United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
J.D., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
Port Angeles, WA, Employer
________________________________________

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

Docket No. 13-1272
Issued: September 17, 2013

Case Submitted on the Record

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

JURISDICTION
On April 29, 2013 appellant filed a timely appeal from a January 24, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim for an
employment-related injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
consequential cervical and right arm conditions in the performance of duty causally related to
factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 27, 2011 appellant, then a 44-year-old lead forestry technician, filed an
occupational disease claim (Form CA-2) alleging that he developed cervical and right arm
conditions due to a traumatic injury he sustained in 1998. He stated that following his injury he
had continued to work as a wild land firefighter, fighting fires, cutting trees, digging fire lines
and carrying heavy backpacks.
In an August 9, 2011 letter, OWCP requested additional factual and medical information
from appellant. It allotted him 30 days to submit additional evidence and respond to its inquiries.
Subsequently, appellant submitted narrative statements indicating that on August 18,
1998 a sky crane with a belly tank unexpectedly dropped a full load (up to 1,600 gallons) of
water on him and his squad on the Locum Fire in Idaho, which caused trees to fall and his head
was hit by a tree top. He stated that he had previously filed a traumatic injury claim under
OWCP File No. xxxxxx169 and believed his current conditions were causally related to his 1998
injury.
Appellant submitted a June 4, 2004 magnetic resonance imaging (MRI) scan of the
cervical spine which showed a three- to four-millimeter disc and osteophytic ridge at C5-6 and
an abnormal electromyogram and nerve conduction study (EMG/NCS) dated
December 20, 2010. A November 30, 2010 x-ray of the cervical spine revealed small right
cervical rib and degenerative disc disease at C5-6. A December 2, 2010 MRI scan of the
cervical spine showed C5-6 degenerative disc disease, minimal right and mild left C5-6
foraminal stenosis, C6-7 shallow posterior disc protrusion without significant mass effect and
minimal degenerative anterolisthesis of C7 on T1. Appellant also submitted a position
description and notifications of personnel action (Form SF-50) dated May 20, 2000 through
May 22, 2011.
In a July 26, 2011 report, Dr. Tristan M. McGovern, a Board-certified orthopedic
surgeon, diagnosed carpal tunnel syndrome, neuralgia neuritis and cervicalgia. He opined that it
was difficult to ascertain exact cause of the symptoms as they could occur in the normal
population without trauma but that there may be some connection to an old injury.
In a July 29, 2011 witness statement, Anthony Engel, appellant’s supervisor, indicated
that appellant worked for the Baker River Interagency Hotshot crew in 1998. He stated that
appellant was injured in 1998 on the Loosum Fire in the Boise National Forest in Idaho when a
helicopter made a water drop above the Baker River Crew causing trees to fall and one of the
tree tops struck him. Appellant was examined by an emergency medical technician and the
extent of his injuries appeared to be soreness and stiffness in his neck. He was examined again
and completed a CA-1 form to document the injury. Mr. Engel stated that, although the initial
assessments of appellant’s injury revealed only a minor injury, given the damage to his personal
protective equipment and other gear, it was likely that the full extent of his injuries were not
apparent at the time. He indicated that appellant was in the performance of duty when he
sustained his injury.

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By decision dated September 28, 2011, OWCP denied the claim on the basis that the
medical evidence failed to establish a causal relationship between the diagnosed conditions and
the implicated employment factors.
On October 27, 2011 appellant requested an oral hearing before an OWCP hearing
representative, which was held via telephone on February 14, 2012. He provided testimony and
the hearing representative held the case record open for 30 days for the submission of additional
evidence.
Appellant submitted a March 8, 2012 report from Dr. John Hache, a Board-certified
anesthesiologist, who diagnosed cervical radiculopathy, cervical spinal stenosis, displacement of
cervical intervertebral disc without myelopathy and carpal tunnel syndrome. Dr. Hache
indicated that appellant was injured in 1998 when a tree fell on him while he was working as a
firefighter and the pain in his neck and right arm worsened in 2004 with no inciting event to
trigger this increased pain. On March 16 and April 13, 2012 he administered C7-T1 cervical
epidural steroid injections.
By decision dated May 7, 2012, OWCP’s hearing representative affirmed the
September 28, 2011 decision.
On June 21, 2012 appellant requested reconsideration and submitted a traumatic injury
claim (Form CA-1) dated August 20, 1998 alleging that he sustained injuries to his neck, back
and right arm due to a sky crane dropping a load of water and causing dead trees to fall on top of
him.
By decision dated July 30, 2012, OWCP denied modification of the May 7, 2012
decision.
On October 29, 2012 appellant requested reconsideration and submitted a May 4, 2012
report from Dr. Hache who reiterated his diagnoses and opinions and a June 5, 2012 MRI scan of
the cervical spine which revealed C5-6 and C6-7 disc protrusions and mild-to-moderate bilateral
neural foraminal narrowing. Appellant also submitted a May 30, 2012 report from Dr. Daniel A.
Lazar, a Board-certified neurosurgeon, who diagnosed chronic neck pain and symptoms
consistent with a right cervical radiculopathy. Dr. Lazar indicated that appellant injured his neck
while working as a firefighter in 1998 when a tree top fell on his head. On September 26, 2012
he stated that appellant continued to suffer from neck pain radiating to his right scapula as well
as some paresthesias down his right arm. Dr. Lazar diagnosed C6 radiculopathy in the setting of
some chronic neck pain secondary to the C5-6 spondylotic changes. He reviewed appellant’s
history and opined that his condition and surgical needs were a direct consequence of his injury
in 1998.
By decision dated January 24, 2013, OWCP denied modification of its July 30, 2012
decision. It noted that appellant’s 1998 traumatic injury claim under OWCP File No. xxxxxx169
was accepted for thoracic sprain.

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LEGAL PRECEDENT
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, which is attributable to the employee’s own intentional conduct.2
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, then a subsequent injury, whether an aggravation of the original
injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury.3
A claimant bears the burden of proof to establish her claim for a consequential injury. As
part of this burden, a claimant must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship.4 Causal relationship is a
medical question that can generally be resolved only by rationalized medical opinion evidence.5
Rationalized medical evidence is evidence which relates a work incident, work injury or factors
of employment to a claimant’s condition, with stated reasons of a physician.6 The opinion of the
physician must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship of the diagnosed condition and the specific
employment injury.7
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant filed a claim for an occupational disease attributing his cervical and right arm
conditions to an August 18, 1998 employment injury which was accepted for thoracic sprain. He
alleged that his traumatic injury from being hit with a tree top resulted in a thoracic condition
which later led to a cervical condition radiating down to his right arm. Appellant has submitted
medical documentation with a consistent history of injury and medical opinion that this was the
mechanism of injury. In its January 24, 2013 decision, OWCP noted that he had an accepted
thoracic condition under File No. xxxxxx169. However, it did not subsequently develop the
claim as a consequential injury finding only that the evidence submitted was not sufficient to
establish causal relationship. This finding is not in accordance with Board precedent regarding

2

See Albert F. Ranieri, 55 ECAB 598, 602 (2004); A. Larson, The Law of Workers’ Compensation
§ 10.01 (2000).
3

See Charles W. Downey, 54 ECAB 421-23 (2003).

