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

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

Docket No. 17-1573
Issued: December 28, 2018

Case Submitted on the Record

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

JURISDICTION
On July 12, 2017 appellant filed a timely appeal from a January 17, 2017 decision of the
Office of Workers’ Compensation Programs (OWCP).1 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.

1
The Board notes that following the January 17, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation, effective December 14, 2014, because appellant elected to receive disability
benefits from the Department of Veterans Affairs (DVA).
FACTUAL HISTORY
On August 5, 2002 appellant, then a 39-year-old retired acting city carrier, filed a traumatic
injury claim (Form CA-1) alleging that he sustained bilateral conditions of the lower extremities
as a result of duties of his federal employment including standing, walking, carrying, and
delivering mail.3 He noted that he first became aware of his condition on June 1, 1982 during his
time with the United States Marine Corps, and of its relationship to his federal employment on
January 1, 1998.
By decision dated December 2, 2004, OWCP accepted appellant’s claim for aggravation
of bilateral pes planus, aggravation of bilateral ankle degenerative arthritis, and aggravation of left
knee degenerative arthritis.
By letter dated February 24, 2005, OWCP requested information from the DVA as to
whether appellant was receiving disability benefits based on his military or naval service.
On March 31, 2005 the DVA responded, confirming that appellant was in receipt of
disability benefits from the DVA, but that no increase in his benefits had been made as a result of
an on-the-job injury.
By letter dated June 22, 2005, appellant elected FECA benefits in lieu of federal retirement
benefits.

3
By decision dated November 7, 2002, OWCP denied appellant’s claim finding that his claim was untimely filed.
By decision dated May 2, 2003, an OWCP hearing representative found that OWCP’s November 7, 2002 decision
was premature, as appellant alleged that he had worked at the employing establishment until June 1999. The hearing
representative remanded the case for further development as to appellant’s last date of employment to be followed by
a de novo decision. By decision dated July 7, 2003, OWCP again denied appellant’s claim, finding that it was untimely
filed. It noted that it received a leave analysis document from the week of May 14, 1999 as the last week he was
exposed to employment factors, and that he submitted his claim on August 2, 2002. By decision dated October 15,
2004, an OWCP hearing representative vacated the July 7, 2003 decision, finding that OWCP had failed to properly
develop the claim, as appellant alleged that evidence under File No. xxxxxx503 would show that he provided timely
notification of the injury under the current claim, File No. xxxxxx065.

2

On September 9, 2005 the DVA noted that appellant was in receipt of disability benefits.
It indicated that appellant’s monthly benefits had increased as a result of an on-the-job injury
effective December 1, 2004.4
By letter dated October 4, 2005, OWCP outlined appellant’s entitlement to wage-loss
compensation under his claim. The letter explained that appellant needed to report compensation
benefits from any federal agency to OWCP.
A review of OWCP’s payments to appellant reveals that he was first paid $2,475.10 on
October 7, 2005, for the period September 1 through October 1, 2005. He received additional
payments on October 14, 2005 of $54,250.01 for the period June 15, 1999 through June 15, 2002;
$33,580.42 for the period June 15, 1999 through June 15, 2002; and $99,830.75 for the period
June 16, 2002 through August 31, 2005. Appellant’s first payment on the periodic rolls was paid
on October 29, 2005 for the period October 2 through 29, 2005, and his last payment on the
periodic rolls was paid on December 13, 2014 for the period November 16 through
December 13, 2014.
On December 9 and 12, 2005 the DVA noted that appellant was in receipt of disability
benefits. It checked a box indicating that no increase had been made in appellant’s monthly
benefits as a result of an on-the-job injury, but on the December 9, 2005 correspondence it noted
that he had received a cost-of-living adjustment.
On May 17, 2006 OWCP accepted the additional condition of bilateral plantar
fibromatosis.
By letter dated August 31, 2011, OWCP notified the DVA that it had been advised that
appellant was receiving benefits under FECA, while simultaneously receiving disability benefits
from the DVA. It requested that the DVA verify whether appellant was currently receiving DVA
disability benefits, the nature of the disabilities, and changes in appellant’s monthly benefits
subsequent to January 1, 1998.
The DVA responded on September 7, 2011. Attached to its letter confirming receipt of
OWCP’s request for records, the DVA attached a rating decision dated March 3, 2000, in which it
had increased appellant’s percentage of disability for his bilateral pes planus from 30 to 50 percent;
left knee arthritis for 10 percent; pain disorder for 50 percent; and individual unemployability. The
rating decision noted that appellant’s last date of work with the employing establishment was
May 13, 1999 and that he was unable to perform his duties due to the disabilities. It noted that a
service connection for his left knee arthritis had been established as related to his disability of pes
planus. An official from the DVA confirmed that appellant was receiving disability benefits since
1995 and that payments had not been discontinued. The official checked a box noting that

4

The Board notes that while the DVA did not check a box indicating that an increase had been made in appellant’s
monthly benefits as a result of an on-the-job injury, the DVA did indicate the amount and effective date of a monthly
increase in the next question, which was to be provided only if appellant’s monthly benefits had increased as a result
of an on-the-job injury.

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appellant’s disability benefits had increased since the initial rating for his feet, ankles, and knees,
but it did not indicate that the increase was due to an on-the-job injury.
By letter dated September 21, 2011, OWCP advised appellant that FECA prohibits dual
benefits for accepted employment-related injuries, noting that an increase in a veteran’s serviceconnected disability brought about by an injury sustained while in federal civilian employment is
considered a dual payment when the veteran is also receiving workers’ compensation benefits. It
noted that appellant received a disability rating from the DVA for his feet and knees, which were
increased subsequent to his employment with the employing establishment. OWCP requested that
appellant make an election of benefits within 30 days, as an overpayment continued to grow.
By letter dated September 14, 2011, the DVA clarified that appellant’s initial rating was
issued on September 1, 1995 and that his most recent rating was on March 3, 2000.5 By letter
dated May 22, 2012, a DVA official confirmed that appellant was still in receipt of DVA disability
benefits, amounting to $3,037.00 per month, effective December 2011. The DVA official noted
that no increase had been made due to an on-the-job injury.
In a Form CA-1032 dated June 5, 2012, appellant stated that he received disability benefits
from the DVA due to being permanently and totally unemployable.
By letter dated October 4, 2012, OWCP again advised appellant that FECA prohibits dual
benefits for accepted employment-related injuries, noting that an increase in a veteran’s serviceconnected disability brought about by an injury sustained while in federal civilian employment is
considered a dual payment when the veteran is also receiving workers’ compensation wage-loss
benefits. It noted that appellant received a DVA disability rating for his bilateral pes planus, left
knee arthritis, and bilateral ankle arthritis prior to his injury of January 1, 1998, and that his
disability rating with the DVA was increased on May 25, 1999 to reflect additional impairment
due to his work-related injury. OWCP again requested appellant make an election of benefits
within 30 days, and that an overpayment continued to grow. It advised him that failure to make
the required election within 30 days would be considered an election of benefits from the DVA.
By letter dated October 10, 2012, appellant stated that OWCP incorrectly determined that
his disability had increased due to additional impairment related to his accepted work-related
injury. He noted that he was granted individual unemployability in June 1999, and that as it was
a service-connected disability, the prohibition on dual benefits did not apply. In an undated letter
received on October 30, 2012, appellant stated that he had not received wage-loss benefits until
2003. He noted that he was employed full-time during the period referenced in OWCP’s letter,
and that wage loss was paid retroactively to June 1999 after he retired. Appellant requested a
review of the written record by or a hearing before an OWCP hearing representative.

5

Prior letters also documented ratings of impairment from the DVA. A letter dated July 24, 1995 from the DVA
determined that appellant had zero percent disability rating for bilateral pes planus. A letter dated January 23, 1997
from the DVA determined that appellant had 10 percent disability for his bilateral pes planus, and outlined his monthly
compensation. A letter dated August 4, 1998 from the DVA determined that appellant had 30 percent disability for
his bilateral pes planus and 10 percent disability for left ankle synovitis status post ligament repair, and outlined his
monthly compensation.

