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

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

Docket No. 15-1376
Issued: November 10, 2015

Case Submitted on the Record

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

JURISDICTION
On June 1, 2015 appellant filed a timely appeal from a February 24, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated November 14, 2013, and the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s reconsideration request
was untimely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On April 26, 2011 appellant, then a 43-year-old transitional mail carrier, filed a traumatic
injury claim (Form CA-1) alleging that she sprained her back on April 23, 2011 while using a
1

5 U.S.C. § 8101 et seq.

disabled/unbalanced cart. She submitted an x-ray report, a work excuse note, and a return to
work note with her claim.
Following development of the claim, OWCP, by decision dated July 8, 2011, denied the
claim as the medical component of fact of injury had not been established as there was no
medical evidence which contained a medical diagnosis in connection with the April 23, 2011
employment incident.
Appellant disagreed with OWCP’s decision and requested an oral hearing before a
hearing representative of OWCP’s Branch of Hearings and Review, which was held
October 24, 2011. By decision dated December 8, 2011, OWCP hearing representative affirmed
the July 8, 2011 decision finding that the medical evidence failed to establish causal relationship
between the diagnosed condition and the April 23, 2011 employment incident.
On January 4, 2012 OWCP received appellant’s request for reconsideration of its
decision. By decision dated March 23, 2012, it denied modification of its prior decision. OWCP
found the December 21, 2011 report from Dr. Nicholas Post, a Board-certified neurological
surgeon, speculative or equivocal in character and lacking in medical rationale.
On June 18, 2012 OWCP received appellant’s request for reconsideration of OWCP’s
decision. By decision dated October 16, 2012, it denied modification of the March 23, 2012
decision. OWCP found the December 29, 2011 medical report of Dr. Sanjeev Agarwal, Boardcertified in physical medicine and rehabilitation, insufficient to support that the diagnosed
medical conditions were causally related to specific work incidents.
On December 26, 2012 OWCP received appellant’s request for reconsideration of its
October 16, 2012 decision. By decision dated March 5, 2013, it denied modification of its
October 16, 2012 decision. OWCP found the November 28, 2012 report of Dr. Post insufficient
to establish causal relationship.
On August 20, 2013 OWCP received appellant’s request for reconsideration of its
March 5, 2013 decision. By decision dated November 14, 2013, it denied modification of its
prior decision. OWCP found the additional medical reports from Dr. Patel, Dr. Post, and
Dr. Agarwal insufficient to establish causal relation.2
On November 17, 2014 OWCP received appellant’s November 13, 2014 request for
reconsideration, postmarked November 13, 2014. Evidence received by OWCP on December 1,
2014 included an October 15, 2014 magnetic resonance imaging (MRI) scan of the lumbar spine,
a November 19, 2014 chart note from Dr. Post, and a duplicate copy of the November 13, 2014
request for reconsideration.

2

This included a review of new reports and reports previously of record and encompassed reports from
Dr. Patel dated April 26, May 10 and 27, June 10, July 15, and October 21, 2011; reports from Dr. Post dated
October 12 and December 21, 2011, November 28, 2012, and July 26, 2013; and reports from Dr. Agarwal dated
December 29, 2011.

2

In his November 19, 2014 report, Dr. Post indicated that appellant had an injury to her
lumbar spine that appeared to be a result of moving heavy carts while performing employment
duties at the employing establishment on April 23, 2011. He noted that a July 14, 2011 MRI
scan showed evidence of degenerative lumbar discs. Prior to her accident, appellant had no
history of low back pain or degenerative changes in her lumbar spine. Dr. Post concluded that it
was medically reasonable that her low back pain was a result of the April 23, 2011 injury.
By decision dated February 24, 2015, OWCP denied appellant’s reconsideration request
finding that it was untimely filed and did not present clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.3
The one-year period begins on the date of the original decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues. This
includes any hearing or review of the written record decision, any denial of modification
following reconsideration, any merit decision by the Board, and any merit decision following
action by the Board, but does not include prerecoupment hearing decisions.4
Its regulations state that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one year filing limitation set forth in section 10.607 of OWCP regulations, if
the claimant’s application for review shows clear evidence of error on the part of OWCP.5 In
this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on
the prior evidence of record.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.7
3

20 C.F.R. § 10.607(a) (2011).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (October 2011).

5

20 C.F.R. § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000).

6

See Alberta Dukes, 56 ECAB 247 (2005).

7

Robert G. Burns, 57 ECAB 657 (2006).

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OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.8 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.9
ANALYSIS
OWCP issued its most recent merit decision on November 14, 2013 which denied
appellant’s claim for a traumatic injury of April 23, 2011. The February 24, 2015 nonmerit
decision found that her request for reconsideration dated November 13, 2014 was untimely as it
was received December 1, 2014. However, the Board notes that the request for reconsideration
received December 1, 2014 was a duplicate copy of the original reconsideration request which
was received November 17, 2014.
Appellant’s request for reconsideration was received November 17, 2014, this was
however more than a year after the November 14, 2013 merit decision. The Board notes that
while the November 13, 2014 reconsideration request was postmarked November 13, 2014, the
date of the request or the date of the mark is immaterial. The regulation makes clear that the
period of limitation is satisfied only by receipt.10 As OWCP received appellant’s November 13,
2014 reconsideration request on November 17, 2014, more than one year from the November 14,
2013 merit decision, her reconsideration request was not timely filed.
The Board finds that appellant has not established clear evidence of error in OWCP’s
November 14, 2013 decision. Appellant’s claim was denied because she had not established a
causal relationship between her diagnosed conditions and the April 23, 2011 employment
incident. The issue of causal relationship is a medical issue, one that must be addressed by
rationalized medical opinion evidence.11
In support of her request for reconsideration, appellant submitted a November 19, 2014
report from Dr. Post and a lumbar spine MRI scan report. However, this medical evidence does
not establish clear evidence of error by OWCP. In his November 19, 2014 report, Dr. Post noted
evidence of degenerative discs on appellant’s July 11, 2011 lumbar spine MRI scan and that
prior to her accident she had no history of low back pain or degenerative changes in her lumbar
spine. He concluded that it was medically reasonable that her low back pain was a result of the

8

Supra note 4; James R. Mirra, 56 ECAB 738 (2005).

9

Nancy Marcano, 50 ECAB 110 (1998).

10

B.B., Docket No. 14-464 (issued June 4, 2014).

11

Mary J. Briggs, 37 ECAB 578 (1986).

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April 23, 2011 injury. This opinion does not establish clear evidence of error.12 The Board notes
that the term clear evidence of error is intended to represent a difficult standard. The claimant
must present evidence which on its face shows that OWCP made a mistake.13 The submission of
a detailed and well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.14
Additionally, the lumbar spine MRI scan report does not raise any substantial questions
as to the correctness of the November 14, 2013 merit decision as it does not address the issue of
causal relationship for the claimed April 23, 2011 injury.
The evidence and arguments submitted on reconsideration do not raise a substantial
question as to the correctness of OWCP’s decision in its denial of appellant’s claim.
Consequently, OWCP properly found that the untimely reconsideration request did not establish
clear evidence of error.
On appeal, appellant asserts that she sent in her reconsideration request in a timely
manner and was informed by OWCP that she could send in medical notes within five days. She
also argued that the evidence of record supported the location, cause, and diagnosis of her
April 23, 2011 work injury. As noted, the evidence demonstrates that appellant’s reconsideration
request was received after the one-year time period had elapsed and the evidence submitted
failed to raise any substantial question as to the correctness of the November 14, 2013 merit
decision. The Board may only review evidence that was in the record at the time of OWCP’s
November 14, 2013 decision.15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.

