United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R.
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZENSHIP & IMMIGRATION SERVICES,
Miami, FL, Employer
__________________________________________

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Appearances:
Peter S. Schwedock, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0206
Issued: October 15, 2018

Case Submitted on the Record

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

JURISDICTION
On November 6, 2017 appellant, through counsel, filed a timely appeal from a May 18,
2017 merit decision and an August 21, 2017 nonmerit 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

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence after OWCP rendered its August 21, 2017 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 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).

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a lumbar
condition causally related to the accepted June 28, 2016 employment injury; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 28, 2016 appellant, then a 43-year-old immigration analyst, filed a traumatic
injury claim (Form CA-1) alleging, that on that same day, when he attempted to sit down in his
chair at work, it flipped backwards causing him to fall on the floor and strike his head and back.4
He reported head, lower back, and leg pain. A fellow employee provided a witness statement
attesting to the employment incident. Appellant notified his supervisor and sought immediate
medical treatment on the date of injury. He did not indicate on the claim form that he had stopped
work.
In a July 11, 2011 report, Dr. Michael Thorpe, a Board-certified diagnostic radiologist,
provided findings pertaining to a magnetic resonance imaging (MRI) scan of appellant’s lumbar
spine. He reported L4-5 disc bulge and posterior central annular tear, small right paracentral disc
herniation, mild facet arthrosis and ligamentum ﬂavum hypertrophy, decreased disc signal, no
foraminal narrowing, and that the cross-sectional area of the spinal canal was at the lower limits
of normal. Dr. Thorpe reported that L5-S1 scanning revealed a broad-based disc herniation and
mild facet arthrosis, increased disc signal, no spinal stenosis, and mild bilateral foraminal
narrowing. He also noted that a transitional vertebra was suspected at the lumbosacral junction at
S1-2.
In a May 16, 2013 diagnostic report, Dr. Manuel Barbeito, Board-certified in
anesthesiology and pain management, reported that appellant’s lumbar epidural injections revealed
contrast flowing along the right and left L4-5 foramina and lateral recess, depicting severe irritation
of the nerve roots. He noted that at the L5-S1 segment there was minimal ﬂow of contrast into the
epidural space anteriorly, depicting moderate foraminal encroachment although not to the extent
of the L4-5 segments.
In an August 9, 2013 medical report, Dr. Juan Raposo, a Board-certified orthopedic
surgeon, reported that appellant had some tenderness to palpation of the lower back and diagnosed
L3-4 and L4-5 disc herniation related to a June 20, 2011 work injury.5 He related that appellant’s
lower back condition had not deteriorated to the point where surgery was an option for him.
In a June 28, 2016 Baptist Medical Plaza emergency room (ER) report, Dr. Lindsay Lewis,
Board-certified in family medicine, reported that on that same date appellant attempted to sit in a
chair which broke underneath him, causing him to fall backwards and sustain a blow to the head.
4

The record indicates that appellant had a prior June 20, 2011 traumatic injury claim to his left lower back after he
lost his balance while moving a heavy box under OWCP File No. xxxxxx970. By decision dated August 11, 2011,
OWCP accepted the claim for sprain of lumbosacral joint. The record before the Board contains medical reports
related to the June 20, 2011 traumatic injury claim.
5

Id.