4

Id.

5

See Steven S. Saleh, 55 ECAB 169, 172 (2003).

6

See supra note 3.

7

Id.

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consideration of consequential injuries.8 The Board finds that OWCP failed to recognize that
appellant was attempting to make a consequential injury claim and did not properly combine, or
request combination of, the present case record with the record of the originally accepted
employment injury which appellant implicated as the initial causative entity.9
Consequently, the case will be remanded for OWCP to double this case file with File
No. xxxxxx169 and further develop appellant’s claim as a consequential injury. OWCP shall
prepare a statement of accepted facts and refer appellant for examination by an appropriate
physician to determine whether he sustained cervical and right arm conditions as a consequence
of his accepted thoracic condition. Following this and such other development as deemed
necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision and requires further
development of the evidence and evaluation by OWCP for a possible consequential injury.

8

See J.K., Docket No. 09-859 (issued October 20, 2009) (where the Board found that appellant’s traumatic injury
claim attributing left arm fractures to the collapse of her right knee should have been developed and adjudicated by
OWCP as a possible consequential injury of her accepted right knee contusion).
9

See Easter I. Shepherd, Docket No. 95-1386 (issued March 26, 1997).

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ORDER
IT IS HEREBY ORDERED THAT the January 24, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: September 17, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 15-1559
Issued: November 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 13, 2015 appellant filed a timely appeal from a March 16, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between December 16, 2010, the date of the most recent merit decision, and the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of his claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on August 1, 2004 appellant, then a 48-year-old air traffic
controller, sustained aggravation of lumbar strain/sprain due to twisting his lumbar spine when
he leaned backward in a chair, and the back of the chair moved suddenly.2 He stopped work on
August 1, 2004 and received disability compensation beginning November 1, 2004 on the daily
rolls.3
Appellant received treatment for his low back condition from several attending
physicians, including Dr. Conrad Williams, a Board-certified internist. He also participated in
physical therapy sessions. In a July 18, 2008 report, Dr. Williams reported physical examination
findings and provided an opinion that appellant was partially disabled due to his accepted work
injuries.
OWCP referred appellant for further evaluation to Dr. David P. Nichols, a Boardcertified orthopedic surgeon, for a second opinion. In a November 12, 2008 report, Dr. Nichols
indicated that his physical examination of appellant did not reveal any objective evidence that he
continued to have residuals of his accepted work injuries. He stated that appellant could work as
an air traffic controller without restrictions.
OWCP determined that there was a conflict in the medical opinion evidence regarding
whether appellant continued to have residuals of his accepted work injuries and referred him to
Dr. James J. White, Jr., a Board-certified orthopedic surgeon, for an impartial medical
examination and opinion on this matter.
In a July 13, 2009 report, Dr. White discussed appellant’s medical history and reported
his findings on physical examination. He indicated that appellant exhibited no back spasms and
that straight leg testing was normal in both lower extremities. Dr. White diagnosed disc
degeneration of the lumbar spine at multiple levels and noted that this condition was not work
related. He determined that appellant had no residuals of his accepted work conditions and that
no further medical treatment was necessary. Appellant could return to his regular work as an air
traffic controller.
In a letter dated November 8, 2010, OWCP advised appellant that it proposed to
terminate his wage-loss compensation and medical benefits based on its determination that he
ceased to have residuals of his accepted work injuries. It indicated that its proposed action was
justified by the opinion of Dr. White, the impartial medical specialist. OWCP provided appellant
30 days to submit evidence and argument challenging its proposed action.
In letters received on November 30 and December 3, 2010, appellant challenged
OWCP’s proposed termination action. He argued that the opinion of Dr. White did not provide
an adequate basis to terminate his wage-loss compensation and medical benefits. Appellant
2

The record reveals that in 1994 appellant slipped on ice at work and injured his lower back by striking it on a
curb. He was out of work for approximately 35 days due to this injury.
3

Appellant received disability compensation beginning December 26, 2004 on the periodic rolls.

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asserted that, due to the medications he currently took, he could not receive medical certification
to work as an air traffic controller.4
By decision dated December 16, 2010, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective December 19, 2010 because he had no residuals of
his accepted work injuries after that date. It found that the weight of the medical evidence
regarding work-related residuals rested with the opinion of Dr. White. OWCP addressed
appellant’s argument regarding the use of medications and explained that Dr. White explicitly
stated that he did not require any further medical treatment.5
On March 2, 2015 OWCP received a form, dated February 23, 2015, in which appellant
requested reconsideration of its December 16, 2010 decision. In a letter dated February 23, 2015
and received on March 2, 2015, appellant stated that he was requesting reconsideration of
OWCP’s December 16, 2010 decision. He asserted that it had not been acknowledged that he
formerly was prescribed Oxycontin and that he currently was prescribed Oxycodone. Appellant
indicated that one could not take these medications and work as an air traffic controller. He
stated, “Therefore, your decision to terminate my benefits is not valid because I could not and
would not be allowed to work taking these medications.”6
In a March 16, 2015 decision, OWCP denied appellant’s request for further review of the
merits of his claim on the grounds that his request was untimely filed and failed to demonstrate
clear evidence of error. It determined that his reconsideration request was untimely because it
was received on March 2, 2015, i.e., more than one year after the issuance of its December 16,
2010 decision. OWCP indicated that it had previously considered and rejected appellant’s
argument that his use of medications evidenced his continuing work-related disability.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.7
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.8
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, OWCP must
4

Appellant submitted a list of medications that he took on a regular basis.

