United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDITH NOURSE ROGERS MEMORIAL
VETERANS HOSPITAL, Bedford, MA,
Employer
__________________________________________

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Appearances:
Richard Venskus, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1138
Issued: July 13, 2016

Case Submitted on the Record

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

JURISDICTION
On April 23, 2015 appellant, through her representative, filed a timely appeal from a
February 20, 2015 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 established disability from March 31 to April 3, 2014
as a result of her January 12, 2012 employment injury.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence with her appeal. The Board, however, has no jurisdiction to review new
evidence on appeal; see 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On January 19, 2012 appellant, then a 49-year-old recreational therapist, filed a traumatic
injury claim (Form CA-1) alleging that on January 11, 2012 she injured her lower back when she
was assaulted by a patient.3 OWCP accepted the claim for low back spasms and “hypertension, a
temporary elevation of blood pressure.” Appellant worked limited duty following her injury.
OWCP paid her compensation for intermittent time lost from work due to disability and
attending medical appointments.
On March 28, 2014 Dr. Mary Barker, an internist, evaluated appellant for hypertension.
She noted that she had changed appellant’s medication for post-traumatic stress disorder (PTSD).
In an emergency room report dated March 30, 2014, Dr. Jonathan Burstein, Boardcertified in emergency medicine, evaluated appellant after a near syncope. He stated, “While
[appellant watched] her mother get blood drawn [appellant] felt palpitations, chest pain, and as if
she were going to pass out.” Dr. Burstein indicated that appellant had been “in a stressful
situation….” He diagnosed possible acute coronary syndrome and palpitations.
In a report dated March 31, 2014, Dr. Barker noted that appellant had received treatment
in the emergency room that weekend. Appellant had experienced problems with the medication
clonidine prescribed for her PTSD. Dr. Barker related that her blood pressure was high at the
emergency room, that she did not have chest pain or shortness of breath and that “anxiety was a
big component.” She diagnosed hypertension.
On March 31, 2014 Dr. Barker advised that appellant could not work until April 3, 2014
“due to illness.” She stated, “[Appellant] was seen on March 28, [2013] by me. She had some
bradycardia. [Appellant] was prescribed clonidine for PTSD, and also this medication may help
back pain and bp [blood pressure] control.” Dr. Barker noted that appellant received treatment in
the emergency room after experiencing high blood pressure and chest pain over the weekend.
She found that appellant could resume work when her blood pressure was under control and she
was “less lethargic and dizzy.”
In a progress report dated April 3, 2014, Dr. Barker evaluated appellant for hypertension.
She diagnosed poorly controlled blood pressure.
In a note dated April 3, 2014, Dr. Barker related that appellant was “still out of work
today due to difficulty controlling her blood pressure, requiring frequent medication
adjustments.”
On April 7, 2014 appellant submitted a claim for compensation Form CA-7 for disability
from March 31 to April 3, 2014. On a time analysis form, she attributed her lost time from work
to follow up medical treatment after an emergency room visit, medical appointments, and high
blood pressure.

3

Appellant subsequently advised that her injury occurred on January 12, 2012 rather than January 11, 2012.

2

By letter dated April 21, 2014, OWCP requested that appellant submit medical evidence
supporting that she was disabled from work from March 31 through April 3, 2014. It noted that
the evidence provided a history of her almost fainting after watching a blood draw.
OWCP received on April 21, 2014 a nurse practitioner report in which noted that
appellant was being treated for PTSD. She changed appellant’s medication to clonidine.
On the March 30, 2014 emergency room form, however, appellant had signed an
acknowledgement that her visit was unrelated to workers’ compensation.
On April 30, 2014 Dr. Barker related that on March 28, 2014 appellant began taking
clonidine for her blood pressure, heart rate, PTSD, and back pain. She stated, “On March 29,
2014 [appellant] was experiencing high blood pressure and tightness in her chest, and
palpitations. She happened to be in the ER [emergency room] when a nurse noted [that she] did
not appear well, i.e., dizzy and grey in color.” Appellant received medical treatment at the
emergency room. On March 31, 2014 Dr. Barker took her off the clonidine and put her on a new
medication for dizziness and blood pressure problems. She also found that appellant was unable
to work. On April 3, 2014 Dr. Barker determined that appellant “still appeared dizzy and had an
elevated blood pressure…. I recommended that [appellant] rest and not resume working until
symptoms resolved.”
By decision dated July 11, 2014, OWCP denied appellant’s claim for disability
compensation from March 31 to April 3, 2014.
On July 30, 2014 appellant requested a review of the written record. By decision dated
February 20, 2015, an OWCP hearing representative affirmed the July 11, 2014 decision. He
found that the medical evidence of record was insufficient to show that appellant was disabled
from March 31 through April 3, 2014 as a result of her accepted employment injury.
On appeal appellant argues that she was prescribed clonidine for back pain and her blood
pressure. She reviewed the medical treatment received and alleged that she missed work due to
high blood pressure and bradycardia, both accepted conditions.
LEGAL PRECEDENT
Section 8103(a) of FECA states that the United States shall furnish to an employee who
is injured while in the performance of duty the services, appliances, and supplies prescribed or
recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of disability, or aid in lessening the amount of the
monthly compensation. The Board has recognized that OWCP has broad discretion in approving
services provided under section 8103, with the only limitation on OWCP’s authority being that
of reasonableness.4
With respect to claimed disability for medical treatment, section 8103 provides for
medical expenses, along with transportation and other expenses incidental to securing medical
4

See 5 U.S.C. § 8103; Joseph P. Hofmann, 57 ECAB 456 (2006).

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care for injuries. However, OWCP’s obligation to pay for medical expenses and other expenses
incidental to obtaining medical care, such as loss of wages, extends only to expenses incurred for
treatment of the effects of any employment-related condition. A claimant has the burden of
proof, which includes the submission of supporting rationalized medical evidence.5
The term disability as used in FECA means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.6 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.7 When the medical evidence establishes that the
residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.8 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.9
ANALYSIS
OWCP accepted that appellant sustained low back spasms and “hypertension, a
temporary elevation of blood pressure” due to a January 12, 2012 work injury. Appellant
performed modified employment subsequent to her injury and lost intermittent time from work
due to disability and medical appointments.
On April 7, 2014 appellant claimed compensation for disability from March 31 to
April 3, 2014 as a result of high blood pressure, attending medical appointments, and follow-up
care after receiving treatment in the emergency room. The Board finds, however, that she has
not met her burden of proof to show that she was disabled on these dates or received medical
treatment as a result of her accepted work injury.
In an emergency room report dated March 30, 2014, Dr. Burstein related that appellant
felt like she was going to faint and experienced chest pain and palpitations watching her mother
get blood drawn. He noted that it occurred “in a stressful situation….” Dr. Burstein diagnosed
possible acute coronary syndrome and palpitations. He, however, did not address the cause of
the diagnosed conditions. 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.10
5

See S.J., Docket No. 14-1643 (issued April 9, 2015); Carol A. Lyles, 57 ECAB 265 (2005).

6

20 C.F.R. § 10.5(f); Paul E. Thams, 56 ECAB 503 (2005).

7

Id.

8

Id.

9

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

S.E., Docket No. 08-2214 (issued May 6, 2009); A.D., 58 ECAB 149 (2006).