2

Witnesses reported that appellant lost consciousness for a few seconds. Appellant complained of
headache and back pain on the left side radiating down to the leg. He reported prior issues to his
back which were treated with epidural injections and that he did not have any issues until this
incident. A lumbar spine x-ray revealed no acute bony abnormality and a computerized
tomography (CT) scan of the brain revealed no acute intracranial process detected. Dr. Lewis
diagnosed minor closed head injury, acute traumatic lumbar back pain sciatica present on the left,
and fall from chair. Appellant was discharged from the urgent care.
In a July 27, 2016 report, Dr. Steven Lasser, a Board-certified orthopedic surgeon,
described the June 28, 2016 employment injury when appellant’s office chair collapsed causing
him to fall backwards and strike his head and back. He noted significant injury from a car accident
one year prior when he was struck by another vehicle. Appellant experienced significant back
pain following a 2015 motor vehicle accident and came under the care of pain management, but
he did not lose any time from work as a consequence of the motor vehicle accident. While this
preexisting condition existed, Dr. Lasser noted that the pain severity with the new onset left
sciatica occurred as a result of his fall at work. He discussed the July 22, 2016 lumbar spine MRI
scan and reported that appellant had severe incapacitating left sciatica secondary to a large
foraminal and extra foraminal disc herniation at L4-5 with severe neural compression and stenosis.
Dr. Lasser also noted advanced degenerative changes of the L4-5 disc with possible spondylolysis,
and associated herniation of L4-5 with degenerative disc disease. He diagnosed lumbar
intervertebral disc degeneration, lumbar intervertebral disc displacement, and lumbar spondylosis.
Dr. Lasser opined that surgical intervention was appropriate in view of the severity of his
symptoms and neurologic findings. He noted that the surgical plan was secondary to appellant’s
work.
By development letter dated August 10, 2016, OWCP notified appellant that his claim was
initially administratively handled to allow medical payments, as it appeared to involve a minor
injury resulting in minimal or no lost time from work. However, the merits of his claim had not
been formally considered and his claim had been reopened for adjudication of the merits because
he had requested authorization for surgery. OWCP informed appellant that the evidence of record
was insufficient to establish his traumatic injury claim. Appellant was advised of the medical and
factual evidence needed and afforded 30 days to submit the additional evidence.
In a July 15, 2016 medical report, Dr. Benham Myers, a doctor of osteopathic medicine,
described the June 28, 2016 employment incident and documented complaints of lower back and
left leg pain. He diagnosed left lumbago with sciatica and lumbosacral disc displacement.
Dr. Myers referred appellant for a lumbar MRI scan.
In a July 22, 2016 diagnostic report, Dr. Jonathan Messinger, a Board-certified diagnostic
radiologist, reported that the lumbar spine MRI scan revealed L4-5 disc desiccation with a broad
disc bulge and superimposed central disc herniation with slight inferior extrusion, mild central
canal stenosis, left foraminal disc bulge, and lateral foraminal disc herniation with severe foraminal
stenosis. He further noted L3-4 central disc herniation with superior extrusion behind L3 and
moderate central canal stenosis and thecal sac compression.
In medical reports dated August 3 through 17, 2016, Dr. Lasser documented treatment for
appellant’s lower back injury. He diagnosed lumbar intervertebral disc degeneration, lumbar
intervertebral disc displacement, lumbar spondylosis, and persistent severe left sciatica with
intense lower back pain secondary to the lumbar disc disease with a far lateral disc extrusion at
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L4-5. Dr. Lasser noted that appellant had severe left lower extremity symptoms and severe
stenosis affecting the left L4 and L5 nerve roots. He explained that surgical intervention was
urgently needed and that his symptoms were secondary to the work-related injury. On August 4,
2016 Dr. Lasser performed an unauthorized surgery for left L3-4 and L4-5 laminectomies with
L3-5 instrument effusion. In an August 17, 2016 report, he noted that appellant’s left leg pain had
dramatically improved since his surgery though the pain had not subsided. Dr. Lasser diagnosed
status post L3-5 decompression and fusion with ﬂare-up of pain and left sciatica most likely
secondary to nerve root irritation from a combination of surgical manipulation and scar formation.
By decision dated September 14, 2016, OWCP denied appellant’s claim as the evidence of
record was insufficient to establish that he sustained an injury. It found that the June 28, 2016
employment incident occurred as alleged, but, that the evidence failed to provide a firm medical
diagnosis which could be reasonably attributed to the accepted employment incident. OWCP
noted that appellant’s August 4, 2016 surgery was for L3-4 and L4-5 disc herniations which were
conditions that appellant had since 2011.
On October 4, 2016 appellant requested an oral hearing before an OWCP hearing
representative.
In an August 23, 2016 diagnostic report, Dr. David Frank, a Board-certified radiologist,
reported that an x-ray of the lumbar spine revealed hyperlordosis of the lumbosacral spine, pedicle
screws and connecting rods in L3-4 and L4-5 bilaterally, and partial sacralization of L5.
In medical reports dated August 30 through September 28, 2016, Dr. Lasser related
appellant’s treatment and progress post left L4 hemilaminectomy, medial facetectomy, L4-5
discectomy, and L4-5 transforaminal lumbar interbody fusion. He noted that appellant had a
preexisting lumbar degenerative disease with back pain. Following his June 28, 2016 work injury,
appellant’s back pain was signiﬁcantly aggravated and the left sciatica became incapacitating.
Dr. Lasser reported that more than 50 percent of appellant’s spinal condition which led to the
surgical procedure on August 4, 2016 was related to his work-related injury. He reported that
appellant was totally disabled which was 100 percent related to the June 28, 2016 work injury.
A hearing was held on March 10, 2017 where appellant testified in support of his traumatic
injury claim. He explained that his prior motor vehicle accident and accepted June 20, 2011 work
injury did not require surgery, however his current injury and subsequent surgery were caused by
the employment incident.
By decision dated April 12, 2017, an OWCP hearing representative affirmed the
September 14, 2016 decision finding that the evidence of record failed to establish a diagnosed
condition causally related to the accepted June 28, 2016 employment incident.
On May 9, 2017 appellant requested reconsideration of OWCP’s decision.
In support of his claim, appellant submitted a May 13, 2015 medical report from
Dr. Guillermo Pasarin, a Board-certified neurological surgeon, who provided treatment following
his “December 2014 motor vehicle accident.” Dr. Pasarin noted complaints of paraspinal pain,
slightly worse on right. A January 6, 2015 MRI scan of the lumbar spine was submitted.
Dr. Pasarin reported that the MRI scan showed age-appropriate degenerative changes with
advanced degenerative changes at L3-4 and L4-5 with some disc bulging and bilateral foraminal
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compromise most notably at L4-5. He speculated that appellant’s myofascial low back pain
following his motor vehicle accident may or may not be discogenic in origin. Dr. Pasarin noted
that the changes in his MRI scan were predominantly degenerative in nature, but could account for
some of the numbness and tingling in his legs, and could possibly be causing some of his back
pain. He reported that at this juncture there was no need for neurosurgical indication. However,
if appellant’s severe pain did not improve in several months, Dr. Pasarin would then consider him
as a possible surgical candidate.
In a March 11, 2016 medical report, Dr. Andrew Ellowitz, a Board-certified orthopedic
surgeon, reported that appellant’s low back pain had increased, radiating to the right leg.
In a March 22, 2017 medical report, Dr. Lasser reported that appellant noted confusion and
misunderstanding regarding his prior workers’ compensation case, his current work-related injury,
and the motor vehicle accident. He explained that in 2011 appellant fell at work and his symptoms
improved after minimal treatment. In 2015 appellant was involved in a motor vehicle collision
that required evaluation and treatment. Despite these previous injuries, he was able to continue
working normally until the June 28, 2016 employment incident when his symptoms subjectively
and objectively changed dramatically, thus requiring the need for surgical intervention. Dr. Lasser
reported that surgical intervention was not previously necessary based on the images from 2011
and 2015. He noted that the lumbar MRI scans of July 2011, January 2015, and July 2016 showed
significant change in the appearance of the L4-5 and L5-S1 lumbar discs. Both the 2011 and 2015
MRI scans showed bulges on the L4-5 and L5-S1 lumbar disc. However, when reviewing the
July 2011 and January 2015 images carefully, and comparing them to the July 2016 MRI scan, the
relevant T2-weighted images revealed signiﬁcant increase in the herniation at L4-5 and a
herniation with extrusion at L5-S1. Dr. Lasser explained that, although both of these discs
revealed some abnormalities before the June 2016 injury, they were not significantly symptomatic.
Based on appellant’s history and careful review of the actual images from the time periods
mentioned, he opined that appellant’s pain symptoms, sciatica, and August 2016 surgery was
directly related to his fall at work on June 28, 2016.
By decision dated May 18, 2017, OWCP “affirmed” in part and vacated in part the
April 12, 2017 decision. It found that the medical evidence of record established a minor closed
head injury with ecchymosis on the vertex of the head with loss of consciousness for a few seconds.
OWCP denied appellant’s claim for a lumbar injury finding that the medical evidence of record
failed to establish a low back condition causally related to the accepted June 28, 2016 employment
incident.
By separate decision dated May 18, 2017, OWCP accepted the claim for minor closed head
injury with ecchymosis on the vertex of the head with loss of consciousness for a few seconds.
On August 1, 2017 appellant requested reconsideration of OWCP’s decision. He submitted
a narrative statement documenting the differences in the lumbar MRI scans following his 2011
work injury, 2015 motor vehicle accident, and 2016 employment incident. In support of his claim,
appellant resubmitted medical evidence previously of record.
Appellant also resubmitted Dr. Lasser’s March 22, 2017 report which included a July 19,
2017 addendum. In his addendum, Dr. Lasser reported that, following review of the medical
records, there was sufficient history and mechanism of injury to attribute appellant’s severe
sciatica, disc protrusion, and subsequent surgical intervention to the injury that occurred while at
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work in June 2016 when the chair he was sitting on broke, resulting in his fall to the ﬂoor. He
reported that the injury that occurred when the chair collapsed and resulted in a concussion and
injury to the lumbar discs. He opined that “this was without a doubt the mechanism of injury to
his lower back due to the sudden acceleration and deceleration of the collapsing chair, which can
produce more than enough energy to result in his spinal injuries.” Dr. Lasser opined that this was
the primary mechanism leading to the disc herniation and also caused the protrusion. He concluded
that, within a reasonable degree of medical certainty, appellant’s surgical treatment was secondary
to this injury.
By decision dated August 21, 2017, OWCP denied appellant’s request for reconsideration
finding that he neither raised substantive legal questions, nor included relevant and pertinent new
evidence sufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that 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.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
To establish 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 supporting such causal relationship.9 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.
This medical opinion must include an accurate history of the employee’s employment incident 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

6

Supra note 2.

7

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

8

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

9

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

10

James Mack, 43 ECAB 321 (1991).

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that his lumbar
conditions are causally related to the accepted June 28, 2016 employment injury.11
On the date of injury, appellant sought emergency medical treatment at Baptist Medical
Plaza ER for head and low back pain. Dr. Lewis’ June 28, 2016 report provided a diagnosis of
closed head injury and back pain. The Board has consistently held that pain is a symptom, rather
than a compensable medical diagnosis.12 The lumbar spine x-ray taken on that date was of no
probative value as it revealed findings of no acute bony abnormality, failing to provide support for
an injury.13 Dr. Lewis failed to provide a firm medical diagnosis and opinion on causal relationship
pertaining to his lumbar condition. As such, her report is insufficient to establish the June 28, 2016
traumatic injury claim.14
In medical reports dated July 27, 2016 through March 22, 2017, Dr. Lasser discussed the
June 28, 2016 employment injury and diagnosed lumbar intervertebral disc degeneration, lumbar
intervertebral disc displacement, lumbar spondylosis, and persistent severe left sciatica with
intense lower back pain secondary to the lumbar disc disease with a far lateral disc extrusion at
L4-5. He opined that appellant’s pain symptoms, sciatica, and August 2016 surgery were directly
related to his fall in his chair at work on June 28, 2016. The Board finds that the opinions of
Dr. Lasser are not well rationalized.
Dr. Lasser’s statement that appellant’s pain symptoms were a direct result of the incident
is highly speculative as he is attributing symptoms to the June 28, 2016 employment injury and
not to his diagnosed conditions.15 He opined that appellant’s current lumbar conditions were not
related to his prior 2011 work injury and 2015 motor vehicle accident because his symptoms
changed dramatically following the June 28, 2016 incident, requiring the need for surgery. The
Board has held that an opinion that a condition is causally related because the employee was
asymptomatic before the injury is insufficient, without adequate rationale, to establish causal
relationship.16 Moreover, Dr. Lasser emphasizes the change in appellant’s symptoms as evidence
of a new work-related injury. However, the medical reports of record predating the June 28, 2016
employment injury document complaints of severe low back pain radiating to the leg. It is unclear
how and to what degree appellant’s symptoms changed to determine that this shift establishes the
cause of his injury. The Board also notes that Dr. Lasser failed to provide a sufficient explanation
as to the mechanism of injury pertaining to this traumatic injury claim, namely, how falling
backwards from a chair and striking his back would cause or aggravate herniation at L4-5 and
herniation with extrusion at L5-S1.17 Dr. Lasser’s statement that appellant’s symptoms
11

See Robert Broome, 55 ECAB 339 (2004).

