United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN DIEGO VA MEDICAL CENTER,
San Diego, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1065
Issued: March 30, 2022

Case Submitted on the Record

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

On July 9, 2021 appellant filed a timely appeal from a May 3, 2021 merit decision and a
July 1, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as Docket No. 21-1065.
On August 6, 2008 appellant, then a 31-year-old vocational nurse, filed an occupational
disease claim (Form CA-2) alleging that she sustained right upper extremity injuries as a result of
factors of her federal employment including repetitive use of a computer, keyboarding, and
extensive dressing changes for patients. She indicated that she first became aware of her condition
and its relationship to her federal employment on March 3, 2008. OWCP accepted the claim for
right-sided thoracic outlet syndrome, also known as brachial plexus lesions.
On November 18, 2009 appellant underwent a right first rib resection with right anterior
scalenectomy to treat her diagnosed right thoracic outlet syndrome.
In a report dated May 8, 2010, Dr. Christopher Chisholm, a pain medicine specialist,
diagnosed reflex sympathetic dystrophy (RSD), also known as complex regional pain syndrome
(CRPS), of the upper right limb, and myofascial myalgia and myositis.

In a report dated October 11, 2010, Dr. Marilyn Carlin, an internist, diagnosed RSD
secondary to thoracic outlet syndrome despite surgical intervention.
Dr. Carlin, in a report dated April 4, 2011, diagnosed thoracic outlet syndrome with failed
response to surgery, right upper extremity chronic pain syndrome, possibly RSD, and right
hemidiaphragm paralysis as a complication of thoracic outlet syndrome, causing dyspnea on
exertion.
In a report dated October 10, 2011, Dr. Carlin diagnosed thoracic outlet syndrome,
myofascial pain syndrome versus RSD secondary to thoracic outlet syndrome and right
diaphragmatic paralysis secondary to thoracic outlet surgery.
In a report dated June 10, 2013, Dr. Carlin diagnosed thoracic outlet syndrome with
increasing pain following surgical intervention, RSD, myofascial pain syndrome, diaphragmatic
paralysis causing dyspnea on exertion, and recurrent major depression exacerbated by chronic
pain. She opined that factors of appellant’s federal employment caused appellant’s increased pain.
Dr. Carlin recommended work restrictions.
In a report dated June 25, 2014, Dr. Carlin diagnosed cervicalgia, diaphragmatic paralysis,
myofascial pain syndrome, recurrent major depression in full remission, RSD of the right upper
extremity, and thoracic outlet syndrome. In a report dated September 22, 2014, she diagnosed
thoracic outlet syndrome with poor results after surgical intervention , flare-up of chronic
cervicalgia and myofascial pain syndrome, RSD of the right upper extremity, also in flare-up, and
recurrent major depression in remission. Dr. Carlin again diagnosed these conditions in progress
notes dated August 22, 2014.
In a letter dated February 2, 2015, Dr. Carlin requested that the acceptance of appellant’s
claim be expanded to include fibromyalgia. She explained that it had developed as a result of
appellant’s chronic neck, chest wall, and right arm pain, secondary to failed surgery for thoracic
outlet syndrome and secondary RSD.
In a report dated June 25, 2015, Dr. Carlin explained that appellant continued to suffer from
thoracic outlet syndrome with increased pain following failed surgical intervention, along with
RSD and a postsurgical right partially paralyzed diaphragm. She noted that appellant had been
diagnosed with fibromyalgia as a result of her chronic myofascial pain. Dr. Carlin stated that
appellant’s conditions continued to be medically present and disabling and that appellant was
permanently disabled from all work. She reiterated appellant’s diagnoses and disability status in
narrative medical reports dated June 27, 2016 and July 17, 2017.
In progress notes dated August 24, 2016, Dr. Carlin noted, as part of appellant’s history of
present illness, that appellant had been diagnosed with fibromyalgia, failed surgery for thoracic
outlet syndrome, and development of RSD of the right upper extremity.
In a report dated July 13, 2018, Dr. Carlin again diagnosed thoracic outlet syndrome with
increased pain following surgical intervention, RSD of the right upper extremity, which began
after the failed surgery, fibromyalgia, secondary to chronic pain, diaphragmatic paralysis causing
some dyspnea on exertion, also a result of the failed surgery , and recurrent major depression
exacerbated by her chronic pain syndromes. She stated that appellant’s conditions continued to be
2

medically present and disabling, noting that appellant’s physical restrictions were extensive and
unlikely to allow her to work effectively in any job. Dr. Carlin reiterated these diagnoses and
opinions in a letter dated August 20, 2019.
In progress notes dated February 10, 2021, Dr. Peter Weis, a Board-certified
rheumatologist, examined appellant to evaluate her for fibromyalgia. He diagnosed left hip
trochanteric bursitis, pain syndrome related to complications of thoracic outlet s urgery with
chronic neck pain, and CRPS of the right upper extremity, refractory to surgery.
In a development letter dated March 24, 2021, OWCP advised appellant that it had received
notification of a possible consequential condition of CRPS of the right upper extremity. It noted
receipt of Dr. Weis’ February 10, 2021 report, but indicated that it required a detailed description
of the newly diagnosed condition. OWCP afforded appellant 30 days to submit additional medical
evidence. No additional evidence was received by OWCP.
By decision dated May 3, 2021, OWCP denied appellant’s request to expand the
acceptance of her claim to include CRPS of the right upper extremity. It again referenced
Dr. Weis’ February 10, 2021 report. By appeal request form dated June 2, 2021, postmarked on
June 3, 2021 and received by OWCP on June 9, 2021, appellant requested an oral hearing before
a representative of OWCP’s Branch of Hearings and Review. By decision dated July 1, 2021,
OWCP denied her request for an oral hearing, as the request was untimely filed. It noted that
appellant’s case had been considered in relation to the issues involved and that the issues could be
equally well addressed by requesting reconsideration and submitting evidence not previously
considered establishing that she sustained a consequential injury due to her accepted injury of
March 3, 2008.
The Board has duly considered the matter and finds that th is case is not in posture for
decision.
In the case of William A. Couch,1 the Board held that when adjudicating a claim OWCP is
obligated to consider all evidence properly submitted by a claimant and received by OWCP before
the final decision is issued. As detailed above, OWCP received a report from Dr. Chisholm dated
May 8, 2010, containing a diagnosis of RSD, also known as CRPS. It also received numerous
reports, letters, and progress notes from Dr. Carlin beginning October 11, 2010 containing
diagnoses of RSD. OWCP, however, did not review this evidence in its May 3, 2021 merit
decision. It, thus, failed to follow its procedures by not considering all of the relevant evidence of
record.2

1

41 ECAB 548 (1990); see also K.B., Docket No. 20-1320 (issued February 8, 2021); R.D., Docket No. 17-1818
(issued April 3, 2018).
2

OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value also should be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).