12

See generally Jaja K. Asaramo, 55 ECAB 200 (2004). The opinion of a physician that a condition is causally
related to an employment incident because the employee was asymptomatic before the injury in insufficient without
supporting medical rationale to establish causal relationship.
13

See Mikle W. Williams, Docket No. 01-1962 (issued June 12, 2002).

14

A.F., 59 ECAB 714 (2008).

15

20 C.F.R. § 501.2(c)(1).

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ORDER
IT IS HEREBY ORDERED THAT the February 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Bellmawr, NJ,
Employer
__________________________________________

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

Docket No. 07-1531
Issued: November 15, 2007

Case Submitted on the Record

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

JURISDICTION
On May 16, 2007 appellant, through counsel, filed a timely appeal from a decision of the
Office of Workers’ Compensation Programs’ hearing representative dated December 8, 2006,
which affirmed a schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has established that he has more than a 20 percent
permanent impairment of the right upper extremity and a 0 percent impairment of his left upper
extremity, for which he received a schedule award.
FACTUAL HISTORY
On September 27, 2003 appellant, then a 57-year-old distribution clerk, filed an
occupational disease claim alleging that on September 24, 2003 he first realized his bilateral
carpal tunnel and right elbow severe ulnar neuropathy were employment related. The Office

accepted the claim for bilateral carpal tunnel syndrome and right cubital tunnel syndrome and
authorized carpal tunnel surgery and revise ulnar nerve at the elbow which was performed on
November 24, 2003. On October 27, 2005 appellant filed a claim for a schedule award.
In a July 25, 2005 report, Dr. David Weiss, a Board-certified orthopedic specialist,
provided findings on physical examination. He found that appellant had a 39 percent combined
impairment of his right upper extremity, including 20 percent for lateral pinch deficit, based on
Tables 16-33 and 16-34 at page 509 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment,1 9 percent for Grade 4/5 abduction motor strength deficit
of the thumb, based on Table 16-11 at page 484 and Table 16-15 at page 492, 6 percent for
Grade 4/5 motor strength deficit of the biceps, based on Table 16-11 at page 484 and Table 1615 at page 492, 10 percent for a Grade 4 median nerve sensory deficit, based on Table 16-10 at
page 482 and Table 16-15 at page 492 and 2 percent for Grade 4 ulnar nerve sensory deficit,
based on Table 16-10 at page 482 and Table 16-15 at page 492. Dr. Weiss found a 35 percent
combined impairment of appellant’s left upper extremity, including 20 percent for lateral pinch
deficit, based on Tables 16-33 and 16-34 at page 509, 9 percent for Grade 4/5 abduction motor
strength deficit of the thumb, based on Table 16-11 at page 484 and Table 16-15 at page 492, 10
percent for a Grade 4 median sensory nerve deficit, based on Table 16-10 at page 482 and Table
16-15 at page 492 and 2 percent for Grade 4 ulnar nerve sensory deficit, based on Table 16-10 at
page 482 and Table 16-15 at page 492.
In a November 28, 2005 report, the Office medical adviser noted that maximum medical
improvement occurred on July 25, 2005. He found that appellant had a 15 percent combined
impairment of his left upper extremity, including 5 percent for Grade 4 thumb abduction and 10
percent for Grade 4 median nerve sensory deficit, based on Table 16-11 at page 484 and Table
16-15 at page 492. The Office medical adviser found a 15 percent combined impairment of his
right upper extremity, including 5 percent for Grade 4 thumb abduction and 10 percent for
Grade 4 median nerve sensory deficit, based on Table 16-11 at page 484 and Table 16-15 at
page 492. With respect to an impairment rating for lateral strength deficit, the Office medical
adviser stated that he did not include this as “lat[eral] strength is a lot of ulnar nerve
involvement.” He further noted that appellant’s ulnar nerve dysfunction “has nothing to do with
cubital thumb syndrome” and the condition of cubital thumb syndrome was not listed as an
accepted condition on the statement of accepted facts supplied by the Office.
On March 29, 2006 the Office referred appellant to Dr. David Bundens, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Dr. Weiss
and the Office medical adviser on the issue of diagnosis and any permanent impairment rating.
In a report dated April 11, 2006, Dr. Bundens, based upon a review of the medical
evidence, statement of accepted facts and physical examination, concluded that appellant suffers
from bilateral carpal tunnel syndrome and right cubital syndrome. A physical examination
revealed positive Tinel’s sign at wrist, a negative Phalen’s test at the wrist and “very slight
intrinsic weakness” on the right and a negative Tinel’s sign at the elbow on the left and a positive
wrist Phalen’s test. Dr. Bundens found good sensation and strength in the left carpal tunnel,
1

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

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which resulted in a zero percent impairment of the left upper extremity. He found that appellant
had combined whole person impairment of 12.4 percent or a 24 percent impairment2 of the right
upper extremity, including a 2 percent impairment for a Grade 4 motor deficit in his right upper
extremity, based on Table 16-11 at page 484 and Table 16-15 at page 492, a 9.2 percent
impairment for Grade 4/5 ulnar nerve strength loss, based on Table 16-11 at page 484 and Table
16-15 at page 492, a 7.8 percent impairment for “sensation and a five m[illi]m[eter] point in all
five fingers” and a 1.4 percent of the ulnar nerve.
The Office medical adviser reviewed Dr. Bundens’ report on April 18, 2006 and agreed
with his impairment determination. However, in adding the impairment ratings for the right
upper extremity of 2 percent + 9.2 percent + 7.8 percent + 1.4 percent, the Office medical adviser
found a total impairment of 20.4 percent. He concluded that appellant had a zero percent
impairment of the left upper extremity based on page 495.
On May 8, 2006 the Office granted appellant a schedule award for 62.4 weeks3 from
April 11, 2006 to June 21, 2007 based on a 20 percent impairment of the right upper extremity.
By letter dated May 15, 2006, appellant’s counsel requested an oral hearing which was
held on October 16, 2006.
By decision dated December 8, 20006, an Office hearing representative affirmed the
May 8, 2006 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body.6 However, the Act does not specify the manner in which the percentage of loss shall
be determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be

2

Dr. Bundens appears to have made an error in adding the impairment totals. Adding the impairment percentages
noted by Dr. Bundens results in a total of 20.4 percent not 24 percent as he noted.
3

The Act provides for 312 weeks of compensation for 100 percent loss or loss of use of an upper extremity.
5 U.S.C. § 8107(c)(1). Multiplying 312 weeks by 20 percent equals 62.4 weeks of compensation.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

See Carol A. Smart, 57 ECAB ___ (Docket No. 05-1873, issued January 24, 2006). (Section 8107 of the Act
authorizes the payment of schedule awards for the loss or loss of use, of specified members or functions of the body.
Such loss or loss of use is known as permanent impairment).