12

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

13

J.P., Docket No. 14-87 (issued March 14, 2014).

14

Id.

15

M.R., Docket No. 14-11 (issued August 27, 2014).

16

Id.

17

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

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significantly worsened are vague and generalized without sufficient detail pertaining to the cause
of injury. Such generalized opinions do not establish causal relationship because they merely
repeat appellant’s allegations and are unsupported by adequate medical rationale explaining how
this physical activity actually caused the diagnosed conditions.18 Without explaining how
physiologically the movements involved in the June 28, 2016 employment injury caused or
contributed to the diagnosed lumbar conditions, Dr. Lasser’s opinion is of limited probative value
and insufficient to meet appellant’s burden of proof.19
The Board notes that appellant’s July 11, 2011 and January 6, 2015 lumbar MRI scan
reports reveal preexisting degenerative changes and lumbar disc involvement. Dr. Lasser reported
that both the 2011 and 2015 MRI scans showed bulges of the L4-5 and L5-S1 lumbar discs. He
noted that when comparing the 2011 and 2015 images to those of July 2016, the relevant T2weighted images revealed signiﬁcant increase in the herniation at L4-5 and a herniation with
extrusion at L5-S1. While Dr. Lasser provided a detailed interpretation of the July 22, 2016
lumbar MRI scan when compared to the two prior studies, the anatomical changes alone are
insufficient to establish a new work-related injury. He failed to discuss whether appellant’s
preexisting injury had progressed beyond what might be expected from the natural progression of
that condition.20 This is of significant importance as appellant has a prior 2011 work-related injury
and 2015 motor vehicle accident involving the same region of the body. It is unclear if appellant’s
lumbar disc herniation was caused or aggravated by the June 28, 2016 employment injury, a result
of a preexisting condition, or due to degenerative changes. A well-rationalized opinion is
particularly warranted when there is a history of preexisting condition.21
The remaining medical evidence of record is also insufficient to establish appellant’s claim.
Dr. Myer’s July 15, 2016 report provided a diagnosis of left lumbago with sciatica and lumbosacral
disc displacement without an opinion relative to the cause of the diagnosed conditions. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.22
The diagnostic reports of record are also insufficient to establish appellant’s claim. While
the reports are relevant for documenting and interpreting radiologic findings, the physicians failed
to provide a firm medical diagnosis or opinion on the cause of appellant’s injury.23
The Board notes that the medical evidence of record which predates the June 28, 2016
employment injury is also insufficient to establish appellant’s claim. Appellant references his prior
medical reports as evidence that his symptoms worsened and that his physicians did not
recommend surgery until after the June 28, 2016 employment injury. The Board notes that while
this medical evidence is relevant in determining whether appellant’s condition is due to a
18

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

19

John W. Montoya, 54 ECAB 306 (2003).

20

R.E., Docket No. 14-868 (issued September 24, 2014).

21

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

22

See E.D., Docket No. 18-0138 (issued May 14, 2018).

23

It is not possible to establish the cause of a medical condition, if the physician has not stated a firm medical
diagnosis. T.G., Docket No. 13-76 (issued March 22, 2013).

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preexisting or nonoccupational injury, lack of prior surgery and changes in diagnostic testing are
alone not enough to establish a current work-related injury. Any medical opinion evidence
appellant may submit to support his claim should reflect a correct history and offer a medically
sound explanation by the physician of how the specific employment incident, in particular
physiologically, caused or aggravated his lumbar injuries.24
The Board notes that there is no requirement that the federal employment be the only cause
of appellant’s injury. An employee is not required to prove that occupational factors are the sole
cause of his claimed condition. If work-related exposures caused, aggravated, or accelerated
appellant’s condition, he is entitled to compensation.25 However, an award of compensation may
not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.26 Appellant’s honest belief that the June 28, 2016 employment injury caused lumbar
injury is not in question, but that belief, however sincerely held, does not constitute the medical
evidence necessary to establish causal relationship.27
The Board has found that the record lacks rationalized medical evidence establishing a
causal relationship between the June 28, 2016 employment injury and appellant’s lumbar
conditions. Thus, appellant has failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.28 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.29

24

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014); K.M.,
Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
25

See Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008).

26

D.D., 57 ECAB 734 (2006).

27

See J.S., Docket No. 17-0967 (issued August 23, 2017).

28

D.K., 59 ECAB 141 (2007).

29

K.H., 59 ECAB 495 (2008).

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ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.30
In its August 21, 2017 denial of appellant’s reconsideration request, OWCP noted that
appellant submitted duplicate medical evidence which was previously considered in the prior
decision. It noted a list of the duplicate medical reports, including Dr. Lasser’s March 22, 2017
report. Thus, OWCP denied merit review of appellant’s claim finding that he failed to submit
relevant and pertinent new evidence addressing causal relationship sufficient to warrant a merit
review.31
However, the record reflects that OWCP received new evidence from appellant prior to the
issuance of its August 21, 2017 decision. The Board notes that appellant submitted Dr. Lasser’s
March 22, 2017 report, received by OWCP on August 1, 2017, in support of his claim, which
included a July 19, 2017 addendum. In his addendum, Dr. Lasser discussed appellant’s lumbar
injury and offered opinions pertaining to causal relationship and the mechanism of injury. As the
Board’s decisions are final as to the subject matter appealed, it is crucial that all evidence relevant
to the subject matter of the claim, which was properly submitted to OWCP prior to the time of
issuance of its final decision, be reviewed and addressed by OWCP.32 In its August 21, 2017
decision, OWCP did not consider the additional evidence submitted in support of appellant’s claim
as it found that the March 22, 2017 report was a duplicate report previously submitted. However,
contained at the end of the March 22, 2017 report, Dr. Lasser, authored an addendum The Board
finds Dr. Lasser’s addendum report to be relevant and pertinent new evidence not previously
considered by OWCP.33 Because OWCP did not consider the July 19, 2017 addendum as new
evidence submitted by appellant, the Board cannot review such evidence for the first time on
appeal.34
The Board finds that this case is not in posture for a decision.35 On remand, OWCP should
fully consider appellant’s evidence which was properly submitted prior to the August 21, 2017
decision. Following this and such other development as deemed necessary, it shall issue an
appropriate merit decision.

30

J.W., Docket No. 13-1666 (issued August 18, 2014).

31

M.H., Docket No. 13-2051 (issued February 21, 2014).

32
See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, 41 ECAB 548 (1990) (OWCP did not
consider new evidence received four days prior to the date of its decision); see Linda Johnson, 45 ECAB 439 (1994)
(applying Couch where OWCP did not consider a medical report received on the date of its decision).
33

See R.M., Docket No. 08-734 (issued September 5, 2008); Donald T. Pippin, 54 ECAB 631 (2003).

34

20 C.F.R. § 501.2(c).

35
The Board notes that OWCP procedures provide that cases should be combined when correct adjudication of the
issues depends on frequent cross-referencing between files. Given that appellant’s June 20, 2011 traumatic injury
claim under OWCP File No. xxxxxx970 involves the same lumbar injuries alleged in this claim, on remand OWCP
should combine File Nos. xxxxxx970 and xxxxxx467.