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As Board decisions are final with regard to the subject matter appealed, it is crucial that
OWCP address all relevant evidence received prior to the issuance of its final decision. 3 On
remand shall review and consider all evidence properly submitted by appellant prior to the issuance
of the May 3, 2021 OWCP decision. Following other such further development as deemed
necessary, OWCP shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the May 3, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board. 4
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

E.D., Docket No. 20-0620 (issued November 18, 2020); see also L.B., Docket No. 21-0140 (issued August 25,
2021); C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); William A.
Couch, supra note 1.
4

As this case is remanded for further proceedings, the July 1, 2021 denial of appellant’s request for an oral hearing
before an OWCP hearing representative is rendered moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 10-682
Issued: December 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 13, 2010 appellant filed a timely appeal from the November 17, 2009
overpayment 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 overpayment issue.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $954.49 because there was an underdeduction of
health benefit premiums and basic and optional life insurance premiums for the period March 2
through August 14, 2009; and (2) whether the Office properly denied waiver of the overpayment.
On appeal, appellant requested waiver of the overpayment and noted that she submitted
financial documentation on December 2, 2009.
FACTUAL HISTORY
On March 20, 2001 appellant, then a 40-year-old mail handler, filed an occupational
disease claim alleging carpal tunnel syndrome in both wrists due to the repetitive duties of her

federal employment. By letter dated April 27, 2001, the Office accepted appellant’s claim for
bilateral carpal tunnel syndrome. It subsequently accepted bilateral reflex sympathetic
dystrophy.
The Office paid appellant wage-loss compensation and medical benefits. Prior to
March 2, 2009 deductions were taken from her checks of $62.15 for health benefits, $6.30 for
basic life and $4.50 for optional life insurance. On February 23, 2009 appellant returned to work
in a part-time limited-duty capacity working four hours a day. She stopped working again on
March 3, 2009. No deductions were made for health insurance or life insurance for the
compensation checks covering the period February 16 through August 14, 2009. Starting with
appellant’s compensation check for the period August 15 through 28, 2009, the deductions
resumed in the amount of $70.18 for health insurance, $6.00 for basic life insurance and $4.32
for optional life insurance.
On October 13, 2009 the Office made a preliminary determination that appellant had
been overpaid in the amount of $954.49 because there was an underdeduction of health benefit
premiums and basic and optional life insurance premiums for the period March 2 through
August 14, 2009. This consisted of $832.13 for health insurance code 104, $71.14 for basic life
and $51.22 optional life. The Office further found that appellant was without fault in the
creation of the overpayment. Appellant was informed of her right to challenge the amount of the
overpayment or request waiver of the overpayment within 30 days. If she wished a waiver of the
overpayment, she was directed to submit financial information by completing an overpayment
recovery questionnaire within 30 days. Appellant did not file a timely response.
By decision dated November 17, 2009, the Office finalized the overpayment in the
amount of $954.49 and that appellant had not established that she was entitled to a waiver.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act1 provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
while in the performance of his duty.2 When an overpayment has been made to an individual
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which the individual is entitled.
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employee Health Benefits (FEHB) program. The regulations of the Office of
Personnel Management (OPM), which administers the FEHB program, provides guidelines for
registration, enrollment and continuation of enrollment for federal employees. In this
connection, 5 C.F.R. § 890.502(a)(1) provides that an employee or annuitant is responsible for
payment of the employee or annuitant share of the cost of enrollment for every pay period during
which the enrollment continues. An employee or annuitant incurs indebtedness due the United
States in the amount of the proper employee or annuitant withholding required for each pay
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102(a).

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period that health benefit withholdings or direct premium payments are not made but during
which the enrollment continues.3
In addition 5 C.F.R. § 890.502(c) provides that an agency that withholds less than or
none of the proper health benefits contributions from an individual’s pay, annuity or
compensation must submit an amount equal to the sum of the uncollected deductions and any
applicable agency contributions required under section 8906 of Title 5 United States Code, to
OPM for deposit in the Employees’ Health Benefits Fund.4
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.5 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.6 The Board has recognized that, when an underwithholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
the Office must pay the full premium to OPM when the error is discovered.7
Under the Federal Employees Group Life Insurance Program (FEGLI), most civilian
employees of the Federal Government are eligible to participate in basic life insurance and one
or more of the options.8 The coverage for basic life insurance is effective unless waived9 and the
premiums for basic and optional life coverage are withheld from the employee’s pay.10
While the employee is receiving compensation under the Act, deductions for insurance
are withheld from the employee’s compensation.11 At separation from the employing
establishment, the FEGLI insurance will either terminate or be continued under compensationer
status. If the compensationer chooses to continue basic and optional life insurance coverage, the
schedule of deductions made will be used to withhold premiums from his or her compensation
payments.12 When an underwithholding of life insurance premiums occurs, the entire amount is

3

5 C.F.R. § 890.502(a)(1).

4

Id. at 890.502(c).

5

Id. at 890.602(a)(1).

6

Id.

7

See James Lloyd Otte, 48 ECAB 334 (1997); Marie D. Sinnett, 40 ECAB 1009 (1989); John E. Rowland, 39
ECAB 1377 (1988); 5 C.F.R. § 890.502.
8

5 U.S.C. § 8702(a).

9

Id. at § 8702(b).

10

Id. at § 8707.

11

Id. at § 8707(b)(1).

12

Id. at § 8706(b).

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deemed an overpayment of compensation because the Office must pay the full premium to OPM
upon discovery of the error.13
ANALYSIS -- ISSUE 1
Appellant temporarily returned to work part time on February 23, 2009 and worked
through March 2, 2009. Prior to her return to work, she had deductions made from her
compensation checks for health insurance, basic life insurance and optional life insurance.
However, for compensation checks covering the period March 3 through August 14, 2009, the
Office did not make these deductions. The Office established that premiums should have been
deducted for this time period in the amount of $832.13 for health insurance code 104, $71.14 for
basic life insurance and $51.22 for optional life insurance, which resulted in a total overpayment
of $954.49. There is no evidence that appellant waived coverage. Therefore, the Board finds
that the Office should have deducted these premiums. This created an overpayment in the
amount of $954.49. The Board will affirm the November 17, 2009 decision on fact and amount
of overpayment due to the nondeduction of health benefits and life insurance premiums.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.14 Waiver of an overpayment is not permitted unless the claimant is without
fault in creating the overpayment.15 The guidelines for determining whether recovery of an
overpayment would defeat the purpose of the Act or would be against equity and good
conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of Federal
Regulations.16
The Office’s regulations at 20 C.F.R. § 10.438 provide that the individual who received
the overpayment is responsible for providing information about income, expenses and assets as
specified by the Office. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of the Act or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if necessary. 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.17

13

Id. at § 8707(d); see Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, supra note 7.

14

5 U.S.C. § 8129.

15

Steven R. Confrancesco, 57 ECAB 662 (2006).

16

5 U.S.C. §§ 10.434-37.

17

See 20 C.F.R. § 10.438. See Madelyn Y. Grant, 57 ECAB 533 (2006).

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ANALYSIS -- ISSUE 2
The Act and implementing federal regulations are clear that entitlement to waiver is not
established solely by finding that a claimant is without fault in creating an overpayment. Rather,
such a finding entitles appellant the opportunity to submit evidence and establish a basis for
granting waiver of the recovery of the overpayment.18
The Office found that appellant was without fault in the matter of the overpayment.
However, payment is required unless it is established that adjustment or recovery of the
overpayment would defeat the purpose of the Act or be against equity and good conscience.19
Appellant received proper notice of the overpayment. In its October 13, 2009
preliminary notice of overpayment, the Office informed her of the steps to take should she seek
waiver of the overpayment. It advised appellant to submit a completed overpayment recovery
questionnaire, as well as information and evidence regarding her income and expenses, within 30
days. Appellant did not respond within 30 days or prior to the issuance of the Office’s final
overpayment decision on November 17, 2009. As a result, there was no evidence before the
Office to establish whether recovery of the overpayment would defeat the purpose of the Act or
would be against equity and good conscience.20 As appellant failed to submit the requested
information, under section 10.438 of the Office’s regulations she is not entitled to waiver.21
Appellant contended on appeal that she submitted financial evidence on
December 2, 2009. The Board notes she submitted additional evidence, including financial
information, after the Office rendered its November 17, 2009 decision. However, the Board’s
jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final
decision.22 Therefore, this additional evidence cannot be considered by the Board.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $954.49 because there was an underdeduction of
health benefit premiums and basic and optional life insurance premiums for the period March 2
through August 14, 2009. The Board further finds that the Office properly denied waiver of the
recovery of the overpayment.

18

See James Lloyd Otte, supra note 7.

19

See Keith H. Mapes, supra note 13.

20

T.S., 60 ECAB __ (Docket No. 08-1604, issued March 13, 2009). See 20 C.F.R. § 10.438(a) (in requesting
waiver, the overpaid individual has the responsibility for providing financial information).
21

See id.

