United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS HOSPITAL,
Tampa, FL, Employer
__________________________________________

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

Docket No. 08-685
Issued: August 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 31, 2007 appellant timely filed an appeal from the Office of Workers’
Compensation Programs’ November 29, 2007 merit decision which found that she received a
$2,336.07 overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that an overpayment of
compensation existed in the amount of $2,336.07; and (2) whether it properly found that
appellant was at fault in the creation of the overpayment.1

1

The Board will not address manner of recovery in this case as the Board’s jurisdiction over recovery of an
overpayment is limited to reviewing those cases where the Office seeks recovery from continuing compensation
under the Federal Employees’ Compensation Act. Lorenzo Rodriguez, 51 ECAB 295 (2000).

FACTUAL HISTORY
On April 27, 2006 appellant, then a 42-year-old health technician, turned a heavy patient
and injured her neck and back in the performance of duty. On June 5, 2006 her claim was
accepted for acute cervical strain, strain of lumbosacral and strain of back, thoracic region. On
July 5, 2006 appellant was placed on the periodic rolls.
Appellant returned to work on December 13, 2006 in a full-time, modified capacity.2
On December 23, 2006 appellant was paid $1,677.18 for the time period November 26 to
December 23, 2006. On January 20, 2007 she was paid $1,677.18 for the period December 24,
2006 to January 20, 2007.
In a May 4, 2007 preliminary decision, the Office determined that appellant was overpaid
$2,336.07 as she returned to work on December 13, 2006 but was paid compensation by the
Office through January 20, 2007 thereby creating an overpayment for that period. It found that
appellant was without fault in creating the overpayment.
On June 3, 2007 appellant requested a prerecoupment hearing on the issue of fault and
possible waiver and submitted the overpayment recovery questionnaire. In the overpayment
questionnaire, she listed her total monthly income as $5,199.00. Appellant listed her total
monthly expenses as $5,154.00. She itemized her usual household monthly expenses as follows:
mortgage $1,734.00; food $400.00; clothing $141.00; utilities $477.00; automobile loan $541.00;
credit cards $400.00; dental insurance $35.00; fuel for car $300.00; life insurance $86.00;
prearranged funeral $208.00; medications $30.00; haircut $16.00; hair styling $60.00; newspaper
$12.00; gifts $50.00; entertainment $150.00; church donations $150.00, pest control $57.00;
home warranty contract $42.00; home alarm monitoring service $31.00; and basic cable $15.00.
The hearing was held on September 19, 2007 and included testimony from appellant regarding
her financial status.
In a November 29, 2007 decision, the Office hearing representative found that an
overpayment of $2,336.07 had occurred and that appellant was without fault in the creation of
the overpayment. The hearing representative made a finding that appellant did not qualify for
waiver because recovery of the overpayment would not defeat the purpose of the Act as
appellant’s monthly income exceeded her ordinary and necessary living expenses by $1,003.00
per month. The hearing representative stated as follows: “[Appellant’s] ordinary and necessary
living expenses total $4,196.00. This includes house and property taxes, food, clothing utilities,
dental insurance, gasoline, life insurance, vehicle maintenance, car insurance, medication, home
warranty, car payment and homeowner’s insurance. [Appellant’s] other reported expenses are
not deemed to be necessary expenses.”
LEGAL PRECEDENT -- ISSUE 1
The Act places limitations on the right to receive compensation. While an employee is
receiving compensation, she may not receive salary, pay or remuneration of any type from the
2

The employing establishment states that appellant was paid for full-time work beginning on December 13, 2006.

2

United States, with certain exceptions.3 It is therefore well established that an employee is not
entitled to compensation for temporary total disability after returning to work.4 Temporary total
disability is defined as the inability to return to the position held at the time of injury or earn
equivalent wages or perform other gainful employment.5
ANALYSIS -- ISSUE 1
Appellant was placed on the periodic rolls on July 5, 2006. She returned to work on
December 13, 2006 but continued to be paid by the Office through January 20, 2007. Appellant
was being paid by both the Office and her employer from December 13, 2006 through
January 20, 2007 creating an overpayment. She is not entitled to receive temporary total
disability and actual earnings for the same period. The Office properly calculated that appellant
was paid $3,354.36 from November 26, 2006 until January 20, 2007. However as appellant
returned to work on December 13, 2006, she should have only received $1,018.29 of
compensation during this time period. The Office properly subtracted the amount of
compensation appellant should have received from the amount of compensation she did receive
to find the net difference of $2,336.07, the amount of the overpayment. The Board finds that an
overpayment was created in the amount of $2,336.07.
LEGAL PRECEDENT -- ISSUE 2
When an overpayment has been made to an individual because of an error of fact or law,
the Office may consider waiving the overpayment only if the individual to whom it was made
was not at fault in accepting or creating the overpayment.6 If the Office finds that the recipient
of an overpayment was not at fault, repayment will still be required unless adjustment of benefits
or recovery of the overpayment would defeat the purpose of the Act or be against equity and
good conscience.7
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.8

3

5 U.S.C. § 8116(a).

4

E.g., Tammi L. Wright, 51 ECAB 463, 465 (2000) (where the record established that the employee returned to
work at the employing establishment for four hours a day from August 7, 1996 to January 8, 1997 but received
compensation for total disability for that same period, the Board found that the employee received an overpayment
of compensation).
5

20 C.F.R. § 10.400(b) (1999).

6

Id. at § 10.433(a).

7

Id. at § 10.434.

8

Id. at § 10.438(a).

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According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.9 An individual’s total income
includes any funds which may reasonably be considered available for his or her use, regardless
of the source. A spouse’s income will not be considered available to the individual, unless the
spouse was living in the household both at the time the overpayment was incurred, and at the
time waiver is considered.10
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.11
ANALYSIS -- ISSUE 2
The Office found that appellant was not at fault in the creation of the overpayment.
Although appellant was not at fault in creating the overpayment she is still required to return the
amount unless recovery of it would defeat the purpose of the Act or be against equity and good
conscience.
In its November 19, 2007 overpayment decision, the Office hearing representative
determined that recovery of the overpayment would not defeat the purpose of the Act as
appellant’s monthly income exceeded her expenses by $1,003.00 per month. The hearing
representative relied upon information provided by appellant in a June 3, 2007 overpayment
recovery questionnaire. The hearing representative found that appellant’s reasonable ordinary
expenses included mortgage, property taxes, food, clothing, utilities, dental insurance, gasoline,
life insurance, vehicle maintenance; car insurance, medication, home warranty, car payment, and
homeowner’s insurance. In doing so, the hearing representative did not make specific findings
but apparently excluded appellant’s other listed expenses for prearranged funeral expenses, gifts,
charity, pest control, home alarm, hair cut and styling; credit cards and entertainment.
An individual’s ordinary and necessary living expenses include fixed living expenses,
such as food and clothing, furniture, household and personal hygiene supplies, rent, mortgage
payment, utilities, maintenance, insurance (auto, life and health), tax, automobile expenses and
commuting expenses. Additional allowable expenses include nonreimbursed medical and

9

20 C.F.R. § 10.436. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Actions, Chapter 6.200.6(a) (October 2004).
10

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(2) (October 2004).
11

Id. at § 10.437.

