. Beginning December 2019, the SSA rate with FERS
was $810.00 and without FERS was $522.70.
In a letter dated August 28, 2020, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her age-related retirement benefits which were
attributable to federal service, her FECA wage-loss compensation had been adjusted. It explained
that she was in receipt of SSA age-related retirement benefits every four weeks in the amount of
$810.00. However, appellant’s federal service increased her monthly SSA age-related retirement
benefit payments by $287.30, which must be offset as this portion of her SSA age-related
retirement benefits was attributable to her federal service. OWCP explained that the $287.30
4

In a claim for compensation (Form CA-7) dated May 16, 2018, appellant requested a schedule award. By decision
dated October 2, 2019, OWCP granted her a schedule award for an additional 9 percent permanent impairment of the
right upper extremity, for a total of 16 percent permanent impairment. The award ran for 28.08 weeks from
September 15, 2019 through February 2, 2020.

2

monthly offset would be adjusted to a 28-day payment cycle to result in a $265.20 offset.
Appellant was advised that, following the SSA offset and deduction of health benefits premiums,
her 28-day gross FECA payment would be reduced from a gross payment of $531.00 to a new net
FECA compensation payment of $20.18, every 28 days. Her compensation benefits were adjusted
effective August 16, 2020.
In a FERS offset overpayment calculation worksheet dated August 31, 2020, OWCP
calculated appellant’s total overpayment amount from July 1, 2014 through September 20, 2019
and February 3 through August 15, 2020 as $16,873.21. It noted that, as she received a schedule
award from July 21, 2019 through February 2, 2020, this period was not affected by the FERS
offset. OWCP indicated that from July 1 until November 30, 2014 the amount of the overpayment
was $1,195.42; from December 1, 2014 to November 30, 2015 the amount of the overpayment
was $2,901.15; from December 1, 2015 to November 30, 2016 the amount of the overpayment
was $2,909.10; from December 1, 2016 to November 30, 2017 the amount of the overpayment
was $2,908.37; from December 1, 2017 to November 30, 2018 the amount of the overpayment
was $2,966.13; from December 1, 2018 to July 20, 2019 the amount of the overpayment was
$2,146.13; and from February 3 to August 15, 2020 the amount of the overpayment was $1,846.93.
On September 1, 2020 OWCP issued a preliminary overpayment determination that
appellant had received an overpayment of compensation, for which she was without fault, in the
amount of $16,846.93 because she concurrently received SSA age-related retirement benefits and
FECA wage-loss compensation for the periods July 1, 2014 through September 20, 2019 and
February 3 through August 15, 2020. It provided an overpayment calculation and found that she
was without fault in the creation of the overpayment. 5 OWCP requested that appellant submit a
completed overpayment recovery questionnaire (Form OWCP-20). It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, pay slips, and any other records to support income and expenses. Additionally,
OWCP provided appellant with an overpayment action request form and further notified her that,
within 30 days of the date of the letter, she could request a telephone conference, a final decision
based on the written evidence, or a pre-recoupment hearing.
On September 11, 2020 appellant requested a pre-recoupment hearing before a
representative of OWCP’s Branch of Hearings and Review regarding possible waiver of recovery
of the overpayment. The hearing was held on January 6, 20201.
In a Form OWCP-20 dated January 21, 2021, appellant listed her monthly income as
consisting of $1,192.00 in SSA benefits and $16.73 in state or local welfare payments. Her
monthly expenses were listed as $704.81 for rent or mortgage; $400.00 for food; $100.00 for
clothing; $240.00 for utilities; and $100.00 for other expenses. Appellant’s assets included $10.00
in cash on hand, a checking account balance of $8,081.46 and a savings account balance of
$10,008.70. No supporting financial documentation was received.
By decision dated February 23, 2021, OWCP’s hearing representative finalized the
preliminary overpayment determination that appellant had received an overpayment of
compensation, for which she was without fault, because she had received FECA wage -loss
compensation benefits concurrently with SSA retirement benefits. He modified the total
5

The Board notes that OWCP’s overpayment calculation included in its preliminary overpayment determination of
September 1, 2020 reflected a total overpayment amount of $16,873.21.