10

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted June 28, 2016 employment injury. The Board further
finds that OWCP improperly denied appellant’s request for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated May 18, 2017 is affirmed. The August 21, 2017 decision is set aside and the case
is remanded for further proceedings consistent with this opinion.
Issued: October 15, 2018
Washington, DC

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

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

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

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

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

Docket No. 07-1936
Issued: January 28, 2008

Case Submitted on the Record

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

JURISDICTION
On July 11, 2007 appellant filed a timely appeal from a February 1, 2007 Office of
Workers’ Compensation Programs’ merit decision. Under 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 the Office abused its discretion by denying appellant authorization
for the purchase of an electric osteogen [spinal cord] stimulator.
FACTUAL HISTORY
Appellant, a 44-year-old letter carrier, filed a Form CA-2 claim on September 23, 2003,
alleging that she developed lumbar disc disease and herniated disc conditions causally related to
factors of her employment. The Office accepted her claim for herniated disc at L5-S1, lumbar
strain, lumbar surgery and headaches.
In a report dated October 9, 2006, Dr. Gregory T. Altman, a specialist in orthopedic
surgery, found that appellant had an injury-related disability, including decreased muscle

strength in the lower extremities and decreased reflexes and sensory changes involving the left
leg and foot. He opined that appellant had reached maximum medical improvement and that no
further treatment such as physical therapy, injections, acupuncture, surgery, chiropractic care,
aqua therapy or massage therapy, etc., was required or would improve her conditions.
In a November 27, 2006 report, Dr. David C. Neuschwander, Board-certified in
orthopedic medicine, stated:
“[Appellant] clinically has limitations. She has undergone extensive treatment.
[Appellant] is walking with a cane. She does have objective weakness of her left
as compared to the right lower extremity as documented in her physical
examination. [Appellant] has subjective burning pain in her low back radiating
into the left leg associated with numbness and tingling.
“Her prognosis for full recovery is poor. I would recommend continued treatment
for pain management purposes. I would not recommend any further surgical
intervention or any further physical therapy, other than that which she may be
able to do on her own.
“It is my opinion that [appellant] is capable of a sedentary-duty position only. I
feel that she would be capable of doing so four hours per day, as long as she was
able to get up and walk around if she felt stiff from sitting and as long as she was
able to sit if she felt she could not stand or walk any longer.
“[Appellant] definitely continues to suffer residuals of her injury. She has
persistent pain and has limitations with regard to her physical capabilities as a
result of the work-related injury.”
On December 5, 2006 appellant underwent a trial electrical spinal cord stimulation
procedure, performed by Dr. John J. Moossy, Board-certified in neurological surgery. The
procedure involved having electrotrodes inserted into appellant’s spinal cord in order to provide
stimulation. Dr. Moossy noted that appellant felt uncomfortable during the procedure despite
multiple efforts to accommodate her. He discontinued the trial after an hour and a half after
concluding that this type of procedure was not likely to produce a beneficial result.
On January 10, 2007 appellant requested authorization to purchase an electric osteogen
[spinal cord] stimulator; the purchase price was $4,995.00.
By letter to appellant dated January 11, 2007, the Office requested a medical report
establishing the medical necessity for the requested electric osteogen stimulator. Appellant did
not submit any additional medical evidence.
In a report dated October 16, 2006, Dr. Arnold T. Berman, an Office medical adviser and
a Board-certified orthopedic surgeon, reviewed the medical record and denied authorization for
an electric osteogen spinal cord stimulator. He opined that the medical evidence of record did
not indicate the necessity for such a device, noting that Dr. Moossy had attempted to implant a
trial stimulating electrode on December 5, 2005 but had given up after an hour and a half.

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Dr. Berman further noted that none of the other medical reports of record indicated the need for
an electric osteogen stimulator.
By decision dated February 1, 2007, the Office denied authorization for the purchase of
an electric osteogen stimulator.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act1 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 or the period of disability, or aid in
lessening the amount of the monthly compensation.2 In interpreting this section of the Act, the
Board has recognized that the Office has broad discretion in approving services provided under
the Act. The Office has the general objective of ensuring that an employee recovers from his
injury to the fullest extent possible in the shortest amount of time. The Office therefore has
broad administrative discretion in choosing means to achieve this goal. The only limitation on
the Office’s authority is that of reasonableness. 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.3
ANALYSIS
In this case, the Office accepted that appellant had sustained the conditions of herniated
disc at L5-S1, lumbar strain, lumbar surgery and headaches. Dr. Altman stated on October 9,
2006 that appellant showed decreased muscle strength in the lower extremities and decreased
reflexes and sensory changes involving the left leg and foot. He found that appellant had
reached maximum medical improvement and required no additional treatment for her accepted
conditions; he noted that appellant would not benefit from further treatment. In his
November 27, 2006 report, Dr. Neuschwander noted that appellant had clinical limitations and
objective weakness, in addition to burning pain in her left lower extremity. He felt prognosis for
full recovery was poor. Dr. Neuschwander noted that appellant required the use of a cane and
recommended continued treatment for pain management purposes. He opined that appellant did
not require any further surgical intervention or physical therapy, other than that which she may
be able to do on her own. While appellant continued to have residuals of her injury, with
persistent pain due to the work-related injury, Dr. Neuschwander felt that appellant was capable
of doing sedentary work for four hours per day. On December 5, 2005 appellant underwent a
trial electrical spinal cord stimulation procedure; however, as noted by Dr. Moossy, the trial was
unsuccessful. He opined that this type of procedure was unlikely to ameliorate appellant’s
condition. Notwithstanding this unsuccessful result, appellant requested authorization from the
1

5 U.S.C. § 8101 et seq.

2

5 U.S.C. § 8103.

3

Daniel J. Perea, 42 ECAB 214 (1990).

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Office to purchase an electric osteogen [spinal cord] stimulator on January 10, 2007. The Office
requested a medical report establishing the medical necessity for the requested electric osteogen
stimulator; however, appellant did not submit such a report.
Appellant’s authorization request was reviewed by Dr. Berman, the Office medical
adviser, who recommended that the Office deny the request because the record did not establish
that appellant required such a device. The Office accordingly denied authorization for the
purchase of an electric osteogen stimulator in its February 1, 2007 decision.
As noted above, the only restriction on the Office’s authority to authorize medical
treatment is one of reasonableness. Appellant failed to submit a medical opinion which
contained sufficient medical rationale sufficiently explaining the need for an electric osteogen
stimulator. None of the medical opinions of record indicated such a need for such a device.
Further, Dr. Moossy indicated in his December 5, 2005 report that he had appellant undergo a
trial procedure in which he had attempted to implant a trial stimulating electrode. The
procedure, however, was not successful. Given the fact that appellant has failed to submit
rationalized, probative medical evidence establishing the need for an electric osteogen
stimulator, the Office did not unreasonably deny appellant’s request for authorization to purchase
this type of equipment. The Office did not abuse its discretion to deny appellant authorization
for an electric osteogen stimulator.
CONCLUSION
The Board finds that the Office did not abuse its discretion by denying appellant’s request
for authorization to purchase an electric osteogen stimulator.

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ORDER
IT IS HEREBY ORDERED THAT the February 1, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 28, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Syracuse, NY,
Employer
__________________________________________

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

Docket No. 12-138
Issued: May 15, 2012

Case Submitted on the Record

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

JURISDICTION
On October 19, 2011 appellant filed a timely appeal from a June 27, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence on October 4, 2010 causally
related to his July 23, 2010 employment injury.
FACTUAL HISTORY
On July 23, 2010 appellant, then a 56-year-old mail handler, filed an occupational claim
(Form CA-2) alleging that he sustained a left knee injury as a result of his federal employment.
1

5 U.S.C. § 8101 et seq.

On the claim form he indicated that he had a prior 1995 torn meniscus in his right knee. In a
brief statement dated July 23, 2010, appellant stated that on that date he bent down to pick up a
sack of mail in a wire basket and felt a sharp pain in his left knee. He stated that when he bent
down again the pain returned.
In a report dated July 23, 2010, Dr. Ivan Wolf, an occupational medicine specialist,
provided a history that two hours earlier appellant was bending over to pick mail out of a cart
and felt sharp pain in the inner aspect of the left knee. He diagnosed left knee sprain. In a report
dated July 27, 2010, Dr. Wolf stated that appellant reported being “100 percent better,” with no
further pain and he was working without difficulty. Although the reverse of the Form CA-2
claim form indicated that appellant had stopped working July 23, 2010, there is no indication he
filed a claim for a specific period of disability between July 23 and 27, 2010.
On October 12, 2010 appellant filed a notice of recurrence of disability (Form CA-2a)
commencing October 4, 2010. He also submitted a claim for compensation (Form CA-7)
commencing October 6, 2010. The record contains time analysis forms (CA-7a) indicating that
appellant continued to work as of October 4, 2010, using intermittent hours of leave and stopped
working October 12, 2010.
Appellant submitted a note, with an illegible signature, dated October 4, 2010 from a
Veterans Affairs Medical Center.2 In an attending physician’s report (Form CA-20) dated
October 7, 2010, Dr. Dwight Webster, an orthopedic surgeon, provided a history that appellant
was pushing a heavy cart while at work in July.3 He indicated that a September 27, 2010
magnetic resonance imaging (MRI) scan reflected a torn medial meniscus in the left knee and he
checked a box “yes” as to causal relationship with employment. Dr. Webster stated, “could be
aggravated [left] knee symptoms from pushing cart.” According to the report, left knee surgery
would be scheduled. Dr. Webster also submitted a duty status report (Form CA-17) indicating
that appellant could work with restrictions. In an October 15, 2010 letter, the employing
establishment stated that temporary light duty was not available.4
By letter dated October 26, 2010, OWCP advised appellant that his claim was accepted
for a left knee sprain. It also found the condition of left medial meniscus tear was not an
accepted condition.
In a report dated November 22, 2010, Dr. Webster stated that his responses on the CA-20
form should be edited. He indicated that with respect to the history of injury, appellant was
bending over to pick up a sack near the bottom of a wire basket. Dr. Webster stated that with
respect to causal relationship, “This condition can be caused by lifting sacks and pushing heavy
carts.”