4

By letter dated October 30, 2014, OWCP again advised appellant that FECA prohibits dual
benefits for accepted employment-related injuries, noting that an increase in a veteran’s serviceconnected disability brought about by an injury sustained while in federal civilian employment is
considered a dual payment when the veteran is also receiving workers’ compensation wage-loss
benefits. It noted that he had received a DVA disability rating for his bilateral pes planus, bilateral
arthritis of the knees, and bilateral arthritis of the ankles, prior to his work-related injury of
January 1, 1998. OWCP stated that these were the same conditions which were accepted as
aggravated by duties of his federal employment. It noted that his percentage of disability with the
DVA was increased on March 3, 2000 retroactive to May 25, 1999 to reflect additional impairment
caused by the work-related injury, and that during the same time period, he received wage-loss
benefits from OWCP. OWCP again requested appellant make an election of benefits within 30
days, and that an overpayment continued to grow. It advised him that failure to make the required
election within 30 days would be considered an election of benefits from the DVA.
By decision dated December 8, 2014, OWCP terminated appellant’s wage-loss
compensation, effective December 14, 2014.6 It noted that he had stopped working on May 14,
1999 and retired as of November 8, 1999. OWCP found that appellant had been afforded multiple
opportunities to make an election of benefits, with the latest notification dated October 30, 2014,
but that he had not responded to OWCP notifications. As such, it found that appellant had elected
DVA benefits, but that his claim remained open for medical benefits under FECA.
On December 22, 2014 appellant requested reconsideration of the December 8, 2014
termination decision. On January 9, 2015 he requested a telephonic hearing before an OWCP
hearing representative. The hearing was held on July 16, 2015.
By decision dated September 21, 2015, the hearing representative affirmed OWCP’s
December 8, 2014 decision. She found that OWCP’s termination of his benefits effective
December 14, 2014 was proper, as appellant had not provided evidence that he was not in receipt
of FECA and DVA benefits concurrently, that there was no evidence that the benefits were not for
the same conditions, and as appellant had testified that he had not requested discontinuation of his
DVA benefits.
On October 29, 2015 appellant requested reconsideration. He argued that OWCP had been
using an incorrect date of injury for his claim, that the DVA had advised OWCP on February 24,
2005 that there had been no increase in DVA benefits as a result of his on-the-job injury, and that
his increase to 50 percent disability for his feet was the result of a failed DVA surgery. Appellant
further argued that he had not sustained an injury in the course of his employment, but rather an
aggravation of an injury dated to 1982. He noted that the DVA disability determination of
March 3, 2000 did not mention duties of his federal employment causing the increase in disability
for his conditions. Appellant argued that the issue of receipt of dual benefits had already been
resolved in his favor in 2004 or 2005. He noted that he was not at fault for receiving OWCP
benefits, and that he had not received any OWCP benefits until 2005 or later.

6

The notice of decision dated December 8, 2014 later lists the effective date of termination as November 16, 2014.
OWCP issued a corrected notice of decision on December 10, 2014, correcting this inconsistency and listing the
effective date of termination as December 14, 2014.

5

Appellant again requested reconsideration of OWCP’s September 21, 2015 decision on
October 17, 2016.
In support of reconsideration appellant submitted the first page of a letter dated
November 16, 2005, in which the employing establishment noted that OWCP had recently paid
appellant retroactively to June 15, 1999, which totaled over $187,000.00, and thereafter placed
him on the periodic rolls. It stated that appellant had received dual benefits from the DVA and
OWCP for the same conditions, as appellant had indicated that when he was first employed at the
employing establishment, his DVA disability was 0 percent, and that by the time he had retired, it
was 100 percent, due to walking.
By decision dated January 17, 2017, OWCP reviewed the merits of appellant’s claim, but
denied modification of its September 21, 2015 decision. It noted that his disagreement with the
date of disability was not relevant to his receipt of dual benefits. OWCP stated that it had not
ignored a DVA determination that appellant’s benefits had not increased due to his injury. It
further noted that his DVA benefits had increased dramatically after his injury at work.
LEGAL PRECEDENT
FECA provides that the United States shall pay compensation for the disability of an
employee resulting from personal injury sustained while in the performance of duty. While an
employee is receiving such compensation, however, he or she may not receive salary, pay, or
remuneration of any type from the United States, except in return for service actually performed
or for certain payments related to service in the armed forces.7 The latter includes benefits
administered by the DVA, unless such benefits are payable for the same injury being compensated
for under FECA.8 The prohibition against dual payment of FECA and veterans benefits extends
to cases in which: (1) the disability or death of an employee resulted from an injury sustained
while in federal civilian employment and the DVA held that the same disability or death was
caused by military service; or (2) an increase in a veteran’s service-connected disability award was
brought about by an injury sustained while in federal civilian employment.9 An election between
these benefits is required under both scenarios.10
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation, effective December 14, 2014, because he elected to receive disability benefits from
the DVA.

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.8b (December 1997). See
J.C., Docket No. 16-1217 (issued October 11, 2017).
8

5 U.S.C. §§ 8102(a), 8116(a). See also S.G., Docket No. 12-0779 (issued September 17, 2012).

9

Supra note 5.

10

See id. at Chapter 2.1000.8a(5).

6

In a March 3, 2000 rating decision, the DVA increased appellant’s percentage of disability
for his bilateral pes planus from 30 to 50 percent; left knee arthritis for 10 percent; pain disorder
for 50 percent; and found individual unemployability. The rating decision noted that appellant’s
last date of work with the employing establishment was May 13, 1999 and that he was unable to
perform his duties due to the disabilities. It indicated that a service connection for his left knee
arthritis had been established as related to his disability of pes planus. An official from the DVA
confirmed that appellant had received disability benefits since 1995 and that payments had not
been discontinued. The official further noted that appellant’s disability benefits had increased
since the initial rating for his feet, ankles, and knees.
The Board finds that the evidence of record supports that appellant was provided a rating
from the DVA, that he had received monthly benefits, that the benefits had been increased since
they were first awarded, and that the payments have not been discontinued.
In Louis Teplitsky, the Board found that appellant was required to make an election of
benefits between DVA benefits and FECA benefits.11 The Board held that a claimant was required
to make an election between FECA and DVA benefits because both benefits were payable for the
same injury.
Herein, appellant’s accepted aggravation of his preexisting service-related lower extremity
conditions by OWCP constituted the same injury as had been accepted for DVA disability benefits.
Like Teplitsky, appellant’s accepted condition is an aggravation of a service-connected condition.
The accepted conditions under FECA are aggravations of conditions accepted by DVA. The DVA
noted in its September 9, 2005 letter that appellant’s DVA disability rating had increased as a result
of on-the-job activities. While the DVA did not check the box in relation to this question, it did
fill out the next field regarding the amount and effective date of the increase, which was only to
be filled out if the answer to the previous question was that his disability rating had increased as a
result of on-the-job activities. Filling out this field indicated that the increase in appellant’s DVA
disability compensation was due to an on-the-job injury. As such, the Board finds that DVA
determined that an increase in appellant’s service-connected disability award was brought about
by an injury, namely aggravation of his lower extremity conditions, sustained while in federal
civilian employment
OWCP sent appellant several notices regarding his responsibility to make an election
between the receipt of DVA or FECA benefits. In these notices, it informed him that, if he did not
submit an election of benefits within 30 days, it would assume that he had elected DVA benefits
in lieu of FECA benefits as receipt of both was a prohibited dual benefit.12 As appellant did not
respond, OWCP properly determined that he made an election for receipt of DVA benefits.
As such, the Board finds that the hearing representative’s decision13 of September 21, 2015
properly found that appellant had elected to receive DVA benefits in lieu of FECA compensation
11

22 ECAB 142 (1971).

12

R.P., Docket No. 13-1415 (issued December 13, 2013).

13
The Board notes that at the July 16, 2015 hearing, appellant indicated that he wanted to continue to receive his
DVA benefits.