3

overpayment amount to $16,873.21 for the periods July 1, 2014 through July 20, 2019 and
February 3 through August 15, 2020. The hearing representative noted that appellant’s assets of
$18,090.16 exceeded the resource base of $6,200.00 and therefore she did not meet hardship
criteria and recovery of the overpayment would not defeat the purpose of FECA. He further noted
that she had not submitted documentation supporting her income and expenses. However, the
hearing representative concluded that minimum collection guidelines would not collect the debt
promptly as she was currently receiving $4.29 in net compensation on the periodic rolls every 28
days. In this regard, he indicated that appellant’s monthly income included $1,192.00 in SSA agerelated retirement benefits plus $16.73 in state assistance, for a total income of $1,208.73. As
appellant had expenses of $1,544.81, the hearing representative determined that they exceeded her
income by $336.08. However, he noted that appellant had $8,081.46 in her checking account and
$10,008.70 in her savings account, for a total of $18,090.16 in her bank accounts. As to appellant’s
continuing compensation payments, and the recovery of the overpayment, the hearing
representative stated: “The claimant is being paid $4.29 in net compensation benefits on the
periodic roll and paying the overpayment at $1.07 ($4.29 x 25% = $1.07) every 28 days would not
collect the debt promptly.” He concluded therefore that, as appellant’s assets exceeded the
overpayment, she should repay the overpayment in full, immediately.6
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.7 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. 8
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA age-related retirement benefits that are attributable to
federal service of the employee. 9 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.10

6

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing com pensation benefits under FECA. As the hearing
representative required recovery in full, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act. See T.C., Docket No. 21-0612 (issued December 2, 2021); R.W., Docket
No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 55 ECAB 610 (2004).
7

5 U.S.C. § 8102(a).

8

Id. at § 8116.

9

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).
10

FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$16,873.21 for the periods July 1, 2014 through July 20, 2019 and February 3 through April 15,
2020, for which she was without fault, because she concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for that period without appropriate offset.
The record indicates that, while appellant was receiving wage-loss compensation under
FECA, she also received SSA age-related retirement benefits attributable to her federal service
during the relevant period. A claimant cannot concurrently receive FECA wage-loss compensation
and SSA age-related retirement benefits attributable to federal service without an appropriate
offset.11 Consequently, the fact of the overpayment has been established.
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA on
July 29, 2020 with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. The SSA provided the SSA age-related retirement benefit rates with
FERS and without FERS for specific periods from July 2014 through December 2019. In a FERS
offset overpayment calculation worksheet dated August 31, 2020, OWCP calculated appellant’s
total overpayment amount from July 1, 2014 through September 20, 2019 and February 3 through
August 15, 2020 as $16,873.21, noting that, as she received a schedule award from July 21, 2019
through February 2, 2020, this period was not affected by the FERS offset.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
periods July 1, 2014 through September 20, 2019 and February 3 through August 15, 2020 finds
that an overpayment of compensation in the amount of $16,873.21 was created. 12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience. 13 The waiver or refusal to waive an overpayment of compensation by OWCP is a
matter that rests within OWCP’s discretion pursuant to statutory guidelines. 14
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.436
to 10.438 of OWCP’s regulations. 15 Section 10.436 provides that recovery of an overpayment
would defeat the purpose of FECA if recovery would cause hardship because the beneficiary needs
substantially all of his or her income (including compensation benefits) to meet current ordinary
11

See D.M., Docket No. 19-1369 (issued June 30, 2020).

12

See L.W., supra note 9; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued
June 21, 2018).
13

5 U.S.C. § 8129.

14

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

15

20 C.F.R. §§ 10.436-10.438.

5

and necessary living expense, and, also, if the beneficiary’s assets do not exceed a specified amount
as determined by OWCP from data provided by the Bureau of Labor Statistics. 16
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 17 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the paym ent(s) or on the notice
of payment. 18
Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver
and no further request for waiver shall be considered until the requested information is furnished. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 20 In order to establish
that, recovery of the overpayment would defeat the purpose of FECA, appellant must show that
she requires substantially all of her income to meet current ordinary and necessary living expenses
and that her assets do not exceed the established limit as determined by OWCP procedures. 21 It
considered her financial information, as reported in her completed Form OWCP-20, to determine
if recovery of the overpayment would defeat the purpose of FECA. Appellant did not submit any
supporting financial documentation.