2

The signature appears to be from a physician’s assistant.

3

The record also contains an October 7, 2010 report from a physician’s assistant.

4

The time analysis forms indicated that appellant worked approximately eight hours on October 8, 2010 and five
hours on October 9, 2010.

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By decision dated December 10, 2010, OWCP denied the claim for compensation
commencing October 4, 2010. It found the medical evidence was insufficient to establish the
claim.
Appellant requested a hearing before an OWCP hearing representative, which was held
on April 12, 2011. He submitted evidence which indicated that he underwent left knee surgery
on January 5, 2011. In a report dated April 20, 2011, Dr. Webster stated that Veterans Affairs
medical records noted that appellant had complained of left knee pain on May 27, 2010, with no
specific injury reported. He indicated that he first treated appellant on October 7, 2010 and
reported appellant underwent arthroscopy and meniscectomy on January 5, 2011. Dr. Webster
concluded, “I think the evidence in the VA medical records indicates that the work injury in
July 2011, more likely than not, caused the symptoms from the torn meniscus in [appellant’s] left
knee. The torn meniscus was responsible for his subsequent symptoms and was verified at the
time of arthroscopy.” Appellant also submitted reports from a physician’s assistant and a
physical therapy note.
By decision dated June 27, 2011, OWCP’s hearing representative affirmed the
December 10, 2010 decision. The hearing representative found the medical evidence was
insufficient to establish the claim.
LEGAL PRECEDENT
A person who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which she claims compensation is causally related to the accepted
injury. This burden of proof requires that a claimant furnish medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to the employment injury and supports that conclusion with
sound medical reasoning.5 A recurrence of disability means “an inability to work after an
employee has returned to work, caused by a spontaneous change in a medical condition which
has resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.”6
Causal relationship between a particular condition or disability and the employment
injury is a medical issue and the medical evidence required to establish causal relationship is
rationalized medical evidence.7 Rationalized medical evidence is medical evidence which
includes a physician’s rationalized medical opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition or disability 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

5

Robert H. St. Onge, 43 ECAB 1169 (1992); Dennis J. Lasanen, 43 ECAB 549 (1992).

6

20 C.F.R. § 10.5(x).

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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supported by medical rationale.8 Neither the fact that a disease or condition manifests itself
during a period of employment nor the claimant’s belief that the condition was caused or
aggravated by employment factors or incidents is sufficient to establish causal relationship.9
ANALYSIS
In the present case, appellant filed a Form CA-2 claim, which is intended for claims of
injury produced by work factors occurring over more than one workday or shift.10 His
statements regarding the claim, however, discussed one incident occurring on July 23, 2010
when he bent over to pick up a sack of mail and felt a sharp pain in his left knee. It would appear
therefore that appellant’s claim was for a traumatic injury on July 23, 2010. OWCP accepted the
claim for a left knee sprain. The claim form indicated that appellant had stopped working as of
July 23, 2010 and Dr. Wolf’s report of that date provided work restrictions. The specific period
of disability is not clear, but Dr. Wolf indicated that as of July 27, 2010 appellant was released to
full duty. He filed a recurrence of disability claim for intermittent hours commencing October 4,
2010, stopped working as of October 12, 2010 and underwent left knee surgery on
January 5, 2011.
The issue is whether appellant has submitted sufficient medical evidence to establish an
employment-related disability on or after October 4, 2010. In assessing the medical evidence,
the Board notes that any report from a physician’s assistant or physical therapist is not
considered probative medical evidence as it was not prepared by a physician under FECA.11
Appellant was treated by Dr. Webster on October 7, 2010 and he diagnosed a torn medial
meniscus, based on a September 27, 2010 MRI scan. As to causal relationship between a
diagnosed condition (and any accompanying disability) and the employment injury, Dr. Webster
did not provide a rationalized medical opinion. He initially stated in an October 7, 2010 Form
CA-20 that the condition “could be aggravated” by the employment incident. The checking of a
box “yes” and this equivocal statement are of little probative value on the issue of causal
relationship.12
In a brief November 22, 2010 report, Dr. Webster stated that “this condition” can be
caused by lifting sacks and pushing carts. Presumably he was referring to the underlying
diagnosed condition of the torn medical meniscus. It is not clear whether the reference to
pushing carts was related to the July 23, 2010 incident or to the general performance of such
duties. Appellant did not, as noted above, provide any factual discussion of pushing carts with
respect to this claim.
8

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

9

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

10

20 C.F.R. § 10.5(q).

11

George H. Clark, 56 ECAB 162 (2004); see also Barbara J. Williams, 40 ECAB 649 (1989) (physical
therapists are not physicians under FECA); 5 U.S.C. § 8101(2).
12

See Barbara J. Williams, supra note 11.

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In an April 20, 2011 report, Dr. Webster stated it was more likely than not that the work
injury caused the symptoms from the torn meniscus. It is not entirely clear whether he felt that
there was an aggravation of symptoms from the work injury or that the work injury caused the
torn meniscus. As noted above, there must be rationalized medical opinion evidence that clearly
explains the medical opinion. Dr. Webster refers to the VA medical records, without explaining
what specific records supported his opinion. The reference to treatment on May 27, 2010 for left
knee pain highlights the need for further explanation as to how the accepted employment injury
contributed to the diagnosed torn meniscus. Moreover, Dr. Webster did not acknowledge that
appellant was treated on July 27, 2010 and Dr. Wolf reported the knee to be “100 percent better”
in his report that date, stating that appellant was working without difficulty and without pain.
The record does not contain medical evidence with a rationalized medical opinion on
causal relationship between a diagnosed torn medial meniscus or aggravation of a torn medial
meniscus and the employment injury. There is no rationalized opinion with respect to specific
periods of employment-related disability on or after October 4, 2010 or an opinion regarding the
January 5, 2011 surgery and the employment injury. It is appellant’s burden of proof, and the
Board finds that appellant did not meet his burden in this case.
On appeal, appellant submitted a letter from appellant’s congressional representative
regarding the claim, but the specific issues presented in the case are the medical issues discussed
above. He has the burden to submit probative medical evidence addressing the relevant issues in
his claim for compensation. For the reasons noted, appellant did not meet his burden of proof.
He may submit new evidence or argument with a written application for reconsideration to
OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability on or after October 4, 2010.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 27, 2011 is affirmed.
Issued: May 15, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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
__________________________________________
L.G., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, Warner Robins, GA,
Employer
__________________________________________

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

Docket No. 12-274
Issued: November 20, 2012

Case Submitted on the Record

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

JURISDICTION
On November 18, 2011 appellant filed a timely appeal from an August 17, 2011 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.
ISSUES
The issues are: (1) whether appellant received an overpayment of $3,294.63 after he
returned to work on September 14, 2010; and (2) whether OWCP properly determined that he
was at fault in the creation of the overpayment and the overpayment was therefore not subject to
waiver.
FACTUAL HISTORY
On February 25, 2010 appellant, then a 60-year-old aircraft engine repairer, filed a claim
for traumatic injury, alleging that he sustained a left shoulder injury while in the performance of
duty.
1