5

In a May 11, 2011 decision, OWCP determined that appellant received a $5,534.15 overpayment of
compensation due to receiving dual payments for the period September 1 to 30, 2010. It found that he was not at
fault in the creation of the overpayment, but that he had not shown that he was entitled to waiver of recovery of the
overpayment.
6

Appellant indicated that he was enclosing a letter from an attending physician, but he did not submit any
evidence in support of his reconsideration request.
7

20 C.F.R. § 10.607(a).

8

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

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nevertheless undertake a limited review to determine whether the application establishes “clear
evidence of error.”9 OWCP regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on
the part of OWCP.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.11 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.13 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.14 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.15
ANALYSIS
In its March 16, 2015 decision, OWCP properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was received on
March 2, 2015, more than one year after OWCP’s December 16, 2010 decision, and therefore he
must demonstrate clear evidence of error on the part of OWCP in issuing this decision.16
Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing
its December 16, 2010 decision. He did not submit evidence or argument which manifests on its
9

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a
(October 2011). OWCP procedures further provide, “The term ‘clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made a mistake. For
example, a claimant provides proof that a schedule award was miscalculated, such as a marriage certificate showing
that the claimant had a dependent, but the award was not paid at the augmented rate. Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued would have created a conflict in
medical opinion requiring further development, is not clear evidence of error.”
11

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

12

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

13

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

14

See Leona N. Travis, supra note 12.

15

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

16

See supra note 9. OWCP regulations at 20 C.F.R. § 10.607(a) establish a one-year time limit for requesting
reconsideration. The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of the date of OWCP decision for which review is
sought for merit decisions issued on or after August 29, 2011. See supra note 10 at Chapter 2.1602.4
(October 2011). Appellant’s reconsideration request was filed on March 2, 2015 because it was received by OWCP
on that date.

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face that OWCP committed an error in that decision. Appellant argued that OWCP improperly
terminated his wage-loss compensation and medical benefits effective December 19, 2010
because he was taking prescribed medications that he could not take and still work as an air
traffic controller.17 However, he previously made this argument and OWCP previously
considered and rejected it. Appellant’s argument does not have any probative value on the
medical issue of this case. OWCP explained in its December 16, 2010 decision that the medical
evidence showed that he ceased to have wage loss or need for medical care after December 19,
2010 due to his accepted work injuries.18
For these reasons, the argument submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s December 16, 2010 decision and OWCP
properly determined that he did not show clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

17

Appellant presented the same argument on appeal to the Board.

18

In his letter requesting reconsideration, appellant indicated that he was enclosing a letter from an attending
physician, but he did not submit any evidence in support of his reconsideration request.

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ORDER
IT IS HEREBY ORDERED THAT the March 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2015
Washington, DC

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

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

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

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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1358
Issued: October 4, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from the November 8, 2006 merit
decision of the Office of Workers’ Compensation Programs’ hearing representative, who
affirmed the denial of her claim for an increased schedule award. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of her claim.
ISSUE
The issue is whether appellant is entitled to an increased schedule award.
FACTUAL HISTORY
On a prior appeal of this case,1 the Board noted that appellant sustained a right shoulder
injury on January 9, 1999 while loading mail. The Office accepted her claim for adhesive
capsulitis and tendinitis. On June 4, 1999 appellant underwent an arthroscopic acromioplasty.
The Office granted a schedule award for a 13 percent permanent impairment of her right upper
1

Docket No. 02-1928 (issued December 24, 2002).

extremity which a hearing representative affirmed on July 26, 2001. The Board set aside that
decision finding a conflict between appellant’s physician and an Office medical adviser on the
nature of the surgery and the degree of impairment. The Board remanded the case for resolution
of the conflict. The facts of this case as set forth in the Board’s prior decision are hereby
incorporated by reference.
The Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. Evan S. Kovalsky, a Board-certified orthopedic surgeon, selected as the
impartial medical specialist. On March 3, 2006 Dr. Kovalsky related appellant’s history and
complaints. He noted that motor strength was excellent throughout the upper extremities without
any indication of weakness. Other clinical findings included the following:
“[Appellant’s] shoulders were symmetrical in appearance without swelling,
discoloration or effusion. Her shoulder motions were excellent and slightly
limited and was to T8 versus T6 on the left. On passive range of motion of the
shoulders, the left shoulder actually had some clicking within it but the right did
not. There is no pain in the left shoulder. Impingement testing with Neer and
Hawkin’s revealed minimal discomfort posterior in the right shoulder but not in
the subacromial region itself. There is no evidence of laxity or instability in the
right shoulder. Apprehension, relocation, Sulcus, Speed’s, crossover and lift off
were all negative. There is no tenderness at the AC [acromioclavicular] joint and
no focal tenderness in the shoulder. [Appellant] had very well healed, barely
visible posterior and lateral shoulder scars from her arthroscopy. There was very
minimal posterior lateral tenderness behind the shoulder but no tenderness over
the acromion or rotator cuff itself, laterally.
“Examination of the remaining portion of the upper extremities revealed full,
painless range of motion of the elbows, wrists and fingers without evidence of
contracture or deficits.”
***
“It is my opinion that the surgery that she underwent which is an acromioplasty is
not a true ‘arthroplasty.’ Based on these findings, I do not feel that a diagnosis
relating to arthroplasty can be utilized to determine impairment. The procedure is
a completely extra-articular procedure and would not be adequately described by
an arthroplasty. Under these circumstances, the only impairment which can be
attributed to [appellant’s] shoulder would be that of her restricted motion which
on internal rotation was, as most, 10 [to] 15 degrees of restriction. This would
give her impairment, due to loss of internal rotation, of one percent. This would
be the percentage of the impairment of the upper extremity. The only other
impairment which can be rated would be for [appellant’s] subjective pain. It is
my opinion that the pain only slightly impairs [appellant’s] ability to do things
and to use the shoulder. Using the [algorithm] in [F]igure 18-1, I would rate her
impairment, based upon this, at three percent. Using [T]able 16.3, the impairment
of the right upper extremity would be one percent based on loss of motion plus

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the three percent for [appellant’s] pain which would give her an upper extremity
impairment percentage of four percent.”
In a decision dated March 15, 2006, the Office denied appellant’s schedule award claim.
It found that the weight of the medical opinion evidence rested with Dr. Kovalsky who
determined that appellant had a four percent permanent impairment of her right upper extremity.
At a July 31, 2006 hearing before an Office hearing representative, appellant argued that
the impartial medical specialist reported clinical findings that were too general to be sufficiently
probative. He did not explain how he tested motor strength or how he determined that there was
no atrophy. Appellant noted that he did not give range of motion measurements as a basis for
using the American Medical Association, Guides to the Evaluation of Permanent Impairment
(5th ed. 2001).
In a decision dated November 8, 2006, the hearing representative affirmed the Office’s
schedule award denial. She found that Dr. Kovalsky’s opinion represented the weight of the
medical evidence and established that appellant had less than the 13 percent permanent
impairment of her right upper extremity, for which she previously received a schedule award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 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.3
To support a schedule award, the file must contain competent medical evidence that
describes the impairment in sufficient detail for the adjudicator to visualize the character and
degree of disability.4 The report of the examination must always include a detailed description
of the impairment which includes, where applicable, the loss in degrees of active and passive
motion of the affected member or function, the amount of any atrophy or deformity, decreases in
strength or disturbance of sensation or other pertinent description of the impairment.5 The Office
should advise any physician evaluating permanent impairment to use the fifth edition of the
A.M.A., Guides and to report findings in accordance with those guidelines.6

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001 the Office began using the A.M.A., Guides

th

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.b(2) (August 2002).
5

Id., Chapter 2.808.6.c(1).