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benefits. OWCP therefore has met its burden of proof to terminate appellant’s FECA wage-loss
compensation, effective December 14, 2014.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation, effective December 14, 2014, because appellant elected to receive disability
benefits from the DVA.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2018
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
E.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NATIONAL CEMETERY ADMINISTRATION,
Zachary, LA, Employer
__________________________________________

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

Docket No. 17-1372
Issued: April 17, 2018

Case Submitted on the Record

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

JURISDICTION
On June 5, 2017 appellant filed a timely appeal from a May 2, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition in the performance
of duty.
FACTUAL HISTORY
On November 19, 2015 appellant, then a 56-year-old cemetery caretaker, filed an
occupational disease claim (Form CA-2) alleging that he sustained anxiety, depression, chronic
1

5 U.S.C. § 8101 et seq.

adjustment disorder, and post-traumatic stress disorder (PTSD) causally related to his federal
employment.2 On the claim form, he wrote that his job involved burial of veterans and their
dependents, and other duties relating to maintenance of the facility. Appellant further asserted that
constant exposure to death and grief had taken a toll. On the reverse of the claim form it was noted
that he stopped working on August 14, 2015 and that the employing establishment had not
received any specific medical documentation stating that the illness was directly related to the
employee’s duties at work.
Appellant submitted a September 23, 2015 letter explaining that he began working as a
caretaker technician in November 2012, and he became the Contracting Officer Representative
(COR) over the grounds maintenance contract. He noted that he was expected to be available at
any time to change from work clothes into a shirt and tie, which was difficult due to the lack of
adequate shower facilities at Port Hudson National Cemetery. Appellant wrote that as he
transitioned from the task of handling services at Louisiana National Cemetery, he was assigned
the tasks of handling services at both cemeteries. He noted that he took on administrative duties
that included assigning gravesites, maintaining cemetery site maps, compiling files, handling
committal services, and assisting grounds crew. Appellant also noted that the resignation of a
Program Support Assistant left him with a heavy burden of responsibility, especially being asked
to go back to the beginning of fiscal year 2015 and “clean-up” the burial files while also handling
all of the services at three national cemeteries. He noted that he continued to carry a heavy
workload as he felt an obligation to assist veterans and their families. According to appellant, the
constant presence of grief caused stress, and he had to make arrangements “for personal friends
and assist family members who did not understand the process.”
The record contains a position description for the cemetery technician position. The job
duties included greeting visitors and family members, escorting processions, presenting a flag to
next of kin, as well as manual labor maintaining cemetery grounds.
On November 30, 2015 appellant submitted medical evidence. In a report dated April 2,
2015, Dr. John Simpson, a psychiatrist, noted that appellant had a history of PTSD. He diagnosed
unspecified anxiety disorder, PTSD, unspecified depressive disorder, and chronic adjustment
disorder by history.
By letter dated January 14, 2016, OWCP requested that appellant submit additional
evidence to support the claim for compensation. It requested additional factual evidence, including
specific dates, locations, and witness statements. Appellant was afforded 30 days to submit the
necessary evidence.
In a February 1, 2016 memorandum, a supervisor wrote that appellant was “handling
services” pursuant to a grounds maintenance contract. The supervisor related that appellant
handled committal services at the cemetery and was also required to update burial files.
In a report dated February 9, 2016, Dr. Simpson reported that appellant was currently
undergoing treatment for a service connected mental illness. He wrote that appellant’s illness was
relatively stable until this past year when he “started to decline secondary to stress [on] his job.”
2

The Form CA-2 was completed by the employing establishment and was not signed by appellant.

2

Dr. Simpson diagnosed “other specified and stressor related disorder,” unspecified depressive
disorder, and chronic adjustment disorder by history. According to him, appellant’s mental illness
was currently static and appellant had been on leave since August 2015. Dr. Simpson opined that
appellant was currently disabled.
By decision dated June 8, 2016, OWCP denied the claim for compensation. It found there
were no compensable work factors established. OWCP found appellant had not provided specific
details of the alleged stressful events.
On June 22, 2016 appellant requested a hearing before an OWCP hearing representative.
A hearing was held on February 15, 2017. At the hearing appellant stated that he found his job
rewarding as he was helping veterans. He noted that when he commenced employment his earliest
responsibilities were generally field work. Appellant noted that he was required to perform a lot
of manual labor. He recounted the administrative duties of his position which he viewed as a zero
fail mission due to the responsibility of putting the correct remains at the correct spot. Appellant
indicated that he could be asked to wear a shirt and tie and attend a funeral service as a
representative of the cemetery. He reported that he attended approximately 1,000 funerals.
Appellant asserted this took a toll on him, and it was explained to him that this was “vicarious
grief.” He stated that hearing Taps played five or six times a day, and having to be face to face
with so much grief became overwhelming. According to appellant, it was difficult to take time off
work and there was always more work to do. He noted that the work conditions were very arduous
as he could not stop work for any reason, other than extreme weather conditions. Appellant noted
that he would attempt to be highly conscientious to always speak to family members, as there was
utmost dignity and respect of every partner in the funeral process. He noted the use of the Burial
Operating System, which was arduous in and of itself, to try and create and generate documents to
hand to the families at the time, which were very crucial to them knowing where their loved ones
were and whether they were placed. Appellant also noted having flashbacks to his own service
and mental anguish during a specific service in which a Marine and firefighter was carried to rest
on a firetruck.
In a note dated January 4, 2017, Dr. Simpson opined that appellant was disabled due to a
military related illness. Appellant submitted a January 31, 2017 report from Dr. Simpson, who
indicated that appellant was being seen for medication management. In a brief report dated
February 27, 2017, Dr. Simpson wrote that appellant was still under care for a service-related
disability. He opined that appellant was disabled due to a mental illness.
By letter dated March 13, 2017, an employing establishment compensation specialist wrote
that the claim should be denied based on fact of injury.
By decision dated May 2, 2017, the hearing representative affirmed the June 8, 2016
decision. She found that appellant had discussed his job in general terms, but not established any
specific incidents. According to the hearing representative, appellant provided no evidence that
“he played any work role in the specific funerals he mentioned.” In addition, she found the medical
evidence was of diminished probative value.

3

LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties, or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force, or
his or her frustration from not being permitted to work in a particular environment, or to hold a
particular position.3
Appellant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by employment factors.4 This burden includes the submission of a detailed description of
the employment factors or conditions which appellant believes caused or adversely affected the
condition or conditions for which compensation is claimed.5 A claimant must also submit
rationalized medical opinion evidence establishing a causal relationship between the claimed
condition and the established, compensable work factors.6
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician, when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.7 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.8
ANALYSIS
Appellant has alleged that his duties as a cemetery caretaker contributed to an emotional
condition. The hearing representative found that appellant did not establish any compensable work
factors, and that he failed to submit probative medical evidence establishing causal relationship.

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28 ECAB
125 (1976).
4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

7

See Charles D. Edwards, 55 ECAB 258 (2004); Norma L. Blank, 43 ECAB 384 (1993).

8

Lori A. Facey, 55 ECAB 217 (2004); Norma L. Blank, id.

4

The Board disagrees with the findings of the hearing representative as to compensable work
factors.
According to the hearing representative, appellant did not submit evidence that he played
any work role in the veteran’s funerals which caused him undue stress. Appellant has alleged that
his job duties included the attendance and participation in approximately 1,000 veterans’ funerals.
This is consistent with the job description of record for appellant’s position. The job description
clearly involved duties that included interacting with veterans’ families and participation in funeral
services while on cemetery grounds. Appellant specifically cited to a Marine funeral in which the
deceased was transported on a firetruck, and resulted in flashbacks to his own service. No contrary
evidence was presented by the employing establishment. Appellant alleged that his work often
required him to attend the funerals of veterans, and that such work duty contributed to an emotional
condition. The Board finds that he has therefore substantiated a compensable work factor related
to his duties interacting in the burial process of service members and their families.
Appellant has also alleged that he was required to take on a heavy burden of responsibility
to go back to the beginning of fiscal year 2015 and “clean-up” the burial files, all while handling
all of the services at three national cemeteries. It is uncontested that his position involved a heavy
workload spread out amongst administrative and physical duties over three national cemeteries.
Appellant noted having to take on almost a purely administrative role when working as both a
caretaker, a cemetery representative, and the contracting officer representative resulting in
overwork. The Board finds that these elements relate to his job duties under Lillian Cutler9 and,
as they are substantiated as factual, his stressful work in multiple positions at three national
cemeteries is also found to be a compensable employment factor.
When a claimant attributes an emotional condition to regular or specially assigned duties
that are substantiated by the record, a compensable work factor has been established.10 The Board
finds that appellant has established compensable work factors as set forth herein.
The claim for compensation, however, is not established unless the medical evidence
establishes a diagnosed emotional condition casually related to the compensable work factor.11
OWCP’s hearing representative also reviewed the medical evidence of record and found that it
was of diminished probative value.
In this regard the Board finds the medical evidence does not establish that appellant’s
diagnosed emotional condition is causally related to the accepted employment incident.
Dr. Simpson provided a brief reference to stress in appellant’s job in his February 9, 2016 report.
He did not provide further explanation. None of the medical reports of record provide a complete

9

Supra note 3.

10

See B.P., Docket No. 11-0803 (issued November 7, 2011).