5 U.S.C. § 8101 et seq.

OWCP accepted appellant’s claim for a left rotator cuff tear and left biceps tendinitis on
April 9, 2010. It informed him that compensation benefits for total disability were payable only
while he was unable to return to work. OWCP further instructed appellant as follows:
“Once you return to work or obtain new employment, notify this [OWCP]
immediately ... if you receive compensation check, which includes payment for a
period you have worked, return it to us immediately to prevent an overpayment of
compensation.”
Appellant began receiving compensation benefits on the periodic rolls beginning
June 6, 2010.
Appellant returned to work full time on September 14, 2010 and OWCP was notified by
the field nurse of his return to work on that date. He continued to receive compensation benefits
for the period August 29 through October 23, 2010 in the amount of $4,612.48. The record
indicates that appellant received a direct deposit in the amount of $2,306.24 on September 25,
2010 and a direct deposit of $2,306.24 on October 23, 2010.
An October 25, 2010 telephone memorandum states that OWCP contacted appellant and
verified that he had returned to work on September 14, 2010. It was noted that he was aware that
he should return the October 23, 2010 payment and a partial amount from the September 2010
check.
On January 20, 2011 OWCP issued a preliminary overpayment decision. It determined
that appellant was overpaid $3,294.63 for the period September 14, 2010 through
October 23, 2010. Appellant was found to be with fault in the creation of the overpayment.
Appellant disagreed with the decision on February 6, 2011 and requested a
prerecoupment hearing. He also submitted an overpayment recovery questionnaire.
At the June 1, 2011 hearing, appellant testified that he had received an overpayment of
compensation, but that he did not agree with the amount of the overpayment or with the finding
that he was at fault in the creation of the overpayment. He stated that his field nurse had notified
OWCP of his return to work and that he expected OWCP to stop his payments. Appellant also
stated that he had a telephone conversation with OWCP when he received a payment and asked
why he had received it. The claims examiner advised him that OWCP had been notified of his
return to work, but had failed to remove him from the periodic rolls.
Following the hearing an OWCP hearing representative finalized the preliminary
findings. In a decision dated August 17, 2011, the hearing representative found that appellant
had received an overpayment of compensation in the amount of $3,294.63 for the period
September 14 through October 23, 2010 as he had returned to work but continued to receive
compensation on the periodic rolls. The hearing representative also found that he was at fault in
creating the overpayment of compensation and that the recovery of the overpayment should be
made in full.
On appeal, appellant contests the finding of fault. He states that he is only at fault for the
first portion of the overpayment as OWCP was also at fault for failing to remove him from the
periodic rolls.
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LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA2 provides that the United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.3 An overpayment in compensation is created
when a claimant returns to work and continues to receive compensation.4
ANALYSIS -- ISSUE 1
Appellant does not contest the fact or amount of overpayment; he acknowledges that he
received an overpayment of compensation because he continued to receive periodic rolls
payments after he returned to work. The record establishes that OWCP paid compensation for
temporary total disability after he returned to work, with no wage loss. The fact of overpayment
is established.
Regarding the amount of overpayment, appellant returned to work on
September 14, 2010. The overpayment worksheet establishes that he was paid $4,612.48 for the
period covering August 29 through October 23, 2010 and that he was entitled to $1,317.85 for
the period covering August 29 through September 13, 2010. The overpayment amount therefore
is $4,612.48 - $1,317.85, which is $3,294.63. The Board affirms the fact and amount of the
overpayment.
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.5
Section 10.433(a) of OWCP regulations provide that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment-(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect;

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

4

L.S., 59 ECAB 350 (2008); Danny E. Haley, 56 ECAB 393 (2005).

5

5 U.S.C. § 8129; see Joan Ross, 57 ECAB 694 (2006).

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(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”6
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.7
ANALYSIS -- ISSUE 2
In finding appellant at fault in the creation of the $3,294.63 overpayment, OWCP relied
on the third standard, finding that he accepted payments he knew or should have known were
incorrect.
The evidence of record indicates that appellant received his compensation by direct
deposit on September 25 and October 23, 2010. The Board has distinguished the situation where
the claimant receives a check in the mail covering a period of employment and knows or should
have known that he is not entitled to such compensation but decides nonetheless to cash or
deposit the check; from the situation where the claimant receives a direct deposit into his bank
account.8 The Board has found that the mere direct deposit of compensation by OWCP is not
sufficient to establish acceptance by a claimant who has had no opportunity to make a decision
on receipt of the compensation before it was deposited to his account.9 Appellant argues on
appeal that he is only at fault for acceptance of one, but not two of the payments. The Board
agrees. Regarding the first payment appellant received on September 25, 2010 by direct deposit,
the Board has held that it is not appropriate to make a finding that a claimant has accepted an
overpayment via direct deposit until such time as a reasonable person would have been aware
that this overpayment had occurred. This awareness may be established either through
documentation such as a bank statement or notification from OWCP that an incorrect payment
had been received.10
OWCP regulations define fault by what the claimant knew or should have known at the
time of acceptance. One of the consequences of electronic fund transfers is that the claimant will
not be at fault for accepting the first incorrect direct deposit payment because the requisite
knowledge is lacking at the time of deposit. The Board finds that when the September 25, 2010
direct deposit was made, appellant had no knowledge that this direct deposit would be made.
Appellant therefore was not at fault in the acceptance of the September 25, 2010 direct deposit.

6

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

7

B.H., Docket No. 09-292, (issued September 1, 2009).

8

Otha J. Brown, 56 ECAB 228 (2004).

9

See William F. Salmonson, 54 ECAB 152 (2002).

10

See K.H., Docket No. 06-191 (issued October 30, 2006).

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OWCP must therefore consider eligibility for waiver for this period. The case will be
remanded for OWCP to determine whether appellant is entitled to waiver for the direct deposit of
compensation he received on October 23, 2010.
Even though OWCP may have been negligent in making incorrect payments, this does
not excuse a claimant from accepting payments he or she knew or should have known to be
incorrect.11 By the time of the second payment, October 23, 2010, appellant should have taken
further steps to prevent issuance of another payment, but did not do so until October 25, 2010.
CONCLUSION
The Board finds that OWCP properly determined that an overpayment in compensation
in the amount of $3,294.63 was created. Appellant was not at fault for acceptance of the
overpayment he received by direct deposit on September 25, 2010. He is at fault for the direct
deposit he received on October 25, 2010. The case is remanded for a determination of whether
appellant is entitled to waiver of the September 25, 2010 overpayment.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, set aside in part and the case remanded
for further proceedings consistent with this decision.
Issued: November 20, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

William E. McCarty, 54 ECAB 525 (2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT AGENCY
(COMMAND), Fort Bragg, NC, Employer
__________________________________________

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

Docket No. 12-1180
Issued: November 21, 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 May 7, 2012 appellant filed a timely appeal of the January 13 and April 27, 2012
merit decisions of the Office of Workers’ Compensation Programs (OWCP) denying her claim
for disability 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 established that she was totally disabled from August 2 to
October 7, 2011 due to her July 7, 2010 employment injury.
FACTUAL HISTORY
OWCP accepted that on July 7, 2010 appellant, then a 58-year-old transportation
assistant, sustained a left ankle sprain when she twisted her left foot while exiting her car on her
return to work from lunch. She stopped work on April 4, 2011.
1