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uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.7
Section 8123(a) of the Act8 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.9 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.10
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome and right
cubital tunnel syndrome. It found that a conflict had been created regarding appellant’s degree
of impairment. Dr. Weiss, appellant’s examining physician, who found a 39 percent right upper
extremity impairment and a 35 percent left upper extremity impairment while initially the Office
medical adviser reportedly found a 15 percent right upper extremity impairment and a 15 percent
left upper extremity impairment. On March 29, 2006 the Office referred appellant to
Dr. Bundens for an impartial medical evaluation. In a report dated April 11, 2006, Dr. Bundens
concluded that appellant had 20 percent right upper extremity impairment and a zero percent left
upper extremity impairment. In an April 18, 2006 report, a second Office medical adviser
assessed appellant’s bilateral upper extremity impairment based on Dr. Bundens’ physical
findings and the A.M.A., Guides and agreed that appellant was entitled to a 20 percent right
upper extremity impairment and a 0 percent left upper extremity impairment.
Dr. Bundens found that appellant had combined whole person impairment of 12.4 percent
or a 20 percent impairment of the right upper extremity, including a 2 percent impairment for a
Grade 4 motor deficit in his right upper extremity, based on Table 16-11 at page 484 and Table
16-15 at page 492, a 9.2 percent impairment for Grade 4/5 ulnar nerve strength loss, based on
Table 16-11 at page 484 and Table 16-15 at page 492, a 7.8 percent impairment for “sensation
and a five m[illi]m[eter] point in all five fingers” and a 1.4 percent of the ulnar nerve. He did not
explain how he arrived at his conclusion that appellant had a 20 percent impairment of the right
upper extremity. Table 16-11 is the table for grading upper extremity motor deficit impairment
and Dr. Bundens graded the impairment at Grade 4 or between 1 and 25 percent of the maximum
for the identified nerve.11 Dr. Bundens did not cite any other tables or explain how the
20 percent impairment was calculated. Moreover, a schedule award is not payable for an

7

See id.; P.C., 58 ECAB ___ (Docket No. 07-410, issued May 31, 2007); Jacqueline S. Harris, 54 ECAB
139 (2002).
8

5 U.S.C. §§ 8101-8193.

9

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

10

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

11

A.M.A., Guides 484, Table 16-11.

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impairment of the whole person.12 The Office medical adviser did not provide additional
explanation.13 The Board finds that the conflict in the medical evidence regarding a schedule
award was not properly resolved. In this situation, the Office has a responsibility to secure a
supplemental report from the impartial specialist that corrects the defect in the original opinion.14
The case accordingly will be remanded to the Office to secure a medical report that properly
resolves the conflict. After such further development as the Office deems necessary, it should
issue a de novo decision.
CONCLUSION
The Board finds that the conflict in the medical evidence was not properly resolved and
the case requires further development.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 8, 2006 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: November 15, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

12

D.H., 58 ECAB ___ (Docket No. 06-2160, issued February 12, 2007).

13

A.M.A., Guides 492, Table 16-15.

14

See Nancy Keenan, 56 ECAB ___ (Docket No. 05-949, issued August 18, 2005); Guiseppe Aversa, 55
ECAB (2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTER FOR DISEASE
CONTROL, Atlanta, GA, Employer
__________________________________________

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

Docket No. 19-0516
Issued: August 15, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 8, 2019 appellant, through counsel, filed a timely appeal from a December 7,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the December 7, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP abused its discretion in denying authorization for a compound
medication.
FACTUAL HISTORY
On August 6, 2009 appellant, then a 53-year-old technology development coordinator,
filed an occupational disease claim (Form CA-2) alleging that she developed bilateral arm
epicondylitis due to factors of her federal employment. On April 30, 2010 OWCP accepted
appellant’s claim for bilateral lateral epicondylitis.
On December 21, 2010 appellant underwent authorized right lateral epicondylar release
and right trigger thumb release.4 On October 25, 2011 she underwent authorized decompression
of left lateral epicondylitis with partial ostectomy and decompression of the left ulnar nerve at the
elbow. In addition, on August 29, 2013 appellant underwent authorized left lateral epicondyle
debridement.
In three authorization request forms (Form CA-26) dated November 18 and December 2,
2016, and January 4, 2017, appellant’s attending physician, Dr. Bronier L. Costas, a Boardcertified orthopedic surgeon, requested authorization from OWCP for appellant’s use of
Gabapentin, a compound drug which was topically administered. He checked the box marked
“yes” when asked whether the compounded drug was medically necessary for its intended use.
On January 25, 2017 OWCP referred appellant’s case, along with a statement of accepted
facts (SOAF) to Dr. William Tontz, Jr., a Board-certified orthopedic surgeon serving as a district
medical adviser (DMA). OWCP requested that the DMA address whether the requested
compound medicine was medically necessary for treatment of appellant’s accepted employment
injury.
In a report dated February 8, 2017, Dr. Tontz determined that the proposed topical
treatment was not medically necessary. He noted that topical analgesics, such as this Gabapentin
compound, were largely experimental in use with few randomized controlled trials to determine
efficacy or safety and thus there was little to no research to support the use of such agents.
In a development letter dated February 14, 2017, OWCP advised appellant that the medical
evidence of record was insufficient to establish that Gabapentin was medically necessary to treat
her accepted employment-related conditions. It afforded her 30 days to submit a narrative report
from her attending physician explaining the medical necessity for this medication. Appellant did
not submit the requested evidence.
By decision dated March 23, 2017, OWCP denied appellant’s request for authorization of
the compound drug Gabapentin finding that the evidence of record did not support that it was
medically necessary to treat the effects of her accepted employment-related condition.

4

These procedures were performed under Master OWCP File No. xxxxxx582. OWCP File No. xxxxxx582 pertains
to a July 14, 2019 traumatic injury claim (Form CA-1) which is accepted for right lateral epicondylitis.

2

On March 30, 2017 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review.
OWCP subsequently received a letter dated March 6, 2017 from Dr. Costas who indicated
that appellant had been on Dermatran, a different compound medicine to treat various tendinitis
problems. Dr. Costas noted that she had been on this medicine for a long time and had very good
success. He related that the newer Gabapentin compound was “slightly different” from the
Dermatran medication, and appellant had noticed a significant difference in the effectiveness of
the two different topical medications.
On August 16, 2017 Dr. Costas again requested authorization from OWCP for appellant’s
use of the Gabapentin compound.
On August 18, 2017 OWCP referred appellant’s case record, along with the SOAF, to a
new DMA, Dr. Todd Fellars, a Board-certified orthopedic surgeon, to determine whether the
requested compound medication was medically necessary to treat appellant’s accepted
employment injury.
In a report dated August 30, 2017, the DMA determined that there was no medical evidence
of record to support the use of topical compound medications as an analgesic and that any effect
was likely due to a placebo response. He indicated that such medications had not been studied for
safety or efficacy, and that there was no evidence that showed the use of Gabapentin objectively
increased function, decreased pain, or decreased narcotic use.
In a development letter dated September 6, 2017, OWCP advised appellant that the medical
evidence of record remained insufficient to establish that Gabapentin was medically necessary to
treat her accepted employment-related conditions and it afforded her 30 days to submit a narrative
report from her attending physician containing an adequate explanation for the necessity of this
medication.
By decision dated October 12, 2017, OWCP again denied appellant’s request for
authorization of the compound drug Gabapentin finding that the evidence of record did not support
that it was medically necessary to treat the effects of her accepted employment-related condition.
On October 16, 2017 a telephonic hearing was held regarding OWCP’s March 23, 2017
decision.
Following the October 16, 2017 hearing, appellant submitted a letter dated October 2, 2017
from Dr. Costas who noted that Dermatran seemed to be helping appellant rather dramatically,
along with some other measures. Dr. Costas indicated that events transpired where appellant was
unable to obtain Dermatran any longer, was placed on a similar compound medication, and the
new medication was not as effective as Dermatran.
On October 23, 2017 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review to review OWCP’s October 12, 2017
decision.
By decision dated January 2, 2018, OWCP’s hearing representative set aside OWCP’s
March 23, 2017 decision and remanded the case to OWCP finding an unresolved conflict in the
medical opinion evidence. It also directed OWCP to amend the SOAF to include all pertinent facts
3