6

Id., Chapter 2.808.6.a (noting exceptions).

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If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.7 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.8 When the opinion from the specialist requires
clarification or elaboration, however, the Office has the responsibility to secure a supplemental
report from the specialist for the purpose of correcting a defect in the original report. When the
impartial medical specialist’s statement of clarification or elaboration is not forthcoming or if the
specialist is unable to clarify or elaborate on the original report or if the specialist’s supplemental
report is also vague, speculative or lacks rationale, the Office must submit the case record
together with a detailed statement of accepted facts to a second impartial specialist for a
rationalized medical opinion on the issue in question.9 Unless this procedure is carried out by
the Office, the intent of section 8123(a) of the Act will be circumvented when the impartial
specialist’s medical report is insufficient to resolve the conflict of medical evidence.10
ANALYSIS
Dr. Kovalsky, the Board-certified orthopedic surgeon and impartial medical specialist,
concluded that a diagnosis relating to “arthroplasties” could not be used to determine
impairment. He reviewed the operative report and noted that appellant underwent an
acromioplasty, not a true arthroplasty. Appellant’s operation Dr. Kovalsky explained, was a
completely extra-articular procedure that is not adequately described by an arthroplasty. He
found that she was not entitled to a schedule award based on Table 16-27, page 506 of the
A.M.A., Guides, “Impairment of the Upper Extremity After Arthroplasty of Specific Bones or
Joints.”
Dr. Kovalsky found a three percent pain-related impairment under Chapter 18 of the
A.M.A., Guides. However, the A.M.A., Guides provide limitation on integrating pain-related
impairment into an impairment rating system. It states:
“Finally, at a practical level, a chapter of the A.M.A., Guides devoted to painrelated impairment should not be redundant of or inconsistent with principles
impairment rating described in other chapters. The A.M.A., Guides’ impairment
ratings currently include allowances for the pain that individuals typically
experience when they suffer from various injuries or diseases, as articulated in
Chapter 1 of the A.M.A., Guides: ‘Physicians recognize the local and distant pain
that commonly accompanies many disorders. Impairment ratings in the A.M.A.,
Guides already have accounted for pain. For example, when a cervical spine
7

5 U.S.C. § 8123(a).

8

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

9

See Nathan L. Harrell, 41 ECAB 402 (1990).

10

Harold Travis, 30 ECAB 1071 (1979).

4

disorder produces radiating pain down the arm, the arm pain which is commonly
seen, has been accounted for in the cervical spine impairment rating’ (page 10).
Thus, if an examining physician determines that an individual has pain-related
impairment, he or she will have the additional task of deciding whether or not that
impairment has already been adequately incorporated into the rating the person
has received on the basis of other chapters of the A.M.A., Guides.”11
Without a sound explanation for incorporating pain-related impairment, Dr. Kovalsky has
not justified a three percent increase in appellant’s rating. The Board will remand the case for a
supplemental report from Dr. Kovalsky explaining whether the body and organ impairment
rating systems provided in Chapter 16 is a proper basis to rate appellant’s condition.
Dr. Kovalsky must also clarify another matter. He found a one percent impairment of the
right upper extremity due to restricted shoulder motion, but Dr. Kovalsky did not report actual
measured goniometer readings.12 Without these readings, the Board cannot properly review this
determination. Describing shoulder motion as “excellent” and “complete,” except for internal
rotation which was “slightly limited,” does not provide the specific clinical measurements
necessary to use the pie charts at Chapter 16.4i. Dr. Kovalsky’s comment that internal rotation
was, “at most, 10 [to] 15 degrees of restriction,” gives the impression that he made visual
estimates rather than specific measurements.
CONCLUSION
The Board finds that this case is not in posture for decision. The opinion of the impartial
medical specialist requires clarification. Following such further development of the evidence as
may be necessary the Office shall issue an appropriate final decision on appellant’s claim for an
increased schedule award.

11

A.M.A., Guides 570.

12

Id. at 451 (the actual measured goniometer readings or linear measurements are recorded).

5

ORDER
IT IS HEREBY ORDERED THAT the November 8, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: October 4, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 14-936
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 18, 2014 appellant filed a timely appeal from a November 6, 2013 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 met his burden of proof to establish a traumatic injury in
the performance of duty on September 16, 2013.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its November 6, 2013
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On September 17, 2013 appellant, then a 54-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that on September 16, 2013 he was struck by a motor vehicle
while riding in a government vehicle and sustained a back, neck, right wrist and shoulder
injuries. He stopped work and first received medical care on September 16, 2013.
By letter dated September 24, 2013, OWCP informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised of the medical and factual
evidence needed and was asked to respond to the questions provided in the letter within 30 days.
In support of his claim, appellant submitted a September 17, 2013 medical report from
Dr. Elizabeth W. Mease, Board-certified in internal medicine, who noted that appellant was
involved in a motor vehicle accident (MVA) on September 16, 2013 and was transported by
ambulance to Cleveland Clinic Hospital. He complained of pain in the neck, right shoulder and
right wrist. Dr. Mease noted that x-rays of the cervical spine were negative and provided
appellant with work restrictions.
By decision dated November 6, 2013, OWCP denied appellant’s claim on the grounds
that the evidence was insufficient to establish that he sustained an injury because he did not
submit any medical evidence containing a medical diagnosis in connection with the accepted
September 16, 2013 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second

3

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

4

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

5

Elaine Pendleton, supra note 3.