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hospitalization expenses, church and charitable contributions made on a regular basis and
miscellaneous expenses, such as newspapers and haircuts, not to exceed $50.00 month.12
A finding that a type of expense is ordinary and necessary does not mean that the amount
is ordinary and necessary. The burden is on the claimant to show that the expenses are
reasonable and needed for a legitimate purpose. If the Office determines that the amount of a
particular expense is not ordinary and necessary, it must state in writing the reasons for the
finding. Furthermore, the finding must be supported by rationale, which may include reference
to recognized research data that would show that the claimant’s expenses exceed the average or
range of expenses for the general population relevant to the claimant’s circumstances.13
The Office hearing representative erred in disallowing many of appellant’s claimed
expenses without providing a reason. The error however is harmless error in that it is clear that
not all of appellant’s allowable expenses are reasonable in amount. For example, miscellaneous
expenses are to be limited to $50.00. Appellant claimed a monthly expense for entertainment in
the amount of $150.00. At most only $50.00 of this amount is allowable as reasonable. If
$100.00 of the entertainment expense is disallowed then appellant’s income still exceeds
expenses by at least $145.00 per month.
The Board finds that as appellant’s monthly income exceeds her monthly expenses by at
least $145.00 per month she is not entitled to waiver as she does not need substantially all of her
income to meet current ordinary and necessary expenses.14 Appellant is therefore not entitled to
waiver of the overpayment under the “defeat the purpose of the Act” standard.
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payment or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.15 In this case, appellant has neither alleged, nor
submitted evidence demonstrating that she relinquished a valuable right or changed her position
for the worse in reliance on the compensation payments she received. Accordingly, the Board
finds that the Office did not abuse its discretion in denying waiver of the overpayment in this
case.

12

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(3) (May 2004).
13

Id.

14

An individual is deemed to need substantially all of her income to meet current ordinary and necessary living
expenses if monthly income does not exceed monthly expenses by more that $50.00. Federal (FECA) Procedure
Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)(1)(b) (May 2004).
15

20 C.F.R. § 10.437.

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CONCLUSION
The Board finds that the Office properly determined the fact and amount of overpayment
and properly determined that appellant was not eligible for waiver.
ORDER
IT IS HEREBY ORDERED THAT the November 29, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.I., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
ANACOSTIA-BOLLING, Washington, DC,
Employer
_________________________________________
Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1365
Issued: March 22, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 16, 2021 appellant through counsel, filed a timely appeal from an
August 16, 2021, merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 21-1365.
In a letter dated February 10, 2022, counsel requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that counsel ’s request f or the
withdrawal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the withdrawal of the appeal is
granted. The appeal docketed as No. 21-1365 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Patricia H. Fitzgerald, 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
__________________________________________
T.D., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 20-0835
Issued: February 2, 2021

Case Submitted on the Record

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

JURISDICTION
On March 4, 2020 appellant filed a timely appeal from a February 28, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish left knee and left
hip conditions causally related to the accepted October 28, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the February 28, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 7, 2020 appellant, then a 55-year-old tax examining clerk, filed a traumatic
injury claim (Form CA-1) alleging that on October 28, 2019 she injured her left knee when she sat
down on her accommodated chair and the seat slammed down into the legs of the chair while in
the performance of duty. She explained that as the seat of the chair slammed down she tried to
brace herself, but her left knee bent beyond her tolerance level and then jarred and began to swell.
Appellant also indicated that she has had numerous surgeries on her left knee. On the reverse side
of the claim form, the employing establishment indicated that appellant was injured in the
performance of duty on October 28, 2019 and stopped work on that date.
In a January 29, 2020 development letter, OWCP informed appellant that additional
evidence was required in support of her claim. It advised her of the type of medical evidence
necessary to establish her claim and attached an attending physician’s report (Form CA-20) to
provide to her physician for completion. OWCP afforded appellant 30 days to submit the requested
evidence.
An October 28, 2019 employing establishment occupational health report by Deanna
Hawk, a registered nurse, indicated that when appellant sat on her accommodated chair it broke,
causing her to fall and injure her left lower and mid back and her left knee. Ms. Hawk related that
appellant experienced back spasms and soreness and that her left knee was throbbing. She listed
appellant’s medical history as including a right knee replacement and arthritis and conducted a
physical examination of appellant’s left knee which revealed swelling, a limited range of motion,
tenderness upon palpation, and increased pain upon movement. Ms. Hawk assessed appellant as
at risk for ineffective tissue perfusion and having impaired comfort, and she related that appellant
was taken to the hospital.
October 28, 2019 unsigned hospital records indicated that appellant was admitted on that
date and diagnosed with left knee pain, left hip pain, and unilateral primary osteoarthritis of the
left knee.
The October 28, 2019 hospital records included an x-ray of appellant’s left hip interpreted
by Dr. Yuri Shif, a Board-certified radiologist, which revealed normal results. An October 28,
2019 x-ray of appellant’s left knee by Dr. Shif revealed joint space narrowing in the medial and
lateral compartments, bulky tricompartmental osteophytes, a small effusion, prepatellar soft tissue
swelling, and severe osteoarthritis.
October 28, 2019 emergency room notes by Dr. Adam Brunfeldt, Board-certified in
emergency medicine, indicated that appellant presented with back, left knee, and left hip pain from
falling out of a chair that broke when she sat on it. He related that appellant’s medical history
included underlying arthritis in her left knee and four right knee surgeries. A physical examination
revealed left hip tenderness and left knee swelling, decreased range of motion, lateral joint line
tenderness, and medial collateral ligament laxity. An x-ray of appellant’s left hip displayed normal
results, and an x-ray of appellant’s left knee revealed prepatellar soft tissue swelling and severe
osteoarthritis. Dr. Brunfeldt diagnosed left knee pain and left hip pain.
An undated employing establishment incident report indicated that appellant was injured
on October 28, 2019. It related that she reported her injury on the date it occurred and described
2

the injury as including left knee pain and severe swelling. Appellant related that she had an
accommodated chair and had informed her supervisor and the accommodations liaison about her
concerns regarding her chair wobbling and making noises. On October 24, 2019 the employing
establishment fixed the chair. After appellant was injured she was seen by a nurse and requested
that her chair be replaced with a new chair. The report indicated that she was out of work for four
and a half days.
By decision dated February 28, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that a medical condition was
causally related to the accepted October 28, 2019 employment incident, and thus the requirements
had not been met for establishing an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
3

Supra note 1.

4
F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

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

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).