11

Id.

5

factual and medical history, or a rationalized medical opinion.12 There is no complete description
of appellant’s identified job duties. Moreover, Dr. Simpson refers to a military-related condition
in his January 4 and February 27, 2017 reports, without further explanation. A proper history of
injury should include a complete medical history and a proper explanation as to how the identified
work duties affected a diagnosed condition. Medical conclusions based on inaccurate or
incomplete histories are of little probative value.13 The failure of a physician to account for
appellant’s nonwork-related injury or disease processes undermines the medical opinion.14
It is appellant’s burden of proof to establish the claim for compensation. The Board finds
that appellant did not meet his burden of proof in this case.
On appeal appellant refers to his job duties, and makes an allegation of a hostile work
environment. The Board notes that its jurisdiction is limited to review of evidence before OWCP
at the time of the final decision on appeal.15 The allegation made before OWCP was that job duties
related to the preparation and attendance at funerals caused stress. Appellant may submit
additional evidence regarding additional allegations to OWCP. As to medical evidence, appellant
asserts that Dr. Simpson supports the claim for compensation. For the reasons discussed, the
medical evidence is of limited probative value and not sufficient to establish appellant’s claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an emotional condition causally related
to the accepted compensable employment factors.

12
To establish the claim, appellant must submit rationalized medical evidence based on a complete factual and
medical history. See Bonnie E. Rogers, Docket No. 99-1964 (issued September 5, 2000); William P. George, 43
ECAB 1139 (1992).
13

E.M., Docket No. 13-1864 (issued January 17, 2014).

14

Id.

15

20 C.F.R. § 501.2(c)(1).

6

ORDER
IT IS HEREBY ORDERED THAT the May 2, 2017 decision of the Office of Workers’
Compensation Programs is modified to reflect a compensable work factor has been established,
and is affirmed as modified.16
Issued: April 17, 2018
Washington, DC

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

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

16
Colleen Duffy Kiko, Judge, participated in the decision, but was no longer a member of the Board effective
December 11, 2017.

7


United States Department of Labor
Employees Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Harley Diamond, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-101
Issued: July 20, 2010

Case Submitted on the Record

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

JURISDICTION
On October 13, 2009 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated September 3, 2009. Under 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 31, 2008.
FACTUAL HISTORY
Appellant, a 49-year-old letter carrier, filed a claim for benefits on November 6, 2008,
alleging that he sustained a hernia caused by continuous bending and lifting on
October 31, 2008.
By letter dated November 19, 2008, the Office advised appellant that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits. It
asked him to submit a comprehensive medical report from his treating physician describing his

symptoms and the medical reasons for his condition and an opinion as to whether his claimed
condition was causally related to his federal employment. The Office advised appellant, in the
event that he sustained a hernia, to provide a statement as to when the original hernia was
diagnosed and the date surgery was performed to correct it. It further asked him to submit a
detailed statement describing when the injury occurred and indicating whether he experienced
pain over a period of time or whether he first noticed that he had a hernia on October 31, 2008.
The Office requested that appellant submit the additional evidence within 30 days.
In a November 7, 2008 Form CA-16 report, received by the Office on December 5, 2008,
Dr. Supoj Tanchajja, a Board-certified general surgeon, indicated that appellant had abdominal
pain and that a computerized axial tomography (CAT) scan showed an incarcerate incisional
hernia. Dr. Tanchajja checked a box “yes” in response to a question asking him whether he
believed that the injury was caused or aggravated by the employment activity described.
Appellant also submitted an October 31, 2008 operative report from Dr. Tanchajja, who
indicated that he had performed surgery to correct an incarcerate incisional hernia on
October 31, 2008.
In response to the Office questionnaire, appellant asserted in a December 3, 2008
statement that he first experienced pain from the hernia on October 31, 2008, that he had never
received prior treatment for a hernia and that he underwent emergency hernia surgery on
October 31, 2008.
In a statement received by the Office on December 15, 2008, appellant indicated that he
sustained a back strain while racking mail on his route. He stated that he experienced severe
lower abdominal pain while picking up a bucket of flats. Appellant asserted that he told his
supervisor that he needed to go to the hospital due to his severe pain, which he likened to passing
a kidney stone. He went to the manager’s office, clocked out and went to the emergency room to
undergo surgery.
By decision dated December 23, 2008, the Office denied appellant’s claim, finding that he
failed to submit sufficient medical evidence in support of his claim that he sustained an injury in
the performance of duty on October 31, 2008.
In a report dated March 9, 2009, Dr. Tanchajja stated that it was possible that appellant
developed an incarcerated incisional hernia as a result of working as a postal worker, which
required lifting and carrying objects.
In a letter received by the Office on June 10, 2009, appellant’s representative requested
reconsideration.
In a January 7, 2009 report, received by the Office on June 10, 2009, Dr. Steven M. Katz,
a specialist in internal medicine, stated that appellant had never been treated for a hernia in the
six years he had treated him as his primary care physician.
By decision dated September 3, 2009, the Office denied modification of its prior decision.
It noted that Dr. Katz’ indication in his January 7, 2009 report that he had never treated appellant
for a hernia was contradictory to Dr. Tanchajja’s statement that appellant underwent surgery five
or six years prior to the injury. Accordingly, appellant’s claim was denied.
2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

John J. Carlone, 41 ECAB 354 (1989).

5

Id. For a definition of the term “injury” see 20 C.F.R. § 10.5(a)(14).

6

Id.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

3

ANALYSIS
The Office accepted that appellant experienced abdominal pain while in the performance of
duty on October 31, 2008. It, however, also found that he had not established that he sustained a
hernia as a result of his work activities on October 31, 2008. The question of whether an
employment incident caused a personal injury can only be established by probative medical
evidence.9 Appellant has not submitted rationalized, probative medical evidence to establish that
the October 31, 2008 employment incident would have been competent to cause the claimed
hernia condition.
Appellant submitted evidence from Drs. Tanchajja and Katz. Dr. Tanchajja indicated in
his November 7, 2008 form report that appellant had abdominal pain on examination on
October 31, 2008 and diagnosed an incarcerate incisional hernia by CAT scan. He performed
emergency surgery to ameliorate appellant’s condition on October 31, 2008. In his March 9,
2009 report, Dr. Tanchajja stated that it was possible that appellant developed an incarcerated
incisional hernia as a result of working as a postal worker, as this position required him to lift
and carry objects. Dr. Katz stated that appellant had never been treated for a hernia in the six
years he had treated appellant as his primary care physician, but did not present an opinion as to
whether the hernia appellant sustained on October 31, 2008 was causally related to work factors.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.10 Although Dr. Tanchajja presented a diagnosis of appellant’s
condition, he did not adequately address how these conditions were causally related to the
October 31, 2008 work incident. The medical reports of record did not explain how medically
appellant sustained an abdominal hernia because he was packing or lifting objects on
October 31, 2008. Dr. Tanchajja’s opinion on causal relationship is of limited probative value in
that he did not provide adequate medical rationale in support of his conclusions.11 He did not
describe appellant’s accident in any detail or how the accident would have been competent to
cause the claimed abdominal hernia. Moreover, Dr. Tanchajja’s opinion is of limited probative
value for the further reason that it is generalized in nature and equivocal in that he only noted
summarily that appellant’s condition was causally related to the October 31, 2008 work incident.
Furthermore, the form report from him that supported causal relationship with a check mark is
insufficient to establish the claim, as the Board has held that, without further explanation or
rationale, a checked box is not sufficient to establish causation.12 There is insufficient
rationalized evidence in the record that appellant’s abdominal hernia was work related.
Therefore, appellant failed to provide a medical report from a physician that explains how the
work incident of October 31, 2008 caused or contributed to the claimed abdominal hernia injury.
9

Supra note 4.

10

See Anna C. Leanza, 48 ECAB 115 (1996).

11

William C. Thomas, 45 ECAB 591 (1994).

12

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

4

In his appeal to the Board, appellant’s representative, Harley Diamond, asserted that the
Office committed reversible error in its September 3, 2009 decision by relying on
Dr. Tanchajja’s inaccurate statement that appellant had hernia surgery five or six years
previously. Mr. Diamond stated that the only surgery underwent during this period was
laparoscopic bypass surgery, which was entirely unrelated to a hernia condition. The Board
notes that Dr. Katz, appellant’s treating physician for six years, indicated that he had no record of
appellant having had a hernia during this period, which contradicted Dr. Tanchajja’s statement.
Any error on the part of the Office is harmless, however. While the Office accepted that
appellant experienced a traumatic work incident on October 31, 2008, it properly found that
appellant did not submit medical evidence sufficient to establish that he sustained an injury
causally related to the October 31, 2008 work incident.
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which the October 31, 2008 work accident would have
caused the claimed injury. Accordingly, he did not establish that he sustained an injury in the
performance of duty. The Office properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an abdominal
hernia in the performance of duty.