in this case and the master file, and to refer appellant, along with the updated SOAF and both files,
to an independent medical examiner to determine whether Gabapentin was medically necessary
for the accepted condition.
By decision dated January 19, 2018, OWCP’s hearing representative remanded OWCP’s
October 12, 2017 decision finding that it should be vacated for the same reasons provided in the
January 2, 2018 decision.
On February 7, 2018 OWCP referred appellant along with the updated SOAF and medical
record to Dr. David S. Ryan, a Board-certified orthopedic surgeon, for a second opinion
examination. In a report dated March 22, 2018, Dr. Ryan opined that the requested compound
medication was not medically necessary. However, he indicated that the compound medication
was successful at treating her pain and noted that he did not know of any alternatives for appellant
to use. Dr. Ryan related that the compound medication was safe and effective, and noted that
appellant had tried numerous oral medications and other topical anti-inflammatory creams, none
of which worked effectively. However, he indicated that he was unsure of whether the Gabapentin
compound was FDA approved.
By decision dated April 19, 2018, OWCP denied appellant’s request for authorization of
Gabapentin finding that the evidence of record did not support that it was medically necessary to
treat the effects of her accepted employment-related condition.5
On April 30, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review to review OWCP’s April 19, 2018
decision. The hearing was held on October 2, 2018. After the hearing, appellant submitted new
evidence for consideration.
In a letter dated May 11, 2017, received by OWCP on October 9, 2018, Dr. Costas
indicated that the previous anti-inflammatory topical medicine worked well. He noted that the
prescription for that medication had run out, and it was elected to be replaced by a premanufactured formula, but that formula did not work for her. Dr. Costas indicated that he did not
see the difference in allowing one brand of topical medicine as opposed to another.
In a letter dated October 2, 2017, received by OWCP on October 9, 2018, Dr. Costas
reiterated that his request to return back to the original topical compound, Dermatran, had been
denied, and that he feared that he was unable to control appellant’s pain.
By decision dated December 7, 2018, OWCP’s hearing representative affirmed OWCP’s
April 19, 2018 decision finding that the evidence of record did not establish that it was an abuse
of discretion for OWCP to deny authorization for Gabapentin.
LEGAL PRECEDENT
Section 8103(a) of FECA provides in pertinent part: The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely
5

In a separate decision of even date, OWCP denied appellant’s request for authorization of Gabapentin. The same
rationale was used in denying the request.

4

to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of
monthly compensation.6 In general, drugs and medications which are necessary to treat an injury
or occupational disease may be purchased at OWCP’s expense on the recommendation of the
attending physician. These include prescription as well as nonprescription medications.7
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.8 The only limitation on OWCP’s authority is that
of reasonableness.9 Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.10
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination.11 The implementing regulations provides that, if
a conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.12 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an IME for the purpose of resolving the conflict, the opinion
of such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.13
Under the Federal (FECA) Procedure Manual, the Director has exercised discretion to
implement practices pertaining to the selection of the IME. Unlike second opinion physicians, the
selection of referee physicians is made from a strict rotational system. OWCP will select a
physician who is qualified in the appropriate medical specialty and who has no prior connection
with the case.14

6

5 U.S.C. § 8103(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Prescription and NonPrescription Drugs, Chapter 3.400.3(a) (October 1995).
8

G.B., Docket No. 18-1478 (issued February 4, 2019); see M.B., Docket No. 17-1389 (issued April 6, 2018); see
also Vicky C. Randall, 51 ECAB 357 (2000).
9

R.C., Docket No. 18-0612 (issued October 19, 2018); see Lecil E. Stevens, 49 ECAB 673, 675 (1998).

10

R.C., id.; Rosa Lee Jones, 36 ECAB 679 (1985).

11

5 U.S.C. § 8123(a).

12

20 C.F.R. § 10.321.

13

See J.T., Docket No. 18-0503 (issued October 16, 2018); R.C., 58 ECAB 238 (2006).

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

5

ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant’s treating physician, Dr. Costas, requested authorization for the compound
medication, Gabapentin. In multiple reports, he explained that appellant had tried and failed to
obtain relief from over the counter or other prescribed medications for her accepted employmentrelated condition of bilateral lateral epicondylitis. Dr. Costas further explained that appellant had
tried Gabapentin and that it was much more effective than the similar topical medications.
Dr. Tontz and Dr. Fellers, acting as OWCP DMAs, opined that the proposed topical treatment was
not medically necessary and use of this compound was largely experimental.
By decisions dated January 2 and 19, 2018, an OWCP hearing representative determined
that a conflict existed in the medical opinion evidence between Dr. Costas, and OWCP’s DMAs.15
She remanded the case to OWCP for referral of appellant for an impartial medical specialist to
resolve the conflict of medical evidence.
On remand, OWCP referred appellant to a second opinion physician, Dr. Ryan, rather than
to an impartial medical specialist. However, as previously noted, the selection process differs for
referrals to a second opinion physician, and an impartial medical specialist. The Board has
explained that a physician selected by OWCP to serve as an impartial medical specialist should be
one wholly free to make a completely independent evaluation and judgment. The procedures
contemplate that the impartial medical specialists will be selected on a strict rotating basis in order
to negate any appearance that preferential treatment exists between OWCP and a particular
physician.16 OWCP has an obligation to verify that it selected an impartial medical specialist in a
fair and unbiased manner. It maintains records for this very purpose.17
The Board has placed great importance on the appearance as well as the fact of impartiality,
and only if the selection procedures which were designed to achieve this result are scrupulously
followed may the selected physician carry the special weight accorded to an impartial specialist.18
OWCP did not follow its procedures in selecting Dr. Ryan as a second opinion physician and thus
the record contains an unresolved conflict in medical opinion regarding the extent of whether the
requested compound medication should be authorized for treatment of appellant’s accepted
employment-related condition.
Therefore, the Board will remand the case to OWCP for further medical development. On
remand, OWCP, as previously directed by the hearings examiner, should select an impartial
medical examiner in accordance with its procedures to determine whether Gabapentin should be
authorized. After such further development as deemed necessary, it shall issue a de novo decision.

15

Supra note 12.

16

L.S., Docket No. 16-1789 (issued September 1, 2017); see Raymond J. Brown, 52 ECAB 192 (2001).

17

L.S., id.; see also M.A., Docket No. 07-1344 (issued February 19, 2008).

18

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.5(e)(2) (May 2013).

6

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 15, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-1470
Issued: November 20, 2007

Case Submitted on the Record

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

JURISDICTION
On May 8, 2007 appellant filed a timely appeal from a May 30, 2006 merit decision of
the Office of Workers’ Compensation Programs that denied her claim for continuation of pay.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this claim.
ISSUE
The issue is whether the Office properly denied appellant’s claim for continuation of pay
on the grounds that written notice of injury was not filed within 30 days of the date of the injury.
FACTUAL HISTORY
On May 3, 2005 appellant, then a 32-year-old tax examiner, electronically filed a
traumatic injury claim stating that she injured her “whole left side, knee, ankle, back, wrist and
shoulder,” when she slipped on ice at the employing establishment on February 24, 2005. She
stopped work on February 25, 2005 and did not return. Appellant’s supervisor indicated that

notice of the injury was received on May 3, 2005. She submitted medical reports in support of
her claim.
In a July 2, 2005 memorandum of a telephone conversation between appellant and a
claims examiner, the Office noted that she did not file her traumatic injury claim until more than
two months after the alleged injury. When asked for an explanation concerning the delay,
appellant stated that the employing establishment had tried to file the claim but was unable to do
so due to computer problems. The claims examiner requested that appellant “have her employer
submit a statement which supports this claim.”
In an August 8, 2005 statement, Troy D. Billups, a human resources specialist with the
employing establishment, verified that appellant notified her supervisor of her injury on
February 24, 2005, the date of claimed injury, but that the claim was not filed until
May 30, 2005. He also stated: “The electronic (SHIMS) system would not let me EDI the claim
with the date February 24, 2005 as the date notice was received.” Mr. Billups noted that he was
enclosing a copy of the original CA-1 claim form. Appellant signed the original handwritten
copy of the claim form and dated the form May 3, 2005. Her supervisor signed the claim form
on May 3, 2005 and indicated that notice was received on February 24, 2005.
By decision dated August 31, 2005, the Office denied appellant’s traumatic injury claim.
On September 26, 2005 appellant requested a review of the written record and submitted medical
evidence.
By decision dated January 6, 2006, the hearing representative vacated the August 31,
2005 decision and directed the Office to refer her for a second opinion examination. On
March 6, 2006 the Office referred appellant, together with a statement of accepted facts, to
Dr. Anthony Salem, a Board-certified orthopedic surgeon, for a second opinion.
By decision dated May 30, 2006, the Office accepted appellant’s claim for lumbosacral
strain and authorized six weeks of disability compensation payments.
In a May 30, 2006 decision, the Office also denied appellant’s request for continuation of
pay on the grounds that the claim was not filed until more than 30 days after the traumatic
incident.1