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Further, appellant indicated in a signed March 30, 2014 emergency room form that her visit was
not related to workers’ compensation.
In a March 31, 2014 evaluation, Dr. Barker discussed appellant’s emergency room
treatment and indicated that she was having problems with clonidine, a new medication she was
taking for PTSD. She noted that appellant’s blood pressure was high at the emergency room and
attributed this in large part to anxiety. Dr. Barker diagnosed hypertension. In a letter dated
March 31, 2014, she advised that appellant was released from work until April 3, 2014 as the
result of an illness. Dr. Barker prescribed clonidine for PTSD, and determined that the
medication could also help back pain and blood pressure. She did not, however, attribute
appellant’s need for medical treatment or her disability for employment to the January 12, 2012
incident. The issue of whether a claimant’s disability is related to an accepted condition is a
medical question which must be established by a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disability is causally related to
employment factors and supports that conclusion with sound medical reasoning.11
On April 3, 2014 Dr. Barker reported that appellant was off work due to the need to
adjust her medication in order to control her high blood pressure. Again, however, she did not
attribute appellant’s need for medical treatment on that date or her disability from employment to
the accepted work injury, and thus her report is insufficient to form the basis for the payment of
compensation.12
In a report dated April 30, 2014, Dr. Barker related that appellant began taking clonidine
for PTSD, back pain, heart rate, and blood pressure on March 28, 2014. Appellant experienced
chest pains and palpitations on March 29, 2014, and received treatment in the emergency room.
Dr. Barker advised that on March 31, 2014 she changed appellant’s medication from clonidine
and found that she should remain off work. On April 3, 2014 she again recommended that
appellant remain off work as she was still dizzy. Dr. Barker did not, however, attribute any
condition, disability, or need for treatment to the January 12, 2012 employment injury, and thus
her opinion is of little probative value.13
As noted above, employee must establish through reasoned, competent medical evidence
that the disability from work resulted from the employment injury.14 There is no such evidence
in the case record. Appellant did not provide any medical evidence explaining why she required
medical treatment or was disabled from work for the period March 31 to April 3, 2014 as a result
of her accepted employment conditions. She has thus failed to establish her claim for wage-loss
compensation due to either disability from employment or time lost for obtaining medical
treatment.

11

See Sandra D. Pruitt, 57 ECAB 126 (2005); Howard A. Williams, 45 ECAB 853 (1994).

12

Under FECA, to establish disability, an employee’s injury must be shown to be causally related to an accepted
injury or accepted facts of her federal employment. See J.F., 59 ECAB 331 (2008).
13

See P.D., Docket No. 11-545 (issued October 21, 2011).

14

See R.A., Docket No. 14-210 (issued April 22, 2014); Donald E. Ewals, 51 ECAB 428 (2000).

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On appeal appellant contends that she took clonidine for back pain and her blood
pressure. She alleges that she missed work due to her accepted conditions of high blood pressure
and bradycardia. OWCP has not accepted appellant’s claim for bradycardia under this file
number nor has it accepted the underlying preexisting conditions or hypertension. Further, as
discussed, appellant has the burden to establish that she was disabled due to her employment
injury through the submission of probative medical evidence addressing causal relationship.15
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she was disabled from March 31
to April 3, 2014 causally related to her January 12, 2012 employment injury.
ORDER
IT IS HEREBY ORDERED THAT February 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See Mary A. Ceglia, 55 ECAB 626 (2004); Gloria J. McPherson, 51 ECAB 441 (2000).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Jessup, GA, Employer
__________________________________________

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Appearances:
Tracey E. Jermon, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-900
Issued: August 8, 2014

Case Submitted on the Record

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

JURISDICTION
On March 11, 2014 appellant, through his attorney, filed a timely appeal from a
September 12, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
and a November 1, 2013 nonmerit decision denying his request for reconsideration. 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 sustained a recurrence of disability beginning
September 19, 2012 causally related to his September 2, 2011 employment injury; and
(2) whether OWCP properly denied his October 25, 2012 request for reconsideration pursuant to
5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on September 2, 2011 appellant, then a 33-year-old correctional
officer, twisted his left knee when he slipped while walking downstairs. He stopped work and
returned on September 9, 2011. Appellant’s claim was accepted for left knee patellar tendinitis
and left knee synovitis. On September 20, 2012 he underwent left patellar tendon repair.
On September 23, 2012 appellant filed a recurrence claim alleging that on
September 18, 2012 his knee collapsed while he was jogging. He believed that the incident was
related to the original September 2, 2011 injury because it never healed. Appellant stated that a
September 19, 2011 magnetic resonance imaging (MRI) scan examination revealed partial
patellar tendon tear and that September 18 and 19, 2012 x-rays demonstrated that he ruptured the
patellar tendon of the same knee. He explained that he underwent physical therapy treatment
after the original injury but continued to experience periodic pain, weakness and swelling.
Appellant stopped work on September 19, 2012. The employing establishment noted that he
worked temporary alternative duty following the original September 2, 2011 injury.
By letter dated October 22, 2012, OWCP advised appellant that, according to the
evidence, he sustained a new traumatic injury, not a recurrence of the September 2, 2011
employment injury. It stated that it would administratively create a new traumatic injury claim
with a new case number.
In an October 22, 2012 report, Philip M. Suess, III, a physical therapist, stated that
appellant was referred to physical therapy after a left knee patellar tendon repair. He related that
appellant worked as a correctional officer who initially hurt his knee at work when he walked
downstairs. Appellant explained that he was diagnosed with a partial tendon tear, went to
physical therapy and was getting along fairly well but he still had problems with the knee giving
way on him. He explained that he was in a slight jog or run when the knee finally gave way on
him and he could tell something was seriously wrong because his kneecap was up high in his
mid-thigh area. Upon examination, Mr. Suess observed well-healed incisions in the anterior
portion of the left knee with no excessive edema present. He noted full extension to 40 degrees
of flexion and intact sensation to light touch in the lower left extremity. Mr. Suess reported a
significant amount of muscle wasting in the left lower extremity. He recommended that
appellant continue with physical therapy working on range of motion and strengthening of the
entire left lower extremity. Mr. Suess submitted various physical therapy treatment notes.
On October 31, 2012 appellant informed the employing establishment via telephone that
appellant’s recurrence claim would be developed as a consequential injury, not a new claim as
originally requested. The employing establishment pointed out that he was not jogging for work
or on duty while jogging.
By letter dated November 5, 2012, OWCP informed appellant that it appeared he was
claiming disability due to a consequential condition, not a recurrence of the September 2, 2011
injury. It advised him that it received insufficient evidence to establish his claim and requested
that he complete a questionnaire and submit additional medical evidence.

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On November 26, 2012 appellant noted in his responses to OWCP’s questionnaire that
the new condition was related to his accepted work-related condition because the original injury
never healed. He explained that a September 19, 2011 MRI scan revealed a tendon tear, which
had now worsened to a rupture of the same tendon. Appellant noted that he had no patella or
knee injuries between September 2, 2011 and September 18, 2012. He provided dates of his
medical treatment following the September 2, 2011 employment injury.
On December 10, 2012 OWCP requested clarification regarding whether appellant was
required to jog on September 18, 2012 and whether he was jogging at home or another facility.
It also requested that he submit medical evidence from his treating physician.
Appellant resubmitted September 2, 2011 emergency room records and diagnostic report
regarding medical treatment for his left knee. He also resubmitted a September 12, 2011 report
by Dr. Douglas P. Hein, a Board-certified orthopedic surgeon, who diagnosed torn meniscus of
the left knee and a September 19, 2011 MRI scan which revealed possible medial meniscus tear
of the left knee.
In a September 19, 2012 report, Dr. Ralph W. Morales, a Board-certified orthopedic
surgeon, related appellant’s complaints of diffuse knee pain with a palpable defect over the
patellar tendon. He noted that on September 18, 2012 appellant’s left knee gave way while
running. Upon examination of the left knee, Dr. Morales observed moderate effusion and
normal alignment. He also noted a palpable defect over the patellar tendon. Dr. Morales
reported that x-ray findings revealed no acute boney abnormalities and well-maintained joint
space. He diagnosed rupture of patellar tendon of the left knee and recommended a left patellar
tendon repair.
In reports dated September 21 through December 10, 2012, Dr. Morales related
appellant’s complaints of left knee pain and noted that he underwent a left patella tendon repair
on September 20, 2012. Upon examination of the left knee, he observed active range of motion
and negative ligamentous laxity. Calf was soft and nontender, neurovascularly intact distally.
Dr. Morales diagnosed left knee rupture of patellar tendon. In a December 10, 2012 report, he
related that appellant was undergoing physical therapy treatments and noted improved
symptoms. Examination revealed normal alignment with no effusion or erythema and no
specific tenderness on palpation. Dr. Morales recommended no running or jumping for two
months and no squatting for four weeks.
Appellant also resubmitted various medical reports dated September to October 2011
regarding treatment for his left knee.
In a decision dated February 14, 2012, OWCP denied appellant’s claim finding
insufficient medical evidence to establish that his present knee condition was causally related to
the original September 2, 2011 employment injury. It noted that the medical evidence failed to
demonstrate that he was disabled from work due to a material change or worsening of his
accepted left knee injury.
By letter dated March 4, 2013 and received on March 12, 2013, Paul Felser, appellant’s
attorney, requested an oral hearing. In a letter dated May 14, 2013, he requested that the request