5 U.S.C. § 8101 et seq.

On October 4, 11 and 20, 2011 appellant filed claims for wage-loss compensation (Form
CA-7) from August 2 to September 23, September 26 to October 7, and October 10 to 21, 2011,
respectively.
In a September 9, 2010 prescription, Dr. Sandra R. Sheehan, a podiatrist, prescribed
physical therapy to treat appellant’s reflex sympathetic dystrophy (RSD). Reports and notes
from physical therapists addressed the treatment of appellant’s left ankle pain and stiffness from
September 14 to October 12, 2010.
In a June 7, 2011 prescription, Dr. Denise C. Thomas, an attending podiatrist, placed
appellant off work from June 7 to 13, 2011. In a June 15, 2011 prescription, she placed appellant
off work for an additional six weeks.
By letter dated October 28, 2011, OWCP advised appellant that the evidence submitted
was insufficient to establish that she was disabled during the claimed period due to her accepted
work injury. It requested that she submit a rationalized medical opinion from an attending
physician explaining the causal relationship between her disability and accepted injury.
On November 4, 2011 appellant filed a Form CA-7 for the period commencing
October 24, 2011.
Notes from Adam Autry, a physical therapist, addressed the treatment of appellant’s left
ankle pain and stiffness from June 24 to October 12, 2011. In a June 22, 2011 report signed and
certified by Dr. Thomas, Mr. Autry again addressed the treatment of appellant’s left ankle
condition.
In an October 28, 2011 report, Dr. Thomas discharged appellant from her care and
advised that she could return to her regular work duties which included minimal walking. In a
December 1, 2011 disability certificate, she advised that appellant was evaluated on that date.
She scheduled a follow-up appointment due to her workers’ compensation injury.
On November 18, 2011 appellant filed a Form CA-7 for the period November 7
to 18, 2011. On December 1, 2011 she filed a Form CA-7 for the period November 21
to 24, 2011.2
In CA-7 forms dated December 5, 2011 appellant requested wage-loss
compensation for the period November 26 to December 3 and December 5 to 16, 2011. A time
analysis form (CA-7a) also dated December 5, 2011 indicated that she used 1.45 hours of leave
without pay (LWOP) on December 1, 2011 to attend a doctor’s appointment. A December 13,
2011 Form CA-7a indicated that on December 5, 2011 appellant used 2.45 hours of LWOP to
obtain a doctor’s note. On December 14, 2011 she used 1.3 hours of LWOP to attend a medical
appointment.
In a December 5, 2011 report, Dr. Walter B. Greene, a Board-certified orthopedic
surgeon, advised that appellant could return to work on December 6, 2011. In a December 12,
2011 report, he obtained a history of the accepted employment injury and appellant’s medical
treatment. Dr. Greene listed findings on physical and x-ray examination. He diagnosed ankle
pain of an uncertain etiology.
2

On November 25, 2011 appellant returned to full-time modified-duty work with restrictions.

2

An unsigned letter dated December 14, 2011 which contained the typed name of
Dr. Stanley K. Gilbert, Jr., a Board-certified orthopedic surgeon, requested that appellant be
excused for two hours to undergo a nerve conduction velocity (NCV) study. The results of a
December 14, 2011 NCV study of the bilateral lower extremities were normal.
On December 21, 2011 appellant filed a Form CA-7 for the period December 19
through 30, 2011. A December 28, 2011 Form CA-7a indicated that she used 1.3 hours of
LWOP on December 21, 2011 per a doctor’s note.
In reports dated December 21, 2011, Dr. Greene reviewed the December 14, 2011 NCV
study results and noted appellant’s complaint of left ankle pain. He addressed her treatment
plan.
On December 30, 2011 OWCP paid compensation for 5.05 hours of disability for
appellant’s medical appointments on December 5, 14 and 21, 2011.
In a January 13, 2012 decision, OWCP denied appellant’s claim for wage-loss
compensation from August 2 to October 7, 2011, finding that the medical evidence did not
establish that she was totally disabled during the claimed period due to her accepted injury.
By letter dated February 5, 2012, appellant requested reconsideration.
In an April 4, 2011 disability certificate, Dr. Sheehan advised that appellant could not
work on that date.
In prescriptions dated April 11 to September 19, 2011, Dr. Thomas placed appellant off
work for intermittent periods of disability commencing April 11, 2011. On June 15 and
September 19, 2011 she prescribed physical therapy to treat her left Achilles tendinitis and ankle
pain. In an October 28, 2011 prescription, Dr. Thomas referred appellant to Dr. Greene for a
second opinion evaluation and treatment related to her chronic left ankle pain. In a February 8,
2012 report, she noted that she treated appellant for a partial Achilles tendon tear which required
strict nonweight bearing. Dr. Thomas stated that she may have completely ruptured her Achilles
tendon with continued and prolonged weight bearing. She released her from work from April 1
through October 28, 2011 to facilitate healing based on her numerous complaints of inability to
perform work-related activity secondary to increased pain that affected the extremity.
Dr. Thomas stated that appellant was discharged from her care and she could return to work with
no limitations.
In an April 27, 2012 decision, OWCP found that appellant was entitled to four hours of
wage-loss compensation for medical appointments and physical therapy on August 4, 5, 9, 10,
11, 18, 19, 24, 25 and 29, September 7, 14, 19, 27, 28 and 29 and October 4 and 6, 2011. It,
however, found that the medical evidence was insufficient to establish her entitlement to wageloss compensation for other dates of total disability from August 2 through October 7, 2011
causally related to her accepted July 7, 2010 employment injury.
LEGAL PRECEDENT
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
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the employment injury.3 The term disability is defined as the incapacity because of an
employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.4
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.5 The medical evidence required to establish
a period of employment-related disability is rationalized medical evidence.6 Rationalized
medical evidence is medical evidence based on a complete factual and medical background of
the claimant, of reasonable medical certainty, with an opinion supported by medical rationale.7
The Board, however, will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed.8 To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.9
ANALYSIS
OWCP accepted that appellant sustained a left ankle sprain on July 7, 2010 while
working as a transportation assistant. Appellant claimed compensation for disability from
August 2 through October 7, 2011. On January 13 and April 27, 2012 OWCP approved
appellant’s claims for compensation for medical appointments on intermittent dates from
August 4 through October 6, 2011; however, it denied her claims for compensation for total
disability from August 2 through October 7, 2011 on the grounds that the evidence was
insufficient to establish that the claimed disability was due to her accepted left ankle injury.
Appellant has the burden of establishing by the weight of the substantial, reliable and probative
evidence, a causal relationship between her claimed disability and the accepted condition.10 The
Board finds that she did not submit sufficient medical evidence to establish employment-related
disability for the period claimed due to her accepted injury.
Prescriptions and reports from appellant’s attending physician, Dr. Thomas, are
insufficient to establish appellant’s claim. She advised that appellant had tendinitis and a partial
torn Achilles tendon of the left ankle for which she prescribed physical therapy. Dr. Thomas
opined that she was unable to work during intermittent periods from April 1 to October 28, 2011.
On October 28, 2011 she released appellant to return to regular work duties which involved
3

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

4

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).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

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

8

Sandra D. Pruitt, 57 ECAB 126 (2005).

9

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, supra note 5.

10

Alfredo Rodriguez, 47 ECAB 437 (1996).

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minimal walking. Dr. Thomas did not provide a medical opinion addressing whether appellant’s
diagnosed conditions, treatment and disability were causally related to the accepted July 7, 2010
employment-related injury. The Board has held that a physician’s opinion, which does not
address causal relationship, is of diminished probative value.11 The Board finds, therefore, that
Dr. Thomas’ prescriptions and reports are insufficient to establish appellant’s burden of proof.
Dr. Sheehan’s September 9, 2010 prescription is insufficient to establish appellant’s
claim as she did not provide an opinion addressing whether the physical therapy she ordered to
treat her RSD or whether her claimed disability were causally related to the accepted
employment injury.12 While Dr. Sheehan advised in an April 4, 2011 disability certificate, that
appellant was unable to work on that date she did not provide any medical opinion addressing the
causal relationship between her disability and the accepted injury.13 For the stated reasons, the
Board finds that this evidence is insufficient to establish appellant’s claim.
Dr. Greene’s reports listed physical examination findings and diagnostic test results. He
reviewed the normal December 14, 2011 NCV study results. Dr. Greene found that appellant
had ankle pain of an uncertain etiology for which medical treatment was necessary. He opined
that she could return to work on December 6, 2011, but did not provide an opinion addressing
whether her disability for work was causally related to the accepted July 7, 2010 employment
injury.14 Further, the Board notes that pain is a symptom, not a compensable medical
diagnosis.15 For the reasons stated, the Board finds that Dr. Greene’s reports are insufficient to
establish appellant’s claim.
The unsigned letter of December 14, 2011 which contained the typed name of Dr. Gilbert
has no probative value in establishing that appellant has any employment-related disability
during the claimed period, as it is not clear whether a physician as defined under FECA prepared
the report. It is well established that medical evidence lacking proper identification is of no
probative medical value.16
The reports and notes from appellant’s physical therapists are of no probative value as a
physical therapist is not a physician as defined under FECA.17
Appellant failed to submit rationalized medical evidence establishing that her disability
from August 2 through October 7, 2011 resulted from residuals of her accepted employmentrelated left ankle condition.
11

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
12

Id.

13

Id.

14

Id.

15

Robert Broome, 55 ECAB 339 (2004); C.F., Docket No. 08-1102 (issued October 10, 2008).