22

20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36
n.2 (1952).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 17, 2009 is affirmed.
Issued: December 2, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Denver, CO, Employer
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E.U., Appellant

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

Docket No. 13-1853
Issued: January 16, 2014

Case Submitted on the Record

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

JURISDICTION
On August 6, 2013 appellant filed a timely appeal of a July 3, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which denied authorization for an epidural
injection. 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 OWCP abused its discretion by denying appellant authorization for
an epidural injection.
FACTUAL HISTORY
OWCP accepted that appellant, then a 49-year-old letter carrier, sustained injury as a
result of carrying mail with her left arm on September 23, 2011. It accepted sprain of left
shoulder and upper arm, sprain of the neck, complete rotator cuff rupture on the left, sprain of the
superior glenoid labrum with lesion on the left and sprain of the supraspinatus on the left.
1

5 U.S.C. § 8101 et seq.

OWCP authorized a March 12, 2012 arthroscopic repair of the left shoulder. Appellant returned
to modified duty on June 27, 2012. She received compensation benefits.2
OWCP received a request for authorization for an epidural injection of the foramen from
appellant’s treating physician, Dr. Nicholas K. Olsen, an osteopath and Board-certified
physiatrist. In a February 12, 2013 report, Dr. Olsen noted that he had discussed an
interventional procedure to address the disc protrusion identified on a magnetic resonance
imaging (MRI) scan. The risks and benefits of an epidural steroid injection and the possibility of
a surgical consultation was discussed and appellant was interested in the injection. She
understood that it was not a fix but was designed to decrease inflammation and work
adjunctively with her exercise routine. Dr. Olsen recommended a left C5-6 transforaminal
epidural steroid injection.
In a letter dated February 19, 2013, OWCP advised appellant that the evidence of record
was insufficient to authorize the proposed treatment as it did not appear to be medically
necessary for or causally related to the accepted conditions. It requested that she submit
additional evidence from her physician supporting the request.
In a March 4, 2013 report, Dr. Olsen noted that appellant returned for reexamination of
her cervical spine. He determined that her neural foraminal compression test remained positive
on the left. Dr. Olsen explained that appellant’s neurological examination was unchanged
demonstrating decreased sensation to pinprick test in the left C5 and C6 dermatomes. He
diagnosed cervical sprain; strain work related, disc protrusion at C5-6 per MRI scan from
December 12, 2011 and clinical signs of left C5-6 radiculitis. Dr. Olsen advised that appellant
was being referred to a surgeon as the request for a C5-6 transforaminal epidural steroid injection
was denied.
In a March 11, 2013 report, Dr. Bryan Andrew Castro, a Board-certified orthopedic
surgeon, noted appellant’s history of injury and medical treatment. He stated that an MRI scan
revealed a bulging C5-6 disc, which was posteriorly displacing a left greater than right central
canal and cord, although there was no cord signal change appreciated. Dr. Castro explained that
appellant had ongoing neck and left shoulder pain. He stated that the left shoulder was her main
problem and explained that, because of the disc herniation at the C5-6 level, it was reasonable to
consider an injection. Dr. Castro concurred with Dr. Olsen that a C5-6 transforaminal injection
could be helpful for treatment as well as diagnostic consideration. He also recommended further
evaluation.
In a March 25, 2013 report, Dr. Olsen examined appellant and noted that her neural
foraminal compression test demonstrated decreased left lateral bending and extension.
Spurling’s maneuver was positive on the left causing radiation into the left shoulder girdle and
inspection of the left shoulder demonstrated no atrophy. Arthroscopic portals were well healed.
Dr. Olsen indicated impingement signs I and II remained positive. Appellant had weakness with
abduction and forward flexion. Dr. Olsen diagnosed disc protrusion at C5-6 with left-sided
stenosis and history of shoulder decompression on the left side on March 2, 2012. He advised
2

On November 13, 2012 appellant received a schedule award for five percent impairment of the left upper
extremity.

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that he had submitted a request for a left C5-6 transforaminal epidural steroid injection as well as
an electromyography (EMG) scan and nerve conduction study (NCS) of the left upper extremity.
In an April 10, 2013 report, Dr. Olsen advised that he performed a left C5-6
transforaminal epidural steroid injection. In an April 25, 2013 report, he noted that appellant
returned following the injection and she had significant improvement in her cervical complaints.
Appellant’s neck was 85 percent better with a 25 percent improvement in her left upper
extremity symptoms. Dr. Olsen diagnosed work-related cervical sprain/strain, disc protrusion at
C5-6 and C6-7 per MRI scan of December 12, 2011, and postpartial diagnostic response to a left
C5-6 transforaminal epidural steroid injection. Appellant had significant improvement in her
cervical complaints and partial relief of her arm symptoms with the possibility of a pain
generator at the C6-7 level and a disc protrusion at that level. Dr. Olsen recommended a left C67 transforaminal epidural injection to address her ongoing left upper extremity symptoms.
OWCP referred appellant for a second opinion, together with a statement of accepted
facts, a set of questions and the medical record to Dr. John D. Douthit, a Board-certified
orthopedic surgeon. In a May 6, 2013 report, Dr. Douthit noted appellant’s history of injury and
medical treatment. On examination he advised that she had restricted motion of head to the left
and pain with extension and flexion. Dr. Douthit also found tenderness throughout the neck and
a range of rotation to the left of 45 degrees and to the right with 60 degrees and lateral bending
with 30 degrees bilaterally. He explained that the right shoulder had full range of motion and the
left shoulder was measured at 140 degrees of flexion and 110 degrees of abductions, 80 degrees
of external rotation, 40 degrees of extension. Appellant had pain and restricted motion of her
neck, and pain and restricted motion of the left shoulder with an arthroscopic scar. Dr. Douthit
noted that the MRI scan showed degenerative disease of the cervical spine with prior surgery to
the left shoulder, which had been unsuccessful. He opined that appellant had work-related pain
of the left shoulder and cervical spine. In response to what treatment he would recommend,
Dr. Douthit advised that there was no medical treatment to resolve her condition, which was
permanent. He indicated that she was disabled and impaired. Dr. Douthit set forth appellant’s
work restrictions.
In a letter dated June 14, 2013, OWCP requested that Dr. Douthit prove clarification with
regard to whether appellant’s degenerative cervical spine condition was related to the accepted
injury and whether a foraminal steroid injection should be authorized.
In a June 17, 2013 addendum, Dr. Douthit advised that the relationship of the persistent
pain in appellant’s shoulder and neck were based on her allegations and there were no objective
findings. He explained that the degenerative disease process of aging was not caused by work.
Appellant had mild cervical spine degenerative disease from which she alleged to have pain. She
also had mild pathological changes of her shoulder and alleged pain. Dr. Douthit noted that there
were no findings to verify the persistence of impairment related to an on-the-job injury and this
was a subjectively based claim. He opined that “the history she gave of injury may have caused
a transient pain of her cervical spine but this would have been temporary and would not have
persisted except that [it] is related to her aging and intolerances for the type of work she was
doing. I would term this an intolerance to her job duties rather than an impairment arising from a
work injury.” Dr. Douthit indicated that there were no objective findings of the cervical spine or
the left shoulder that supported persisting pain that she had as a result of her work. Regarding

3

the need for epidural steroid injections, he opined that the procedure should not be authorized.
Dr. Douthit noted that he found restricted neck and shoulder motion on examination. He advised
that shoulder surgery was largely unsuccessful with resultant persistent pain and he had no way
to validate her story or of the amount of pain she alleged. Dr. Douthit reiterated that there were
no objective or physical findings supporting the degree of reported impairment and disability.
By decision dated July 3, 2013, OWCP denied authorization for the epidural injection as
not being medically necessary.
LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.3 OWCP has the general objective of ensuring that an employee recovers from his
or her injury to the fullest extent possible in the shortest amount of time. It therefore has broad
administrative discretion in choosing means to achieve this goal.4 The only limitation on
OWCP’s authority is that of reasonableness.5 To be entitled to reimbursement for medical
expenses, a claimant must establish that the expenditures were incurred for treatment of the
effects of an employment-related injury. This burden of proof includes providing supporting
rationalized medical evidence.6
To establish that a medical procedure is warranted, a claimant must submit evidence to
show that the procedure is for a condition causally related to the employment injury and that the
procedure is medically warranted. Both of these criteria must be met in order for OWCP to
authorize payment.7
ANALYSIS
On February 12, 2013 Dr. Olsen, appellant’s treating physician, requested authorization
for an injection of the foramen epidural injection. However, his February 12, 2013 report did
not specifically explain how the requested procedure was medically necessary for treatment of
the effects of an employment-related condition. Dr. Olsen’s March 4, 2013 report, noted
appellant’s status but again did not specifically address why the requested procedure was
necessitated by an accepted condition. His later reports also do not specifically explain why the
requested injection was medically warranted for treatment of an accepted condition. In his
3

5 U.S.C. § 8103(a).

4

Dale E. Jones, 48 ECAB 648, 649 (1997).