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for an oral hearing be changed to a request for a review of the written record. Mr. Felser stated
that a September 19, 2011 MRI scan report indicated a partial tear of the patellar tendon and
noted that this condition was not accepted as part of the original claim.
Appellant resubmitted a September 21, 2011 report by Dr. Hein, who stated that his MRI
scan showed some abnormality in the proximal portion of the patellar tendon, minimal changes
in the acromioclavicular ligament. Dr. Hein reported no other significant abnormality or any
meniscal tears. Appellant resubmitted various medical reports regarding his September 2, 2011
employment injury.
In a May 29, 2013 report, Dr. Hein stated that he examined appellant in 2011 with a
diagnosis of patellar tendinitis and partial patellar tendon tear following a twisting injury when
appellant walked downstairs at work. He initially believed that appellant had a torn meniscus but
diagnostic studies demonstrated a partial patellar tendon injury or repair. Dr. Hein reported that
they did not treat appellant again for that injury and that appellant apparently developed a
complete tear approximately a year later. He related that appellant underwent a patellar tendon
repair and continued to experience symptoms of pain and weakness in the left knee and leg.
Dr. Hein opined that appellant had an anticipated complication of a partial patellar tendon tear,
which became a complete tear. He explained that this was all a continuation of the process for
which he initially treated appellant in September 2011. Dr. Hein advised that appellant was not
capable of running activities, engaging in any form of manual restraint and combatting with a
potentially hostile individual. He recommended a quadriceps strengthening program and
physical therapy.
In a June 18, 2013 letter, appellant informed OWCP that he changed his representation to
Joe Mansour, a union representative. He requested that the telephone hearing be rescheduled.
On June 20, 2013 a telephone hearing was held. Mr. Mansour alleged that the employing
establishment failed in providing any assistance to appellant regarding his federal compensation
claim. He reported that based on Dr. Hein’s May 29, 2013 report appellant sustained a
recurrence of disability related to the original injury. Appellant described the original
September 2, 2011 employment injury and noted that a September 19, 2011 MRI scan revealed a
partial patella tear. He stated that a second MRI scan in 2012 showed that his patella tendon was
actually torn. Appellant described the September 18, 2012 employment incident and stated that
he was jogging on a track in preparation for a physical fitness test for the employing
establishment when his tendon just tore and he fell down.
Appellant submitted a September 20, 2012 operative report and a February 18, 2013 MRI
scan of the left knee which revealed marked expansion and abnormal signal intensity compatible
with edema involving the patellar tendon that may relate to recent surgery.
By decision dated September 12, 2013, an OWCP hearing representative affirmed the
February 14, 2012 denial decision. OWCP found that appellant’s claim could not be considered
a recurrence claim as there was no spontaneous change in his condition and denied the claim
finding insufficient medical evidence to establish that appellant’s September 18, 2012 left knee
injury was related to the original injury.

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In a letter received on October 25, 2013, appellant requested reconsideration. He stated
that, according to the employing establishment’s program statement, employees must be able to
perform various physical activities, including running an extended distance. Appellant included
an attachment of the employing establishment’s physical requirements for the position.
In a decision dated November 1, 2013, OWCP denied appellant’s reconsideration request
finding that he did not provide any information sufficient to warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
The term disability as used in FECA means the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden to establish by the weight of the reliable, probative and
substantial evidence a recurrence of total disability and show that he or she cannot perform such
light duty. As part of this burden, the employee must show either a change in the nature and
extent of the injury-related condition or a change in the nature and extent of the light-duty
requirements.3 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes, on the basis of a complete and accurate factual and medical history,
that the disabling condition is causally related to the employment injury. The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.4
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent, intervening cause attributable to the employee’s own intentional conduct.5 A
claimant bears the burden of proof to establish a claim for consequential injury. As part of this
burden, he or she must present rationalized medical opinion evidence, based on a complete
medical and factual background, establishing causal relationship.6 The opinion of the physician
must be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of

2

20 C.F.R. § 10.5(x).

3

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013).

5

Clement Jay After Buffalo, 45 ECAB 707, 715 (1994); John R. Knox, 42 ECAB 193, 196 (1990).

6

Jennifer Atkerson, 55 ECAB 317 (2004); R.C., Docket No. 10-1789 (issued April 22, 2001).

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the relationship between the diagnosed condition and the specific employment factors identified
by the employee.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained left knee patellar tendinitis and synovitis as a
result of a September 2, 2011 employment incident. Appellant worked temporary alternative
duty after the injury. On September 23, 2012 he filed a recurrence claim alleging that on
September 18, 2012 his knee collapsed while he was jogging in preparation for a physical fitness
test. Appellant underwent left patellar tendon repair and stopped work. OWCP denied his claim
finding insufficient medical evidence to establish that his current left knee condition was
causally related to his original September 2, 2011 employment injury. The Board finds that
appellant failed to submit sufficient medical evidence to establish that his present left knee
symptoms resulted from the September 2, 2011 injury.
The Board finds that OWCP properly determined that appellant’s claim does not meet the
definition of a recurrence of disability as his circumstances do not involve a spontaneous change
in his accepted condition but demonstrate an intervening injury.8 Appellant testified that on
September 18, 2012 he was jogging around a track when his knee suddenly gave out. The Board
notes that this claim is similar to John R. Knox,9 where appellant claimed that a recurrence of
disability occurred when he was playing basketball and dislocated his left knee patella. In that
case, the Board determined that appellant’s current disability was not the result of a natural
consequence or progression of his accepted condition but was due to an independent intervening
cause. Likewise, the Board finds that, in this case, jogging around a track was an incident
unrelated to his accepted injury of September 2, 2011.
The Board also finds that the medical evidence does not establish that appellant’s current
disability was causally related to the original September 2, 2011 employment injury. Appellant
submitted various reports dated September 19 to December 10, 2012 by Dr. Morales, who
related appellant’s complaints of left knee pain over the patellar tendon. Dr. Morales accurately
described the September 18, 2012 jogging incident and provided findings on examination. He
diagnosed rupture of the patellar tendon of the left knee. Dr. Morales does not, however,
mention appellant’s previous September 2, 2011 left knee injury nor whether his current left
knee condition and disability were causally related to the 2011 injury. 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.10 Accordingly, Dr. Morales’s reports are of limited
probative value and are insufficient to establish appellant’s claim.
In a May 29, 2013 report, Dr. Hein related that in 2011 appellant sustained patellar
tendinitis and partial patella tendon tear following a twisting injury at work. He stated that he
7

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007).

8

See M.D., Docket No. 11-1078 (issued January 27, 2012); Bryant F. Blackmon, 56 ECAB 752, 764 (2005).

9

Supra note 8.