16

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB
572 (1988).
17

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she was totally disabled from
August 2 to October 7, 2011 due to her July 7, 2010 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 27 and January 13, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 21, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 07-1740
Issued: December 20, 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 June 21, 2007 appellant filed a timely appeal from the May 22, 2007 decision of the
Office of Workers’ Compensation Programs denying his hearing loss claim. 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 that he sustained hearing loss causally
related to factors of his federal employment. On appeal, appellant contends that the Office did
not follow proper procedures related to the statement of accepted facts and that the second
opinion physician did not provide a history of appellant’s hearing loss in his opinion.
FACTUAL HISTORY
On August 29, 2005 appellant, then a 57-year-old welder, filed an occupational disease
claim alleging that exposure to loud noise at the employing establishment caused hearing loss.
He worked in the dry dock, where he used chipping guns and welding equipment and was around

large pieces of steel that were dropped to the ground. Appellant was exposed to noise until
July 13, 2003, when he was removed from his normal duties because of a serious employmentrelated injury. He had a history of hearing problems arising out of his military service, including
chronic otitis media, and perforation of the left tympanic membrane. Appellant used hearing
protection at work and at home, when he used loud lawn equipment.
A noise exposure record from the employing establishment indicated that he worked
around chipping guns, needle guns, scrapers, ball-pen hammers, high efficiency air purifiers,
welding machines, scrapers, and large pieces of metal dropping onto the ground. It also stated
that appellant was on active duty in the Navy for 25 years, during which time he worked on eight
ships performing deck preservation. On July 2, 1993 the Department of Veterans Affairs (VA)
awarded appellant 10 percent disability for tinnitus. It found that appellant also had bilateral
hearing loss, chronic otitis media, and a perforation of the left tympanic membrane that were
service connected, but not compensable because they were less than 10 percent disabling.
On September 16, 2005 the Office requested medical evidence establishing appellant’s
hearing loss.
On October 24, 2005 the employing establishment controverted appellant’s claim on the
grounds that he had a preexisting hearing loss and was required to wear hearing protection on the
job. The employing establishment stated that it provided appellant with hearing protection
approved by the Occupational Safety and Health Administration. Audiograms conducted from
1994 to 2002 indicated that appellant was regularly exposed to noise. An audiogram conducted
by the employing establishment on October 13, 2005 noted that appellant had reportable hearing
loss in the right ear and that he was no longer fit to work in noise unless he was cleared by a
medical specialist. A noise exposure data report stated that, from 1994 to 2003, appellant’s
average noise in an eight-hour workday was greater than 84 decibels at least 30 days per year.
The employing establishment stated that the decibel output of a chipping hammer was 104
decibels without protection and 80 decibels with protection and for a welding machine was 90 to
95 decibels without protection and less than 80 with protection. The overall noise exposure from
steel hitting the ground is negligible because of its short duration.
On February 7, 2006 the Office prepared a statement of accepted facts. The statement
included the fact that appellant had bilateral hearing loss connected to his military service that
was less than 10 percent disabling, for which he did not receive compensation, and bilateral
tinnitus, which was 10 percent compensable. Appellant’s preexisting chronic otitis media was
also noted.
On February 17, 2006 the Office referred appellant for a second opinion examination
with Dr. Gerald Randolph, a Board-certified otolaryngologist. On March 14, 2006 Dr. Randolph
examined appellant. He did not submit a narrative history of appellant’s hearing loss, but stated
that the history taken did not vary significantly from the statement of accepted facts.
Dr. Randolph stated that an audiogram taken in 1994 indicated that appellant had sensorineural
hearing loss, which was not ratable, at the beginning of his federal employment. He found that
the hearing loss that had taken place during the course of appellant’s federal employment was
“not in excess of that predicted on the basis of presbycusis.” He stated that appellant’s
workplace noise exposure was not adequate to have caused appellant’s increased hearing loss if

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he used adequate hearing protection. Dr. Randolph found that presbycusis was the only factor
identified in appellant’s increased hearing loss. His physical examination revealed thickening of
the right tympanic membrane and a healed perforation of the left eardrum. Dr. Randolph stated
that appellant’s air conduction was greater than his bone conduction. He diagnosed bilateral
sensorineural hearing loss preexisting appellant’s federal employment. Dr. Randolph opined that
appellant’s increased hearing loss was not due to his federal employment because it had “not
increase in severity due to noise.” Appellant’s audiometric tests were considered reliable.
On March 16, 2006 an Office medical adviser, Dr. Daniel Zimmerman, concurred with
Dr. Randolph’s finding that appellant’s increased hearing loss was not caused by his federal
employment.
By decision dated April 19, 2006, the Office denied appellant’s claim for compensation
on the grounds that his increased hearing loss was not causally related to his federal employment.
On April 12, 2007 appellant requested reconsideration. He contended that the statement
of accepted facts contained information that should have been excluded according to the Office’s
procedure manual. Appellant noted that section 2.809.14 of the manual stated that descriptions
of benefits received should not be included in the statement of accepted facts because they were
irrelevant, inappropriate, prejudicial or better discussed elsewhere. He contended that the
percentage of disability awarded by the VA should have been excluded because it may have
biased Dr. Randolph, who seemed excessively concerned with appellant’s military service during
the examination. Appellant requested that a new statement be prepared and that he be referred to
another second opinion physician. He also noted that Dr. Randolph was asked for a narrative
history of the hearing loss, but failed to provide one. Appellant submitted a letter from the VA
dated December 27, 2006 stating that his service-related hearing loss percentages had not
changed.
On May 4, 2007 the Office provided Dr. Zimmerman with the materials submitted by
appellant and asked for an opinion as to whether they were sufficient to support appellant’s claim
of employment-induced hearing loss. On May 11, 2007 Dr. Zimmerman stated that the VA
decision was medically irrelevant to establishing appellant’s claim of civilian employment
hearing loss. He advised that Dr. Randolph’s opinion related to the causation of appellant’s
hearing loss was correctly and medically based.
By decision dated May 22, 2007, the Office denied modification of the April 19, 2006
decision. The Office found that appellant presented no medical evidence sufficient to establish
that his increased hearing loss was caused by his federal civilian employment.
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
1

5 U.S.C. §§ 8101-8193.

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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 compensation 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
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
ANALYSIS
The Office has accepted that appellant was exposed to an eight-hour average noise of
greater than 84 decibels at least 30 days per year. The issue to be resolved is whether the
medical evidence establishes that this exposure caused or contributed to his hearing loss.
Dr. Randolph diagnosed bilateral sensorineural hearing loss preexisting appellant’s
federal employment. His physical examination revealed thickening of the right tympanic
membrane and a healed perforation of the left eardrum. Dr. Randolph stated that an audiogram
taken at the beginning of appellant’s federal civilian employment in 1994 indicated that appellant
had unratable sensorineural hearing loss. He opined that the hearing loss that had taken place
during the course of appellant’s federal employment was not in “excess of that predicted on the
basis of presbycusis” and had not increased in severity as it would have with additional noise
damage. Dr. Randolph indicated that appellant’s workplace noise exposure was not adequate to
have caused appellant’s increased hearing loss if he used adequate hearing protection, as he
alleged. Dr. Randolph identified presbycusis as the only causal factor in appellant’s hearing loss.
The Board finds that Dr. Randolph’s medical opinion carries the weight of the medical opinion
evidence because it is rationalized and based on an accurate medical history.

2

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

3

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

4

Id.

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On appeal to both the Office and the Board, appellant argued that the Office improperly
included his VA hearing loss ratings on the statement of accepted facts provided to
Dr. Randolph. He alleged that this information biased Dr. Randolph’s opinion. The Board finds
that the inclusion of this information was harmless error. Dr. Randolph’s medical opinion was
related to the causation of appellant’s current hearing loss and was based on the pattern of
hearing loss during appellant’s federal noise exposure. He clearly attributed any increase in loss
to presbycusis. The VA ratings were immaterial to his reasoning.
Appellant also contended that Dr. Randolph failed to provide a narrative history of his
hearing loss. The Board notes that Dr. Randolph reviewed the statement of accepted facts and
indicated that the oral history he took did not differ from it in any significant ways. The Board
finds that Dr. Randolph’s medical opinion is not diminished by lack of a full narrative history.
CONCLUSION
The Board finds that appellant has not established that he sustained hearing loss causally
related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 22, 2007 is affirmed.
Issued: December 20, 2007
Washington, DC

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

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

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

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