5

Daniel J. Perea, 42 ECAB 214 (1990) (holding that abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts).
6

F.T., Docket No. 09-919 (issued December 7, 2009).

7

See R.L., Docket No. 08-855 (issued October 6, 2008).

4

March 11, 2013 report, Dr. Castro indicated that a transforaminal injection could be helpful in
treating appellant but he did not specifically address why this procedure was necessary for
treatment of the effects of an employment-related injury. Consequently these reports are of
limited probative value regarding whether the requested injection was medically needed for the
treatment of an accepted work-related condition.
OWCP referred appellant for a second opinion examination with Dr. Douthit, a Boardcertified orthopedic surgeon to determine whether the surgery was warranted. In a May 6, 2013
report, Dr. Douthit noted appellant’s history and findings. In a June 17, 2013 addendum, he
explained that the relationship of persisting pain in her shoulder and neck were based on her
allegations and there were no objective findings. Dr. Douthit noted that degenerative disease
was a process of aging and not caused by work. He explained that appellant had a mild
degenerative disease of the cervical spine and alleged to have pain there as well as mild
pathological changes of her shoulder. Dr. Douthit indicated that there were no objective findings
of the cervical spine or the left shoulder to support any persisting pain that resulted from her
work. He stated that he did not recommend the requested epidural steroid injection.
Dr. Douothit explained that he had no way of validating the amount of pain that she claimed and
reiterated that there were no objective findings to support the amount of impairment and
disability asserted by appellant.
Based on the evidence of record, OWCP reasonably concluded that the proposed
procedure was not needed for the treatment of a work-related condition. It did not abuse its
discretion in denying authorization for arthroscopic surgery in this case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly exercised its discretion pursuant to 5 U.S.C.
§ 8103(a) in refusing to authorize appellant’s request for arthroscopic surgery.

5

ORDER
IT IS HEREBY ORDERED THAT the July 3, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 16, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.E., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Cody, WY, Employer
__________________________________________

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Appearances:
William L. Simpson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1963
Issued: March 1, 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 August 22, 2006 appellant, through her attorney, filed a timely appeal from a June 6,
2006 decision of a hearing representative of the Office of Workers’ Compensation Programs
finding that her cervical surgery and disability beginning February 15, 2002 was not causally
related to her employment injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that she required a cervical fusion
at C6-7 due to her accepted employment injury; and (2) whether she was disabled beginning
February 15, 2002 causally related to her accepted employment injury.
FACTUAL HISTORY
On September 19, 2000 appellant, then a 51-year-old soil scientist, filed an occupational
disease claim alleging that tilting her head to look at her computer caused stiffness in her
shoulders and neck and pain and numbness in the left side of her head. She received a larger

computer monitor which required her to tilt her head to see through her bifocals. Appellant used
the new monitor from August 14 to September 2000. She related: “One year ago, I was
diagnosed with a bulging disc and mild stenosis in my neck. I believe that the repetitive motion
of bending my head back to view the screen with my bifocals has irritated the nerves.”
Appellant did not stop work. The Office accepted her claim for cervical strain and an
aggravation of cervical spondylosis.
Dr. Stephen F. Emery, a Board-certified orthopedic surgeon and appellant’s attending
physician, obtained a magnetic resonance imaging (MRI) scan study of her cervical spine on
August 10, 2001, which was compared with a previous study dated September 30, 1999. The
August 10, 2001 MRI scan revealed “C6-7 moderate right paracentral disc protrusion
compression the right aspect of the cervical cord, resulting in mild central canal stenosis,
measuring approximately [10] mm [millimeters]. There is also bilateral neural foraminal
narrowing at this level, right greater than left, which has worsened compared with the previous
examination.”
In a report dated December 7, 2001, Dr. John H. Schneider, a Board-certified
neurosurgeon, recommended an anterior cervical discectomy and arthrodesis at C6-7. In a
progress report dated January 29, 2002, Dr. Emery discussed appellant’s complaints of
progressive loss of right hand motor skills and increased neck complaints. He diagnosed cervical
stenosis with a herniated disc at C6-7. Dr. Emery attributed her condition to a workers’
compensation injury and requested authorization from the Office for surgery. In a progress
report dated February 14, 2002, he indicated that appellant was “unable to tolerate any activity”
due to her neck pain. Dr. Emery opined that appellant should remain off work for one month
pending approval for surgery from the Office. On March 22, 2002 he noted that the Office had
not responded to his request for surgical authorization and found that she should remain off work
for the “indeterminate future.” Appellant filed claims for compensation on account of disability
Forms CA-7 requesting compensation for time lost from work.
On September 26, 2002 the Office referred appellant to Dr. Dean C. Sukin, an orthopedic
surgeon, for a second opinion evaluation. In a report dated October 31, 2002, Dr. Sukin
discussed appellant’s history of injury and medical treatment received. He diagnosed a C6-7
disc herniation with multiple level moderate stenosis. Dr. Sukin opined that appellant’s need for
surgery was due to a preexisting neck condition based on his reviews of the MRI scan studies.
Regarding her disability from work, he stated:
“It is my opinion that [appellant] has had near total disability as a result of her
neck condition. It is my opinion the reason she had such difficulty with the new
computer monitor was that she was already suffering from a condition in her
neck, as described above, i.e., a paracentral right-sided disc protrusion at C6-7
and mild to moderate stenosis of at least four levels.”

2

By letter dated November 27, 2002, the Office requested that Dr. Sukin address whether
appellant’s occupational exposure aggravated her underlying condition of a C6-7 disc protrusion
with stenosis.1 In a response dated January 2, 2003, Dr. Sukin asserted that appellant sustained a
temporary aggravation of a preexisting condition due to her employment injury, which should
have resolved within six months.
By decision dated January 6, 2003, the Office denied appellant’s request for authorization
for a cervical fusion and wage loss beginning February 14, 2002 on the grounds that the medical
evidence did not establish that the need for surgery and her disability from work were due to the
accepted employment injury.
In a progress report dated January 24, 2003, Dr. Emery reviewed Dr. Sukin’s opinion and
noted that “with no significant reinjury and identical findings on MRI [scans] and studies both
before and after her work-related incident, it will be difficult to mount much of a defense. I do
believe [appellant] had an aggravation of her preexisting condition while looking at the computer
screen.” He recommended that she not challenge workers’ compensation due to her emotional
state.
Appellant requested an oral hearing on February 3, 2003. On February 26, 2003
Dr. Schneider and Dr. Emery performed an anterior cervical discectomy and fusion at C6-7. In a
decision dated April 12, 2004, an Office hearing representative set aside the January 6, 2003
decision after finding a conflict in medical opinion regarding whether appellant required cervical
surgery due to her accepted employment injury. She further noted that Dr. Sukin did not
adequately explain his finding that appellant’s disability due to a temporary aggravation of her
preexisting stenosis and herniated disc should have resolved within six months.
The Office referred appellant to Dr. Jeffrey J. Sabin, a Board-certified orthopedic
surgeon, for an impartial medical examination. The Office requested that Dr. Sabin discuss
whether appellant’s need for surgery was due to her use of a computer monitor from August to
September 2000 and whether the accepted condition of a temporary aggravation of preexisting
cervical spondylolisthesis had resolved.
In a report dated August 2, 2004,2 Dr. Sabin reviewed the medical records and noted that
he did not have the report of Dr. Sukin or any MRI scan studies. He related:
“I do not have the MRI [scan] [studies] to review and that would be important.
From what I can understand in evaluating the records and [appellant], she has had
a worsening of her condition since the computer incident. This, however, does
appear, at least with the information that I have, to be purely subjective at this
point. If one is looking for objective information the MRI [scan] [studies] would
be helpful. It is highly likely that [appellant] would be seeing the natural
1

In a report dated December 18, 2002, Dr. Emery again requested authorization for a discectomy and fusion. He
noted that appellant might experience permanent nerve damage from the delay.
2

Dr. Sabin indicated that the date of his report was August 2, 2003; however, this appears to be a typographical
error.