1

The record also reflects that the Office issued a third decision on that day, denying compensation after April 8,
2005, based on Dr. Salem’s conclusion that appellant’s disability due to her accepted lumbosacral strain would cease
after six to eight weeks. However, on July 24, 2006 the Office found a conflict in the medical evidence concerning
whether appellant’s current disability is related to her February 24, 2005 work injury. The record reflects that the
Office is currently in the process of developing the medical evidence on this issue. The Board notes that this matter
is in an interlocutory posture and is not before the Board on the present appeal. See 20 C.F.R. § 501.2(c).

2

LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 and its implementing regulations3 provide
for the continuation of pay (COP) in certain circumstances. Specifically, section 8118(a)4
provides for continuation of pay not to exceed 45 pays, to an employee “who has filed a claim
for a period of wage loss due to traumatic injury with his immediate supervisor on a form
approved by the Secretary of Labor within the time specified in section 8122(a)(2) of this title.”
Section 8122(a)(2) provides that written notice of injury shall be given in writing within 30 days
after the injury.5 Section 10.210(a) of the implementing federal regulations6 provides in
pertinent part: “An employee who sustains a traumatic injury which he or she considers
disabling, or someone authorized to act on his or her behalf, must take the following actions to
ensure continuing eligibility for COP. The employee must: (a) [c]omplete and submit Form
CA-1 to the employing agency as soon as possible, but no later than 30 days from the date the
traumatic injury occurred.” Therefore, to be entitled to continuation of pay, an employee must
file a claim on an appropriate form within 30 days after the injury.7
ANALYSIS
Appellant electronically filed a traumatic injury claim, the appropriate form to claim
continuation of pay, on May 3, 2005 for an injury occurring on February 24, 2005. As this claim
was filed more than 30 days after the February 24, 2005 employment injury, appellant’s claim
for continuation of pay is barred by the time limitation provisions of section 8118(a) of the Act.
In a July 10, 2005 conversation with the Office, appellant stated that the employing
establishment attempted to file the claim earlier but was unable to do so due to computer
problems. The Office requested that appellant’s employer provide a statement verifying this. On
August 8, 2005 Mr. Billups informed the Office that appellant’s supervisor had received notice
of the injury on February 24, 2005, the date of injury, but that the claim was not filed until
May 3, 2005. He explained, the computer system would not allow him to enter February 24,
2005 as the date notice was received. A version of the CA-1, completed in handwriting, was
submitted. This version of the CA-1 was also signed by appellant and the supervisor on May 3,
2005 and the supervisor indicated that she had notice on February 24, 2005. Thus, while
appellant’s supervisor had notice of the injury on February 24, 2005, she did not state that
appellant gave written notice on that date or within 30 days of the injury. Thus the record
supports that, while appellant gave notice of her injury on February 24, 2005, she did provide
written notice within 30 days after the injury of February 24, 2005.
2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. §§ 10.205, 10.220.

4

5 U.S.C. § 8118(a).

5

5 U.S.C. § 8122(a)(2).

6

20 C.F.R. § 10.210(a).

7

Robert E. Kimzey, 40 ECAB 762 (1982); Sylvia P. Blackwell, 35 ECAB 811 (1984); Patricia J. Kelesky, 35
ECAB 549 (1984).

3

The Board notes that there are no provisions for exception to the 30-day filing
requirement for continuation of pay for either exceptional circumstances or lack of actual
knowledge of the seriousness of the injury. As there is no provision under the Act for excusing
an employee’s failure to file a claim for continuation of pay within 30 days of the employment
injury, the Office properly denied appellant’s claim for continuation of pay.8
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for continuation of pay
on the grounds that written notice of injury was not filed within 30 days of the date of the injury.
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8

Loretta R. Celi, 51 ECAB 560 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS AIR STATION, Cherry Point, NC,
Employer
__________________________________________

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

Docket No. 20-1684
Issued: August 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 30, 2020 appellant, through counsel, filed a timely appeal from an
August 27, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish a left leg condition
causally related to the accepted February 12, 2020 employment incident.
FACTUAL HISTORY
On February 20, 2020 appellant, then a 55-year-old machinist, filed a traumatic injury
claim (Form CA-1) alleging that on February 12, 2020 he injured his left calf muscle when his
foot slipped off a foot bar while in the performance of duty. He stopped work on
February 12, 2020.
In a February 20, 2020 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the requested information.
In an undated note, a physician assistant noted that appellant was seen in the emergency
department on February 12, 2020 and could return to work in three days.
A February 12, 2020 x-ray of appellant’s left leg revealed no remarkable findings.
In a February 12, 2020 medical report, Dr. Meghan A. Cummins, Board-certified in
emergency medicine, noted that appellant presented with left calf and ankle pain. He reported that
appellant injured his left leg earlier that day at work while using a stomp shear machine when he
misplaced his left foot and struck his left heel and calf on the machine’s step. Appellant noted
experiencing immediate pain along the affected area and stated that he was unable to bear weight.
He complained of persistent pain despite no visible swelling. Dr. Cummins conducted a physical
examination and reviewed the x-ray of the left leg, which revealed no evidence of fracture. She
recommended placing appellant in a posterior left lower extremity splint from the knee down.
Dr. Cummins diagnosed a left leg injury and left lower leg contusion.
In a February 13, 2020 report, Marianne Hagood, a nurse practitioner, noted that appellant
injured his left calf at work on February 12, 2020 and diagnosed left lower limb pain. In a work
status report of even date, an unidentifiable healthcare provider diagnosed a left leg injury and
indicated that appellant could not return to work until reevaluation.
On February 17, 2020 Ms. Hagood diagnosed tightness of left gastrocnemius muscle. In a
work status report of even date, an unidentifiable healthcare provider again diagnosed a left leg
injury and indicated that appellant could return to work with restrictions.
In a February 19, 2020 duty status report (Form CA-17), an unidentifiable healthcare
provider diagnosed tightness of left gastrocnemius muscle and provided work restrictions.
February 20, 2020 e-mail correspondence indicated that appellant’s supervisor, E.K., saw
appellant right after the alleged February 12, 2020 employment incident and was told that his foot
slipped off the foot stomp bar on the mechanical shear that was used to cut metal. Appellant
reported that he hit his left leg calf muscle. E.K. noted that he observed no cuts, bruises, or any
bleeding from appellant’s calf area or on his lower left leg. He suggested appellant apply a bag of
2