5

ORDER
IT IS HEREBY ORDERED THAT the September 3, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 20, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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)

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

Docket No. 11-32
Issued: September 23, 2011

Case Submitted on the Record

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

JURISDICTION
On October 4, 2010 appellant filed a timely appeal from a June 15, 2010 decision of the
Office of Workers’ Compensation Programs, which granted him a schedule award. Pursuant to
the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than eight percent permanent impairment of each
upper extremity, for which he received schedule awards.
FACTUAL HISTORY
On August 27, 1997 appellant then a 42-year-old mail handler, filed a Form CA-2, notice
of occupational disease, alleging that he developed bilateral carpal tunnel syndrome as a result of
performing his work duties. OWCP accepted bilateral carpal tunnel syndrome. Appellant
1

5 U.S.C. §§ 8101-8193.

stopped work intermittently and returned to light duty on January 19, 2008 and regular duty on
March 12, 2008.
A June 22, 2006 electromyogram (EMG) showed bilateral carpal tunnel syndrome, no
evidence of cervical radiculopathy, brachial plexopathy, ulnar neuropathy or polyneuropathy.
OWCP authorized surgery. On September 12, 2006 Dr. Howard M. Baruch, a Board-certified
orthopedic surgeon, performed a right wrist carpal tunnel release and median nerve neurolysis
and diagnosed right carpal tunnel syndrome. On November 16, 2006 he performed a left carpal
tunnel syndrome release and median nerve neurolysis and diagnosed left carpal tunnel syndrome.
In reports dated November 7, 2007 to March 12, 2008, Dr. Baruch noted that appellant was
progressing well postoperatively.
On September 4, 2008 appellant filed a claim for a schedule award. He submitted a
June 3, 2008 report from Dr. David Weiss, an osteopath, who diagnosed cumulative and
repetitive trauma disorder, bilateral carpal tunnel syndrome and status post open bilateral carpal
tunnel release. Dr. Weiss opined that appellant had a 26 percent permanent impairment of the
right arm and a 38 percent impairment of the left arm in accordance with the fifth edition of the
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides).2 He opined that appellant reached maximum medical improvement on
June 3, 2008. Dr. Weiss calculated that impairment on the right arm due to lateral pinch deficit
was 10 percent3; 10 percent impairment of the right arm for Grade 4 sensory deficit or pain in the
distribution of the median nerve4; and 9 percent impairment for Grade 3/4 motor strength deficit
of the right thumb5; for total combined impairment of 26 percent of the right arm. With regard to
the left arm, Dr. Weiss calculated impairment due to lateral pinch deficit was 10 percent6;
31 percent impairment of the arm for Grade 2 sensory deficit or pain in the distribution of the
median nerve7; for total combined impairment of 38 percent of the left arm.
OWCP referred the matter to an OWCP medical adviser who, in an August 20, 2008
report, disagreed with Dr. Weiss with regard to the right arm noting that appellant had 23 percent
impairment of the right arm and concurred with his findings that appellant had 38 percent
impairment of the left arm pursuant to the A.M.A., Guides. The medical adviser calculated that
impairment on the right upper extremity due to lateral pinch deficit was 10 percent; 10 percent
impairment of the right upper extremity for Grade 4 sensory deficit or pain in the distribution of
the median nerve; and 5 percent impairment for Grade 3/4 motor strength deficit of the right
thumb; for total combined impairment of 23 percent of the right arm. For the left arm, the
medical adviser calculated impairment due to lateral pinch deficit was 10 percent; 31 percent
2

A.M.A., Guides (5th ed. 2001).

3

Id. at 509, Table 16-34.

4

Id. at 482, 492, Table 16-10, 16-15.

5

Id.

6

Id. at 509, Table 16-34.

7

Id. at 482, 492, Table 16-10, 16-15.

2

impairment of the left upper extremity for Grade 2 sensory deficit or pain in the distribution of
the median nerve for total combined impairment of 38 percent of the left arm.
OWCP found a conflict in medical opinion between Dr. Weiss, the attending osteopath
and OWCP’s medical adviser as to the extent of impairment to appellant’s arms. To resolve the
conflict OWCP on November 19, 2008 referred appellant to a referee physician, Dr. Richard
Lebovicz, a Board-certified orthopedist.
In a June 18, 2009 report, Dr. Lebovicz noted evaluating appellant on March 9, 2009. He
reported appellant’s complaints of numbness in both hands with loss of strength in the hands and
difficulty with the right thumb not opposing the other fingers. Dr. Lebovicz noted examination
findings for the right arm of decreased sensation to touch in the median nerve distribution,
position Tinel and Phalen’s tests, mild thenar muscle wasting, weak pinch strength, weakness in
opposing the right thumb to the other fingers and diminished two-point discrimination. For the
left arm, examination revealed decreased sensation to touch and to pinprick involving the median
nerve distribution, decreased two-point discrimination and weak motor function with regard to
pinch and opposition. Dr. Lebovicz applied the sixth edition of the A.M.A., Guides8 and
determined that appellant had eight percent rating of each arm secondary to carpal tunnel
syndrome. He stated that with regard to the right upper extremity he applied the A.M.A.,
Guides, Table 15-23, page 449 and used a grade modifier of three for test findings, history and
physical findings for each arm. For the functional scale, Dr. Lebovicz noted a QuickDASH score
of 50 for the right side and 43.25 for the left. Based on this, he opined that appellant had eight
percent impairment of each arm secondary to bilateral carpal tunnel problem. Dr. Lebovicz
noted that appellant reached maximum medical improvement on March 12, 2008.
In a report dated July 7, 2009, an OWCP medical adviser noted that EMG and nerve
conduction studies and physical examination revealed bilateral carpal tunnel syndrome. He
noted that, pursuant to the sixth edition of the A.M.A., Guides, page 449, Table 15-23, the
functional history indicated a Grade 3 modifier with constant symptoms and difficulty with
thumb opposition of the right hand and numbness and tingling in the left hand. The medical
adviser further noted that physical examination and findings include decreased sensation and
weakness bilaterally for a Grade 3 modifier. He requested that OWCP obtain a supplemental
report from the referee physician providing the quick functional scale so that he could assign the
appropriate modifier for the carpal tunnel syndrome calculation.
OWCP requested a supplemental report from Dr. Lebovicz. In a September 18, 2009
letter, Dr. Lebovicz’ office requested clarification from the medical adviser with regard to the
“quick function scale” noting that this terminology was not in the sixth edition of the A.M.A.,
Guides. His office provided page five of his June 18, 2009 report and pointed out the
QuickDASH score of 50 for the right side and 43.25 for the left side.
In a November 23, 2009 report, the medical adviser noted that Dr. Lebovicz used Table
15-23, page 449 of the A.M.A., Guides, noting for the right upper extremity, a test findings
modifier of three, history grade modifier of three, physical findings grade modifier of three and a
functional QuickDASH score of 50. He calculated an eight percent impairment of the right
8

A.M.A., Guides (6th ed. 2009).

3

upper extremity for the default grade modifier of three. With regard to the left upper extremity,
the medical adviser noted a test findings modifier of three, history grade modifier of three,
physical findings grade modifier of three and a functional QuickDASH score of 43.25. He
calculated an eight percent impairment of the right upper extremity. The medical adviser
concluded that, based on Dr. Lebovicz’ report and Table 15-23 of the A.M.A., Guides, appellant
sustained an eight percent impairment for each upper extremity.
In a decision dated December 8, 2009, OWCP granted appellant a schedule award for
eight percent impairment of the right and left upper extremities. The period of the award was
from March 16, 2008 to February 28, 2009.
On December 15, 2009 appellant requested an oral hearing which was held on
March 30, 2010.
In a decision dated June 15, 2010, the hearing representative affirmed the December 8,
2009 OWCP decision.
LEGAL PRECEDENT
The schedule award provisions of FECA9 provide compensation to employees sustaining
impairment from loss or loss of use of specified member of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.10 Effective May 1, 2009, OWCP began using the sixth edition of the
A.M.A., Guides to calculate schedule awards.11
If carpal tunnel syndrome is found under the standards of Appendix 15-B, impairment is
evaluated under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy
Impairment) and accompanying relevant text.12 In Table 15-23, grade modifiers are described
for test findings, history and physical findings. A survey completed by a given claimant, known
by the name QuickDASH, may be used to further modify the grade and to choose the appropriate
numerical impairment rating.13 If carpal tunnel syndrome is not found under the standards of

9

Supra note 1.