3

progression of her degenerative disc disease and stenosis being that she was seen
just for that problem the year previously. The use of a computer for only a month
would be unlikely to cause permanent changes. Again, the MRI [scan] [studies]
would be helpful in evaluating this for objective information. Her subjective
feeling is that it was related to the computer.”
Dr. Sabin indicated that it was difficult to evaluate whether appellant’s aggravation of her
preexisting cervical spondylosis was temporary or permanent given that she had already
undergone surgery at C6-7. He stated: “I would think that the temporary aggravation of the
preexisting cervical spondylosis should be resolved by now especially since surgery has been
performed on that.” Regarding appellant’s current symptoms of neck pain and numbness,
Dr. Sabin found that these complaints were due to “the natural progression of her degenerative
disc disease and stenosis in the cervical spine.” He recommended no further treatment due to the
employment injury. Dr. Sabin related:
“In conclusion, I find Dr. Sukin’s note to be important. I would find the actual
MRI [scan] [studies] to be important and if I found [that] the MRI [scan] [studies]
show the C6-7 disc to be identical before and after September 5, 2000 I would
state with a high likelihood that this is a natural progression. If there is change in
the size of the disc herniation that is significant at C6-7 then one could state that
there has been objective evidence of a change perhaps related to the September 5,
2000 situation.”
By letter dated August 11, 2004, the Office requested that appellant submit a copy of the
1999 MRI scan study. Appellant submitted a September 30, 1999 MRI scan study of the brain
and cervical spine, which indicated a “moderate[-]sized right paracentral and posterolateral disc
protrusion is present at C6-7 resulting in spinal stenosis with an anteroposterior dimension of
approximately 10 mm. There is also slight indentation of the cord anteriorly on the right
secondary to this finding.”
The Office, by letter dated August 24, 2004, acknowledged that Dr. Sabin required
additional evidence and enclosed the entire case record for his review. In a supplemental report
dated September 7, 2004, Dr. Sabin declined to review the case record except for the October 31,
2002 and January 2, 2003 reports from Dr. Sukin. He agreed with Dr. Sukin’s finding that
appellant’s need for surgery was not due to her computer use from August 18 to
September 19, 2000. Dr. Sabin noted that he had not reviewed the MRI scan studies.
In a decision dated October 19, 2004, the Office found that appellant’s need for cervical
surgery and her disability beginning February 15, 2002 were not causally related to her accepted
employment injury. On November 3, 2004 appellant requested an oral hearing. By decision
dated January 18, 2005, the hearing representative set aside the October 19, 2004 decision. She
noted that Dr. Sabin’s opinion could not constitute the weight of the medical evidence as he
repeatedly indicated in his original report that he needed to review the MRI scan studies but then
failed to review the reports when provided with them by the Office. The hearing representative
remanded the case for the Office to obtain the MRI scan films for Dr. Sabin to review and to
request a supplemental report regarding the cause of appellant’s cervical condition and surgery.

4

On June 27, 2005 the Office provided MRI scan studies to Dr. Sabin dated September 30,
1999, October 2001 and January 20, 2005. In a supplemental report dated July 7, 2005,
Dr. Sabin noted that an MRI scan of the cervical spine dated September 30, 1999 showed “C6-7
degenerative disc disease with a bulge of the disc going to the right side paracentrally [which]
causes some right neural foraminal nerve compromise.” He found that an MRI scan of the
thoracic spine was normal. An MRI scan of the cervical spine dated January 20, 2005 showed a
C6-7 anterior disc fusion. Dr. Sabin asserted, “I have been presented with no evidence to show
that there has been any change in [appellant’s] neck immediately before or immediately after
September 5, 2000 which is the date used when [she] stated the problem began with the use of
the computer screen I believe, in all likelihood, that the C6-7 disc would have been a natural
progression of degenerative disc disease.”
By decision dated July 27, 2005, the Office determined that appellant’s cervical fusion
and disability after February 15, 2002 were not due to her accepted employment injury.
Appellant requested a telephonic hearing, which was held on February 8, 2006. She submitted a
report dated March 27, 2006 from Dr. Emery who noted that he had treated appellant almost
monthly from 1996 onward and that she never complained of cervical problems prior to
December 22, 2000. Dr. Emery asserted that he obtained the 1999 MRI scan of her cervical
spine due to complaints of facial numbness. He stated: “The extended duration of her
hyperextended position of the cervical spine caused a material aggravation of her preexisting
condition which ultimately resulted in surgery. Within a reasonable degree of medical certainty,
but for the sustained hyperextension position, [appellant] would not have required the surgical
intervention subsequently decided upon.” Dr. Emery noted that he advised appellant not to
challenge workers’ compensation on January 24, 2003 due only to her emotional state and that
he believed that her condition was “related to her reported work injury of sustained
hyperextension of the neck.”
By decision dated June 6, 2006, the Office hearing representative affirmed the July 27,
2005 decision based on her finding that Dr. Sabin’s opinion represented the weight of the
medical evidence.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act3 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree of the period of disability or aid in
lessening the amount of monthly compensation.4 In interpreting this section of the Act, the
Board has recognized that the Office has broad discretion in approving services provided under
section 8103, with the only limitation on the Office’s authority being that of reasonableness.5
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

5

Joseph P. Hofmann, 57 ECAB ___ (Docket No. 05-1772, issued March 9, 2006); James R. Bell, 52 ECAB
414 (2001).

5

Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment or actions taken which are contrary to both logic and probable deductions
from established facts. It is not enough to merely show that the evidence could be construed so
as to produce a contrary factual conclusion.6 In order to be entitled to reimbursement for
medical expenses, a claimant must establish that the expenditures were incurred for treatment of
the effects of an employment-related injury.7
Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence. Thus, in order for a surgery to be authorized, appellant must submit evidence
to show that the requested procedure is for a condition causally related to the employment injury
and that it is medically warranted. Both of these criteria must be met in order for the Office to
authorize payment.8
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.9 When the Office secures an opinion from an
impartial medical specialist and the opinion of the specialist requires clarification or elaboration,
the Office has the responsibility to secure a supplemental report from the specialist for the
purpose of correcting the defect in the original report. However, when the impartial medical
specialist’s statement of clarification or elaboration is not forthcoming or the supplemental report
is also vague, speculative or lacks rationale, the Office must refer appellant to a second impartial
medical specialist for a rationalized medical report on the issue in question.10
ANALYSIS
Dr. Emery, appellant’s attending physician, found that she required a cervical discectomy
and fusion at C6-7 due to her accepted employment injury. Dr. Sukin, an Office referral
physician, attributed her need for surgery to a preexisting nonemployment-related condition.
The Office thus found that a conflict in medical opinion existed between Dr. Emery and
Dr. Sukin regarding whether appellant required a cervical discectomy and fusion at C6-7 as a
result of her accepted employment injury of cervical strain and an aggravation of cervical
spondylosis. The Office referred appellant to Dr. Sabin for resolution of the conflict.
When there exists a conflict in medical opinion and the case is referred to an impartial
medical examiner for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, is entitled to special

6

Claudia L. Yantis, 48 ECAB 495 (1997).

7

Cathy B. Mullin, 51 ECAB 331 (2000).

8

Id.