ice to his calf muscle in case there was some swelling. E.K. stated that he did not see any swelling,
but saw that appellant was able to move his foot from side to side and forward and aft. Appellant
reported that he could not put much weight on his foot, making it hard for him to walk. E.K. noted
that appellant was sent to the hospital that day.
In a February 25, 2020 report, Ms. Hagood diagnosed left lower limb pain and tightness of
left gastrocnemius muscle. In a work status report of even date, an unidentifiable healthcare
provider again diagnosed a left leg injury and indicated that appellant could return to work with
restrictions.
In a March 6, 2020 medical report, Dr. Julian C. Levin, Board-certified in family practice,
noted that appellant reported that he still experienced pain and that his left calf turned into a
yellowish color when stepping off to walk. He conducted a physical examination, which revealed
no swelling on the left leg, but demonstrated difficulty walking. Dr. Levin diagnosed left lower
limb pain, tightness of left gastrocnemius muscle, and left lower leg contusion. In an attending
physician’s report (Form CA-20) of even date, he again diagnosed left limb pain and tightness of
left gastrocnemius muscle. Dr. Levin checked a box marked “Yes,” indicating that the diagnosed
conditions were caused or aggravated by an employment activity.
In a March 16, 2020 medical report, Dr. Danny C. Smith, an osteopath and family medicine
specialist, reported that appellant’s injury was improving, but that he was still experiencing
difficulty walking on uneven surfaces. He conducted a physical examination and diagnosed “other
symptoms and signs involving the musculoskeletal system.” In a work status report of even date,
an unidentifiable healthcare provider diagnosed a left leg injury and indicated that appellant could
return to work with restrictions.
In a March 19, 2020 response to OWCP’s development questionnaire, appellant noted that
on the date of his injury, he was using a mechanical foot shear at work. He indicated that as he
was stomping on the foot bar, his foot slipped off and the bar came up, hitting him in the left calf
muscle area. Appellant asserted that pain was instantaneous and he could not put his foot down
because of the pain. He alleged that his coworker, R.K., helped him to a chair before his supervisor
arrived shortly. Appellant noted that he went to the emergency room later that day. He indicated
that he had no prior problems with the left leg.
By decision dated March 24, 2020, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish a valid medical diagnosis from a qualified
physician in connection with his February 12, 2020 employment injury. It concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
In a March 6, 2020 work status report, Dr. Levin diagnosed a left leg injury and provided
work restrictions.
In a March 23, 2020 medical report, Dr. Smith indicated that appellant was injured at work
on February 12, 2020. He diagnosed left lower limb pain and tightness of left gastrocnemius
muscle. In a work status report of even date, an unidentifiable healthcare provider noted that
appellant could return to work with restrictions.
On April 10, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
3

Appellant submitted copies of evidence previously of record. He also submitted an
amended copy of Dr. Smith’s March 16, 2020 report diagnosing left lower limb pain and tightness
of left gastrocnemius muscle.
In a March 30, 2020 report, Amy Taylor, a nurse practitioner, diagnosed left lower limb
pain and tightness of left gastrocnemius muscle.
In an April 6, 2020 medical report, Dr. Smith reiterated his diagnoses of left lower limb
pain and tightness of left gastrocnemius muscle. In a work status report of even date, an
unidentifiable healthcare provider noted that appellant could return to work with restrictions.
In an April 20, 2020 medical report, Dr. Carson Sanders, an orthopedic surgeon, noted that
appellant reported that he slipped and fell at work in mid-February 2020, injuring the posterior
aspect of his leg. He indicated that appellant was gradually getting better. Dr. Sanders conducted
a physical examination and reviewed the magnetic resonance imaging (MRI) scan of the left ankle,
which revealed normal results except for partial tearing of the posterior tibial tendon. He
diagnosed left lower limb pain and a gastrocnemius tendon strain. Dr. Sanders further noted that
appellant also likely sustained a partial gastrocnemius tendon tear.
In a May 28, 2020 medical report, Dr. Sanders noted that appellant’s left leg was
improving, recounting that appellant sustained a work-related injury in mid-February 2020. He
reiterated his findings and diagnoses.
By decision dated August 27, 2020, OWCP’s hearing representative modified the
March 24, 2020 decision, finding that appellant had established valid medical diagnoses.
However, the claim remained denied because the medical evidence of record was insufficient to
establish causal relationship between the diagnosed medical conditions and the accepted
February 12, 2020 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 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.6 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.7

4

Supra note 2.

5

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

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

4

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. The first component is that 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. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 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 specific employment factors
identified by the employee.10
ANALYSIS
The Board finds that appellant has met his burden of proof to establish a left lower leg
contusion causally related to the accepted February 12, 2020 employment incident.
In a February 12, 2020 medical report, the same day as the claimed employment injury,
Dr. Cummins indicated that appellant presented with left calf and ankle pain. She recounted
appellant’s history of injury where he misplaced his left foot while using a stomp shear machine
and struck his left leg on the machine’s step. Dr. Cummins diagnosed left lower leg contusion.
Similarly, in a March 6, 2020 report, Dr. Levin recounted the same history of the claimed
February 12, 2020 employment injury and diagnosed left lower leg contusion. OWCP’s
procedures provide that, if a condition reported is a minor one, such as a burn, laceration, insect
sting, or animal bite, which can be identified on visual inspection by a lay person, a case may be
accepted without a medical report.11 As the evidence of record establishes diagnosed visible
injuries, the Board finds that appellant has met his burden of proof to establish a left lower leg
contusion causally related to the accepted February 12, 2020 employment incident.12 The case
will, therefore, be remanded for payment of medical expenses and any attendant disability.

8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). See also A.J., Docket No. 20-0484 (issued September 2, 2020).
12

See A.J., id.; see also W.R., Docket No. 20-1101 (issued January 26, 2021); S.K., Docket No. 18-1411 (issued
July 22, 2020).

5

The Board further finds, however, that appellant has not met his burden of proof to establish
additional medical conditions causally related to the accepted February 12, 2020 employment
injury.
In a March 6, 2020 medical report, Dr. Levin also diagnosed left lower limb pain and
tightness of left gastrocnemius muscle and indicated that appellant demonstrated difficulty
walking. However, he did not offer an opinion on causal relationship. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition or
disability is of no probative value on the issue of causal relationship.13 Moreover, the Board has
also held that pain is a symptom and not a compensable medical diagnosis.14 Therefore, this report
is insufficient to establish appellant’s claim.
In medical reports dated April 20 and May 28, 2020, Dr. Sanders reported that appellant
fell at work in mid-February 2020. He reviewed appellant’s MRI scan of the left ankle and
diagnosed a gastrocnemius tendon strain, noting that appellant also likely sustained a partial
gastrocnemius tendon tear. However, Dr. Sanders had an inaccurate history of injury as OWCP
accepted that appellant injured his left leg when his left foot slipped off the foot bar while operating
a shear machine at work. As stated above, to establish causal relationship, the opinion of the
physician must be based on a complete factual and medical background. 15 The Board has held
that medical opinions based on an incomplete or inaccurate history are of diminished probative
value.16 Dr. Sanders’s reports are, therefore, of limited probative value and insufficient to establish
appellant’s claim.
In a Form CA-20 report dated March 6, 2020, Dr. Levin diagnosed left limb pain and
tightness of left gastrocnemius muscle and checked a box marked “Yes” indicating that appellant’s
conditions had been caused or aggravated by an employment activity. However, the Board has
held that an opinion on causal relationship with an affirmative check mark, without more by way
of medical rationale, is insufficient to establish the claim.17 Moreover, pain is a symptom and not
a compensable medical diagnosis.18 Similarly, in his March 6, 2020 work status report, Dr. Levin
again failed to provide any medical diagnosis and/or an opinion on causal relationship. The Board
has held that a medical report is of no probative value if it does not provide a firm diagnosis of a
particular medical condition, or offer a specific opinion as to whether the accepted employment

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

See B.M., Docket No. 21-0198 (issued June 29, 2021); S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y.,
Docket No. 20-0112 (issued June 25, 2020).
15

Supra note 10.