10

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims
Chapter 2.808.6(a) (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
12

See id. at Table 15-23.

13

Id. at 448.

4

Appendix 15-B, impairment due to median nerve dysfunction is evaluated under the scheme
found in Table 15-21 (Peripheral Nerve Impairment: Upper Extremity Impairments).14
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and authorized
carpal tunnel releases which were performed on September 12 and November 16, 2006. A
conflict in the medical evidence arose between his attending physician, Dr. Weiss, who disagreed
with an OWCP medical adviser, concerning impairment of the right and left upper extremities.
Consequently, OWCP referred appellant to Dr. Lebovicz to resolve the conflict.15 The impartial
medical examiner, Dr. Lebovicz, found that, under the sixth edition of the A.M.A., Guides,
appellant had eight percent impairment to each arm and the medical adviser concurred with his
conclusion. Accordingly, OWCP issued a schedule award for eight percent impairment of the
left and right upper extremities.
Appellant contends that there was no medical conflict between Dr. Weiss and an OWCP
medical adviser with regard to his left upper extremity impairment as both opined that he was
entitled to a 38 percent impairment rating pursuant to the fifth edition of the A.M.A., Guides and
that OWCP improperly applied the sixth edition of the A.M.A., Guides to his case.
The Board finds that, under the circumstances of this case, the opinion of Dr. Lebovicz
was not an impartial medical specialist with regard to permanent impairment because there was
no conflict of medical opinion at the time of OWCP’s referral to Dr. Lebovicz. As noted, both
physicians agreed on appellant’s left arm impairment so there was no conflict with regard to the
left arm. For the right arm, Dr. Weiss’ opinion on impairment was not in accordance with the
fifth edition of the A.M.A., Guides, that was used at the time of his June 3, 2008 report. He
based appellant’s impairment, in part, on lateral pinch deficit of 10 percent.16 However, the
Board notes that, in a carpal tunnel schedule award case, there generally will be no ratings based
on loss of motion or grip strength.17 OWCP procedures18 specifically provide that upper
extremity impairment secondary to carpal tunnel syndrome and other entrapment neuropathies
should be calculated using section 16.5d and Tables 16-10, 16-11 and 16-15.19 Thus, Dr. Weiss’
opinion was not in conformance with the standard used by OWCP to evaluate permanent
impairment and was insufficient to create a medical conflict. However, while Dr. Lebovicz’
opinion is not entitled to the special weight afforded to an impartial specialist, his report can still
14

Id. at 437-40, Table 15-21 (portion relating to median nerves).

15

See 5 U.S.C. § 8123(a) (if there is a 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).
16

See A.M.A., Guides 509, Table 16-34 (5th ed. 2001).

17

Id. at 494-95. Section 16.5d of the A.M.A., Guides 494 provides that, “in compression neuropathies, additional
impairment values are not given for decreases grip strength.”
18

See Federal (FECA) Procedure Manual, supra note 11, Chapter 2.808 (March 1995).

19

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

5

be considered for its own intrinsic value20 and can still constitute the weight of the medical
evidence.21
In a June 18, 2009 report, Dr. Lebovicz reviewed the medical records and examined
appellant and found that he had eight percent rating of each arm secondary to carpal tunnel
syndrome under the standards of the sixth edition of the A.M.A., Guides. The Board finds that
he properly applied these standards to reach his conclusion about the permanent impairment of
appellant’s right and left upper extremity. Dr. Lebovicz properly made reference to Table 15-23
(Entrapment/Compression Neuropathy Impairment) on page 449 of the sixth edition of the
A.M.A., Guides.22 Based on his examination and review of the record, he chose a grade modifier
of three for test findings, history and physical findings. The grade modifiers were then averaged
and rounded to the nearest integer to determine the average grade. The bottom of the table gives
the default impairment value for each average grade.23 Based on this, Dr. Lebovicz opined that
appellant had eight percent impairment of each arm secondary to bilateral carpal tunnel problem.
An OWCP medical adviser reviewed Dr. Lebovicz’ report, concurred in his findings and
correlated them to provisions in the A.M.A., Guides. He noted that EMG and nerve conduction
studies and physical examination revealed bilateral carpal tunnel syndrome. The medical adviser
noted that pursuant to the sixth edition of the A.M.A., Guides, Table 15-23, Dr. Lebovicz’
properly determined that test findings, physical findings and functional history all qualified as
grade modifier three. He concluded that, based on Dr. Lebovicz’ report and Table 15-23 of the
A.M.A., Guides, appellant had eight percent impairment for each upper extremity. The Board
finds that an OWCP medical adviser properly applied the A.M.A., Guides, to the findings
presented by Dr. Lebovicz in rating impairment to appellant’s bilateral upper extremities. There
is no other current medical evidence applying the sixth edition of the A.M.A., Guides, showing
any greater impairment.
The weight of the medical evidence therefore does not establish more than eight percent
impairment to each arm under the sixth edition of the A.M.A., Guides.
On appeal, appellant asserts that he has property right in a schedule award benefit under
the fifth edition of the A.M.A., Guides and a protected property interest cannot be deprived
without due process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge,
424 U.S. 319 (1976). But these cases hold only that a claimant who was in receipt of benefits (in

20

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

21

See Leanne E. Maynard, 43 ECAB 482 (1992) (the Board found that a physician’s “opinion is probative even
though he was not an impartial medical examiner” and that the opinion of this physician and another physician were
sufficient to establish causal relation); Rosa Whitfield Swain, 38 ECAB 368 (1987) (the Board found that a physician
was improperly designated as an impartial medical specialist, but that his opinion nonetheless constituted the weight
of the medical evidence).
22

A.M.A., Guides 449, Table 15-23 (6th ed. 2009).

23

See id. at 448-49.

6

Goldberg public assistance and in Mathews Social Security benefits) could not have those
benefits terminated without procedural due process.24
In Harry D. Butler,25 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.26 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the six edition of the A.M.A., Guides.27 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement of when the claim for such award was filed.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that the probative evidence does not establish more than eight percent
bilateral arm impairment.

24

In Mathews the Court noted that the private interest that would be adversely affected by the erroneous
termination of benefits was likely to be less in a disabled worker than a welfare recipient and due process would not
require an evidentiary hearing.
25

43 ECAB 859 (1992).

26

Id. at 866.

27

FECA Bulletin No. 09-03 (March 15, 2009). FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, supra note 11, Chapter 2.808.6(a) (January 2010).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 15, 2010 is affirmed.
Issued: September 23, 2011
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, MANAGER
COLUMBUS PROCESSING & DISTRIBUTION
CENTER, Columbus, OH, Employer
__________________________________________

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

Docket No. 18-0212
Issued: June 8, 2018

Case Submitted on the Record

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

JURISDICTION
On November 7, 2017 appellant filed a timely appeal from an October 16, 2017 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
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,374.50 for the period August 21, 2016 through
January 7, 2017; (2) whether OWCP properly determined that appellant was at fault in the creation
of the overpayment, thereby precluding waiver of recovery of the overpayment; and (3) whether
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence on appeal. The Board’s jurisdiction is limited to the
evidence which was before OWCP at the time it issued its final decision. Thus, the Board is precluded from
considering this new evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

OWCP properly required recovery of the overpayment by deducting $200.00 every 28 days from
appellant’s continuing compensation payments.
On appeal appellant contends that he was not aware of the overpayment, that it was OWCP
who made the mistake, and that OWCP should therefore be held liable for it. He further contends
that repayment of the overpayment would cause financial hardship as he has a fixed income, owes
back taxes, and his wife is unemployed. Appellant claims that he has to pay household expenses
and his wife’s bills.
FACTUAL HISTORY
This case has previously been before the Board with respect to a prior overpayment of
compensation.3 The facts of the case as presented in the prior Board decision are incorporated
herein by reference. The relevant facts are set forth below.
On May 31, 2012 appellant, then a 55-year-old processing clerk, filed an occupational
disease claim (Form CA-2) under OWCP File No. xxxxxx201 alleging that he sustained bilateral
carpal tunnel syndrome in the performance of his federal employment duties. He stopped work on
May 25, 2012 and returned to work on June 4, 2012. On September 5, 2012 OWCP accepted the
claim for bilateral carpal tunnel syndrome.
Appellant underwent left carpal tunnel release on February 15, 2013 and right carpal tunnel
release on August 2, 2013. Both surgeries were authorized by OWCP. On December 10, 2013
appellant returned to full-time, limited-duty work.4
On January 20, 2015 appellant filed a notice of a recurrence (Form CA-2a) alleging that he
sustained a recurrence of disability on January 8, 2015 causally related to his accepted employment
injury. On February 19, 2015 OWCP informed appellant that it had administratively converted
this claim for a recurrence to a claim for a new occupational disease as he described a new injury
as a result of performing his regular work duties. The new claim was opened under OWCP File
No. xxxxxx781.
By decision dated April 1, 2015, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence was insufficient to establish a medical condition causally related
to the accepted employment factors. By decision dated July 16, 2015, it vacated its April 1, 2015

3

Docket No. 15-0530 (issued July 29, 2015).