2

component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.8
ANALYSIS
There is no dispute that appellant was in the performance of duty when the motor vehicle
accident occurred on September 16, 2013, as alleged. Therefore, the issue is whether appellant
submitted sufficient medical evidence to establish that the employment incident caused an injury.
The only medical evidence received was a September 17, 2013 medical note from
Dr. Mease who noted that appellant was involved in a motor vehicle accident on September 16,
2013 and transported to Cleveland Clinic Hospital immediately following the incident.
Dr. Mease recorded complaints of pain in the neck, right shoulder and right wrist. X-rays of the
cervical spine were negative and appellant was provided with work restrictions.
The Board finds that Dr. Mease’s report is not sufficient to establish fact of injury.
Dr. Mease failed to provide a firm medical diagnosis of any conditions alleged by appellant.
Further, appellant’s complaints of neck, shoulder and wrist pain is a description of a symptom
rather than a clear diagnosis of a medical condition.9 Thus, Dr. Mease’s medical note is
insufficient to establish appellant’s burden of proof.
In the instant case, the record is without rationalized medical evidence establishing a
diagnosed medical condition causally related to the accepted September 16, 2013 employment
incident. OWCP advised appellant of the type of medical evidence required to establish his
6

In clear-cut traumatic injury claims where fact of injury is established and competent to cause the condition
described, such as a fall from a scaffold resulting in a broken arm, a physician’s affirmative statement is sufficient
and no rationalized opinion on causal relationship is needed. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3d(1) (January 2013). In all other traumatic injury claims, a rationalized
medical opinion supporting causal relationship is required. Id. at Chapter 2.805.3d(2).
7

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

8

James Mack, 43 ECAB 321 (1991).

9

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008).

3

claim; however, he failed to submit such evidence. The Board has held that the mere fact that a
condition manifests itself during a period of employment does not raise an inference of causal
relation.10 An award of compensation may not be based on surmise, conjecture, speculation or
on the employee’s own belief of causal relation.11 Thus, appellant has failed to meet his burden
of proof.
Lastly, the Board notes that OWCP did not adjudicate the issue of appellant’s medical
expenses incurred from the September 16, 2013 motor vehicle accident. Ordinarily, the
employing establishment will authorize treatment of a job-related injury by providing the
employee a properly executed Form CA-16 within four hours.12 In this case, the record does not
contain a Form CA-16 or any other authorization from OWCP for medical treatment. However,
under section 8103 of FECA, OWCP has broad discretionary authority to approve unauthorized
medical care which it finds necessary and reasonable in cases of emergency or other unusual
circumstances.13
In this case, appellant was transported to the emergency room for examination
immediately after the employment incident. In denying appellant’s claim for a traumatic injury,
OWCP did not consider whether emergency circumstances or unusual circumstances were
present or whether this was a situation in which reimbursement of medical expenses was
appropriate.14 It is required to exercise its discretion to determine whether medical care has been
authorized, or whether unauthorized medical care involved emergency or unusual circumstances,
and is therefore reimbursable regardless of whether the underlying claim for benefits has been
accepted or denied.15 On return of the record, OWCP should adjudicate the issue of
reimbursement of medical expenses.16
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on September 16, 2013 in the performance of duty.
10

Daniel O. Vasquez, 57 ECAB 559 (2006).

11

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

12

Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300.3(a)(3) (September 1995).
13

5 U.S.C. § 8103; 20 C.F.R. § 10.304. See L.B., Docket No. 10-469 (issued June 2, 2010); D.R., Docket No.
10-1280 (issued February 1, 2011).
14

P.S., Docket No. 10-1560 (issued June 23, 2011).

15

Michael L. Malone, 46 ECAB 957 (1995). See Herbert J. Hazard, 40 ECAB 973 (1989).

16

A.F., Docket No. 13-520 (issued May 17, 2013).

4

ORDER
IT IS HEREBY ORDERED THAT the November 6, 2013 decision of the Office of
Workers’ Compensation Programs is 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BATTLE CREEK VETERANS
ADMINISTRATION MEDICAL CENTER,
Battle Creek, MI, Employer
__________________________________________

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

Docket No. 16-1559
Issued: January 25, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 27, 2016 appellant filed a timely appeal from a March 28, 2016 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 merit decision in the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his claimed
conditions are causally related to factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 15, 2014 appellant, then a 45-year-old information technology specialist, filed
an occupational disease claim (Form CA-2) alleging that he developed a bulging lumbar disc as a
result of repetitively carrying a variety of equipment up and down stairs while working. He first
became aware of his condition on November 1, 2013 and realized it was causally related to his
federal employment on the same date. Appellant did not stop work.
In an undated statement, appellant reported that on May 8, 2008 he was carrying a heavy
piece of equipment weighing 60 pounds from his office to a storage area when the item slipped
out of his control and he heard a loud popping sound coming from his back. He sought treatment
for these injuries and continues to be treated for the same injury. Appellant noted having severe
back pain flare ups.
Appellant underwent physical therapy on June 2 and 11, 2008. He was treated by
Dr. Sita Kondapaneni, a Board-certified physiatrist, on December 5, 2008, for low back and right
knee pain. Appellant reported injuring his back in May 2008 while carrying a heavy piece of
equipment down stairs. Dr. Kondapaneni diagnosed low back pain, degenerative disc disease,
possible radiculopathy, right knee arthralgia, status post anterior cruciate ligament repair, and
multiple arthroscopic surgeries. On February 1, 2012 appellant was treated by a physician
assistant who diagnosed chronic low back with acute exacerbation.
Appellant submitted reports from Dr. Ireneo Diaz, Jr., a Board-certified internist. On
February 6, 2012 Dr. Diaz diagnosed chronic low back pain with acute exacerbation and muscle
spasm. On September 8, 2014 he noted that appellant sustained a back injury at work in
May 2008 when carrying a heavy piece of equipment down stairs. Appellant related having dull,
constant pain over the lower back and hips. His low back pain and exacerbations were managed
by physical therapy and pain medication. Dr. Diaz advised that an April 1, 2014 magnetic
resonance imaging (MRI) scan revealed facet degeneration at L1-2 and L2-3, L3-4, a broadbased disc bulge at L4-5, and L5-S1 disc desiccation. He opined that the findings could account
for appellant’s current symptoms. Dr. Diaz indicated that exacerbations of pain limited activities
of daily living as well as work. On September 14, 2012 he treated appellant for low back pain.
On October 30, 2013 and February 27, 2014, appellant was treated by Dr. Dean Shoucair,
an osteopath, for backache, myalgia, and status post arthroscopic surgery of the right knee for
anterior cruciate ligament repair in 1991. Dr. Shoucair diagnosed chronic low back, hips and
bilateral knee pain, and myalgia.
Appellant was treated by Dr. Salena Cox-Johnson, a Board-certified family practitioner,
on June 23, 2014 for a history of chronic back pain, bilateral hip pain, neuropathy and right knee
anterior cruciate ligament pain. Dr. Cox-Johnson diagnosed chronic pain with no improvement
with current therapy. Appellant submitted a September 4, 2014 certification of health care
provider from Natasha Brown, a nurse practitioner, who noted diagnoses and advised that
appellant was dependent on methadone for chronic low back pain caused by a 2008 injury.
By letter dated October 1, 2014, OWCP advised that the evidence was not sufficient to
establish that the claimed work factors occurred as alleged to have caused the injury. It also