16

D.B., Docket No. 19-0663 (issued August 27, 2020); J.K., Docket No. 20-0590 (issued July 17, 2020); S.B.,
Docket No. 20-0088 (issued June 4, 2020); S.T., Docket No. 18-1144 (issued August 9, 2019) (medical opinions based
on an incomplete or inaccurate history are of limited probative value).
17

See C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued
December 31, 2018).
18

See supra note 15.

6

incident caused or aggravated a diagnosed condition.19 These reports are, therefore, insufficient
to establish appellant’s claim.
In his medical reports dated March 16, 23, and April 6, 2020, Dr. Smith noted diagnoses
of left lower limb pain and tightness of left gastrocnemius muscle, but failed to offer a firm medical
diagnosis. As his reports are insufficient to establish a medical diagnosis causally related to the
accepted employment incident, they are of no probative value.20
Appellant submitted an undated note from a physician assistant and reports dated
February 13 through March 30, 2020 from nurse practitioners. However, certain healthcare
providers such as physician assistants, nurses, nurse practitioners, physical therapists, and social
workers are not considered “physician[s]” as defined under FECA.21 Consequently, their medical
findings and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits.
The record also contains work status reports dated February 13 through April 6, 2020 and
a Form CA-17 report dated February 19, 2020. However, these reports contained illegible
signatures from unidentifiable healthcare providers. The Board has held that reports that bear
illegible signatures cannot be considered probative medical evidence because they lack proper
identification that the author is a physician.22 Accordingly, these documents are also insufficient
to satisfy appellant’s burden of proof to establish his claim.
Lastly, appellant also submitted a February 12, 2020 left leg x-ray. The Board has held
that diagnostic studies, standing alone, lack probative value as they do not address whether the
employment incident caused any of the diagnosed conditions.23 As such, this evidence is
insufficient to establish appellant’s claim.
As the record lacks rationalized medical evidence establishing causal relationship between
appellant’s diagnosed left leg conditions and the accepted February 12, 2020 employment incident,
the Board finds that appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
19

A.R., Docket No. 19-1560 (issued March 2, 2020); V.B., Docket No. 19-0643 (issued September 6, 2019).

20

Id.

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as
physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA). See
also C.P., Docket No. 19-1716 (issued March 11, 2020) (a physician assistant is not considered a physician as defined
under FECA); S.L., Docket No. 19-0603 (issued January 28, 2020) (nurse practitioners are not considered physicians
as defined under FECA).
21

22

A.B., Docket No. 20-0971 (issued January 26, 2021); J.P., Docket No. 19-0197 (issued June 21, 2019); Merton J.
Sills, 39 ECAB 572, 575 (1988).
23

V.L., Docket No. 20-0884 (issued February 12, 2021); R.C., Docket No. 19-0376 (issued July 15, 2019).

7

CONCLUSION
The Board finds that appellant has met his burden of proof to establish a left leg contusion
causally related to the accepted February 12, 2020 employment incident. The Board further finds,
however, that appellant has not met his burden of proof to establish additional medical conditions
causally related to the accepted February 12, 2020 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the August 27, 2020 decision of the Office of
Workers’ Compensation Programs is reversed in part and affirmed in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: August 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., claiming as widow of J.R., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Tallahassee, FL, Employer
__________________________________________

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Appearances:
Ronald Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2050
Issued: April 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 5, 2013 appellant, through counsel, filed a timely appeal from a July 30,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that an overpayment of
$53,541.67 occurred from June 18, 2010 to October 21, 2012; and (2) whether OWCP properly
determined that appellant was at fault in creating the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on prior appeals. In an order dated September 24, 1993,
the Board granted the Director’s motion to remand the case on the issue of whether the
employee’s death on March 18, 1989 was causally related to his employment injuries.2 By
decision dated April 23, 1996, the Board found that a conflict in the medical evidence existed on
the issue of causal relationship between the employee’s death and the employment injuries, and
the case was remanded for resolution of the conflict.3 The history of the case as provided in the
prior order and decision of the Board is incorporated herein by reference.
On October 9, 1996 OWCP accepted that the employee’s death was employment related.
The record contains a memorandum dated October 15, 1996 of a conference held between
appellant and an OWCP claims examiner with respect to compensation under 5 U.S.C. § 8133.
OWCP’s claims examiner indicated that appellant was not entitled to compensation as of
August 7, 1994, the date she had remarried.4 The memorandum indicated that the issue of
entitlement under 5 U.S.C. § 8133 was discussed with respect to son Jason (born June 18, 1987),
daughter Sarah (born July 18, 1980 of a prior marriage) and stepdaughter Kristi (born
June 10, 1976). It was noted that Kristi had turned 18 years of age as of June 10, 1994, but the
claims examiner explained that under FECA a child included “a full-time student under 23 years
of age.” The memorandum reviewed the issue of what constituted a full-time student and the
necessary forms needed to establish student status were discussed.
The record indicates that appellant began receiving compensation under 5 U.S.C. § 8133
as guardian of Jason.5 Appellant submitted Form CA-12 annually and identified Jason as the
eligible dependent. In a memorandum of telephone call (CA-110) dated July 12, 2005, OWCP
indicated that Jason born on June 18, 1987 had turned 18 years of age and was no longer an
eligible dependent. Appellant submitted evidence that appellant was a full-time student and
continued to receive compensation. In a Form CA-12 received on October 11, 2011, appellant
noted that Jason was 24 years old and she reported that he was a college student.
By letter dated December 4, 2012, OWCP advised appellant of a preliminary
determination that an overpayment of compensation had occurred from June 18, 2010 to
October 21, 2012. It found that appellant was not entitled to compensation when Jason turned 23
years of age, as he was then no longer a child dependent. According to OWCP, the amount of
compensation paid from June 18, 2010 to October 21, 2012 was $53,541.67. In addition, OWCP
found that appellant was at fault in creating the overpayment because she knew or should have
known that she was not entitled to compensation after her son’s 23rd birthday.

2

Docket No. 93-691 (issued September 24, 1993).

3

Docket No. 94-1163 (issued April 23, 1996).

4

5 U.S.C. § 8133 provides that compensation to a widow ends with a remarriage before reaching age 55.
Appellant was 41 years old at the time of remarriage.
5

Payments were also made to Kristi directly, and to the guardian of Sarah.

2

Appellant requested a hearing before an OWCP hearing representative, which was held
on May 14, 2013. By decision dated July 30, 2013, the hearing representative finalized the
preliminary determination that an overpayment of $53,541.67 was created and appellant was at
fault in creating the overpayment. Based on the financial evidence of record, the hearing
representative found the overpayment should be recovered by requiring payment of $1,000.00
per month.
LEGAL PRECEDENT -- ISSUE 1
According to 5 U.S.C. § 8133, “compensation payable to or for a child, a brother or
sister, or grandchild that would otherwise end because the child, brother or sister, or grandchild
has reached 18 years of age shall continue if he is a student as defined by section 8101 of this
title at the time he reaches 18 years of age for as long as he continues to be such a student or until
her marries.” The term “student” as defined by 5 U.S.C. § 8101(17) is “an individual under 23
years of age” who has not completed four years of education beyond high school and who is
regularly pursuing a full-time course of study.
ANALYSIS -- ISSUE 1
The record indicates that appellant had been receiving compensation under 5 U.S.C.
§ 8133 as guardian of son Jason, who turned 18 years of age on June 18, 2005. Jason remained a
child under 5 U.S.C. § 8133 as long as he met the definition of a “student” under 5 U.S.C.
§ 8101(17): (1) he was under 23 years of age, and (2) he was pursuing a full-time course of
study. On June 18, 2010 Jason was no longer “under 23 years of age” and therefore he was not a
student under FECA. Since appellant was receiving compensation solely as guardian of Jason,
there was no continuing entitlement to compensation under 5 U.S.C. § 8133.
Therefore the record indicates that any compensation received on and after June 18, 2010
represented an overpayment of compensation. OWCP provided a worksheet showing that the
compensation paid from June 18, 2010 to October 21, 2012 was $53,541.67. This is consistent
with evidence in the record as to compensation payments made and no contrary evidence was
presented. The Board accordingly finds that an overpayment of $53,541.67 was created.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”6 A claimant who is at fault in creating the overpayment is not entitled to waiver.7
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or
she has done any of the following: “(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