4

By decision dated December 29, 2014, OWCP found that appellant received an overpayment of compensation in
the amount of $3,156.49 because he had returned to full-time, limited-duty work on December 10, 2013, but received
wage-loss compensation for total disability through January 11, 2014. It also found that he was without fault in the
creation of the overpayment, but denied waiver of recovery of the overpayment as his monthly income of $5,200.00
exceeded his monthly expenses of $4,775.00 by $425.00. OWCP directed repayment of the overpayment in the
amount of $150.00 a month. On January 20, 2015 appellant filed a timely appeal of OWCP’s December 29, 2014
decision to the Board. By decision dated July 29, 2015, the Board affirmed the December 29, 2014 OWCP
overpayment decision. Docket No. 15-0530 (issued July 29, 2015).

2

decision and accepted the claim for bilateral carpal tunnel syndrome and bilateral ulnar nerve
lesion.5
OWCP, by letter dated March 6, 2016, expanded the acceptance of appellant’s claim to
include cubital tunnel syndrome of the right and left upper limbs. It authorized carpal tunnel
release of the left upper extremity and ulnar nerve decompression at the left elbow with medial
epicondylectomy performed on March 24, 2016. OWCP paid appellant compensation for
temporary total disability commencing March 6, 2016 on the periodic rolls.
By letter dated March 17, 2016, OWCP advised appellant of his regular 28-day payment,
which reflected his gross earnings of $3,622.56, less deductions for health benefits totaling
$274.12, less deductions for basic life insurance (BLI) totaling $17.70, and less deductions for
optional life insurance (OLI) totaling $128.80, for a regular net compensation payment of
$3,201.94, which he received on various dates through August 20, 2016.
By letter dated February 3, 2017, OWCP notified appellant of its preliminary determination
that he received a $2,374.50 overpayment of compensation under File No. xxxxxx201 as it failed
to properly deduct health insurance premiums and premiums for BLI and OLI code Y5, from
August 21, 2016 through January 7, 2017, following a pay rate conversion between appellant’s
accepted claims. It determined that it should have deducted $1,642.00 for health insurance
benefits, $88.50 for BLI, and $644.00 for OLI code Y5, for the above period. OWCP also
informed appellant of its preliminary determination that he was at fault in the creation of the
overpayment as he accepted payments which he knew or should have reasonably known were
incorrect. It advised him that he could submit evidence challenging the fact, amount, or fault
finding and request waiver of recovery of the overpayment. Additionally, OWCP informed
appellant that, within 30 days, he could request a telephone conference, a final decision based on
the written evidence, or a prerecoupment hearing. It requested that he complete an enclosed
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documents.6
In an overpayment action request signed February 27, 2017, appellant requested a
prerecoupment hearing by teleconference. He submitted a completed Form OWCP-20 also dated
February 27, 2017. Appellant contended that he was not at fault in creating the overpayment as
he was not responsible for processing or making any changes to his account when he received his
compensation by direct deposit. He asserted that he just glanced at the amount deposited into his
account and carried on with his daily business. Appellant maintained that OWCP was responsible
for any changes to his account. He claimed that dealing with all of the forms he had to complete
was complicated enough. On the Form OWCP-20, appellant reported total monthly income of
$4,988.00, which included $3,100.00 in FECA benefits, and $1,888.00 in Veterans Affairs (VA)
benefits. He also reported monthly expenses, which included $1,388.82 for rent or mortgage
5
OWCP administratively combined OWCP File Nos. xxxxxx201 and xxxxxx781, with File No. xxxxxx201 serving
as the master File No.
6

The record reflects that, while appellant received net compensation in the amount of $3,201.94 every 28 days
prior to August 21, 2016, after August 21, 2016 he received net compensation in the amount of $3,522.56 every 28
days.

3

including property tax, $400.00 for food, $200.00 for clothing, $790.00 for utilities, $200.00 for
other expenses, and $701.00 and $381.00 for debts with the Kemba Financial Credit Union.
Appellant indicated the following assets: $200.00 in a checking account; and $5,000.00 for other
personal property and other funds for a total of $5,200.00 in assets. On a separate sheet, he listed
additional monthly expenses, which included $59.00 for Lowes, $27.00 for BestBuy, $47.00 for
creditor with an illegible name, $237.00 for T-Mobile, $147.19 for ATT U-Verse television
service, $20.00 for a Dell computer, $297.00 for Visa, $70.00 for gas, $60.00 for telephone,
$100.00 for dental, $80.00 for water, $300.00 for fuel, $200.00 for automotive expenses, and
$200.00 for personal necessities.
During the prerecoupment hearing held on August 15, 2017, appellant restated his prior
contention that the overpayment occurred through no fault of his own. Rather it was OWCP’s
fault as it was their responsibility to make the correct payments. Appellant explained that he had
mistakenly listed monthly expenses of $790.00 for utilities and then separately listed the amount
for these same expenses. He indicated that the $701.00 and $381.00 payments to Kemba Credit
Union were car payments for two vehicles. Appellant related that $200.00 a month for automotive
expenses was for the upkeep of the vehicles including brakes, oil changes, and other items. He
noted that personal necessities were for clothes and things he had to buy to live. Appellant’s credit
card payments were minimum payments. He advised that his wife earned $1,300.00 a month.
Following the prerecoupment hearing, appellant, by letter dated September 11, 2017,
informed OWCP that, effective November 1, 2017, his wife would be unemployed. He contended
that her unemployment would greatly compromise his ability to repay the overpayment as his
funds on hand were needed to pay household expenses and other debt incurred by his spouse.
Appellant submitted various financial documents.
By decision dated October 16, 2017, an OWCP hearing representative finalized the
preliminary determination, finding that appellant received a $2,374.50 overpayment of
compensation for the period August 21, 2016 through January 7, 2017. He also found that
appellant was at fault in the creation of the overpayment because he should have reasonably known
that his compensation payments were incorrect and, thus, he was not entitled to waiver of recovery
of the overpayment. The hearing representative noted appellant’s reported monthly expenses,
totaling $5,864.61.7 He further noted that during the prerecoupment hearing, appellant indicated
that he had made a mistake by listing $790.00 in utilities expenses and also separately listing the
amount for these utilities. The hearing representative subtracted $790.00 from $5,074.61 to
calculate monthly expenses in the amount of $4,284.61. He directed repayment of the
overpayment by deducting $200.00 from appellant’s continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the

7

The Board notes that appellant incorrectly calculated a total of $5,074.61in monthly expenses. Appellant actually
reported $5,864.61 in monthly expenses. OWCP also incorrectly indicated that he reported $1,348.42 for rent or
mortgage as his February 27, 2017 Form OWCP-20 indicated that he reported $1,388.82 for this expense.