2

noted that there was no physician’s opinion describing the relationship between how the work
activities caused or aggravated a medical condition. OWCP provided a questionnaire and asked
that appellant specifically describe the employment-related activities that contributed to his
condition, how often he performed the activities, and report any activities outside his
employment. It also requested that the employing establishment provide comments from a
knowledgeable supervisor. Appellant did not respond within the 30 days allotted.
In a decision dated November 5, 2014, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish the claimed work factors.
On July 31, 2015 appellant requested reconsideration. In a July 17, 2015 statement, he
noted that his job duties included regularly lifting and carrying a wide range of equipment
weighing between 40 and 80 pounds up and down stairs and between buildings. Appellant’s
duties also involved installing and accessing equipment including 50- to 80-pound batteries in
cramped or areas difficult to access such as attics and closets.
Appellant submitted a report from Dr. Diaz dated December 15, 2014 who treated
appellant from 2009 to 2012 for a back injury sustained at work in May 2008. He reported that
his duties required carrying equipment up and down stairs, climbing ladders, lifting equipment
weighing between 40 to 80 pounds, and crawling under desks to connect cables. Dr. Diaz opined
“that the position description of [appellant’s] job, the repetitious movements aggravated”
appellant’s back condition. He noted that appellant was prescribed physical therapy and pain
medication, but continued to have an acute exacerbation of his low back pain.
Appellant began treatment with Dr. Tejpaul Pannu, a Board-certified neurosurgeon, on
January 22, 2015. In a report of that date, Dr. Pannu noted that appellant related having back
pain beginning 2008 after a work injury when he was carrying equipment down stairs. He
diagnosed lumbar radiculopathy and recommended a lumbar fusion. In a January 22, 2015
operative report, Dr. Pannu performed an arthrodesis, posterior interbody technique at L5-S1
with complete discectomy and placement of titanium cage, instrumentation at L5-S1, and
posterolateral arthrodesis at L5-S1. He diagnosed lumbar radiculopathy at S1, intractable low
back pain, and left-sided S1 radiculopathy.
Appellant was hospitalized again on May 5, 2015 for lumbar radiculopathy. Dr. Pannu
noted an x-ray revealed a slight migration of the posterior cage. He diagnosed lumbar
radiculopathy and status post lumbar fusion and recommended surgery to correct the migration.
On May 5, 2015 Dr. Pannu performed an anterior lumbar interbody fusion at L5-S1 and
diagnosed lumbar spondylolisthesis and sciatica.
In a June 4, 2015 narrative report, Dr. Pannu noted treating appellant since
December 2014 for back pain, which began in 2008 after a work-related injury when carrying
equipment down stairs. He noted a discogram and lumbar spine MRI scan were positive for
herniation at L5-S1. Dr. Pannu advised that based on the imaging results, physical evaluation,
and lack of improvement with conservative treatment he recommended an L5-S1 posterior
lumbar interbody fusion for lumbar radiculopathy, which was performed on January 22, 2015.
Appellant did well postoperatively, but an April 6, 2015 x-ray revealed that his cage had
migrated two millimeters into his spinal cord. Dr. Pannu recommended correcting the cage

3

migration and on May 5, 2015 he performed an L5-S1 anterior lumbar interbody fusion. He
opined that the position description of appellant’s job including repetitive movements and weight
he was required to carry likely aggravated his pain symptoms in addition to going so long
without treatment. Dr. Pannu noted that appellant was disabled and he did not anticipate that
appellant would reach maximum medical improvement for a year.
In a December 21, 2015 addendum report, Dr. Pannu opined that “without a doubt”
appellant’s job aggravated his lumbar radiculopathy. This involved “the required weight
[appellant] must carry and the repetitive movements he must perform … in addition to going so
long without proper treatment” ultimately resulted in appellant’s need for lumbar spine surgery.
In a letter dated February 26, 2016, OWCP requested that Dr. Pannu review a statement
of accepted facts and provide a reasoned medical opinion as to whether appellant’s job activities
aggravated the diagnosed condition of lumbar radiculopathy. It also requested that Dr. Pannu
address whether a nonwork-related incident in which appellant vacuumed out his car contributed
to the worsening of his condition and the need for surgery.
In a decision dated March 28, 2016, OWCP modified the November 5, 2014 denial of
appellant’s claim. It found that he established that the claimed work factors occurred as alleged,
but that his claim was denied because the medical evidence failed to establish that the diagnosed
condition was causally related to the accepted incident or event.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place, and in the
manner alleged. Appellant must also establish that such event, incident, or exposure caused an
injury.2
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.3 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.4

2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
3

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

4

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

4

The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.5
ANALYSIS
OWCP accepted that from 2008 to 2014 appellant’s duties as an information technology
specialist involved regularly lifting and carrying a wide range of equipment up and down stairs
and installing and accessing equipment in cramped or difficult to access areas. However, the
Board finds that the medical evidence of record is insufficient to establish that these work
activities caused or aggravated his diagnosed lumbar conditions.
Appellant submitted reports from Dr. Pannu who treated him for progressive back pain.
Dr. Pannu performed an anterior lumbar interbody fusion at L5-S1 on January 22, 2015 and an
anterior lumbar interbody fusion at L5-S1 on May 5, 2015 and diagnosed lumbar radiculopathy
at S1, lumbar spondylolisthesis, and sciatica. In a report dated June 4, 2015, he opined that
appellant’s job including repetitive movements and weight he was required to carry likely
aggravated his pain and symptoms. In an addendum report dated December 21, 2015, Dr. Pannu
opined that “without a doubt” appellant’s job aggravated his lumbar radiculopathy, which
included carrying heavy items and performing repetitive movements resulted in his need for
lumbar spine surgery. The Board finds that, although Dr. Pannu supported causal relationship,
noting that appellant’s job required carrying heavy items and repetitive movements, he did not
provide medical rationale explaining the basis of his conclusory opinion regarding the causal
relationship between appellant’s lumbar radiculopathy and need for surgery and the factors of
employment.6 Dr. Pannu did not explain the process by which repetitive movements and
repetitive carrying would have caused or aggravated a diagnosed condition. Therefore, these
reports are insufficient to meet appellant’s burden of proof.
On September 8, 2014 Dr. Diaz noted that appellant sustained a back injury at work in
May 2008 when carrying a heavy piece of equipment down stairs. He opined that the findings
could account for appellant’s current symptoms. Similarly, in a December 15, 2014 report,
Dr. Diaz opined that appellant’s work duties and repetitious movements aggravated his back
condition. The Board finds that, although Dr. Diaz supported causal relationship, he did not
provide medical rationale explaining the basis of his opinion regarding the causal relationship

5

Solomon Polen, 51 ECAB 341 (2000).