16
Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a.(3) (September 2020). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a.(2).
17

Id. at § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

18

Supra note 16 at Chapter 6.400.4(c)(3) (September 2020).

19

20 C.F.R. § 10.438.

20

Id. at § 10.436.

21

D.M., Docket No. 19-1311 (issued February 4, 2020); supra note 15.

6

The Board finds that OWCP properly determined that appellant’s assets of $18,090.16
exceeded the relevant resource base of $6,200.00 for an individual as provided in OWCP’s
procedures. 22 Additionally, the evidence of record does not demonstrate that recovery of the
overpayment would be against equity and good conscience. Appellant did not submit any evidence
that she relied upon the incorrect payments to her detriment or that she would experience severe
financial hardship attempting to repay the debt. 23
As appellant has not established that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$16,873.21, during the periods July 1, 2014 through July 20, 2019 and February 3 through
April 15, 2020, for which she was without fault, as she concurrently received SSA a ge-related
retirement benefits and FECA wage-loss compensation benefits without proper offset. The Board
further finds that OWCP properly denied waiver of recovery of the overpayment.

22

See supra note 16 at Chapter 6.400.4.a.(2) (September 2020).

23

See supra note 16 at Chapter 6.400.4a.(3) (September 2020); D.M., supra note 21.

24

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, 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
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, GWYNN OAK POST
OFFICE, Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1643
Issued: March 30, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 15, 2020 appellant filed a timely appeal from an August 25, 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 a right upper
extremity condition causally related to the accepted May 2, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 25, 2020 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On May 9, 2020 appellant, then a 62-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that on May 2, 2020 she sustained an open dislocation of the right
elbow while in the performance of duty. She stopped work on that date and returned to full-duty
work on August 2, 2020.
Hospital records, dated May 2, 2020, indicate that appellant was diagnosed with open
posterior dislocation of the right elbow after being seen by a care team consisting of Dr. Sam V.
Sydney, an orthopedic surgeon, Dr. Hilary F. Schmitt, an emergency medicine specialist, and
Robert A. Loya, a physician assistant. Appellant was provided wound care, prescribed medication,
and scheduled for a follow-up appointment with orthopedics on May 13, 2020.
In a note dated May 13, 2020, Aaron Shakespeare, a physician assistant, recommended that
appellant remain off work for three months. In a duty status report (Form CA-17) of even date, he
diagnosed a right elbow fracture and dislocation due to being ejected from a truck on May 2, 2020.
In a July 9, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary and provided a questionnaire for her completion. OWCP afforded appellant
30 days to respond.
In a July 31, 2020 response to OWCP’s development questionnaire, appellant indicated
that she was delivering mail to a mounted mailbox when the end of her sleeve became caught in
the mailbox. She related that she did not realize she was stuck until she was pulling away from
the box, and then she unbuckled her seatbelt and fell to the ground.
In a June 30, 2020 attending physician’s report (Form CA-20), Dr. Sydney noted a date of
injury of May 2, 2020 and a diagnosis of recurrent dislocation of the right elbow and a displaced
fracture of the right humerus. He indicated that appellant was hospitalized for this condition May 2
through 3, 2020 and, during that time, underwent a closed reduction of the right elbow. Dr. Sydney
checked a box marked “No” indicating that her condition was not caused or aggravated by an
employment activity.
By decision dated August 25, 2020, OWCP accepted that the May 2, 2020 employment
incident occurred as alleged. However, it denied the claim, finding that the medical evidence of
record was insufficient to establish that the diagnosed right elbow condition was causally related
to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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

3

Supra note 1.

2

limitation of FECA, 4 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 to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed sp ecific
condition and an employment incident is rationalized medical opinion evidence. 8 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 specific employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has met her burden of proof to establish an open posterior
dislocation of the right elbow causally related to the accepted May 2, 2020 employment incident.
Hospital records, dated May 2, 2020, indicate that appellant was diagnosed with open
posterior dislocation of the right elbow after being seen by a care team consisting of Dr. Sydney,
Dr. Schmitt, and Mr. Loya. The records further indicate that she was provided wound care.
As the evidence of record establishes that appellant’s employment incident resulted in a
visible injury, the Board finds that she has met her burden of proof to establish an open dislocation