4

performance of duty.8 When an overpayment has been made to an individual because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which the individual is entitled.9
ANALYSIS -- ISSUE 1
The Board finds that fact of overpayment has been established and is not contested. The
record reflects that OWCP failed to deduct health insurance and life insurance premium amounts
for the period August 21, 2016 through January 7, 2017. An overpayment occurred due to the
nondeduction of these health and life insurance premiums. OWCP provided a worksheet
explaining how the overpayment was calculated for this time period. It calculated that appellant
owed deductions in the amount of $1,642.00 for health insurance premiums, $88.50 for BLI
premiums, and $644.00 for OLI premiums for a total of $2,374.50.
The Board finds that an overpayment of compensation was created in the amount of
$2,374.50 due to underwithholding of health insurance and life insurance premiums.10
LEGAL PRECEDENT -- ISSUE 2
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.11 The fact that the overpayment was the result of error by OWCP or another
government agency does not by itself relieve the individual who received the overpayment of
liability for repayment if the individual also was at fault for receiving the overpayment.12 Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure that
payments he or she received from OWCP are proper. The recipient must show good faith and
exercise a high degree of care in reporting events that may affect entitlement to or the amount of
benefits. A recipient who has done any of the following will be found to be at fault 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; (2) failed to provide information which he or she knew
or should have known to be material; or (3) accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).13
With respect to whether an individual is without fault, section 10.433(b) of OWCP
regulations provides that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the

8

5 U.S.C. § 8129.

9

20 C.F.R. §§ 10.434-10.437.

10

See J.L., Docket No. 16-0778 (issued November 2, 2016); M.N., Docket No. 16-0360 (issued July 5, 2016).

11

20 C.F.R. § 10.433(a).

12

Id. at § 10.435(a).

13

Id. at § 433(a); see Kenneth E. Rush, 51 ECAB 116 (1999).

5

overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment. According to OWCP’s procedures, a claimant is found without fault
if the overpayment results from the underwithholding of health or life insurance premiums, unless
the claimant had actual knowledge of the calculation error.15
Before OWCP, appellant contended that he had no way of knowing that he was receiving
incorrect payments. By the March 17, 2016 letter, OWCP specifically notified appellant that, after
deductions for health insurance premiums in the amount of $274.12, BLI premiums in the amount
of $17.70, and OLI premiums in the amount of $128.80, his net compensation check totaled
$3,201.94. Appellant received payments in the amount of $3,201.94 on various dates through
August 20, 2016. OWCP found that appellant should have reasonably known that the increased
payments he received after August 21, 2016 were incorrect. While the record reflects that
payments covering the period August 21, 2016 through January 7, 2017 increased, there is no
documentation of record establishing that appellant had actual knowledge that this increase in his
compensation payments was due to OWCP’s failure to deduct his health and life insurance
premiums.
Under the circumstances of this case, the Board finds the evidence of record on appeal
insufficient to establish that appellant actually knew or reasonably should have known that he
received an overpayment of compensation for the period August 21, 2016 through
January 7, 2017. Consequently, the case will be remanded so that OWCP can consider whether
he is entitled to waiver of recovery of the overpayment.16
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,374.50 for the period August 21, 2016 through
January 7, 2017. The Board also finds that he was without fault in the creation of the overpayment
and that, consequently, the case must be remanded to OWCP to consider waiver of recovery of the
overpayment.17

14

Id. at § 10.433(b).

15

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.5(b)(1)(c) (June 2009). See also P.H., Docket No. 13-0642 (issued August 12, 2013).
16

Id., see also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.5(b)(1)(c) (June 2009).
17
In light of the Board’s finding that the case must be remanded for OWCP to consider waiver of recovery of the
overpayment, it is premature to address Issue 3.

6

ORDER
IT IS HEREBY ORDERED THAT the October 16, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: June 8, 2018
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Easton, MD, Employer
__________________________________________

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

Docket No. 19-1515
Issued: January 2, 2020

Case Submitted on the Record

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

JURISDICTION
On July 8, 2019 appellant filed a timely appeal from a June 18, 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 this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to the accepted May 2, 2018 employment incident.
FACTUAL HISTORY
On May 25, 2018 appellant, then a 57-year-old bulk mail technician, filed a traumatic
injury claim (Form CA-1) alleging that on May 2, 2018 she injured her lower back taking flat tubs
from a bulk mail container (BMC) while in the performance of duty. On the reverse side of the
1

5 U.S.C. § 8101 et seq.

claim form, the employing establishment indicated that she was injured in the performance of duty.
Appellant stopped work on May 2, 2018.
In an accompanying statement, appellant provided that, as she was emptying the BMC of
flat tubs on May 2, 2018, she felt a sharp pain shoot down her back. The pain worsened as she
continued to break down the rest of the flats and sort packages. Appellant performed her duties
through her pain, but she eventually stopped work in order to allow her back to rest. When she
returned to work on May 14, 2018 and tried to move another flat, she noted that her back pain was
much worse. Appellant explained that she then went to her physician who advised that she could
only lift up to 20 pounds, and he referred her for further orthopedic evaluation.
In a May 14, 2018 note, Dr. Eric Hermansen, a Board-certified internist, provided that due
to appellant’s back pain and an ongoing evaluation of her back pain, she was advised not to lift
weights greater than 20 pounds until she was seen and evaluated by orthopedics.
In a development letter dated May 14, 2019, OWCP informed appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
continuation of pay was not controverted by the employing establishment, and thus, limited
expenses had therefore been authorized. However, a formal decision was now required. OWCP
advised appellant of the type of factual and medical evidence required to establish her traumatic
injury claim and provided a factual questionnaire inquiring about the circumstances surrounding
her claimed injury for her completion. It also requested a narrative medical report containing a
firm diagnosis from her physician. OWCP afforded appellant 30 days to respond.
In response to OWCP’s questionnaire, appellant submitted a May 18, 2019 statement
wherein she provided that on May 2, 2018 she had performed several twisting and turning motions
in order to move approximately six to eight flat tubs weighing approximately 30 pounds. She
explained that she now experienced sharp pains in her back and that she was unable to continue
her work as a result.
In a May 14, 2018 report, Dr. Hermansen noted that appellant had been experiencing back
pain in her midline lumbar area since the May 2, 2018 employment incident. On evaluation he
noted that her lumbar/lumbosacral spine exhibited abnormalities and discrete pain at L3-4.
Appellant had full flexion and extension, and negative straight leg raising. Her neurological
evaluation revealed normal motor strength and normal deep tendon reflexes. Dr. Hermansen
diagnosed lumbar radiculopathy and referred her to orthopedics for further evaluation. He also
prescribed pain medication.
By decision dated June 18, 2019, OWCP accepted that the May 2, 2018 employment
incident occurred as alleged, but denied appellant’s claim because the medical evidence of record
did not include a diagnosis in connection with the accepted employment incident. Consequently,
it found that appellant had not met the requirements to establish an injury as defined by FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit evidence, in the form
of medical evidence, to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.7 The weight of the 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
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted May 2, 2018 employment incident.
On May 14, 2018 Dr. Hermansen provided both a medical report and a note with work
restrictions. The latter note indicated that appellant was being evaluated for back pain and should
2

Id.

3

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

8

Id.; James Mack, 43 ECAB 321 (1991).

3

not lift in excess of 20 pounds. Dr. Hermansen’s May 14, 2018 treatment notes indicated that she
had been experiencing back pain since May 2, 2018 when she reportedly injured her back lifting
packages all day at work. Physical examination of the lumbar spine revealed “discrete pain” at
L3-4, full flexion and extension, and negative straight leg raising. Appellant’s neurological
examination revealed normal strength (motor), balance, and deep tendon reflexes. Dr. Hermansen
provided an assessment of lumbar radiculopathy and also noted that her lumbar x-rays were
routine.
The Board has consistently held that pain is a symptom, not a specific medical diagnosis.9
In his May 14, 2018 report and work note, Dr. Hermansen variously described back pain, discrete
pain at L3-4, and lumbar radiculopathy. However, he did not provide a specific medical diagnosis,
which might otherwise account for appellant’s low back pain and radiculopathy. In fact,
Dr. Hermansen referred her for further evaluation by an orthopedist to determine the cause and
extent of her low back complaints. Accordingly, his assessment of lumbar pain and radiculopathy
alone was insufficient to establish appellant’s claim.10
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish a diagnosed medical condition causally related to the accepted May 2, 2018
employment incident.11 Appellant therefore has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted May 2, 2018 employment incident.

9

M.M., Docket No. 16-1617 (issued January 24, 2017); K.B., Docket No. 16-0122 (issued April 19, 2016); Robert
Broome, 55 ECAB 339 (2004); see also Federal (FECA) Procedural Manual, Part 2 -- Claims, Fact of Injury, Chapter
2.803.4(a)(6) (August 2012).
10

See id.

11

See T.J., Docket No. 18-1500 (issued May 1, 2019); D.S., Docket No. 18-0061 (issued May 29, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the June 18, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 2, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5