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nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish left knee and
left hip conditions causally related to the accepted October 28, 2019 employment incident.
October 28, 2019 unsigned hospital records indicated that appellant was admitted on that
date and diagnosed with left knee pain, left hip pain, and unilateral primary osteoarthritis of the
left knee. The Board has held that reports that are unsigned or bear an illegible signature lack
proper identification and cannot be considered probative medical evidence as the author cannot be
identified as a physician.11
October 28, 2019 emergency room notes by Dr. Brunfeldt indicated that appellant
presented with back, left knee, and left hip pain from falling out of a chair that broke when she sat
on it. He related that her medical history included underlying arthritis in her left knee and four
right knee surgeries, conducted a physical examination, and diagnosed left knee pain and left hip
pain. The Board has held that pain is a symptom and not a compensable medical diagnosis.12
Additionally, Dr. Brunfeldt did not address whether appellant’s accepted employment incident
aggravated her preexisting left knee arthritis. The Board has held that medical evidence that does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship.13 Consequently, this report will not suffice for purposes of
establishing entitlement to FECA benefits.
The employing establishment’s occupational health report by Ms. Hawk, a registered
nurse, reviewed appellant’s history of injury, medical history, reported physical examination
findings, and assessed appellant as at risk for ineffective tissue perfusion and having impaired
comfort. Registered nurses however, are not considered physicians as defined under FECA and

9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).
11

See R.C., Docket No. 19-0376 (issued July 15, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

13
See R.C., Docket No. 19-0376 (issued July 15, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

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accordingly their reports do not constitute medical evidence.14 Therefore, this report is also
insufficient to establish the claim.
Appellant additionally submitted October 29, 2019 x-rays of her left hip and left knee. The
Board has held, however, that diagnostic studies standing alone lack probative value on the issue
of causal relationship as they do not provide an opinion on causal relationship between an
employment incident and a diagnosed condition.15
As appellant has not submitted a rationalized medical opinion sufficient to establish that
she sustained a left knee or left hip condition causally related to the accepted October 28, 2019
employment incident, the Board finds that she has not met her burden of proof to establish an
employment-related traumatic injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish left knee and
left hip conditions causally related to the accepted October 28, 2019 employment incident.

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); J.D., Docket No. 16-1752 (issued March 1, 2017) (a nurse practitioner is not considered a physician under
FECA); D.A., Docket No. 20-0951 (issued November 6, 2020) (the nurse’s report did not suffice for purposes of
establishing entitlement to FECA benefits).
14

15

M.M., Docket No. 20-0019 (issued May 6, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the February 28, 2020 decision of the Office of
Workers Compensation Programs is affirmed.
Issued: February 2, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________

P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1806
Issued: October 4, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 1, 2015 appellant, through counsel, filed an application for review of a
March 30, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP), File
No. xxxxxx438, which denied appellant’s occupational disease claim. The appeal was docketed
as No. 15-1806.
On October 24, 2013 appellant, then a 50-year-old automation clerk, alleged that on
September 29, 2013 she sustained a recurrence of a previously accepted August 23, 2007
employment injury. She stopped work on September 30, 2013. OWCP determined that her
recurrence claim should be adjudicated as a new occupational disease claim and assigned File
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.

No. xxxxxx438. The earlier claim for the August 23, 2007 injury, to which OWCP assigned File
No. xxxxxx366, is not presently before the Board.
On her claim form, appellant explained that since she returned to work on September 7,
2013 following the August 23, 2007 injury, she believed that using her upper body differently
aggravated the injuries to her neck and shoulder duty. She noted that she had not sustained any
new traumatic injury relating to her neck or shoulder since returning to full duty. Along with her
claim, appellant submitted several medical reports dated October 8, 2013 to January 17, 2014 by
Dr. Jean Bachar, Board-certified in physical medicine and rehabilitation, who examined
appellant for complaints of pain in the neck and left shoulder. In an August 8, 2013 report, she
noted a date of injury of August 23, 2007. Dr. Bachar reported that appellant was out of work
and returned on September 27, 2013. She related that upon returning to work appellant
experienced severe pain in her cervical spine and left shoulder. Dr. Bachar provided physical
examination findings and diagnosed cervicalgia and lumbosacral neuritis.
By decisions dated February 11, 2014 and March 30, 2015, OWCP denied appellant’s
claim finding insufficient medical evidence to establish that her cervical and left shoulder
conditions were causally related to factors of her employment.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. OWCP procedures provide for combining case files where correct adjudication
depends on cross-referencing between files. For example, if a new injury case is reported for an
employee who previously filed an injury claim for a similar condition or the same part of the
body, doubling is required.2 In the instant case, appellant filed a recurrence of disability claim
for an August 23, 2007 injury, which OWCP converted to an occupational disease claim and
assigned File No. xxxxxx438. OWCP thereafter denied the claim, for failure to establish causal
relationship.
The record reveals that appellant’s previous August 23, 2007 employment injury was
assigned File No. xxxxxx366 and that the injury was to the same part of the body. The factual
and medical evidence pertaining to appellant’s August 23, 2007 employment injury in File No.
xxxxxx366, however, is not contained in the case record. Furthermore, the record indicates that
appellant attempted to file this claim as a recurrence claim of the August 23, 2007 employment
injury. OWCP, however, adjudicated the claim as a new occupational disease claim, even
though the evidence supports that appellant may have sustained a recurrence of the August 23,
2007 cervical and left shoulder injury. It failed to properly combine or request combination of
the present case record with the record of the August 23, 2007 employment injury, which
appellant asserted was the initial cause of his current conditions.3
The case will be remanded to OWCP to combine case files xxxxxx366 and xxxxxx438
and determine whether appellant sustained either a recurrence of disability of her August 23,
2007 employment injury or a new occupational disease injury. Following this and such other
2

Federal (FECA) Procedure Manual, Part 2 -- File Maintenance and Management, Doubling Case Files, Chapter
2.4000.8(c) (February 2000).
3

See D.L., Docket No. 14-0897 (issued September 25, 2015).

2

development as deemed necessary, OWCP shall issue an appropriate merit decision on
appellant’s claim.
IT IS HEREBY ORDERED THAT the March 30, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this order of the Board.
Issued: October 4, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, COLORADOWYOMING PERFORMANCE CLUSTER,
Denver, CO, Employer
__________________________________________
Appearances:
Gregory A. Hall, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-2063
Issued: June 12, 2012

Case Submitted on the Record

ORDER REVERSING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 12, 2011 appellant, through his attorney, timely filed an application for
review from the March 16, 2011 merit decision of the Office of Workers’ Compensation
Programs (OWCP) concerning his wage-earning capacity. The Board assigned Docket No.
11-2063.
OWCP accepted that on January 25, 1991 appellant, then a 34-year-old letter carrier,
sustained herniated L4-5 and L5-S1 discs. The claim was later expanded to include a
consequential pain disorder and major depressive disorder. At the time of his January 25, 1991
work injury, appellant was working on a full-time basis for the employing establishment.1
On July 21, 2004 appellant returned to a light-duty work as a modified letter carrier for
the employing establishment, working four hours per day for a total of 20 hours per week. In an
August 6, 2010 decision, OWCP reduced appellant’s compensation based on its determination
that his actual earnings in the modified letter carrier position fairly and reasonably represented

1

Appellant’s regular work schedule was 6:30 a.m. to 3:00 p.m., Tuesday through Saturday.