9

See 5 U.S.C. § 8123; David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

10

Terrance R. Stath, 45 ECAB 412 (1994).

6

weight.11 The Board finds, however, that Dr. Sabin’s opinion is insufficient to resolve the
conflict regarding whether appellant’s cervical discectomy and fusion was causally related to her
employment injury. In a report dated August 2, 2004, Dr. Sabin opined that he needs to review
the MRI scan studies to reach a conclusion on causal relationship. He opined that it was unlikely
that appellant’s computer use for one month resulted in a permanent change but that the MRI
scan studies were needed to make a definitive determination. Dr. Sabin concluded: “[I]f I found
the MRI [scan] [studies] show the C6-7 disc to be identical before and after September 5, 2000 I
would state with a high likelihood that this is a natural progression. If there is change in the size
of the disc herniation that is significant at C6-7 then one could state that there has been objective
evidence of a change perhaps related to the September 5, 2000 situation.”
The Office provided Dr. Sabin with the entire case record. In a September 7, 2004 report,
Dr. Sabin reviewed only Dr. Sukin’s reports and indicated that appellant’s cervical surgery was
unrelated to her computer use. On July 27, 2005 the Office provided Dr. Sabin with MRI scan
studies dated September 30, 1999, October 2001 and January 20, 2005. Dr. Sabin found that the
September 30, 1999 MRI scan study of the cervical spine showed a bulging disc on the right side
at C6-7 causing some right nerve compromise. He reviewed an MRI scan of the thoracic spine
and found that it was normal and a January 20, 2005 MRI scan of the cervical spine which
showed the anterior fusion at C6-7. Dr. Sabin, however, did not review or discuss the August 10,
2001 MRI scan study obtained after appellant’s employment injury and prior to her cervical
fusion. The August 10, 2001 study revealed a C6-7 disc protrusion causing 10 mm of central
canal stenosis and bilateral neural foraminal narrowing which had worsened compared to the
September 30, 1999 cervical MRI scan. In his August 2, 2004 report, Dr. Sabin repeatedly
emphasized that he needed to compare the MRI scan studies prior to and after the
September 2000 injury to determine whether her computer use aggravated her preexisting
cervical condition resulting in the need for a cervical fusion. However, in his clarification report,
he did not provide any explanation for his failure to compare the August 10, 2001 MRI scan
study of the cervical spine or provide any rationale regarding why he was able to reach a
conclusion on causal relationship without discussing both of the relevant MRI scan studies. As
Dr. Sabin’s conclusions are unexplained, his opinion is insufficiently rationalized to resolve the
conflict in medical opinion on the issue of whether appellant required a cervical fusion and
discectomy at C6-7 due to her employment injury.
When the Office secures an opinion from an impartial medical specialist and the opinion
of the specialist requires clarification or elaboration, the Office has the responsibility to secure a
supplemental report from the specialist for the purpose of correcting the defect in the original
report. However, when the impartial medical specialist’s statement of clarification or elaboration
is not forthcoming or the supplemental report is also vague, speculative or lacks rationale, the
Office must refer appellant to a second impartial medical specialist for a rationalized medical
report on the issue in question.12 The Board, consequently, finds that the case must be remanded
for the referral of appellant to a second impartial medical examiner for another medical
evaluation. The Office should request the impartial medical examiner to review all of the
evidence, including the MRI scan studies of the cervical spine and provide an opinion regarding
11

See 5 U.S.C. § 8123; David W. Pickett, supra note 9.

12

See Terrance R. Stath, supra note 10.

7

the relationship between her employment injury and need for surgery. The Office should
additionally request that the impartial medical examiner address the duration of appellant’s
employment-related disability. After such further development as the Office deems necessary, it
should issue a de novo decision.13
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 6, 2006 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: March 1, 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

13

In view of the Board’s disposition of the issue of whether appellant required surgery due to her accepted
employment injury, it is premature to address the issue of whether her disability beginning February 15, 2002 was
employment related.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
South Amboy, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-900
Issued: November 15, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 12, 2012 appellant, through his attorney, filed an appeal from a September 12,
2011 merit decision of the Office of Workers’ Compensation Programs denying his claim for
compensation. 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 his burden of proof to establish that he was injured in
the performance of duty on June 15, 2009, as alleged.
On appeal appellant, through counsel, contends that the June 15, 2009 employment
incident resulted in an aggravation of right knee arthropathy and osteoarthritis; recurrent tear of
medial meniscus of the right knee and permanent impairment of the right lower extremity. He
contends that OWCP erred in evaluating the medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 24, 2009 appellant, then a 56-year-old letter carrier, filed a traumatic injury
claim alleging that, on June 15, 2009, while stepping out of his truck to deliver a parcel, his right
knee locked and he felt a sharp pain. He filed a claim noting that a magnetic resonance imaging
(MRI) scan evinced a new flap tear on the junction of the posterior horn and body. Appellant
submitted a June 16, 2009 note by Dr. Roger Lallemand, Jr., a Board-certified anesthesiologist,
who requested that appellant be excused from work for four weeks and have an MRI scan. The
employing establishment controverted the claim.
A June 17, 2009 imaging of both of appellant’s knees by Dr. Mary Ann Peterson, a
Board-certified radiologist, diagnosed degenerative joint disease worse on left, with slight
internal progression. She noted intra-articular loose bodies on the left knee. An imaging of
June 18, 2009 was interpreted by Dr. Peterson as showing an abnormal medial meniscus
suspicious for a new flap tear at the junction of the posterior horn and body and oblique tear of
the posterior horn and radial tear of the anterior horn and described superimposed on
postoperative truncation. She noted severe degenerative changes of the medial femoral
compartment and thickening of the infrapatellar tendon unchanged.
In a July 29, 2009 medical report, Dr. Lallemand stated that appellant had been under his
care since June 7, 2007. He was presently treating appellant for a right knee injury sustained
while trying to catch himself from falling on June 15, 2009. Dr. Lallemand noted that appellant
was diagnosed with knee enthesopathy, arthritis osteoarthritis (degenerative wear and tear) knee,
knee pain and knee osteoarthritis. The MRI scan of June 17, 2009 showed severe degenerative
changes in the medial more than lateral femoral compartments with severe chondromalacia,
osteophyte formation, subchondral cysts, bone edema and cortical loss which is not significantly
changed from the previous study. The medial meniscus was abnormal with an oblique tear in the
posterior horn extending to the interior surface and a flap tear through the junction of the
posterior horn and body from the superior to inferior surfaces, which had not been seen
previously. Dr. Lallemand also noted that atrunction of the body and anterior horn, which might
be postoperative or an additional tear. He further noted that there was a vertical tear through the
function of the anterior horn and body consistent with a small radial tear. Dr. Lallemand noted
diffuse thickening of the intrapatellar tendon, which was unchanged and possibly due to prior
chronic tears and or repair. He noted that appellant was out of work for 8 to 12 weeks and was
going to need further tests before the recommended knee replacement surgery can be performed.
By decision dated August 13, 2009, OWCP denied appellant’s claim. It determined that
the factual basis of his claim was unclear or unknown. OWCP also determined that the medical
evidence received was insufficient to establish that appellant sustained an injury in connection
with the reported incident.
Appellant retained an attorney and on August 10, 2010, he requested reconsideration. In
support of the claim, counsel submitted medical evidence that supported medical conditions that
developed prior to appellant’s alleged incident of June 15, 2009. He submitted a copy of an
operative report indicating that on May 2, 1988 appellant had an arthroscopy on his right knee
and right partial medial meniscectomy. Counsel also submitted a July 27, 1989 operative report
indicating that on that date appellant underwent an arthroscopy, arthroscopic partial medial