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

of the right elbow causally related to the accepted May 2, 2020 employment incident. 10 The case
will, therefore, be remanded for payment of medical expenses for appellant’s diagnosed open
dislocation of the right elbow, to be followed by a de novo decision regarding any attendant
disability.
CONCLUSION
The Board finds that appellant has established an open posterior dislocation of the right
elbow causally related to the accepted May 2, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 25, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). See also A.J., Docket No. 20-0484 (issued September 2, 2020); S.K., Docket No. 18-1411 (issued
July 22, 2020).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Paicines, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1238
Issued: March 24, 2009

Case Submitted on the Record

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

JURISDICTION
On March 21, 2008 appellant timely appealed the January 8, 2008 merit decision of the
Office of Workers’ Compensation Programs, which denied modification of his previously denied
recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant established a basis for modifying the September 13, 2000
loss of wage-earning capacity determination.
FACTUAL HISTORY
Appellant, a 61-year-old former maintenance worker, has an accepted claim for lumbago
and permanent aggravation of spondylolisthesis, which arose on or about April 25, 1980. On
September 13, 2000 the Office issued a formal loss of wage-earning capacity (LWEC)
determination. Appellant’s wage-loss compensation was reduced based upon his ability to earn

$400.00 per week in the constructed position of Assembler II (Office Machines).1 He requested
reconsideration on March 25, 2003. In its April 16, 2003 nonmerit decision, the Office found
appellant’s request untimely. Additionally, it found that appellant had not demonstrated clear
evidence of error. The Office advised appellant that if his medical condition had worsened since
the September 13, 2000 LWEC determination, he should file a notice of recurrence of disability
(Form CA-2a).
On May 1, 2003 appellant filed a claim for recurrence of disability beginning
April 30, 2003. He explained that he had been walking for exercise on April 30, 2003 when his
back pain worsened and the pain began radiating down his legs. Appellant submitted additional
medical evidence from his treating physician, Dr. Butcher. By decision dated September 9,
2003, the Office denied appellant’s recurrence claim. On four subsequent occasions it reviewed
the merits of the May 1, 2003 recurrence claim, but denied modification. The Office denied
modification on March 26 and October 22, 2004, March 9, 2006 and most recently on
January 8, 2008. Each request for reconsideration was accompanied by additional medical
evidence from appellant’s treating physician, Dr. Butcher. With the exception of the March 9,
2006 decision, the Office did not consider whether appellant established a basis for modification
of the September 13, 2000 LWEC determination.
Appellant filed his most recent request for reconsideration on July 30, 2006. His thencounsel clearly indicated that his client was seeking further review of the September 13, 2000
LWEC determination. Counsel argued, among other things, that the Assembler II position was
not vocationally suitable. Appellant’s counsel renewed his request for reconsideration on
December 5, 2006 and March 7, 2007. Counsel’s latest filing urged the Office to consider
whether appellant’s LWEC determination should be modified due to deterioration of his
accepted condition.
In its January 8, 2008 decision, the Office referenced appellant’s September 13, 2000
LWEC determination. However, it did not specifically address whether appellant established a
basis for modifying the LWEC determination. The Office essentially denied modification of the
September 9, 2003 decision that initially found that appellant had not established a recurrence of
disability beginning April 30, 2003.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.2 Compensation payments are based on the wage-earning capacity determination and it
1

The Office determined appellant’s physical restrictions based on an undated work restriction evaluation (Form
OWCP-5) from Dr. Michael D. Butcher, a Board-certified orthopedic surgeon, whose evaluation was reportedly
received on September 6, 1991. Nine years later when the Office issued its LWEC determination, it noted that there
was “no evidence in [the] file to indicate that [appellant’s] work restrictions [had] changed since [1991].” The
medical evidence the Office relies on must provide a detailed description of appellant’s condition. Samuel J. Russo,
28 ECAB 43 (1976). Additionally, a wage-earning capacity determination must be based on a reasonably current
medical evaluation. Carl C. Green, Jr., 47 ECAB 737, 746 (1996).
2