10

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

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did not treat appellant for a year and that appellant apparently developed a complete tear
approximately a year later. Dr. Hein noted that appellant continued to experience symptoms of
pain and weakness in his left leg and knee. He reported that appellant had an anticipated
complication of a partial patellar tendon tear, which became a complete tear and opined that this
was all a continuation of the process for which he initially treated appellant in September 2011.
The Board notes that while Dr. Hein attributes appellant’s current left knee condition to the
September 2011 work injury, he does not sufficiently explain how appellant’s current condition
and disability were causally related to the original September 2, 2011 employment injury and not
jogging. Dr. Hein’s blanket statement that appellant’s current left knee condition was a
continuation of the process of the initial September 2, 2011 injury, unsupported by any medical
rationale, is insufficient to establish appellant’s claim.11
The additional physical therapy reports and treatment notes are likewise insufficient to
establish appellant’s claim because physical therapists are not physicians as defined by FECA.
Therefore, their medical opinions regarding diagnosis and causal relationship are of no probative
value.12
On appeal, counsel notes that in a letter dated October 22, 2012 OWCP advised appellant
that his claim was not a recurrence claim but a new traumatic injury and that it would generate a
new traumatic injury claim with a new case number. She asserts that OWCP did not handle
appellant’s case in accordance with FECA Procedure Manual, Chapter 1.500 Case Maintenance.
The Board notes that while OWCP initially advised appellant that it would adjudicate his claim
as a new traumatic injury claim, it later informed him in a letter dated November 5, 2012 that his
claim was not a new claim and would be adjudicated with his original September 2, 2011 injury.
The record reveals that appellant’s current claim was properly filed with the same file number as
his original September 2, 2011 traumatic injury. Furthermore, the Board finds that he has not
provided any evidence that his case was mishandled pursuant to FECA Procedure Manual.
Counsel further cites V.H. v. Department of Housing and Urban Development13 in
support of her contention that OWCP did not properly process appellant’s claim. The Board
notes, however, that the facts of this case are distinguishable. In V.H., appellant filed a
recurrence claim alleging that she sustained a recurrence of disability on January 17, 2012
causally related to an April 14, 2011 back injury. OWCP filed the claim under a different claim
number than the April 14, 2011 injury and adjudicated the claim as a new traumatic injury claim.
The Board determined that it should have adjudicated appellant’s current claim as a recurrence of
disability as he initially requested and remanded the case for OWCP to combine the current case
record with the April 14, 2011 injury record and properly address the recurrence issue. In this
case, however, OWCP properly combined his September 18, 2012 recurrence of disability claim
with the same file number as his initial September 2, 2011 injury and did not separately
11

See J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

12

Section 8102(2) provides that 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. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).
13

Docket No. 12-1523 (January 25, 2013).

7

adjudicate his claim. Accordingly, the Board finds that it properly reviewed the complete record
pertinent to appellant’s recurrence of disability 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.14 OWCP’s regulations provide that it may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his right through a request to the district Office.15
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.17 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.18 If the request is timely but fails
to meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.19
ANALYSIS -- ISSUE 2
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by OWCP; and he has not submitted relevant and pertinent new evidence not
previously considered by OWCP.
14

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
15

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
16

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
17

Id. at § 10.607(a).

18

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

19

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

8

By decision dated September 12, 2013, OWCP denied appellant’s claim finding that the
evidence did not establish that his current left knee condition was causally related to his original
September 2, 2011 employment injury. In a statement dated October 16, 2013 and received on
October 25, 2013, appellant requested reconsideration and submitted a copy of the employing
establishment’s physical requirements for his position. OWCP had denied his claim based on the
insufficiency of the medical evidence. A list of the physical requirements for the position is
neither relevant nor pertinent to the medical issue in this case and is not sufficient to require
OWCP to reopen appellant’s claim for consideration of the merits.20
Appellant did not submit any evidence along with his request for reconsideration to show
that OWCP erroneously applied or interpreted a specific point of law or advances a relevant legal
argument not previously considered by OWCP. Because he did not meet any of the necessary
requirements, he is not entitled to further merit review.
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen his case for further consideration of the merits of his claim under
5 U.S.C. § 8128.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
current knee conditions and inability to work are causally related to his original
September 2, 2011 employment injury. The Board also finds that OWCP properly denied
appellant’s October 25, 2013 request for reconsideration pursuant to 5 U.S.C. § 8128(a).

20

See James W. Scott, 55 ECAB 606 (2004).

9

ORDER
IT IS HEREBY ORDERED THAT the October 25 and September 12, 2013 merit
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 8, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kankakee, IL, Employer
__________________________________________

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

Docket No. 06-942
Issued: February 5, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 13, 2006 appellant filed a timely appeal from the January 4 and March 2, 2006
merit decisions of the Office of Workers’ Compensation Programs, which denied modification of
his schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the schedule award.
ISSUE
The issue is whether appellant has more than a 37 percent permanent impairment of his
right lower extremity.
FACTUAL HISTORY
On May 12, 2000 appellant, then a 56-year-old city letter carrier, alleged an injury in the
performance of duty: “Walking down stairs -- the stair I was on collapsed.” The Office accepted
his claim for resolved mild sprain of the left ankle and right knee. The Office authorized a total
right knee replacement.

Appellant filed a claim for a schedule award. On March 4, 2004 Dr. Thomas L. Sutter,
Board-certified in family medicine and specializing in occupational medicine, evaluated the right
lower extremity. Using the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001), he awarded 50 points for pain, 20 points
for range of motion and no points for stability. He noted that these 70 points represented a
“Fair” result following the right knee replacement and a 50 percent permanent impairment of the
lower extremity.
On April 12, 2004 the Office medical adviser reviewed Dr. Sutter’s evaluation. Using
the same tables as Dr. Sutter, he reported that appellant had a “Good” result following his total
right knee replacement, which represented a 37 percent permanent impairment of the lower
extremity.
On August 12, 2004 the Office issued a schedule award for a 37 percent permanent
impairment of the right lower extremity. On June 16, 2005 an Office hearing representative
remanded the case for clarification from the Office medical adviser: “[He] should explain the
reasons he determined that the claimant had a good versus a fair result following the knee
replacement surgery.”
On July 11, 2005 the Office medical adviser explained that he could find no mention of
instability in the reports of the surgeon, the physical therapist or Dr. Sutter. Because appellant’s
knee appeared stable, the medical adviser added 25 points to Dr. Sutter’s 70, for a total of
95 points and a “Good” result from knee replacement.
On September 26, 2005 the Office denied an increased schedule award based on the
opinion of the Office medical adviser. On January 4 and March 2, 2006 the Office denied
modification of this decision, after reviewing August 29, 2005 and January 25, 2006 reports from
Dr. Sutter reaffirming his original rating. The Office noted that these reports did not address the
knee stability issue.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.2
ANALYSIS
Table 17-33, page 547 of the A.M.A., Guides estimates impairment of the lower
extremity due to total knee replacement. Knee replacement results may be “Good,” “Fair” or
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999). Effective February 1, 2001 the Office began using the fifth edition of the A.M.A.,
Guides.

2

“Poor,” depending on the point total obtained from Table 17-35, page 549. The point total is the
sum of the points of the first three categories (pain, range of motion, stability) minus the sum of
the points in the last three categories (flexion contracture, extension lag, alignment).
In the first three categories, more points mean a better result. This is a critical feature of
the point system because it accounts for the different ratings appellant received. In the pain
category, for example, the absence of pain is worth 50 points and severe pain is worth 0. If a
physician awards no points for pain, it means there is pain to the greatest degree. There is no
ambiguity here. Dr. Sutter, the specialist in occupational medicine, indicated that appellant had
no pain and, therefore, appropriately awarded 50 points.
In the range of motion category, every 5 degrees of motion receives 1 point, up to
25 points. Again there is no ambiguity. Dr. Sutter reported 100 degrees of motion and
appropriately awarded 20 points.
The remaining issue arises in the third category: stability. Anteroposterior movement
less than 5 millimeters (mm) is worth 10 points, while movement greater than 9 mm (greater
instability) is worth none. Mediolateral movement of 5 degrees is worth 15 points, while
movement greater than or equal to 15 degrees (greater instability) is again worth none.
Dr. Sutter reported no points in this category, but he did not make clear whether he meant that
appellant’s knee was stable or whether he meant -- technically consistent with zero points -- that
appellant’s knee was unstable to the greatest degree.
As the Office medical adviser observed, the medical record reflects no postsurgical
complaint or finding of instability. On the operating table, the 10 mm semiconstrained tibial
bearings gave full extension and good medial to lateral stability, good contact at 90 degrees of
flexion and good anterior to posterior stability. The surgeon saw appellant several times
following the surgery and made no mention of instability. On November 24, 2003 when the
surgeon reported maximum medical improvement, he noted that appellant was doing well and
functioning at work without difficulty. Gait was normal, active extension was full and there was
no localized tenderness or swelling. Finally, when Dr. Sutter examined appellant on March 4,
2004, he made no mention of any joint instability.
The only evidence that possibly shows a complaint of instability is a notation on a copy
of Table 17-35: “shift occasionally sideways.” The best interpretation is that Dr. Sutter
discounted this complaint, as he reported no abnormal finding on clinical examination. The
medical record shows that appellant progressed well after his knee replacement. His surgeon
made no mention of instability in his follow-up examinations and Dr. Sutter reported no measure
or degree of movement to support the existence of instability. The Board finds that the Office
medical adviser correctly awarded 25 points in the third category for a stable knee. This brings
the sum of the points in the first three categories to 95.
There is no dispute about the last three categories. Dr. Sutter reported that appellant got
nothing in these categories, so nothing is subtracted. The point total for appellant’s knee
replacement is, therefore, 95. According to Table 17-33, page 547 of the A.M.A., Guides,