his wage-earning capacity.2 In a March 16, 2011 decision, an OWCP hearing representative
affirmed OWCP’s August 6, 2010 decision.
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3 Section 8115(a) of FECA provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageCompensation payments are based on the wage-earning capacity
earning capacity.4
determination and it remains undisturbed until properly modified.5
OWCP’s Procedure Manual provides that the factors to be considered in determining
whether the claimant’s work fairly and reasonably represented his wage-earning capacity include
the kind of appointment and the tour of duty. The manual states that reemployment may not be
considered suitable when the actual earning job is part time, unless the claimant was a part-time
worker at the time of injury.6
OWCP found that appellant’s actual earnings in part-time reemployment for 20 hours per
week fairly and reasonably represented his wage-earning capacity. Appellant was a full-time
worker at the time of his January 25, 1991 work injury. As the above-noted procedure makes
clear, the Director of OWCP has determined that, when the tour of duty is not at least equivalent
to that of the job held at the time of injury, OWCP will not consider the reemployment suitable
for a wage-earning capacity determination. The Board finds, therefore, that OWCP abused its
discretion in determining appellant’s wage-earning capacity based on a part-time position.7 The
Board will reverse OWCP’s March 16, 2011 decision.

2

In a September 22, 2004 decision, OWCP reduced appellant’s compensation based on its determination that his
actual earnings as a modified letter carrier fairly and reasonably represented his wage-earning capacity. In a June 8,
2006 decision, the Board set aside OWCP’s September 22, 2004 decision noting that OWCP had not adequately
explained the basis for its wage-earning capacity determination. Docket No. 05-1901 (issued June 8, 2006).
3

See Katherine T. Kreger, 55 ECAB 633 (2004); 5 U.S.C. § 8115 (regarding determination of wage-earning
capacity).
4

See 5 U.S.C. § 8115.

5

See 5 U.S.C § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).
7

O.V., Docket No. 11-98 (issued September 30, 2011); S.M., Docket No. 10-2382 (issued September 28, 2011).

2

ORDER
IT IS HEREBY ORDERED THAT the March 16, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Petersburg, FL, Employer
__________________________________________

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

Docket No. 15-39
Issued: March 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 6, 2014 appellant filed a timely appeal of a June 9, 2014 merit decision and
an August 28, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established an injury in the performance of duty on
May 3, 2014, as alleged; and (2) whether OWCP properly denied appellant’s request for an oral
hearing before an OWCP hearing representative.
FACTUAL HISTORY
On May 3, 2014 appellant, then a 54-year-old city letter carrier, filed a traumatic injury
claim alleging that on that day he injured his head, neck, back, and leg when he slipped and fell
while delivering mail.
1

5 U.S.C. § 8101 et seq.

The employing establishment completed on May 3, 2014, an authorization for
examination and/or treatment (Form CA-16).
In a May 6, 2014 Florida Workers’ Compensation Uniform Medical Treatment/Status
Reporting Form, a nurse practitioner, diagnosed multiple contusions. She checked a box
indicating that the condition was employment related and “yes” to the question of whether there
were objective findings.
In a duty status report (Form CA-17), the nurse practitioner diagnosed multiple
contusions and provided work restrictions. Under history of injury she related that, on May 3,
2014, appellant slipped and fell on a slick floor while delivering mail.
In correspondence dated May 9, 2014, OWCP informed appellant that the evidence he
submitted was insufficient to establish his claim. Appellant was advised as to the medical and
factual evidence required and given 30 days to provide this information.
Following OWCP’s request for additional information, appellant submitted a May 6,
2014 chart note from the nurse practitioner who reported that he had been seen for a follow-up
visit for a May 3, 2014 employment injury. The nurse practitioner noted that on May 3, 2014
appellant fell at work and that he was reporting neck, back, and left foot pain. She performed a
physical examination, provided the findings from the examination, and diagnosed multiple
contusions.
In a May 13, 2014 chart note, another nurse practitioner, diagnosed neck sprain and
provided work restrictions.
In May 4, 2014 chart note, Dr. Gregory Marolf, a treating Board-certified family
practitioner, diagnosed multiple contusions, shoulder contusion, and neck sprain/strain. He
noted that x-ray interpretations had been taken and provided physical examination findings. In a
May 14, 2014 Florida Workers’ Compensation Uniform Medical Treatment/Status Reporting
Form, Dr. Marolf, reported no change from the prior form report.
In a May 20, 2014 chart note, Dr. Megan Janson, a treating Board-certified family
practitioner, noted that appellant was seen for a follow up of his work injury. She stated that his
condition had resolved and he was ready to return to work with no restrictions. In a May 20,
2014 Florida Workers’ Compensation Uniform Medical Treatment/Status Reporting Form,
Dr. Janson indicated that appellant had reached maximum medical improvement that day and
there was no residual disability nor dysfunction from the work-related injury.
By decision dated June 9, 2014, OWCP denied his claim as the medical evidence was
insufficient to establish that the diagnosed condition was causally related to the accepted May 3,
2014 incident.
Following the decision denying his claim appellant resubmitted medical reports that had
previously been considered by OWCP in its June 9, 2014 decision as well as copies of diagnostic
testing.
In a letter dated August 8, 2014, appellant requested a review of the written record by an
OWCP hearing representative.
2

By decision dated August 8, 2014, OWCP’s Branch of Hearings and Review denied
appellant’s request as untimely filed. OWCP considered his request and determined that his case
could equally well be addressed by requesting reconsideration and submitting new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5
The claimant has the burden of establishing by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
2

Id.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

See Elaine Pendleton, 40 ECAB 1143 (1989); K.K., Docket No. 13-1205 (issued December 13, 2013).

6

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

7

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

3

factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS -- ISSUE 1
OWCP accepted the May 3, 2014 work incident, but by decision dated June 9, 2014, it
denied appellant’s claim because the medical evidence failed to establish that the diagnosed
medical conditions were causally related to the accepted incident. The issue on appeal is
whether the evidence is sufficient to establish multiple contusions, shoulder contusion, and neck
sprain as a result of the accepted May 3, 2014 employment incident.
In support of his claim appellant submitted medical evidence from Drs. Marolf and
Janson. Dr. Marolf, in his May 4, 2014 chart notes diagnosed multiple contusions, shoulder
contusion, and neck sprain/strain and on May 14, 2014, he reported no change from the prior
form report. Dr. Janson, in a May 20, 2014 chart note stated that appellant was seen for a follow
up of his work injury and that his condition had resolved and he was ready to return to work with
no restrictions. On May 20, 2014 she found that he had reached maximum medical improvement
that day and there was no residual disability nor dysfunction from the work-related injury. These
reports contain no history of the May 3, 2014 employment incident and do not provide an
opinion, with rationale, regarding the cause of appellant’s condition. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.11 Medical opinions based on an
incomplete or inaccurate history are of diminished probative value.12
Appellant also submitted reports from nurse practitioners. The Board notes, however,
that a nurse practitioner is not considered a physician as defined under FECA.13 Accordingly,
these opinions regarding diagnosis and causal relationship are of no probative medical value.14
The Board has held that the fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.15 An award of compensation may not
10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

11

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004).
12

L.G., Docket No. 09-1692 (issued August 11, 2010); M.W., 57 ECAB 710 (2006); James R. Taylor, 56 ECAB
537 (2005).
13

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2);
G.A., Docket No. 09-2153 (issued June 10, 2010) (evidence from a registered nurse had no probative medical value
as a nurse is not a “physician” as defined under FECA); Roy L. Humphrey, 57 ECAB (2005).
14

See G.A., id.; Thomas L. Agee, 56 ECAB 465 (2005) (a medical report may not be considered probative
medical evidence unless it can be established that the person completing the report is a “physician” as defined in
5 U.S.C. § 8101(2)).
15

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).