5 U.S.C. § 8115(a) (2006); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

2

remains undisturbed until properly modified.3 Once the wage-earning capacity of an injured
employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was erroneous.4
The burden of proof is on the party seeking modification of the wage-earning capacity
determination.5
The Federal (FECA) Procedure Manual provides that if a formal loss of wage-earning
capacity decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss.6 The procedure manual further indicates that
under these circumstances, “the [claims examiner] will need to evaluate the request according to
the customary criteria for modifying a formal [LWEC] decision.”7
ANALYSIS
Both the Federal (FECA) Procedure Manual and Board precedent provide that when a
wage-earning capacity determination has been issued and appellant submits evidence with
respect to disability for work, the Office must evaluate the evidence to determine if modification
of the Office’s wage-earning capacity decision is warranted.8 In its January 8, 2008 decision, it
mistakenly considered whether appellant established a basis for modifying the previously denied
May 1, 2003 recurrence claim. Although the reconsideration examiner referenced the
September 13, 2000 LWEC determination, she did not properly analyze whether appellant had
met the three criteria for modification.9 Appellant’s then-counsel attempted to properly frame
the issue, however, the claims examiner apparently disregarded counsel’s arguments for
modifying the September 13, 2000 LWEC determination. The Board also notes that the Office’s
most recent prior decision dated March 9, 2006 properly framed the issue as one of modification
of the September 13, 2000 LWEC determination. But this fact apparently went unnoticed by the
latest claims examiner. Because the January 8, 2008 merit decision did not properly adjudicate
the issue of modification of the September 13, 2000 LWEC determination, the case will be
remanded for an appropriate decision.

3

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

4

Tamra McCauley, 51 ECAB 375, 377 (2000).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
7

Id.

8

Katherine T. Kreger, supra note 3; Sharon C. Clement, 55 ECAB 552, 555-56 (2004).

9

The claims examiner stated: “To effectively change the loss of wage earning capacity decision dated
September 13, 2000, the medical evidence would ... have to explain how the change in his condition makes the
claimant unable to perform the rated Assembler II position.” This is neither an accurate nor complete statement of
the law with respect to modification of an LWEC determination.

3

CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 8, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to the Office for further
action consistent with this decision.
Issued: March 24, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.N., Appellant
and
DEPARTMENT OF THE AIR FORCE, TRAVIS
AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 07-1516
Issued: November 2, 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 May 14, 2007 appellant filed a timely appeal from the decisions of the Office of
Workers’ Compensation Programs dated August 23, 2006 and February 5 and May 8, 2007
denying her claim for compensation. Pursuant to 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 sustained a shoulder injury in the performance of duty.
FACTUAL HISTORY
On June 15, 2006 appellant, then a 63-year-old facility service assistant, filed an
occupational disease claim for a torn rotator cuff of both the left and right shoulders. She noted
that she had a prior torn rotator cuff in her left shoulder and that when she came to management
she did not have full use of her left arm and was on a “medical profile” commencing
October 2002. Appellant noted that she had to overcompensate with her right arm/shoulder due
to limited use of her left arm. She explained that she was in an automobile accident on

October 4, 2002 which injured her left shoulder. Appellant alleged that the employing
establishment refused to advance her leave to have surgery. The employing establishment
reassigned her to a new position which resulted in overuse of her right hand and shoulder due to
typing and reaching. Following surgery on her left shoulder, appellant continued to get worse
and received cortisone injections to ease the pain in order that she could work. She alleged that
the employing establishment did not accommodate her and she required surgery on her right
shoulder for a torn rotator cuff.
By letter dated July 24, 2006, the employing establishment, through a labor relations
officer, controverted appellant’s claim. She noted that appellant’s initial shoulder injury was not
work related but was incurred in an off-duty automobile accident. The labor relations officer
noted that appellant was reassigned to production control effective September 18, 2005 due to
the lack of sufficient work to keep her busy and the return of an overseas employee. She noted
that appellant’s prior job and new assignment were similar in nature in that both were clerical
jobs that involved telephones typing and filing. The main difference between the two positions
was that appellant’s current position in production control was in a more structured environment
with more direct supervision and several coworkers sharing the workload. Appellant’s requests
for modification of her position were accommodated. The labor relations officer noted that there
was no lifting or overhead reaching required in appellant’s job nor was she required to sit for
long periods of time. She noted that, while appellant was not provided with her preferred
accommodation, her medical restrictions were complied with promptly and adequately.
Although appellant did not have any accrued annual leave available and had a negative sick
leave balance, she was offered leave without pay and an opportunity to participate in the leave
donation program, neither of which she accepted.
By letter dated June 21, 2006, the Office requested further information.
The record includes a September 7, 2005 letter in which appellant was informed by a
human resource specialist that she was being reassigned from the position of unaccompanied
housing administrative assistant in the dormitory flight to the position of facility services
assistant in facility maintenance flight. The reassignment was necessary as her position had been
abolished. The record contains memoranda dated between October 3 and April 14, 2006
between appellant and representatives of the employing establishment noting her allegation that
her new position was causing increased pain in her shoulder. The employing establishment
addressed the accommodations made to her work duties.
Dr. Ronald V. Stradiotto, appellant’s treating Board-certified orthopedic surgeon,
produced a December 24, 2004 medical report. He summarized his treatment through that date
for a left shoulder injury sustained in a motor vehicle accident that occurred around
October 1, 2002. Dr. Stradiotto noted that an arthrogram on February 18, 2003 showed a
positive tear in the left rotator cuff and that appellant was referred for surgery. However,
appellant told him that she was unable to get time off work. She did not undergo surgery until
January 13, 2004 for a left shoulder arthroscopy and open rotator cuff repair. Dr. Stradiotto
noted that appellant initially improved but began having repeat symptoms of pain in July 2004.
He stated that a repeat magnetic resonance imaging (MRI) scan in August 2004 showed a retear
of her rotator cuff but that a consensus of the physicians agreed that further surgery was not