3

95 points represents a “Good” result from the knee replacement and a 37 percent impairment of
the right lower extremity. The Board will affirm the Office’s decisions denying modification of
appellant’s schedule award.3
CONCLUSION
The Board finds that the evidence establishes no more than a 37 percent permanent
impairment of appellant’s right lower extremity. The Office properly applied the A.M.A.,
Guides to the weight of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the March 2 and January 4, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

3

The fewest points that can be awarded in the last three categories are seven. Subtracted from 95, this still leaves
appellant with a “Good” result and 37 percent impairment. Dr. Sutter’s conclusion that appellant had a “Fair” result
and a 50 percent impairment does not create a conflict under 5 U.S.C. § 8123(a) because it appears he simply
misapplied Table 17-35. Further, appellant has submitted no medical evidence to support anteroposterior movement
greater than 9 mm and mediolateral movement of at least 15 degrees. These clinical findings, together with a sound
explanation reconciling such instability with the lack of any previous instability, would be necessary to support
Dr. Sutter’s impairment estimate.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

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

Docket No. 20-0065
Issued: September 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 8, 2019 appellant filed a timely appeal from an April 15, 2019 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 the case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 15, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied waiver of recovery of an overpayment in the
amount of $63,696.96 with regard to the period August 1, 2015 through January 6, 2018, for which
he was without fault.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On June 3, 2004 appellant, then a 55-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he injured his lower back when lifting while in the performance
of duty. OWCP accepted the claim for aggravation of lumbar degenerative disc disease. Appellant
stopped work on June 13, 2012. OWCP paid him wage-loss compensation on the periodic rolls as
of July 1, 2012.
In correspondence dated January 23, 2018, OWCP notified appellant that, based on
information provided by Social Security Administration (SSA) regarding the amount of his SSA
age-related retirement benefits attributable to federal service, his FECA benefits had been adjusted
effective January 7, 2018.
On January 23, 2018 OWCP issued a preliminary finding that an overpayment of
compensation in the amount of $63,696.96 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA age-related retirement benefits, for the period
September 1, 2014 to January 6, 2018, was based on credits attributable to his federal service, and
that this portion of his SSA benefit was a prohibited dual benefit. OWCP found him at fault in the
creation of the overpayment.
By decision dated March 6, 2018, OWCP finalized the preliminary overpayment
determination, finding an overpayment of compensation in the amount of $63,696.96, for which
appellant was at fault. It required recovery of the overpayment by deducting $425.00 from his
continuing compensation payments every 28 days.
On April 17, 2018 appellant filed an appeal with the Board. 4
By decision dated January 29, 2019, the Board affirmed the March 6, 2018 decision in part,
as modified, and set aside the decision in part. The Board found that appellant received an
overpayment of compensation in the amount of $63,696.95 for the period September 1, 2014
through January 6, 2018 because he concurrently received SSA age-related retirement benefits and
FECA wage-loss compensation without an appropriate offset. The Board further found, however,
3

Docket No. 18-1009 (issued January 29, 2019).

4
Appellant elected to receive Office of Personnel Management (OPM) retirement benefits, effective January 23,
2019, in lieu of compensation benefits under FECA.

2

that appellant was at fault in the creation of the overpayment only for the period September 1, 2014
through July 31, 2015, and thereby precluded from waiver of recovery of the overpayment for that
period. The Board found appellant without fault in the creation of the overpayment for the period
August 1, 2015 through January 6, 2018. The Board remanded the case to OWCP to consider
waiver of recovery of the overpayment for that period, followed by a de novo decision.
On February 28, 2019 OWCP advised appellant that pursuant to the Board’s remand of the
case, it would further consider whether appellant was eligible for waiver of recovery of the
overpayment. It forwarded appellant an overpayment recovery questionnaire (Form OWCP-20)
for his completion and afforded him 30 days to respond.
On a completed Form OWCP-20 overpayment recovery questionnaire dated March 22,
2019, appellant noted that he had monthly income of $2,155.00 from SSA, $966.94 in retirement
benefits from the OPM, and $160.00 from an annuity, for total monthly income of $3,261.94. He
also indicated that he had assets of $6,387.82 which included $30.00 cash, $1,385.00 checking
account balance, $4,672.82 savings account balance, and $300.00 other funds. Appellant prepared
a financial statement in which he indicated monthly expenses of $135.00 property tax, $1,041.13
home repair due to flooding, $500.00 church contributions, $39.00 home security, $175.30
electricity, $183.71 gas, $98.34 telephone/internet, $35.00 water, $24.00 trash, $60.35 mobile
telephone, $375.00 groceries, $100.00 restaurants, $191.58 bundled home and car insurance,
$250.00 car/gasoline, $30.00 cleaning/laundry, $500.00 prescription drugs, $148.67 health
insurance, $27.42 vision and dental insurance, $30.30 supplemental insurance, $11.31 life
insurance, and 5 monthly credit card and personal loan payments totaling $640.00, for a total of
$4,596.11 in monthly expenses. He listed his respective monthly credit card payments which
totaled $515.00 and a personal loan $125.00. In an attached statement, appellant requested waiver,
contending that his home had flooded and that a 2010 automobile needed substantial repairs. He
forwarded supporting financial documentation regarding his assets and expenses. This included:
an estimate on home repairs; a Thrift Savings Account statement showing a balance of $7,447.18;
a loan payment calculator; bank receipts for monies deposited; cancelled checks to a church and
for a personal loan; and partial billing statements for homeowners and life insurance, taxes,
television/internet/telephone, and credit cards.
OWCP subsequently received additional supporting financial documentation consisting of
partial statements for various credit cards.
On April 15, 2019 OWCP issued a revised final overpayment decision regarding the
overpayment of compensation in the amount of $63,696.96 for the period September 1, 2014
through January 6, 2018. It indicated that it had reviewed appellant’s overpayment questionnaire
and the submitted financial documentation, and determined that although he was without fault in
part, the circumstances of his case did not warrant waiver of recovery of the overpayment. An
attached overpayment memorandum explained that the evidence of record confirmed that he had
monthly income of $3,336.13, other funds totaling $6,387.82, and debts totaling $4,416.57.
OWCP then determined, however, that certain reported expenses were inflated, and that appellant
had not provided sufficient documentation to support the amounts claimed. It found that his
adjusted income after expenses was $1,021.85 per month, noting that he had $6,387.82 in
additional assets and that he did not have a mortgage or rent payment. OWCP found that the

3

information submitted was insufficient to support waiver of recovery of the $63,696.96
overpayment. It required recovery of the overpayment by monthly payments of $425.00.
LEGAL PRECEDENT
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 5
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience. 6
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
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 OWCP
from data provided by the Bureau of Labor Statistics. 7 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.8
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 9 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the payment(s) or on the notice
of payment.10

5

5 U.S.C. § 8129(a), (b).

6

E.L., Docket No. 20-0723 (issued October 15, 2020); L.S., 59 ECAB 350 (2008).

7

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).
8

Federal (FECA) Procedure Manual, id. at Chapter 6.400.4a(3).

9

20 C.F.R. § 10.437.

10

Federal (FECA) Procedure Manual, supra note 7 at Chapter 6.400.4c(3).