2

meniscectomy and arthoplasty. On August 10, 2004 appellant underwent arthroscopic partial
medial meniscectomy and chondroplasty of the right knee with synovectomy. Counsel also
submitted a copy of an imaging taken by Dr. Peterson of appellant’s right knee on November 26,
2007 which showed severe degenerative osteoarthritis especially of the medial femoral
compartment and abnormal medial meniscus which may represent a postoperative change or tear
especially of the body and posterior horn. An imaging of appellant’s knees on January 8, 2008
was interpreted as showing loose osteochondral bodies and degenerative disease. Counsel also
submitted a copy of a schedule award decision for a 75 percent impairment to appellant’s right
lower extremity dated June 5, 1992 in OWCP File No. xxxxxx846. The date of injury was listed
as November 16, 1987. Dr. Peterson also submitted new medical evidence concerning the time
period after the incident. In a June 23, 2009 report, Dr. Mark A. Hartzband, a Board-certified
orthopedic surgeon, noted that x-rays were taken which confirmed advanced osteoarthritis right
knee with bone-on-bone medially and anteriorly and a tibial femoral subluxation. He noted that
appellant had a long history of right knee problems dating back to a patella tendon rupture and
repair in 1980 and had three subsequent scopes in 1989, 1990 and 2004. Dr. Hartzband noted
that appellant’s work as a postal worker has not helped him. On August 7, 2009 he performed a
right cemented total knee arthroplasty.
In a statement dated August 9, 2010, appellant indicated that he first injured his right
knee in a work-related accident while working for the employing establishment on November 16,
1987, and that his right knee medical problems were aggravated by the work incident of
June 15, 2009. He discussed the June 15, 2009 incident, his surgeries and other medical
treatment.
By decision dated November 15, 2010, OWCP modified the August 13, 2009 decision as
it found that appellant established that the incident occurred as alleged, but denied his claim as
he had not met the requirements for establishing that his condition was caused by the incident of
June 15, 2009.
Appellant’s attorney sent him to Dr. Arthur Becan, an orthopedic surgeon, for another
opinion. Dr. Becan examined appellant, reviewed his work history including the history of the
work incident and reviewed his medical records. He diagnosed appellant with cumulative and
repetitive occupational trauma and aggravation of preexistent right knee pathology (status post
arthroscopy and partial medial meniscectomy 1988, status post arthroscopy and partial medial
meniscectomy 1989 and status post arthroscopy and partial medial meniscectomy and
chondroplasty 2004); recurrent tear of the medial meniscus of the right knee; progressive
arthropathy of the right knee; status post right total knee replacement performed on
August 7, 2009. Dr. Becan opined that the cumulative and repetitive occupational trauma
sustained during appellant’s course of his employment with the employing establishment to his
right knee necessitating multiple arthroscopic surgical procedures to the right knee in 1988, 1989
and 2004 and compounded by a defined work-related injury sustained on June 15, 2009 are
competent producing factors for appellant’s subjective and objective findings. Under reasons for
his opinions, he listed: history according to appellant; physical examination; duties of
appellant’s occupation and review of medical records. Dr. Becan believed that appellant reached
maximum medical improvement on March 14, 2011.

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By decision dated September 12, 2011, OWCP denied modification of the November 15,
2010 decision. It stated that the report of Dr. Becan was based on an inaccurate history of injury
as he referenced an employment injury of 1987 and there is no record of an employment-related
knee injury in 1987. OWCP further noted that Dr. Becan did not discuss the 1980 sports injury
and its effects on appellant’s condition.
LEGAL PRECEDENT
OWCP’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.2 An employee
seeking benefits under FECA3 has the burden of establishing the essential elements of his or her
claim, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury. 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
The employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged. An employee has the
burden of establishing the occurrence of an injury at the time, place and in the manner alleged,
by the preponderance of the reliable, probative and substantial evidence. An injury does not
have to be confirmed by eyewitnesses in order to establish the fact that the employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his subsequent course of action. An employee has not
met his burden of proof where there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim.5
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. 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
2

20 C.F.R. § 10.5(e).

3

5 U.S.C. §§ 8101-8193.

4

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

5

Id.

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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.6
ANALYSIS
OWCP accepted that the employment incident of June 15, 2009 occurred as alleged by
appellant whose claim was denied as OWCP determined that the medical evidence was not
sufficient to establish that an injury was sustained causally related to this incident. The Board
finds that appellant did not establish that he sustained as injury causally related to the accepted
employment incident of June 15, 2009.
Appellant has a history of problems with his right knee. The medical evidence
establishes that he had multiple surgeries on his knee between 1980 and 2004. In a
November 26, 2007 imaging, Dr. Peterson noted that appellant had severe degenerative
osteoarthritis. There was also evidence that a prior claim was accepted in OWCP File No.
xxxxxx846, resulting in a schedule award for a 75 percent impairment of appellant’s right leg for
an injury sustained on November 16, 1987.
After the June 15, 2009 employment incident, appellant submitted medical reports in
support of his claim. The medical reports do not provide a rationalized opinion explaining how
appellant sustained a new injury or an aggravation of an old injury on June 15, 2009. The
imaging reports by Dr. Peterson do not address causation. Dr. Lallemand noted the work
incident and discussed appellant’s medical history, but failed to relate appellant’s medical
condition to the employment incident of June 15, 2009. Dr. Harzband noted appellant’s history
of right knee problems and stated that his employment “has not helped him.” He did not
specifically relate appellant’s medical condition to the June 15, 2009 employment incident.
Dr. Becan’s report is not sufficient to establish causal relationship because he does not
provide a fully rationalized explanation of how the June 15, 2009 employment incident caused
appellant’s injuries; rather he stated a general conclusion that appellant’s prior work injury and
the June 15, 2009 employment incident were competent producing factors for appellant’s
subjective and objective findings. To meet his burden of proof, appellant must submit
rationalized medical opinion evidence based on a complete factual and medical background
supporting such a causal relationship.7 Dr. Becan’s general statement does not amount to a
rationalized explanation of a causal relationship. Accordingly, appellant has not submitted
medical evidence sufficient to establish that the accepted employment incident of June 15, 2009
caused any further injury to his right knee and therefore he has not met his burden of proof to
establish an injury sustained in the performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

J.C., Docket No. 11-1513 (issued April 16, 2012).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
injured in the performance of duty on June 15, 2009, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2011 is affirmed.
Issued: November 15, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Huntington Station, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0784
Issued: August 23, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 24, 2017 appellant, through counsel, filed a timely appeal from a
September 28, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,023.72 because he concurrently received Office of Personnel Management (OPM)
1

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

5 U.S.C. § 8101 et seq.

retirement benefits while receiving FECA benefits for the period May 20 to 28, 2016;
(2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.
On appeal counsel asserts that, as appellant’s retirement benefits did not commence on
May 20, 2016, there had been no dual payment and thus no overpayment of compensation.
FACTUAL HISTORY
On March 4, 2011 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he felt immediate back pain and right-sided numbness when he
lifted mail at work. He stopped work that day. On March 6, 2011 he had cervical discectomy
and decompression surgery.
Following an initial denial on April 27, 2011 decision dated October 31, 2011, OWCP
vacated the prior decision, and accepted cervical stenosis at C5-6 with myelopathy. Appellant
received retroactive compensation, and was placed on the periodic compensation rolls.
On May 20, 2016 counsel notified OWCP that appellant elected to receive OPM
retirement benefits, effective May 20, 2016. He submitted an election form to that effect, signed
by appellant on May 20, 2016.
OWCP terminated appellant’s wage-loss compensation effective May 20, 2016. It noted
that he had received compensation through May 28, 2016.
By letter dated June 1, 2016, OWCP notified OPM that appellant had elected to receive
retirement benefits effective May 20, 2016 in lieu of FECA compensation. It noted that
appellant had received FECA compensation through May 28, 2016. OWCP asked that OPM
begin annuity payments effective May 20, 2016 and reimburse OWCP $1,023.72 for FECA
benefits paid for the period May 20 to 28, 2016.
On July 28, 2016 OWCP issued a preliminary finding that a $1,023.72 overpayment of
compensation had been created for the period May 20 to 28, 2016. It explained that the
overpayment occurred because appellant received both FECA benefits and OPM retirement
benefits during this period. Appellant was found at fault and was provided an overpayment
action request and overpayment recovery questionnaire (OWCP-20). The record contains an
overpayment computer printout worksheet showing that, for the period May 20 to 28, 2016,
appellant received net FECA wage-loss compensation totaling $1,023.72.
Appellant completed an overpayment action request on August 17, 2016, which was
received by OWCP on August 26, 2016. He maintained that no overpayment existed. In
attached correspondence, counsel asserted that, as OPM had not commenced monthly annuity
payments, there was no overpayment and certainly no fault on the part of appellant.
By decision dated September 28, 2016, OWCP finalized the preliminary overpayment
decision, finding that appellant was at fault in the receipt of an overpayment in compensation in
the amount of $1,023.72 and, thus, was not entitled to waiver of the overpayment. It requested