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be based on surmise, conjecture, or speculation. Neither the fact that appellant’s conditions
became apparent during a period of employment nor the belief that his condition was caused,
precipitated or aggravated by his employment is sufficient to establish causal relationship.16 To
establish a firm medical diagnosis and causal relationship, appellant must submit a physician’s
report that addresses the May 3, 2014 employment incident and how it caused or aggravated the
diagnosed multiple contusions, shoulder contusion, and neck sprain/strain.17
OWCP requested more information from appellant to provide a comprehensive medical
report which described his symptoms, test results, diagnosis, treatment, and the physician’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to OWCP’s request. As there is no probative,
rationalized medical evidence addressing how his claimed multiple contusions, shoulder
contusion, and neck sprain/strain were caused or aggravated by the May 3, 2014 employment
incident, he has not met his burden of proof.
OWCP, however, did not adjudicate the issue of appellant’s incurred medical expenses.
The record contains a CA-16 form dated February 4, 2014 and signed by the employing
establishment.18 Under section 8103 of FECA, OWCP has broad discretionary authority to
approve medical care which it finds necessary and reasonable in cases of emergency or other
unusual circumstances, to be determined on a case-by-case basis.19 Upon return of the record
OWCP should rule on this matter.
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
Section 8124(b)(1) of FECA provides that a claimant is entitled to a hearing before an
OWCP representative when a request is made within 30 days after issuance of an OWCP final
decision.20 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.21 OWCP has
discretion, however, to grant or deny a request that is made after this 30-day period.22 In such a

16

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., id; Robert Broome, 55 ECAB 339 (2004); Anna C.
Leanza, 48 ECAB 115 (1996).
17

Michael S. Mina, supra note 9; Michael E. Smith, 50 ECAB 313 (1999).

18

See Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical,
Authorizing Examination and Treatment, Chapter 3.300.3(a)(3) (February 2012).
19

5 U.S.C. § 8103; 20 C.F.R. § 10.304. See L.B., Docket No. 10-469 (issued June 2, 2010); see also Federal
(FECA) Procedure Manual, id. at Chapter 3.300.3(a)(3), supra note 18.
20

Id. at § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Gerard F. Workinger, 56 ECAB 259 (2005).

21

20 C.F.R. § 10.616(b).

22

Hubert Jones, Jr., 57 ECAB 467 (2006).

5

case, it will determine whether a discretionary hearing should or review of the written record be
granted or, if not, will so advise the claimant with reasons.23
ANALYSIS -- ISSUE 2
A request for a hearing must, as noted above, be made within 30 days after the date of the
issuance of OWCP’s final decision. Appellant requested an oral hearing before OWCP’s Branch
of Hearings and Review on August 8, 2014. As the request was submitted more than 30 days
following issuance of the June 9, 2014 decision, it was untimely filed.
OWCP also has the discretionary power to grant a review of the written record when a
claimant is not entitled to a review of the written record as a matter of right. The Board finds
that OWCP, in its August 28, 2014 decision, properly exercised its discretion by stating that it
had considered the matter in relation to the issue involved and had denied appellant’s request for
an oral hearing on the basis that his claim could be addressed through a reconsideration
application. The Board has held that as the only limitation on OWCP’s authority is
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 deduction from established facts.24 In the present case, the evidence of record does not
indicate that OWCP abused its discretion in connection with its denial of appellant’s request for
a review of the written record.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish an injury in
the performance of duty on May 3, 2014, as alleged. The Board further finds that OWCP
properly denied his request for a review of the written record as it was untimely.

23

Teresa M. Valle, 57 ECAB 542 (2006).

24

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

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 28 and June 9, 2014 are affirmed.
Issued: March 20, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 13-1287
Issued: September 23, 2013

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 May 7, 2013 appellant filed a timely appeal from merit decisions dated December 18,
2012 and April 23, 2013 of the Office of Workers’ Compensation Programs (OWCP). Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a right knee injury
causally related to factors of his federal employment.
On appeal, appellant contends that the dates stated in his claim were estimated dates since
no formal report had been submitted at the time of injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 11, 2012 appellant, then a 58-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on May 2, 2011 he first became aware of his torn
meniscus of the right knee and first realized that his condition was caused by walking six to
seven hours a day, three days a week at work. Initially, two to three days a week he would go
home with knee pain. When appellant rode a couple of days a week, he had no knee problem.
He was unable to keep up with walking 110 paces per minute due to his pain. Appellant stated
that he did not seek medical treatment until August 11, 2011 because initially his problem was
minor. He stopped work on September 26, 2012. Appellant reported his condition to a
supervisor on the date he filed his claim.
In an undated narrative statement, appellant described his claimed injury. In March 2011,
he was loading a long-life vehicle (LLV) for a city route. Appellant was standing with his knees
against the rear bumper when he reached back to grab a tray of mail. He thought he may have
overextended his right knee. Appellant experienced pain for several days, but it seemed to have
improved. Shortly, thereafter, he noticed pain on his walking days at work. Appellant had been
walking at work for almost 18 years. He could not recall what he was doing one week prior to
the March 2011 incident, but it could not have been much since he had heart surgery in
January 2010. In an October 11, 2012 statement, appellant related that he had foot surgery and
knee problems, that he had been out of work for six weeks due to those conditions and that his
work performance had suffered since his pain had returned. He was unable to complete certain
walking routes.
In an undated medical report, Dr. William N. Haller, III, an attending Board-certified
orthopedic surgeon, advised that appellant had a medial meniscus tear of the right knee. He
noted that appellant was a mail carrier who performed his route on foot. Dr. Haller stated that,
since appellant provided no specific time of injury, he was unable to relate the diagnosed
condition directly to his job. However, he believed that the physical nature of his job would
aggravate this problem.
The employing establishment controverted the claim. In an October 12, 2012 letter,
Belinda Maddox, a human resource management specialist, contended that appellant was not
required to walk the entire time on his route. Appellant had to drive between parking points and
was allowed two 10-minute breaks. He described a traumatic injury that occurred in
March 2011. Appellant provided a date of injury as May 2, 2011 on his Form CA-2. The
medical evidence stated that he could not provide a specific date of injury and it failed to identify
employment factors that caused or contributed to his claimed injury. Appellant was involved in
a hobby or activity that required repetitive use of his knee.
In an October 12, 2012 e-mail, Joel Cook, a customer service supervisor, stated that
appellant complained that the pain in his knee, back and feet was caused by his work. However,
he could not recall whether appellant’s conditions were work related. Mr. Cook believed that
appellant informed him that he had bone spurs. He listed appellant’s routes which involved
standing one to two hours and minimal walking one to six hours. Mr. Cook stated that,
depending on his assigned route, appellant did not walk the entire time, noting that he drove
between parking points and to and from his routes and was allowed two 10-minute breaks. The