6

See T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

5

between appellant’s lumbar condition and work factors.7 Therefore, this report is insufficient to
meet appellant’s burden of proof.
Appellant was treated by Dr. Kondapaneni on December 5, 2008, for low back and right
knee pain. He reported injuring his back in May 2008 while carrying a heavy piece of equipment
down stairs. Dr. Kondapaneni’s diagnoses included low back pain, degenerative disc disease,
and possible radiculopathy. However, this report is insufficient to establish the claim as she did
not specifically address whether appellant’s work activities caused or aggravated a diagnosed
medical condition.8
Likewise, the other medical reports from Dr. Shoucair and Dr. Cox-Johnson are
insufficient to establish the claim as they do not specifically address whether appellant’s
employment activities caused or aggravated his diagnosed medical condition.9 Therefore, these
reports are insufficient to meet his burden of proof.
Appellant also submitted evidence from a nurse practitioner, a physician assistant, and a
physical therapist. However, the Board has held that reports of nurse practitioners, physician
assistants, and physical therapists are not probative medical evidence these practitioners are not
considered physicians under FECA.10 Thus, these records are of no probative medical value in
establishing appellant’s claim.
The remainder of the medical evidence, including reports of diagnostic testing, are of
limited probative value as they fail to provide an opinion on the causal relationship between
appellant’s employment factors and his diagnosed lumbar condition. For this reason, this
evidence is not sufficient to meet his burden of proof.11
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.

7

Id.

8

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
9

Id.

10

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); Sean O’Connell, 56 ECAB 195
(2004) (reports of nurse practitioners and physician assistants are not probative medical evidence as these persons
are not considered physicians under FECA). 5 U.S.C. § 8101(2) (this subsection defines a “physician” as surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law).
11

Supra note 8.

6

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
claimed conditions were causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2017
Washington, DC

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

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

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

7


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

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

Docket No. 13-2029
Issued: September 10, 2014

Case Submitted on the Record

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

JURISDICTION
On September 3, 2013 appellant filed a timely appeal from a July 2, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment of $111,523.92
was created; (2) whether it properly found that appellant was at fault in creating the
overpayment; and (3) whether OWCP properly determined that the overpayment should be
recovered by deducting $2,043.94 from continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 19, 1989 appellant, then a 36-year-old mail processor, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sustained a low back injury while pulling a
container. OWCP accepted the claim for sprain of the back and shoulders on June 23, 1989.
Appellant stopped working and began receiving compensation for wage loss.
In a
March 23, 1998 decision, OWCP indicated that it had also accepted aggravation of
spondylolisthesis, L5-S1 disc protrusion and substance induced mood disorder with depression.
The record contains a travel voucher request for dates from January 2 to 9, 2006 for “PT”
and mileage of 150 miles roundtrip. The record also contains a January 7, 2008 Form OWCP957 (medical travel refund request) for “PT” at a medical facility “Central Office” with an
Oakland, CA address. In addition, there is a June 12, 2012 OWCP-957 claiming travel
reimbursement to “Eastbay Intergroup” at the same Oakland address.
In a report dated February 3, 2006, Dr. Roger Shortz, a Board-certified neurosurgeon,
indicated that appellant continued to be treated for lumbar spondylosis and spondylolisthesis at
L5-S1. As part of the development of the medical evidence, OWCP found a conflict in the
medical evidence with respect to the need for surgery. Appellant was referred by OWCP to
Dr. Archimedes Ramirez, a Board-certified neurosurgeon. In a report dated November 28, 2006,
Dr. Ramirez noted that appellant reported concern regarding his back, depression and
dependency or addition to medication. He indicated that appellant needed to have a pain
specialist manage his “chronic pain problem and dependency/addiction to Vicodin ES and
Soma.”
Appellant was again referred to a referee physician with respect to a conflict in the
medical evidence. In a report dated May 1, 2008, Dr. Robert Fink, a Board-certified
neurosurgeon, provided a history and results on examination. He stated that there was a
complicating factor with respect to surgery, as there was “the strong possibility that [appellant] is
medically addicted to opiates” and such addition rendered evaluation of pain levels unreliable.
In a report dated March 24, 2009, Dr. Shortz noted that appellant currently used opiate
medicine for pain relief. He stated that appellant did not abuse the medication or take it in
excessive amounts and that he did not exhibit behavior typical of opiate addition. By report
dated April 7, 2009, Dr. Gary Martinovsky, a Board-certified pain management specialist, stated
that he was switching appellant from short lasting opioids to long lasting opioids. He stated that
he would discontinue appellant from Vicodin, Lortab and Soma. By report dated July 9, 2009,
Dr. James House, a psychologist, diagnosed major depressive disorder. He stated that appellant
“admitted no current nor past substance abuse problems or dependency and no evidence of such
was found during the course of this evaluation.”
In a letter dated June 25, 2012, OWCP advised appellant that it had received a medical
travel refund request form (OWCP-957) for travel expenses to East Bay Intergroup in
Oakland, CA. It stated that the evidence was insufficient to establish reimbursement, as it was
not clear what services were performed related to an employment-related condition.