2

advised. In a February 2, 2005 report, Dr. Stradiotto noted that although appellant’s left shoulder
was painful and had weakness.
A thoracic and lumbar spine MRI scan was obtained on February 6, 2006. The results
showed spondylosis, thecal sac stenosis and suspect uterine inmogeneity. In a note dated
February 6, 2006, Dr. J.C. Whitmore, an internist, indicated that appellant’s MRI scan showed
slipped discs that did not appear to be causing nerve injury. Appellant’s treatment options
consisted of continuing the nonsteroidal anti-inflammatory medications, physical therapy or
referral to a spine clinic specialist for a steroid epidural injection.
On February 6, 2006 Dr. Stradiotto indicated that appellant’s automobile accident was the
primary cause of her need for physical therapy before and after surgery on her left shoulder. He
also noted that appellant’s delay in surgery was the probable approximate cause of the failure of
her initial surgery and the requirement for additional surgery.
An MRI scan performed on May 21, 2006 was interpreted as showing extensive
tendinosis of the right shoulder supraspinatus tendon with a probable small full thickness tear
and possible injury of the posterior glenoid labrum. In a May 21, 2006 note, Dr. Whitmore
indicated that the MRI scan showed a small tear of the rotator cuff when compared to the 2004
MRI scan. He advised that, since the injection had helped so much, no action was necessary at
this time.
By decision dated August 23, 2006, the Office denied appellant’s claim, finding that she
did not establish an injury in the performance of duty.
By letter dated August 31, 2006, appellant requested reconsideration alleging that the
injury to her shoulders and torn rotator cuff occurred on the job. She alleged that management
refused her leave to have surgery on her left shoulder and that this directly affected her right
shoulder. Appellant noted that she was reinjured at work doing typing and reaching. In
treatment forms dated from November 13, 2005 to January 10, 2006, the physicians at
Kaiser Permanente indicated that appellant remained on restrictions with regard to sitting, lifting
overhead and reaching with her left arm.
In an August 21, 2006 report, Dr. Stradiotto noted that appellant continued to complain of
bilateral shoulder pain. He opined that it was imperative that she be given time off for the repair.
Dr. Stradiotto believed that appellant was disabled from her job on the basis of the recurrent
symptoms to both of her shoulders requiring her to use her arms in a very active way.
Appellant’s diagnosis was bilateral rotator cuff disease and Dr. Stradiotto recommended
retirement based on her continuing symptoms of pain.
In an August 24, 2006 report, Dr. Whitmore stated that appellant had multiple, injections
and underwent surgery for her shoulder, with only limited success. Appellant complained of
frequent flare-ups of pain.
In a November 18, 2006 letter to the Office, appellant contended that the employing
establishment disregarded her doctors’ orders causing her medical condition to get worse and
forcing her to retire early.