4

ANALYSIS
The Board finds that OWCP properly denied waiver of recovery of the overpayment in the
amount of $63,696.96.
Appellant’s adjusted income after expenses was $1,021.85 per month and he had $6,387.82
in additional assets. Moreover, he did not provide sufficient documentation of all his expenses, as
requested by OWCP. 11
As appellant’s monthly income exceeds his ordinary and necessary living expenses by
more than $50.00, the Board finds that he did not need substantially all of his income for ordinary
and necessary living expenses. 12 The record also establishes that he did not give up a valuable
right or change his position for the worse in reliance on the overpaid amount. 13 As appellant failed
to establish that recovery of the overpayment of compensation would either defeat the purpose of
FECA or be against equity and good conscience, the Board finds that OWCP did not abuse its
discretion in denying waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of the overpayment in the
amount of $63,696.96.

11

See R.M., Docket No. 19-0183 (issued November 18, 2019).

12

See R.F., Docket No. 20-0159 (issued October 15, 2020); M.C., Docket No. 19-0699 (issued February 12, 2020).

13

Supra note 10.

5

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 2, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Laguna Niguel, CA, Employer
__________________________________________

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

Docket No. 19-0207
Issued: August 23, 2019

Case Submitted on the Record

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

JURISDICTION
On November 5, 2018 appellant, through counsel, filed a timely appeal from a
September 10, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the September 10, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective January 17, 2018, based on her capacity to earn wages in the
constructed position of information clerk.
FACTUAL HISTORY
On May 17, 2007 appellant, then a 39-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that on April 17, 2007 she experienced pain in her neck, shoulders, back,
knees, ankles, and feet due to factors of her federal employment including standing for long
periods. On June 28, 2007 OWCP accepted her claim for bilateral plantar fibromatosis and lateral
collateral ligament knee sprain. It initially paid appellant wage-loss compensation benefits on the
supplemental rolls. OWCP paid compensation on the periodic rolls as of August 29, 2010.
On July 24, 2014 OWCP referred appellant to Dr. Steven M. Ma, a Board-certified
orthopedic surgeon, for a second opinion examination to assess the status of her accepted
conditions and to evaluate her work capacity.
In a report dated August 28, 2014, Dr. Ma reviewed the statement of accepted facts (SOAF)
and the available medical records. He noted that, following appellant’s employment injury of
April 17, 2007, she had continued working in a supervisory role with restrictions which included
no standing or walking more than four hours per day, no reaching, no heavy lifting, and no
kneeling. Dr. Ma indicated that appellant worked as a supervisor for five years until 2012 when
she was off work again because there was no light-duty work available for her. He indicated that
appellant received wage-loss compensation payments for the 1.5 years she was off work. Dr. Ma
related that in September 2013 appellant was rehired to work as a clerk with the same
aforementioned restrictions, but she only worked four hours per day, and appellant received
compensation payments for the four hours per day that she did not work.4 He indicated that on the
date of the examination she complained of pain and throbbing in both knees and pain and burning
on the balls of her feet and heels. Based upon his examination and review of appellant’s diagnostic
studies, Dr. Ma diagnosed bilateral plantar fibromatosis/plantar fasciitis and mild age-related
bilateral knee osteoarthritis. He related that the plantar fasciitis was directly caused by the accepted
April 17, 2007 employment injury, but the knee arthritis was not medically connected to the
employment injury. Dr. Ma further noted that appellant’s mild arthritis was nonindustrial and
normal for her age. He indicated that she could perform her usual and customary duties with
regard to her knees and feet.
In a work capacity evaluation form of the same date, Dr. Ma marked the box marked “no”
when asked whether appellant was capable of performing her usual job, but did not explain. He
checked the box marked “yes” when asked whether she was able to work for eight hours per day
with restrictions, and noted that such restrictions would apply indefinitely.
On November 11, 2014 appellant underwent left foot plantar fascial release surgery on her
left foot.

4

Dr. Ma noted that appellant was terminated from her employment on August 22, 2014.

2

In a progress report dated April 23, 2015, Dr. Hosea Brown, III, Board-certified in internal
medicine, diagnosed bilateral plantar fibromatosis and bilateral degenerative joint disease of the
knees. He noted that appellant could return to modified work on April 23, 2015 with restrictions.
In a progress report dated April 30, 2015, Dr. Domenic Signorelli, a podiatrist specializing
in orthopedic surgery, related that appellant did not have complications with a prior plantar fascia
procedure, and that she could return to work in adherence with Dr. Brown’s assessment.
On May 19, 2015 OWCP referred appellant for vocational rehabilitation services.
On November 9, 2015 OWCP referred appellant to Dr. Joseph Klemek, a Board-certified
orthopedic surgeon, for a second opinion examination to determine the status of her work-related
condition, along with treatment recommendations and appropriate work restrictions.
In a report dated December 1, 2015, Dr. Klemek indicated that he examined appellant, and
reviewed the SOAF and available medical records. He related that she complained of pain on the
bottom of both feet, pain at the back of both Achilles and in the ankles, aching in both knees,
frequent feeling of instability, and persistent swelling in both knees. Dr. Klemek noted
impressions of nonindustrial, bilateral mild patellar subluxation and chondromalacia; nonindustrial
mild degeneration of both knees; resolved history of bilateral knee sprain; and release of the long
plantar ligament at the left heel without obvious scarring and without acute symptoms regarding
bilateral plantar fasciitis. He noted that the first two diagnoses were not medically connected to
the April 17, 2007 employment injury, but the third and fourth diagnoses were medically
connected by direct cause. Dr. Klemek indicated that appellant reached maximum medical
improvement (MMI) again on or about April 2015, and she had no need for ongoing medical
treatment. He noted that, as it related to her knees and feet, appellant’s physical limitations
included no standing and walking in excess of five hours out of an eight-hour workday, and lifting,
pushing, and pulling limited to 20 pounds and not for more than four hours per day out of an eight
hour day. In a work capacity evaluation of the same date, Dr. Klemek indicated that appellant
could resume sedentary work with the aforementioned restrictions.
In a January 14, 2016 report, Dr. Brown related that he strongly disagreed with
Dr. Klemek’s assertions that appellant’s knee conditions were nonwork related. He indicated that
the repetitive extending and flexing of her knees clearly increased the biomechanical load to these
areas thereby causing significant cumulative trauma, and therefore a permanent aggravation of
bilateral degenerative arthritis of her knees. With regard to appellant’s plantar fasciitis, Dr. Brown
noted that she had reached a point of MMI. He related that she could return to work on January 14,
2016 with restrictions including no lifting over 30 pounds intermittently, no standing in excess of
one to five hours per day, no walking in excess of two to five hours per day, no climbing in excess
of one hour per day, and no kneeling.
In his February 4, 2016 report, Dr. Signorelli indicated that he agreed with Dr. Klemek’s
evaluation and assessment.
In a letter dated March 1, 2016, OWCP informed appellant that she was being referred for
vocational rehabilitation services based on Dr. Brown’s assessment that she was capable of
performing modified duties with restrictions.