2

On August 2, 2012 OWCP received evidence from the employing establishment’s Office
of Inspector General (OIG). According to a memorandum dated June 30, 2012, the East Bay
Intergroup identified by appellant was a division of Alcoholics Anonymous (AA). In an
affidavit dated July 16, 2012, an OIG special agent stated that from 2007 he had requested travel
reimbursement for travel to an AA office, although he had written PT on the form. The special
agent stated that the Department of Labor advised that travel to AA is not medically-related
travel covered by FECA. The agent stated that, for the dates of surveillance from June 8
to 30, 2012, appellant was never observed going to East Bay Intergroup.
On December 3, 2012 OWCP received additional evidence from the OIG. The evidence
included a list a transportation reimbursements from January 2, 2006 to June 20, 2012 that were
not accompanied by a claim for other medical service. The total transportation reimbursements
for these dates was $111,523.92.
By letter dated December 7, 2012, OWCP advised appellant of a preliminary
determination that an overpayment of $114,611.82 existed. An accompanying memorandum
stated that the overpayment consisted of $111,523.92 for transportation expenses paid on dates
with no other medical services claimed and $3,087.90 for “questionable” transportation
reimbursements related to receipt of medical supplies. OWCP found that appellant was at fault
in creating the overpayment.
On December 28, 2012 appellant requested a prerecoupment hearing on the issues
presented. He submitted evidence with respect to monthly income and expenses. On an
OWCP-20 overpayment questionnaire, appellant reported $8,300.00 in monthly income and
$8,296.00 in monthly expenses.
A telephonic hearing was held on April 18, 2013. Appellant stated that he had been told
by a claims examiner he could attend AA support group meetings and write PT on the
reimbursement forms. Following the hearing, he submitted a 2012 W-2 wage and tax statement
indicating his spouse had annual wages of $49,789.44. On May 21, 2013 appellant submitted
some expense receipts and on June 3, 2013 he indicated that he received $3,152.00 per month in
Veterans Administration (VA) benefits.
By decision dated July 2, 2013, an OWCP hearing representative found that an
overpayment of $111,523.92 was created.2 She found that appellant was at fault in creating the
overpayment and the overpayment would be recovered by deducting $2,043.94 every 28 days
from continuing compensation. The hearing representative found appellant had $9,232.72 in
monthly household income and $5,115.03 in expenses.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8103(a) provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or

2

OWCP’s hearing representative deducted the $3,087.90 in reimbursements related to medical supplies.

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aid in lessening the amount of monthly compensation.3 Under this section, reasonable
transportation and expenses incident to the securing of such services may be authorized. In
interpreting section 8103(a), the Board has recognized that OWCP has broad discretion in
approving services provided under FECA to ensure that an employee recovers from his or her
injury to the fullest extent possible in the shortest amount of time.4
ANALYSIS -- ISSUE 1
In the present case, OWCP found an overpayment of compensation occurred from
January 2, 2006 to June 20, 2012. The evidence from the OIG investigation indicated that
OWCP had made $1,350.00 transportation reimbursements during that period in the amount of
$111,523.92. All of these reimbursements were made on dates that appellant did not seek
treatment from a physician. Appellant had claimed reimbursement for “PT” or physical therapy
transportation expenses. He acknowledged at the April 18, 2013 hearing that he had claimed PT
on the forms but the expenses were not for authorized physical therapy, but for AA support
group meetings.
The Board finds the evidence establishes an overpayment of $111,523.92 was created
from January 2, 2006 to June 20, 2012. The evidence indicates that during this period appellant
made claims for travel reimbursement that were for expenses not authorized under 5 U.S.C.
§ 8103(a). OWCP had not authorized services from an AA support group and the payments
made for travel reimbursement represent an overpayment of compensation. The investigation
documents establish that during the period January 2, 2006 to June 20, 2012 OWCP issued
$111,523.92 in transportation expense reimbursements and this represents an overpayment of
compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA5 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”6 No waiver of an overpayment is possible if the claimant is at fault in
creating the overpayment.7

3

5 U.S.C. § 8103(a).

4

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

5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8129(b).

7

Gregg B. Manston, 45 ECAB 344 (1994).

4

On the issue of fault, 20 C.F.R. § 10.433 provides in pertinent part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which the recipient knew or should have known
was incorrect. (This provision applies only to the overpaid individual).”
ANALYSIS -- ISSUE 2
In the present case, the evidence of record indicates, as noted above, that appellant had
claimed on travel expense reimbursement forms that he was travelling for PT or physical
therapy. Appellant, however, acknowledged that the address on the forms was not associated
with physical therapy services, but an AA support group facility. The reference to physical
therapy was an incorrect statement. In addition, the incorrect statement related to a material fact.
Authorization for visits to an AA support group had not been provided in this case. Although
appellant briefly refers to a claims examiner as providing verbal authorization, no supporting
evidence was provided. Moreover, he knew that the assertion that he was travelling for physical
therapy was incorrect. Appellant knew that the address he provided was for an AA support
group meetings and not physical therapy services.
The Board accordingly finds that appellant made an incorrect statement as to a material
fact which he knew or should have known to be incorrect. Pursuant to 20 C.F.R. § 10.433,
appellant is properly found to be at fault in creating the overpayment. Since he is at fault, no
waiver of the overpayment is possible.
LEGAL PRECEDENT -- ISSUE 3
OWCP regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to
minimize any hardship.”8

8

20 C.F.R. § 10. 441.

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ANALYSIS -- ISSUE 3
In the present case, an OWCP’s hearing representative took into account appellant’s
financial circumstances in determining the overpayment should be recovered by deducting
$2,043.94 every 28 days from continuing compensation. As to monthly income, the hearing
representative noted the evidence of record regarding VA benefits, OWCP compensation and
spousal income, finding appellant had household monthly income of $9,232.72. In addition, the
hearing representative reviewed the claimed expenses, noting appellant had submitted only
limited receipts or other documents.9 She accepted the claimed expenses for mortgage and other
expenses, such as food. It was noted that some credit card payments are not included if the
expense is already included in the ordinary and necessary living expenses.10 According to the
hearing representative, appellant’s monthly household expenses were $5,115.03.
The Board accordingly finds that OWCP’s hearing representative took into account the
relevant financial circumstances to minimize hardship. The monthly income exceeded expenses
by $4,117.69 and the recovery was set at $2,043.94 from continuing compensation. The Board
finds that OWCP properly followed its regulations in this case.
On appeal, appellant briefly stated that he was mentally incompetent, unable to
comprehend the proceedings and was taking medication. He did not provide any probative
evidence of mental incompetence with respect to overpayment issues. Appellant attended the
April 18, 2013 hearing before an OWCP hearing representative and his testimony indicated that
he clearly understood the issues presented. For the reasons noted above, the Board finds that he
was at fault in creating a $111,523.92 overpayment of compensation.
CONCLUSION
The Board finds that an overpayment of $111,523.92 was created, appellant was at fault
in creating the overpayment and therefore not entitled to waiver and OWCP properly determined
the overpayment could be recovered by deducting $2,043.94 from continuing compensation.

9

It is appellant’s responsibility to submit the necessary relevant financial information with respect to recovery of
the overpayment. 20 C.F.R. § 10.438.
10

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.600.2(e) (June 2009), which notes that the hearing representative should avoid counting an ordinary and necessary
expense twice if a credit card payment is for expenses previously documented.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 2, 2013 is affirmed.
Issued: September 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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