2

that appellant repay the overpayment in full or contact OWCP to make arrangements for
recovery.
LEGAL PRECEDENT
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Section 8116(a) states that while an employee is receiving workers’
compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return for services actually performed or for certain payments related
to service in the Armed Forces, including benefits administered by the Department of Veterans
Affairs, unless such benefits are payable for the same injury or the same death being
compensated for under FECA.4 Section 10.421(a) of OWCP’s implementing regulations
provides that a beneficiary may not receive wage-loss compensation concurrently with a federal
retirement or survivor annuity.5 The beneficiary must elect the benefit that he or she wishes to
receive.6 OWCP procedures also explain that the employee must make an election between
OWCP benefits and OPM benefits. The employee has the right to elect the monetary benefit
which is the more advantageous. This policy also applies to reemployed annuitants.7
ANALYSIS
The Board finds this case is not in posture for decision.
OWCP based its overpayment finding on its determination that appellant received
impermissible dual OPM and FECA benefits for the period May 20 to 28, 2016. While the
record reflects that appellant received FECA benefits for this period, OWCP has not shown that
he received OPM benefits for the period. Although OWCP wrote OPM on June 1, 2016,
(rd6/1/16) at the time OWCP issued the final overpayment decision on September 28, 2016,
OPM had not responded. Thus, there is no documentation in the record establishing, as a matter
of fact, if and when appellant received OPM benefits, the periods for which he received such
benefits, or the amount of benefits he received.8 Therefore, the evidence of record does not
contain documentation showing that appellant received OPM benefits between May 20 and
28, 2016. It was alleged that appellant received dual benefits during this period, OWCP has not
met its burden to establish the fact of an overpayment of compensation in the amount of
3

5 U.S.C. § 8102(a).

4

Id. at § 8116(a).

5

20 C.F.R. § 10.421(a).

6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also
R.S., Docket No. 11-428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued
March 30, 1994).
8

The election form signed by appellant on May 20, 2016 is not sufficient to show that he actually began receiving
OPM benefits that day or any other time.

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$1,023.72 for this period.9 The case will be remanded to OWCP for further development of this
matter to be followed by an appropriate decision.
Given that the case is not in posture regarding whether OWCP properly determined that
appellant received an overpayment of compensation in the amount of $1,023.72, it is premature
for the Board to consider whether OWCP properly determined that he was at fault in the creation
of any overpayment.
CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: August 23, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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D.O., Docket No. 15-1004 (issued July 28, 2015).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Seattle, WA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1212
Issued: September 4, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On May 29, 2018 appellant filed a timely appeal from an April 18, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 18-1212.1
On June 28, 2016 appellant, then a 55-year-old truck driver, filed an occupational disease
claim (Form CA-2) alleging that he experienced stress due to threats he received while serving as
an acting supervisor. He noted that he first realized that the condition was related to his
employment on May 5, 2016. Appellant stopped work on July 1, 2016.
In a July 11, 2016 statement, appellant alleged that on March 11, 2015 he was threatened
by Supervisor K.B, which he reported to management. He further alleged that on May 25, 2016

1

The Board notes that following the April 18, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

an off-duty employee threatened him on the south dock of the employing establishment and
knocked his cell phone out of his hand.
Dr. Chris Belcher, a family practitioner Board-certified in pediatric medicine, diagnosed
adjustment disorder and anxiety. He released appellant to full-duty work on September 6, 2016.
Appellant returned to full-duty work on or about September 7, 2016 and worked sporadically
thereafter.
In a December 3, 2016 report, Dr. Jean Dalpe, a Board-certified psychiatrist serving as an
OWCP second opinion physician, reviewed the statement of accepted facts (SOAF) along with the
medical evidence of record in which appellant reported that he continued to feel threatened at
work. He concluded that appellant had a temporary aggravation of major depressive disorder due
to the accepted May 5, 2016 employment injury. Dr. Dalpe advised that appellant was currently
in a major depressive episode causally related to the accepted employment incident and that he
would be disabled for 12 to 16 weeks for aggressive psychopharmacologic treatment needed to
resolve the depressive episode. He also recommended that appellant be evaluated by a psychiatrist
for treatment.
On December 20, 2016 OWCP accepted appellant’s claim for temporary major depressive
disorder, recurrent severe without psychotic features causally related to the accepted May 5, 2016
injury based upon Dr. Dalpe’s report. It paid appellant retroactive wage-loss compensation and
authorized leave buy back from June 25 through September 7, 2016.
Appellant thereafter filed claims for intermittent wage-loss compensation (Form CA-7) for
ongoing periods commencing October 5, 2016, due to recurrent disability as a result of his
accepted emotional condition.
By decision dated March 10, 2017, OWCP denied appellant’s claims for compensation
from October 5, 2016 and continuing because the medical evidence of record was insufficient to
establish disability due to the accepted work-related temporary major depressive disorder.
On March 25, 2017 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on September 18, 2017. By decision dated December 1, 2017, an
OWCP hearing representative affirmed the March 10, 2017 decision.
On January 30, 2018 appellant requested reconsideration.
OWCP referred appellant to Dr. Michael Friedman, an osteopath Board-certified in
psychiatry, for a second opinion examination. In a January 23, 2018 report, Dr. Friedman opined
that the accepted condition had not resolved and that appellant needed additional treatment for his
work-related condition. However, he further opined that appellant could return to work for eight
hours per day with restrictions relating to interactions with coworkers.
By decision dated April 18, 2018, OWCP denied modification of its prior decision finding
that evidence of record did not establish disability due to a material change or worsening of his
accepted emotional condition.

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Having reviewed the case record submitted by OWCP, the Board finds that this case must
be remanded to OWCP. OWCP accepted appellant’s emotional condition claim based upon
Dr. Dalpe’s December 3, 2016 second opinion report. In his December 3, 2016 report, Dr. Dalpe
found that appellant was in the midst of a major depressive event causally related to the accepted
incident and that he would remain disabled for 12 to 16 weeks for aggressive psychopharmacologic
treatment needed to resolve the depressive episode. He recommended that OWCP have appellant
evaluated by a psychiatrist for treatment. Appellant was referred to a second opinion examination
with Dr. Friedman, who in a January 23, 2018 report determined that appellant’s condition had not
resolved, that he was in need of further medical treatment, and that he could return to work with
restrictions.
The Board finds that OWCP’s April 18, 2018 decision failed to provide findings of fact
and a statement of reasons in denying appellant’s recurrence claim.2 OWCP did not discharge its
responsibility to set forth findings of fact and a clear statement of reasons explaining the
disposition. It did not explain why Dr. Friedman carried the weight of the medical evidence such
that appellant could understand the basis for the decision as well as the precise defects and the
evidence required to establish the recurrence claim.3
The case must therefore be remanded to OWCP for a proper decision which includes
findings of fact and a clear and precise statement regarding denial of appellant’s claim for
recurrence of disability commencing on October 5, 2016. Following any other development
deemed necessary, OWCP shall issue a de novo decision on appellant’s recurrence claim.4
Accordingly,

2

5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP shall
contain findings of fact and a statement of reasons.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013).

4

See A.J., Docket No. 18-0727 (issued February 21, 2019); G.S., Docket No. 16-0908 (issued October 26, 2017).

3

IT IS HEREBY ORDERED THAT the April 18, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this order of the Board.
Issued: September 4, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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