2

employing establishment submitted appellant’s employment records, which included a
description of a city carrier position that required the delivery and collection of mail on foot or
by vehicle.
By letter dated October 29, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It gave him 30 days to submit a factual statement
detailing the employment-related activities that contributed to his condition and activities outside
his federal employment and a medical report from an attending physician which included an
explanation of how his work activities caused, contributed to or aggravated his medical
condition. OWCP also requested that appellant clarify whether he sustained a traumatic injury or
an occupational disease and provided definitions of both. Appellant did not respond.
In a December 18, 2012 decision, OWCP denied appellant’s claim, finding insufficient
evidence to establish that he experienced the employment factor alleged to have occurred and
that he sustained any diagnosed condition causally related to the alleged employment factor.
By letter dated January 18, 2013, appellant requested reconsideration.
In reports dated July 20, 2011 through November 1, 2012 and in an undated report,
Dr. Haller advised that appellant sustained a meniscus tear of the right knee while working as a
mail carrier that was treated with a medial meniscectomy.
An August 31, 2012 report authenticated by Dr. Homer A. Spencer, a Board-certified
radiologist, stated that a magnetic resonance imaging scan of appellant’s right knee showed an
oblique tear of the posterior horn of the medial meniscus and a small osteochondral defect
involving the more medial aspect of the lateral femoral condyle. There was no evidence of other
significant bony or soft tissue pathology.
In an April 23, 2013 decision, OWCP denied modification of the December 18, 2012
decision, finding that appellant had not sustained a work-related injury as claimed. The factual
evidence was inconsistent or unclear as to how his knee condition developed as a result of his
employment. The medical reports did not provide a specific job-related mechanism of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions 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

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

3

Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.6
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden in establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.8
ANALYSIS
The Board finds that the factual evidence does not sufficiently establish the work factor
that caused appellant’s right knee condition.
As noted, an employee’s factual statement regarding how an occupational disease
occurred must be consistent with the surrounding facts and circumstances and his subsequent
course of action. Late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty and failure to obtain medical treatment may, if otherwise
unexplained, refute this statement.9 Here, appellant alleged in a Form CA-2 that on May 2, 2011
he became aware of his torn meniscus of the right knee and realized that his condition resulted
from walking six to seven hours a day, three days a week while working as a city letter carrier.
4

S.P., 59 ECAB 184, 188 (2007).

5

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

6

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

7

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

8

I.J., 59 ECAB 408 (2008); supra note 3.

9

Supra note 7.

4

However, in an undated narrative statement, he alleged that he sustained a right knee injury in
March 2011 while reaching to grab a tray of mail to load into an LLV. This statement is
inconsistent with appellant’s original assertion in the Form CA-2 that he became aware of his
condition and its relationship to his federal employment on May 2, 2011. The case record shows
that he did not seek medical treatment until August 11, 201110 and did not file a claim until
October 11, 2012, more than one year following the onset of symptoms. Appellant related that
on October 11, 2012 he was out of work for six weeks due to not only knee problems, but also
foot surgery. Dr. Haller, an attending physician, advised that he was unable to relate appellant’s
diagnosed medial meniscus tear of the right knee directly to his employment because appellant
did not provide a specific time of injury. The employing establishment challenged appellant’s
claim contending that he was not required to walk his entire route. It stated that he drove
between parking points and to and from his routes and he was given two 10-minute breaks.
Mr. Cook stated that, although appellant told him that he had bone spurs and complained that his
knee, back and feet pain was caused by his work, he could not remember whether appellant’s
conditions were work related.
The Board finds that appellant has not presented a clear and consistent factual account of
how and when his injury occurred, which casts doubt upon the validity of his factual claim. The
Board finds, therefore, that he failed to establish an occupational disease claim.11 Since
appellant did not establish the factual component of fact of injury, it is not necessary for the
Board to consider the medical evidence with respect to causal relationship.12
On appeal, appellant contended that the dates stated in his claim were estimated dates as
no formal report was submitted at the time of injury. As stated, the factual evidence does not
sufficiently establish the work factors that caused his right knee condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a right knee injury causally related to factors of his federal employment.

10

The Board notes appellant’s account that he did not seek medical treatment until August 11, 2011 because
initially his knee problem was minor.
11

O.W., Docket No. 09-2110 (issued April 22, 2010).

12

D.F., Docket No. 10-1774 (issued April 18, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the April 23, 2013 and December 18, 2012
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 23, 2013
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eltingville, NY, Employer
__________________________________________

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

Docket No. 14-1533
Issued: October 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 26, 2014 appellant filed a timely appeal from the April 14, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right knee injury on October 21, 2013 while in the performance of duty.
FACTUAL HISTORY
On October 22, 2013 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim alleging that he sustained a right knee sprain on October 21, 2013. He stated that his right
knee began to hurt while he was walking on his route. Appellant stopped work on
1

5 U.S.C. § 8101 et seq.

October 22, 2013. In an October 21, 2013 narrative statement, he stated that his injury occurred
at approximately 5:10 p.m. on that day. Appellant finished his route and reported his injury to
his supervisor.
In a hospital report dated October 21, 2013, Dr. Daniel Yu, Board-certified in emergency
medicine, stated that physical and x-ray examination suggested a diagnosis of sprain. He
addressed appellant’s treatment plan and advised that he should be exempt from work.
In medical reports dated October 28 and November 13, 2013, Dr. Nasser Ani, an
attending Board-certified orthopedic surgeon, obtained a history of the October 21, 2013 incident
and appellant’s family, social and medical background. He noted appellant’s complaint about
lower extremity pain. Dr. Ani listed findings on physical, neurologic and psychiatric
examination. He assessed pain and effusion in the right lower leg and a tear of the medial
meniscus of the right knee. In a November 13, 2013 note, Dr. Ani advised that appellant would
remain off work for two weeks. On November 27, 2013 he diagnosed appellant as having
osteoarthritis of the right knee. Dr. Ani released appellant to return to light-duty work as of
December 2, 2013. In a note dated December 4, 2013, he advised that appellant could return to
regular-duty work.2
By letter dated December 12, 2013, OWCP informed appellant that when his claim was
received a limited amount of medical expenses was administratively approved as it appeared to
be a minor injury with minimal or no lost time from work and the employing establishment did
not controvert continuation of pay or challenge the merits of the case. It advised that his claim
was now reopened for consideration as his medical bills have exceeded $1,500.00 and the merits
of the claim have not been formally considered. Appellant was advised that the evidence of
record was insufficient to support his claim as the facts surrounding his injury were not clear and
no diagnosis of any condition resulting from the October 21, 2013 injury had been provided. He
was advised of the medical and factual evidence needed and was afforded 30 days to respond.
OWCP requested that the employing establishment submit any medical evidence regarding
treatment appellant received at its medical facility.
In a November 14, 2014 right knee magnetic resonance imaging (MRI) scan report,
Dr. Mark A. Singer, a Board-certified radiologist, found an attenuated versus a chronically torn
anterior cruciate ligament, severe tri-compartmental osteoarthritis with bone marrow edema,
small joint effusion, mild edema, infrapatellar fat body, chondromalacia and a small popliteal
cyst posteromedially. Dr. Singer suspected chronic sprained posterior cruciate ligament and
tears of the medial meniscus and posterior horn/body segment with superficial erosions.
On February 10, 2014 appellant stated that at approximately 5:10 p.m. on October 21,
2013 he was finishing up his day when he felt pain in his knee and calf as he stepped out of his
long-life vehicle. He reported his injury to his supervisor who told him to go to the hospital. At
the hospital appellant was diagnosed as having a calf sprain. Two weeks later he was diagnosed
as having a torn meniscus that required surgery based on an MRI scan. Appellant stated that
there were no witnesses and that he had no symptoms prior to his injury.
2