3

In a vocational rehabilitation report dated April 4, 2016, D.P., a rehabilitation counselor,
reiterated appellant’s occupational and medical history. She indicated that she had contacted
appellant’s former employer, but no job offer had been received.
OWCP received subsequent vocational rehabilitation reports dated May 5, June 10, and
July 5, 2016. In her July 5, 2016 report, D.P. developed vocational goals of receptionist or
information clerk.
In a letter dated July 25, 2016, OWCP informed appellant that it reviewed the rehabilitation
counselor’s plan for her to return to work as an information clerk or receptionist, and that the job
duties were within her limitations.
In a letter dated November 27, 2017, OWCP proposed to reduce appellant’s wage-loss
compensation because the medical and factual evidence of record established that she was no
longer totally disabled, but rather was partially disabled and that she had the capacity to earn wages
as an information clerk, DOT #237.367-022, at the rate of $520.00 per week. It found that the
position of information clerk was medically and vocationally suitable, and existed in sufficient
numbers in the commuting area. As appellant’s wage-earning capacity was less than the current
pay of the job she held when injured, 48 percent, OWCP proposed to reduce her wage-loss
compensation to $1,743.00 every four weeks. Appellant was afforded 30 days in which to submit
contrary evidence.
In a letter dated December 22, 2017, counsel argued against the proposed reduction of
compensation. In support thereof, he submitted a report dated November 30, 2017, and two duty
status reports (Form CA-17) dated November 2 and 30, 2017 from Dr. Brown. In the
November 30, 2017 report, Dr. Brown noted that appellant complained of neck discomfort. He
indicated that she could return to modified work on November 2, 2017. In the CA-17 of the same
date, Dr. Brown related that appellant could resume modified duties with restrictions on
November 30, 2017. In the November 2, 2017 Form CA-17, he indicated that she could resume
modified work with restrictions on November 2, 2017.
By decision dated January 24, 2018, OWCP reduced appellant’s wage-loss compensation,
effective January 17, 2018, based on her capacity to earn wages as an information clerk earning
$520.00 per week, as the position was found to be medically and vocationally suitable.
On February 12, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. During the hearing, held on July 6, 2018, counsel argued that
appellant did not have the physical capacity to maintain any kind of sustained work, regardless of
the findings of the vocational rehabilitation counselor.
By decision dated September 10, 2018, OWCP’s hearing representative affirmed the
January 24, 2018 decision finding that the position of information clerk was physically and
vocationally suitable for appellant, and reasonably represented her wage-earning capacity.

4

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.5 An injured employee who is either unable to return to the
position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wage-earning
capacity (LWEC).6
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee, if the earnings fairly and reasonably represent his or her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent the employee’s wageearning capacity or if the employee has no actual wages, the wage-earning capacity is determined
with due regard to the nature of the injury, the degree of physical impairment, the employee’s usual
employment, age, qualifications for other employment, the availability of suitable employment,
and other factors and circumstances which may affect her wage-earning capacity in his or her
disabled condition.7
In determining an employee’s wage-earning capacity based on a position deemed suitable,
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post injury or subsequently-acquired conditions.8 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to the
LWEC that can be attributed to the accepted employment injury and for which appellant may
receive compensation.9
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to her
physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.10 Finally, application of the
principles set forth in Albert C. Shadrick11 and codified by regulations at 20 C.F.R. § 10.40312
5

M.K., Docket No. 17-0208 (issued April 17, 2018); H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58
ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB 197 (2005).
6

20 C.F.R. §§ 10.402 and 10.403; J.H., Docket No. 18-1319 (issued June 26, 2019).

7
5 U.S.C. § 8115(a); M.K., supra note 5; see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy
Lams, 47 ECAB 584 (1996).
8

M.K., supra note 5; James Henderson, Jr., 51 ECAB 268 (2000).

9

G.E., Docket No. 18-0663 (issued December 21, 2018); James Henderson, Jr., 51 ECAB 268 (2000).

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6.a (June 2013).
11

5 ECAB 376 (1953).

12

20 C.F.R. § 10.403.

5

should be applied. Subsection(d) of the regulations provide that the employee’s wage-earning
capacity in terms of percentage is obtained by dividing the employee’s actual earnings or the pay
rate of the position selected by OWCP, by the current pay rate for the job held at the time of the
injury.13
ANALYSIS
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective January 17, 2018, based on her capacity to earn wages in the
constructed position of information clerk.
OWCP accepted appellant’s claim for bilateral plantar fibromatosis and lateral collateral
ligament knee sprain. Appellant was initially paid compensation on the supplemental rolls, was
later paid compensation on the periodic rolls, and was eventually referred for vocational
rehabilitation services. OWCP based its January 24, 2018 LWEC determination on her capacity
to earn wages as an information clerk.
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects her wage-earning capacity.14 In his medical
report dated January 14, 2016, Dr. Brown supported appellant’s return to modified employment
with restrictions including no lifting over 30 pounds intermittently, no standing in excess of one
to five hours per day, no walking in excess of two to five hours per day, no climbing in excess of
one hour per day, and no kneeling. In various reports in 2016, the vocational rehabilitation
counselor selected the position of information clerk as possessing the specific vocational and
medical requirements for appellant to resume work. The position selected was sedentary in nature
requiring no lifting in excess of 10 pounds. It required no climbing, balancing, stooping, kneeling,
crouching, crawling, fingering, feeling, tasting/smelling, far acuity, depth perception,
accommodation, color or field vision, and only required occasional reaching and handling and
frequent talking, hearing, and near acuity. Appellant, thus, has the physical capacity to perform
the duties of the selected position of information clerk.15
The vocational rehabilitation specialist also found that the position of information clerk
was reasonably available in appellant’s local labor market with an entry level weekly wage of
$520.00.16
The Board finds that OWCP considered the appropriate factors in determining that the
information clerk position represented appellant’s wage-earning capacity.17 These factors
included availability of suitable employment and her physical limitations, usual employment, age,
and employment qualifications.18 The evidence established that appellant had the requisite
13

Id. at § 10.403(d).

14

M.K., supra note 5; William H. Woods, 51 ECAB 619 (2000).

15

Id.

16

See J.E., Docket No. 16-0006 (issued November 16, 2016).

17

M.K., supra note 5; John D. Jackson, 55 ECAB 465 (2004).

18

Id.

6

physical ability, skill, and experience to perform the position and that such a position was
reasonably available within the general labor market of her commuting area. Counsel argued that
she was not capable of performing the selected position due to the additional conditions of neck
pain and residuals from bilateral plantar fibromatosis. As noted, in determining an employee’s
wage-earning capacity based on a position deemed suitable, but not actually held, OWCP must
consider the degree of physical impairment, including impairments resulting from both injuryrelated and preexisting conditions, but not impairments resulting from post-injury or subsequentlyacquired conditions.19 The record presently before the Board does not substantiate a preexisting
or causally related diagnosed neck condition. With regard to appellant’s residuals from the
accepted condition of bilateral plantar fibromatosis, there is no evidence that this condition limited
appellant’s ability to perform the duties of the selected position. Therefore, OWCP properly
determined that the position of information clerk reflected her wage-earning capacity.20
OWCP also properly reduced her compensation pursuant to the principles set forth under
Shadrick to $1,743.00 every four weeks, effective January 17, 2018, because the pay rate of the
selected position was less than her date-of-injury salary. The wages in the selected position were
reported as $13.00 per hour ($520.00 per week). OWCP applied the Shadrick formula to determine
the LWEC. The earnings of $520.00 per week were divided by the current rate of pay for
appellant’s date-of-injury job, to determine the wage-earning capacity of 48 percent.21 The pay
rate for compensation purposes was then multiplied by the wage-earning capacity percentage.22
This amount was subtracted from the pay rate for compensation purposes to determine the
LWEC.23 OWCP found that appellant’s LWEC was $435.75 per week or $1,743.00 every four
weeks. The record does not contain an error with respect to these calculations.24
The Board thus finds that OWCP met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective January 17, 2018.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective January 17, 2018, based on her capacity to earn wages in the
constructed position of information clerk.

19

Supra note 10.

20

M.K., supra note 5; James Smith, 53 ECAB 188 (2001).

21

20 C.F.R. § 10.403(d).

22

Id. at § 10.403(e).

23

Id.

24

See T.D., Docket No. 16-0028 (issued November 28, 2016).