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By decision dated February 5, 2007, the Office denied modification of the August 23,
2006 decision.
On March 11, 2007 again requested reconsideration. In a March 2, 2007 medical report,
Dr. Samuel J. Brown, a surgeon, noted that appellant told him that she injured her right shoulder
when reaching over the top of her computer monitor station to obtain a four- to six-inch ring
binder. Appellant told Dr. Brown that, as she grasped the binder and pulled it off of the carousel,
the full weight was placed on her shoulders. She felt a sharp pain in her shoulder. Dr. Brown
opined that it was medically reasonable to conclude that her right shoulder discomfort since
April 2006 was caused or aggravated by this injury, which made it work related.
By decision dated May 8, 2007, the Office denied modification of its February 5, 2007
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every occupational disease claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.3
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.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

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

4

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
ANALYSIS
In the instant case, appellant sustained a prior injury to her left shoulder as a result of an
automobile accident unrelated to her federal employment. She alleged that the duties of her job,
specifically typing and reaching, aggravated her left shoulder injury and caused an injury to her
right shoulder due to overuse.
Appellant has not submitted sufficient medical evidence in support of her contention that
the alleged overuse of her shoulders, arms and hands in her job led to any diagnosed medical
condition. Her initial injury to her left shoulder was caused by a nonwork-related automobile
accident on October 4, 2002. Dr. Stradiotto was appellant’s treating orthopedic surgeon for this
accident. He indicated that the automobile accident caused appellant’s left rotator cuff tear.
Dr. Stradiotto noted that the fact that appellant delayed surgery probably was the approximate
cause of the failure of her initial surgery and the requirement for additional surgery. In his report
of August 21, 2006, he noted that appellant continued to experience bilateral shoulder pain, that
his diagnosis was bilateral rotator cuff disease. Dr. Stradiotto recommended full retirement
based on her continuing symptoms of pain and swelling in her left shoulder and her new acute
symptoms in her right shoulder. He did not indicate that appellant’s job had any relationship to
her shoulder condition.5
Dr. Brown noted a possible connection between appellant’s work and her shoulder
condition. However, appellant gave a different history to Dr. Brown than provided on her claim
form, her letters to the Office and her prior physicians. She told Dr. Brown that she sustained
injury while grasping a binder from above her shoulders while at work. Initially, the Board notes
that appellant’s new history is highly suspicious due to the delay in attributing her injury to this
alleged incident. Dr. Brown did not attribute appellant’s shoulder condition to the alleged factors
of overusing her right shoulder, typing or general reaching. He merely stated that “it is
medically reasonable to conclude” that appellant’s right shoulder discomfort since April 2006
was caused by the injury. However, Dr. Brown did not provide sufficient explanation for his
stated conclusion. The Board has held that speculative and equivocal medical opinions regarding
causal relationship have no probative value.6 The other medical opinions are also insufficient to
establish any causal relationship. None of the physicians at Kaiser Permanente attributed

4

Id.

5

Appellant alleges that she delayed getting the necessary surgery due to the fact that the employing establishment
would not give her time off. The employing establishment disagreed with this assertion, noting that, although
appellant had no more annual or sick leave available, she could get the surgery and take leave without pay or
participate in the leave donation program, neither of which she accepted. There is no evidence that the employing
establishment is responsible for appellant’s delay in getting the surgery.
6

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).

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appellant’s medical condition to her employment. Similarly, Dr. Whitmore did not address
causal relationship.
The Board finds that she failed to meet her burden of proof in establishing causal
relationship. The mere appearance of a condition during appellant’s employment does not raise
an inference of causal relationship between the condition and the employment.7
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury to
either shoulder in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 8 and February 5, 2007 and August 23, 2006 are affirmed.
Issued: November 2, 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

7

Shirley A. Temple, 489 ECAB 404 (1997).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 09-2363
Issued: June 11, 2010