The record indicates that appellant returned to full-duty work at the employing establishment on
December 5, 2013.

2

In a March 13, 2014 report, Dr. Ani noted appellant’s complaint of right knee pain. He
provided a history of the October 21, 2013 incident and appellant’s family and social
background. Dr. Ani listed findings on physical, neurologic and psychiatric examination and
reiterated his prior diagnoses of osteoarthritis, a torn medical meniscus and effusion of the right
knee and pain in the right lower leg. He recommended arthroscopic right knee surgery with
meniscectomy as symptoms persisted and conservative treatment failed.
In an April 14, 2014 decision, OWCP accepted that the October 21, 2013 incident
occurred as alleged. It denied appellant’s claim, however, finding that he failed to submit
sufficient medical evidence to establish that he sustained a right knee injury causally related to
the accepted employment incident.3
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.9 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the

3

Following issuance of OWCP’s April 14, 2014 decision appellant submitted new evidence. The Board lacks
jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
4

5 U.S.C. §§ 8101-8193.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

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

9

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).

3

identified factors.10 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.11
ANALYSIS
OWCP accepted that the October 21, 2013 incident occurred in the performance of duty.
It found, however, that the medical evidence failed to establish that appellant sustained a right
knee injury as a result of the accepted incident. The Board finds that appellant failed to provide
sufficient medical evidence demonstrating that he sustained a right knee condition causally
related to the October 21, 2013 employment incident.
Dr. Ani’s reports and notes provided a history of the October 21, 2013 employment
incident, listed examination findings, diagnosed pain and effusion of the right lower leg and torn
medial meniscus and osteoarthritis of the right knee and addressed appellant’s work capacity.
However, did not provide a medical opinion addressing the causal relationship between the
accepted employment incident and appellant’s diagnosed right knee conditions. Medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value.12 The Board finds that Dr. Ani’s reports and notes are of diminished
probative value and insufficient to establish appellant’s claim.
Similarly, Dr. Singer’s November 14, 2014 diagnostic test results which addressed
appellant’s right knee conditions is also insufficient to establish the claim, as this report does not
provide a medical opinion addressing whether the accepted employment incident caused or
aggravated the diagnosed conditions.13
Dr. Yu’s October 21, 2013 report which found that physical and x-ray examination
suggested a diagnosis of sprain is couched in speculative terms. The Board has held that medical
opinions which are speculative or equivocal in character have little probative value.14 Moreover,
Dr. Yu did not provide an opinion explaining whether the diagnosed condition was caused or
aggravated by the accepted employment incident.15 The Board finds that his report is
insufficient to establish appellant’s claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

10

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

11

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

12

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

13

Id.

14

L.R. (E.R.), 58 ECAB 369 (2007); Kathy A. Kelley, 55 ECAB 206 (2004).

15

See cases cited, supra note 12.

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a right knee injury on October 21, 2013 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 20, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Maplewood, NJ, Employer
__________________________________________

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

Docket No. 13-410
Issued: April 9, 2013

Case Submitted on the Record

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

JURISDICTION
On December 11, 2012 appellant filed a timely appeal from the July 26, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) terminating his
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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 3, 2012 on the grounds that he had no
residuals of his work injury after that date.
FACTUAL HISTORY
In May 2011, OWCP accepted that appellant, then a 42-year-old letter carrier, sustained
tendinitis of his right Achilles tendon due to his work duties, including engaging in extensive
1

5 U.S.C. §§ 8101-8193.

walking and standing. He indicated that he first became aware of his condition in
December 2008 but first realized it was related to his work in January 2011. Appellant stopped
work on January 31, 2011 and did not return.2
Appellant received treatment for his foot condition from Dr. Nathan B. Jennato, an
attending podiatrist. In an April 1, 2011 report, Dr. Jennato stated that appellant presented to his
office on February 15, 2011 with an acutely inflamed distal right Achilles tendon and indicated
that diagnostic testing showed acute tendinitis but no negative rupture or positive tear. He
periodically provided disability notes for appellant. In an August 9, 2011 note, Dr. Jennato
stated that appellant was still being treated for a painful, swollen right Achilles tendon and
indicated that he must remain off work from August 9 to October 4, 2011. In an October 4, 2011
note, he noted that appellant had severe, chronic Achilles tendinitis of both ankles, right greater
than left and recommended that he remain out of work until November 30, 2011.
In October 2011, OWCP referred appellant to Dr. Jeffrey Lakin, a Board-certified
orthopedic surgeon, for examination and an opinion regarding whether he continued to have
residuals of his work injury.
In an October 26, 2011 report, Dr. Lakin discussed appellant’s work injury and detailed
the treatment of his foot problems. He noted that, on physical examination, appellant had a
palpable right Achilles tendon with no gap or tenderness appreciated. Appellant’s gait was
normal and he was able to stand on his heels and toes without difficulty. Dr. Lakin provided
findings for range of motion testing of his ankles and indicated that strength on dorsiflexion,
plantar flexion, inversion and eversion of the right ankle was 5/5. Examination of both ankles
revealed negative anterior drawer and no tenderness medially or laterally. Dr. Lakin concluded
that appellant’s accepted condition of tendinitis of his right Achilles tendon was not currently
present. He stated that he palpated appellant’s right Achilles tendon which was found to be
nontender and indicated that his right ankle had excellent range of motion and strength.
Dr. Lakin indicated that appellant did not require any treatment for the accepted condition as it
had resolved and stated, “The patient has no objective findings on physical examination. He has
no disability and is able to return to work full-time, regular duty as a letter carrier, and the
claimant has reached maximum medical improvement as of today’s date of October 26, 2011.”
In a November 30, 2011 letter, OWCP advised appellant of its proposal to terminate his
wage-loss compensation and medical benefits. It indicated that the weight of the medical
evidence regarding continuing work-related residuals rested with the comprehensive October 26,
2011 report of Dr. Lakin. OWCP stated that the recent notes of Dr. Jennato finding work-related
disability did not contain objective findings supporting the existence of such disability or workrelated residuals. Appellant was provided 30 days from the date of the letter to submit evidence
or argument challenging the proposed termination action.