7

ORDER
IT IS HEREBY ORDERED THAT the September 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CLEVELAND HOPKINS AIRPORT,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 06-1461
Issued: February 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 12, 2006 appellant filed a timely appeal from a May 19, 2006 merit decision of
an Office of Workers’ Compensation Programs’ hearing representative who affirmed the denial
of her claim for wage loss for the period September 10, 2004 to January 8, 2005. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for the period
September 10, 2004 to January 8, 2005.
FACTUAL HISTORY
On August 15, 2004 appellant, a 45-year-old transportation security screener, filed a
traumatic injury claim alleging that on that date she injured her right shoulder while lifting bins

overhead.1 The Office accepted the claim for aggravation of preexisitng right shoulder
acromioclavicular (AC) degenerative joint disease.
On August 12, 2004 the employing establishment issued a notice of proposed removal on
the grounds of dereliction of duty on July 20, 2004. By letter dated September 7, 2004, the
employing establishment finalized the proposed removal effective September 9, 2004.2
On September 28, 2004 the Office received a work status report by Dr. Thomas
Anderson, a treating Board-certified orthopedic surgeon, who diagnosed a right shoulder AC
joint sprain and indicated that appellant was disabled from work for the period September 15 to
December 1, 2004. On October 1, 2004 the employing establishment received Dr. Anderson’s
September 7, 2004 response to its limited-duty assignment letter. Dr. Anderson indicated that
appellant was capable of working with restrictions.
In an October 21, 2004 work status report, Dr. Anderson stated that appellant would be
out of work for “four months after second surgery.” He indicated that she would be out of work
for a year. Dr. Anderson indicated that appellant required arthroscopic excision of the distal
clavicle surgery for both shoulders. He noted that appellant had been terminated from her
employment.
In a report dated November 18, 2004, Dr. Sheldon Kaffen, a second opinion Boardcertified orthopedic surgeon, diagnosed aggravated right AC degenerative joint disease. He
concluded that appellant was capable of working with restrictions. Dr. Kaffen noted that
appellant was not capable of performing the duties of the position she held when she injured her
left shoulder, but was capable of performing the duties of the light-duty position she held at the
time she injured her right shoulder. In a November 12, 2004 work capacity evaluation (Form
OWCP-5c), he listed the applicable work restrictions.
On December 14, 2004 appellant filed a claim for compensation (Form CA-7) for the
period September 10, 2004 to January 8, 2005.
By decision dated January 3, 2005, the Office denied appellant’s claim for wage-loss
compensation.3
In a letter dated January 7, 2005, appellant requested an oral hearing before an Office
hearing representative, which was held on March 22, 2006.

1

This was assigned file number 09-2050819. The record contains evidence that appellant had filed a prior claim
for a left shoulder injury which was assigned file number 09-2033619. The Office accepted that she sustained a
right rotator cuff tear. Following her left shoulder injury, appellant returned to work with restrictions on
December 26, 2003. On February 23, 2005 the Office doubled the two claims with 09-2033619 as the master file
number.
2

Appellant was terminated from the employing establishment effective September 13, 2004.

3

The Board notes that the Office subsequently approved appellant’s claim for wage loss for the period January 12
to May 14, 2005. On May 6, 2005 the Office placed appellant on the periodic rolls for temporary total disability
effective May 15, 2005.

2

By decision dated May 19, 2006, the Office hearing representative affirmed the denial of
appellant’s claim for wage-loss compensation.
LEGAL PRECEDENT
As used in the Federal Employees’ Compensation Act,4 the term “disability” means
incapacity, because of an employment injury, to earn the wages that the employee was receiving
at the time of injury.5 Disability is, thus, not synonymous with physical impairment which may
or may not result in an incapacity to earn wages.6 An employee who has a physical impairment
causally related to her federal employment, but who nonetheless has the capacity to earn the
wages she was receiving at the time of injury, has no disability and is not entitled to
compensation for loss of wage-earning capacity.7 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in her employment, she is entitled to
compensation for any loss of wages.
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s). The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8
ANALYSIS
The Office accepted appellant’s claim for aggravation of preexisting right shoulder AC
degenerative joint disease. At the time of her August 15, 2004 employment injury, the record
reflects that appellant was performing light-duty work as a result of a prior employment injury.
The employing establishment terminated her for cause effective September 13, 2004. The Office
found that the medical evidence of record was insufficient to establish that appellant was totally
disabled due to her accepted condition for the period in question.
The evidence relevant to the issue of appellant’s disability includes reports from
Dr. Anderson, a treating Board-certified orthopedic surgeon. In a work status report received on
September 28, 2004, Dr. Anderson diagnosed a right shoulder AC joint sprain and indicated that
appellant was disabled from work for the period September 15 to December 1, 2004. On
4

5 U.S.C. §§ 8101-8193.

5

Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 (2003); 20 C.F.R. § 10.5(f).

6

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7

Merle J. Marceau, 53 ECAB 197 (2001).

8

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

3

October 21, 2004 he noted that appellant required surgery, would be unable to work for “four
months after second surgery” and that she would be out of work for a year. However, none of
the reports submitted by Dr. Anderson contained any opinion explaining why appellant’s
accepted employment injury prevented her from performing the duties of the light-duty position
she was working on the dates listed.9 He did not explain how her accepted condition had
changed such that surgery was warranted. The reports merely state conclusions without
discussion of how appellant became disabled for the period in question. There also is no clear
indication that any time lost from work was due to treatment of her accepted condition.
Moreover, Dr. Anderson indicated in response to an inquiry from the employing establishment
that appellant was capable of working a light-duty position with restrictions.
The record also contains a November 18, 2004 report and a November 12, 2004 work
capacity evaluation form by Dr. Kaffen, a second opinion Board-certified orthopedic surgeon.
He also found that appellant was capable of performing light-duty work. Dr. Kaffen did not
address whether appellant was disabled from working for the period in question. Thus, these
reports are insufficient to meet her burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation or
upon appellant’s belief that there is a causal relationship between her condition and her
employment.10 She failed to submit sufficient medical evidence in this case and, therefore, has
failed to discharge her burden of proof.
The Board finds that the medical evidence to establish that appellant’s employmentrelated right shoulder AC degenerative joint disease caused disability for the period
September 10, 2004 to January 8, 2005. Therefore, she is not entitled to compensation for total
disability for this period.
CONCLUSION
The Board finds that appellant has failed to establish that she is entitled to wage-loss
compensation for total disability during the period September 10, 2004 through January 8, 2005
due to her August 15, 2004 employment injury.

9

See Sandra D. Pruitt, 57 ECAB ___ (Docket No. 05-739, issued October 12, 2005); Michael E. Smith,
50 ECAB 313 (1999) (the issue of whether a claimant’s disability is related to an accepted condition is a medical
question which must be established by a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disability is causally related to employment factors and supports that conclusion with
sound medical reasoning).
10

Patricia J. Glenn, 53 ECAB 159 (2001).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 19, 2006 be affirmed.
Issued: February 6, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Denver, CO, Employer
__________________________________________
Appearances:
Gregory A. Hall, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-344
Issued: April 25, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On November 26, 2012 appellant, through her attorney, filed an application for review of
a July 11, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
affirming, with modification, the termination of her wage-loss compensation.1 OWCP assigned
File No. xxxxxx979 to this claim. In the same decision, the hearing representative accepted
appellant’s recurrence of disability claim, assigned File No. xxxxxx812, and determined that she
was entitled to wage-loss compensation for the period July 6, 2010 to September 1, 2011.
Having duly reviewed the matter, the Board finds that the case is not in posture for
decision. Although OWCP adjudicated matters regarding two separate claims in its July 11,
2012 decision, the case record presently before the Board is limited to evidence in File No.
xxxxxx979. Pursuant to its procedures, OWCP has determined that cases should be combined
1

Counsel actually sought to appeal a June 6, 2012 OWCP informational letter. This letter noted counsel’s
assertion regarding a recurrence of disability beginning July 6, 2010. OWCP noted that the alleged recurrence was
addressed in claim number xxxxxx812 and recommended that appellant review her appeal rights in that claim. The
letter did not purport to be a final decision. However, as noted, infra, OWCP’s July 11, 2012 decision also
addresses the claim for a recurrence of disability beginning July 6, 2010 and matters pertaining to claim number
xxxxxx812.

when correct adjudication of the issues depends on frequent cross-reference between files.2
Therefore, for a full and fair adjudication, appellant’s claims should be doubled.3 On remand
OWCP shall combine File Nos. xxxxxx979 and xxxxxx812 and, following this and other
development deemed necessary, issue an appropriate decision.
IT IS HEREBY ORDERED THAT the July 11, 2012 decision be set aside and the case
remanded to OWCP for further action consistent with this order of the Board.
Issued: April 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).
3

In the July 11, 2012 decision, the hearing representative also directed that the two claims be administratively
combined.

2