Case Submitted on the Record

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

JURISDICTION
On September 23, 2009 appellant filed a timely appeal from an August 7, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 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 has established an employment-related disability
commencing May 16, 2008.
FACTUAL HISTORY
On April 29, 2008 appellant, then a 40-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a bilateral wrist injury in the performance of duty
on April 28, 2008. He indicated that he was lifting boxes and felt a pop in both wrists. The
record indicates that appellant received emergency room treatment on April 28, 2008. In an
attending physician’s report (Form CA-20) dated April 29, 2008, Dr. Ryan Cantzler, an

emergency medicine specialist, diagnosed wrist sprains and checked a box “yes” the condition
was employment related. Appellant was limited to 10 pounds lifting for one week.
The Office accepted the claim for bilateral wrist sprains. The employing establishment
submitted a personnel form indicating appellant’s last day in pay status was May 15, 2008 and he
was separated for “nonperformance” effective March 23, 2008.
Appellant submitted form reports from Dr. Naomi Wriston, an osteopath, dated June 4
and 11, July 2 and 23, 2008, indicating appellant had a 25-pound lifting restriction. The initial
June 4, 2008 report provided a history that appellant was lifting heavy boxes at work and noted
pain in both wrists.
On September 3, 2008 appellant submitted a claim for compensation (Form CA-7) for the
period May 16 to August 29, 2008. In a letter dated September 3, 2008, the employing
establishment reported that appellant had returned to regular-duty work as of May 7, 2008 and
his employment was terminated on May 15, 2008. By undated letter received on September 26,
2008, appellant stated that he worked light duty for one week following the injury and then
returned to regular duty. He reported that he continued to have wrist pain while working and
thought the employing establishment would have enough sense to send him to a physician.
By report dated October 2, 2008, Dr. Wriston stated that appellant was first seen on
June 15, 2008 with a history of a wrist injury on April 28, 2008 and complaints of wrist
tenderness. She stated that, due to inconsistencies between the pain level described and the
physical findings, appellant was referred to a hand specialist.
In a decision dated November 14, 2008, the Office denied the claim for compensation
commencing May 16, 2008. It found the medical evidence did not establish an employmentrelated disability. Appellant requested a hearing before an Office hearing representative, which
was held on May 19, 2009. He again indicated that he continued to have wrist pain after
returning to work, and he told the employing establishment he “couldn’t do it” and was told not
to come back to work.
By decision dated August 7, 2009, the hearing representative affirmed the November 14,
2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.2 The term disability is defined as the incapacity because of an employment injury to earn

1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

2

the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.3
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.4 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.5 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.6
To establish a causal relationship between the disability claimed and the employment
injury, an employee must submit rationalized medical evidence, based on a complete factual and
medical background, supporting such a causal relationship.7 Causal relationship is a medical
issue and the medical evidence required to establish a causal relationship is rationalized medical
evidence.8 The opinion of the physician must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship.9
ANALYSIS
The Office accepted a bilateral wrist sprain in the performance of duty on April 28, 2008.
Appellant worked light duty, then returned to regular duty on or about May 7, 2008 and his
employment was terminated as of May 15, 2008. He has filed a claim for compensation
commencing May 16, 2008. It is, as noted above, appellant’s burden of proof to establish a
period of disability. He must submit rationalized medical evidence establishing disability for the
periods claimed causally related to the accepted employment injury.
In this case, the record does not contain rationalized medical evidence on the issue
presented. Although Dr. Wriston stated in her October 2, 2008 report that appellant was initially
treated on June 15, 2008, her first report was dated June 4, 2008. She did not provide a complete
3

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Id.

6

Id.

7

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

8

Elizabeth Stanislaw, 49 ECAB 540 (1998).

9

Leslie C. Moore, 52 ECAB 132 (2000).

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factual and medical background, or an opinion that appellant was disabled due to the
employment injury for a specific period. Dr. Wriston indicated in her October 2, 2008 report
that appellant’s complaints of pain were inconsistent with the physical findings, without
discussing disability for work. The form reports commencing June 4, 2008 do not provide a
complete background or an opinion regarding a period of employment-related disability.
On appeal, appellant suggests that the hearing representative did not understand the wrist
pain he had suffered. Compensation under the Act is not based on appellant’s perception of pain
and his own belief he is unable to work. Disability for work is a medical issue and it is
appellant’s burden of proof to submit rationalized medical evidence that establishes he was
unable to work due to an employment injury for the period claimed. Appellant did not meet his
burden of proof in this case and the Office properly denied the claim.
CONCLUSION
The Board finds appellant did not meet his burden of proof to establish an employmentrelated disability commencing May 16, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 7, 2009 and November 14, 2008 are affirmed.
Issued: June 11, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4