2

Appellant had been on restricted duty prior to stopping work in January 2011. On August 26, 2009
Dr. Howard I. Hyman, an attending podiatrist, performed surgical debridement and repair of appellant’s right
Achilles tendon with graft augmentation. On February 24, 2010 he carried out surgical repair of appellant’s left
Achilles tendon.

2

Appellant submitted a November 29, 2011 report in which Dr. Jennato indicated that he
was currently treating appellant for acute right ankle pain. Dr. Jennato stated that his office had
been treating appellant for chronic Achilles tendinitis from July 2010 through the present. He
indicated that on February 15, 2011 appellant presented to his office with severe pain and
swelling at the posterior right ankle along the distal Achilles tendon. Dr. Jennato noted that
appellant was currently being treated with strict rest, immobilization of his right ankle with a
cam-walker boot, and a leave of absence from his job. He noted that an ultrasound study showed
a possible tear of the dorsal right Achilles tendon and posited that appellant must continue to
remain out of work until January 24, 2012.
In a December 20, 2011 report, Dr. Jennato indicated that he disagreed with Dr. Lakin’s
conclusion that appellant was currently able to perform his regular job as a letter carrier, but he
agreed that appellant had adequate surgical correction to allow for his normal activities of daily
living. He stated that he had clearly documented that appellant had every intention to return to
work3 but was unable to continue in his letter carrier position “due to the rigorous physical
demands of his job and the ongoing, detrimental effects the job duties had on the Achilles
tendons.”
In a January 3, 2012 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective January 3, 2012 on the grounds that he had no residuals of his
work injury after that date. It based its termination on the October 26, 2011 report of Dr. Lakin
and indicated that the opinion of Dr. Jennato lacked probative value.
Appellant requested a hearing that was held on May 30, 2012. He submitted an
October 25, 2011 report in which Dr. Jennato provided a discussion of his work injury, his work
history and the medical treatment he received for his foot condition. Dr. Jennato indicated that in
January 2011 appellant became disabled from work due to his work-related foot problem and
discussed examination findings from February 2011. He noted that he was seeking disability
retirement for appellant due to the underlying tendinopathy of his Achilles tendon and the nature
and requirements of a letter carrier job. Appellant had a chronic, congenital Equinus deformity
of both legs which imposed increased strain and stress on the Achilles tendon close to the
insertion. Dr. Jennato discussed appellant’s work duties and stated:
“The patient is currently on temporary disability from his job, because the unique
job duties cause a constant, repetitive Achilles tendinosis. This tendinosis then
develops into acute inflammation, severe pain, with the risk of further tendon tear
and rupture. [Appellant] will not be medically cleared to return to work in an
environment that will cause constant tendon trauma and possible rupture of the
largest tendon in the body, the tendon most responsible for ambulation.”
In a March 20, 2012 letter, Dr. Jennato indicated his office was still treating appellant for chronic
right Achilles tendinosis and stated that, since appellant’s work duties would not allow for proper
healing, he had to remain off work until April 19, 2012. On April 26, 2012 Dr. Hyman stated
that he concurred with the content of Dr. Jennato’s October 25, 2011 report.
3

Dr. Jennato indicated that appellant did, in fact, return to restricted-duty work from July 2010 to January 2011
after a period of work stoppage.

3

In a July 26, 2012 decision, an OWCP hearing representative affirmed the January 3,
2012 termination decision noting that the reports of Dr. Jennato did not contain objective
medical findings from around the time of the termination.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.4 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.6
It is well established that the possibility of future injury constitutes no basis for the payment
of compensation.7
ANALYSIS
OWCP accepted that appellant sustained tendinitis of his right Achilles tendon due to his
work duties, including engaging in extensive walking and standing. Appellant stopped work on
January 31, 2011 and did not return to work.8 OWCP terminated appellant’s wage-loss
compensation and medical benefits effective January 3, 2012 on the grounds that he had no
residuals of his work injury after that date. It based its termination on the October 26, 2011
report of Dr. Lakin, a Board-certified orthopedic surgeon who served as a second opinion
physician.
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Lakin. The October 26, 2011 report of Dr. Lakin establishes
that appellant had no disability due to his work injury after January 3, 2012.
In his October 26, 2011 report, Dr. Lakin concluded that appellant’s accepted condition
of tendinitis of his right Achilles tendon had resolved. He noted that, on physical examination,
appellant had a palpable right Achilles tendon with no gap or tenderness appreciated.
Appellant’s gait was normal and he was able to stand on his heels and toes without difficulty.
Dr. Lakin indicated that strength on dorsiflexion, plantar flexion, inversion and eversion of the
right ankle was 5/5 and that examination of both ankles revealed negative anterior drawer and no
tenderness medially or laterally. He noted that appellant did not require any treatment for the

4

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

5

Id.

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

Gaeten F. Valenza, 39 ECAB 1349, 1356 (1988).

8

On August 26, 2009 Dr. Hyman, an attending podiatrist, performed surgical debridement and repair of
appellant’s right Achilles tendon with graft augmentation.

4

accepted condition as it had resolved and stated that he could return to his regular duty as a letter
carrier on a full-time basis.
The Board has carefully reviewed the opinion of Dr. Lakin and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Lakin provided a thorough factual and medical history and
accurately summarized the relevant medical evidence.9 He provided medical rationale for his
opinion by explaining that appellant did not exhibit any objective findings of the accepted
tendinitis of his right Achilles tendon. Dr. Lakin indicated that he palpated appellant’s right
Achilles tendon which was found to be nontender and stated that his right ankle had excellent
range of motion and strength.
Appellant submitted several reports, dated between October 2011 and March 2012, of
Dr. Jennato, an attending podiatrist who indicated that he continued to be treated for disabling
residuals of his work injury, tendinitis of his right Achilles tendon.10 However, the opinions in
these reports are of limited probative value on the issue of whether appellant had work-related
residuals after January 3, 2012 because they are not based on a complete medical history.11
Although Dr. Jennato briefly mentioned some physical examination findings from
February 2011, he did not describe physical examination findings from any later period. He
asserted that appellant continued to have work-related residuals and disability after the
termination of his wage-loss compensation and medical benefits effective January 3, 2012, but
he did not present any objective findings to support this position. Dr. Jennato’s opinion that
appellant should stay off work appeared to be based on his fear that appellant might reinjure
himself if he returned to work, but it is well established that the possibility of future injury
constitutes no basis for the payment of compensation.12
For these reasons, OWCP justified its termination of appellant’s wage-loss compensation
and medical benefits.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 3, 2012 on the grounds that he had no
residuals of his work injury after that date.
9

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

10

Dr. Jennato indicated that appellant could not work in his regular position as a letter carrier.

11

See supra note 6.

12

See supra note 7. On April 26, 2012 Dr. Hyman stated that he concurred with Dr. Jennato that appellant
continued to have work-related residuals. However, he also failed to provide a rationalized medical report
supporting this opinion.

5

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 26, 2012 is affirmed.
Issued: April 9, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6