6

5 U.S.C. § 8129(b).

7

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

3

or she knew or should have known to be material; or (3) accepted a payment which he or she
knew or should have known was incorrect.”
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault as she accepted payments she knew or should
have known were incorrect. The October 15, 1996 memorandum of conference discussed the
issue of a “student” under FECA and the claims examiner indicated that appellant was advised as
to the requirements that must be met for student status. As noted above, a student must be both
under 23 years of age and pursuing full-time course of study. The October 15, 1996
memorandum specifically noted that the requirement that a student must be under 23 years of
age was discussed.
The finding that appellant should have known that any compensation received after Jason
turned 23 years of age is therefore supported by the record. Appellant continued to receive
compensation on behalf of Jason and should have known that one of the requirements for student
status was that the individual must be under 23 years of age. Pursuant to 20 C.F.R. § 10.433(3),
an individual is at fault if she accepts a payment she knew or should have known was incorrect.
On appeal, appellant’s representative states that appellant was not herself receiving
compensation benefits, but the funds were used for the education and benefit of her son Jason.
To the extent the representative is arguing that the overpayment is not appellant’s responsibility
because she was receiving compensation on behalf of her son, there is no support for this
argument. When compensation is paid to a widow under 5 U.S.C. § 8133 on behalf of a child
who turned 18 but was not a student, the overpayment of compensation is an overpayment to the
widow.8 The compensation in this case was paid to appellant and she is the overpaid individual.
Appellant also argues that she was truthful and did not attempt to conceal information from
OWCP regarding Jason’s age. The finding of fault in this case was not based on a failure to
provide information or an incorrect statement, but on acceptance of payments she should have
known were incorrect. Although the discussion of student status with OWCP took place in 1996,
it is not unreasonable to find that while appellant continued to receive compensation for a student
she should have known of the two requirements for student status: full-time study and under 23
years of age. Both of these requirements were explained to appellant in the October 15, 1996
conference. For the reasons noted above, the Board finds a $53,541.67 overpayment was created
and appellant was at fault in creating the overpayment. Since appellant is at fault in creating the
overpayment, she is not entitled to waiver of the overpayment.
CONCLUSION
The Board finds that OWCP properly found an overpayment of $53,541.67 was created
from June 18, 2010 to October 21, 2012. The Board further finds that OWCP properly found
appellant was not entitled to waiver as she was at fault in creating the overpayment.

8

See. e.g., D.G. (G.G.), Docket No. 08-409 (issued September 5, 2008).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 30, 2013 is affirmed.
Issued: April 25, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 18-0728
Issued: March 6, 2020

Case Submitted on the Record

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

JURISDICTION
On February 20, 2018 appellant filed a timely appeal of a January 16, 2018 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 to
consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a condition causally
related to the accepted factors of his federal employment.
FACTUAL HISTORY
On May 20, 2017 appellant, then a 41-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that he developed left wrist pain due to repetitive activity required in
operating an automated parcel and bundle sorter (APBS) and parcel machine. He noted that he

1

5 U.S.C. § 8101 et seq.

first became aware of his claimed condition on March 20, 2017 and realized that it was causally
related to his employment that day. Appellant did not stop work.
Appellant submitted a May 17, 2017 medical status report from Dr. Nick Palmer, Boardcertified in family medicine, who advised that appellant could resume work on May 19, 2017 with
restrictions through June 19, 2017.
In a May 24, 2017 letter, the employing establishment controverted appellant’s claim.
In a May 25, 2017 development letter, OWCP advised appellant that the evidence received
to date was insufficient to support his claim. It requested that he submit a narrative medical report
from a physician that included a medical diagnosis and an explanation as to how the reported
employment activities either caused or aggravated the claimed condition. OWCP provided a
questionnaire for appellant’s completion which posed questions regarding the nature and extent of
his employment activities. It afforded appellant 30 days to respond.
In a May 31, 2017 e-mail, appellant’s supervisor indicated that appellant worked on the
APBS machine for six months and wore a brace, but noted that she did not observe him favoring
his right wrist. Appellant’s job duties required him to pull mailbags and replace equipment for 20
minutes an hour (sweeping), and to sit while scanning parcels for 40 minutes an hour. Appellant’s
supervisor noted that appellant rotated between scanning parcels and sweeping.
In response, appellant subsequently submitted an undated statement in which he further
described his employment activities, including using machines to scan 600 mail items per hour,
lifting/moving mailbags weighing up to 60 pounds, and pushing mail containers weighing
approximately 500 pounds.
Appellant also submitted a June 6, 2017 report from Dr. Scott Neff, Board-certified in
orthopedic surgery, who examined appellant for the first time on that date due to complaints of left
wrist pain. He reported that he did not sustain a specific injury to his left wrist but that over time
developed pain over the ulnar carpal joint. Dr. Neff advised that appellant spoke to him in detail
about his employment activities. He noted findings of positive rotator load test of the distal ulna
of the left wrist and tenderness over the triangular fibrocartilage. Dr. Neff advised that x-rays of
the left wrist were normal, but found that from a clinical standpoint appellant had a potential injury
to the capsular ligaments around the triangular fibrocartilage. He indicated, “This is a result of
repetitive activity, especially with ulnar pushing the package just to the side.” Dr. Neff
recommended that appellant’s condition be treated as a work-aggravated overuse syndrome and
provided a diagnosis of triangular fibrocartilage complex (TFCC) injury of the left wrist.2
In a note dated June 6, 2017, Dr. Neff returned appellant to light duty on June 7, 2017.
However, in a duty status report (Form CA-17) dated June 7, 2017, he noted that appellant was
totally disabled. In an attending physician’s report (Form CA-20) dated June 7, 2017, Dr. Neff
reported findings of wrist pain and diagnosed “overuse” related to an unspecified employment
activity.

2

In a June 16, 2017 letter to OWCP, Dr. Neff reiterated much of the content of his June 6, 2017 report.

2

By decision dated July 27, 2017, OWCP accepted that the employment events occurred as
alleged, but denied the claim because he had not submitted sufficient medical evidence to establish
that a medical condition was diagnosed in connection with the claimed work factors.
On August 14, 2017 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review. In an August 14, 2017 statement, he further
discussed his medical condition and expressed his belief that the existing medical evidence
established his claim.
Appellant submitted a June 28, 2017 report from Dr. Neff who treated appellant in follow
up for left wrist pain and advised that he reported working light duty and that his pain had
improved. He noted findings of mildly positive ulnar rotational load test at the triangular
fibrocartilage and indicated that a magnetic resonance imaging (MRI) scan of that area was
essentially negative. Dr. Neff diagnosed TFCC injury on the left and released appellant to regularduty work.
By decision dated January 16, 2018, OWCP’s hearing representative affirmed the July 27,
2017 decision, as modified. He noted that Dr. Neff diagnosed a TFCC injury, but found that the
medical evidence of record was insufficient to establish the diagnosed condition was causally
related to the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, 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 every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.6

3

Supra note 1.

4

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
5

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

6
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a condition
causally related to the accepted factors of his federal employment.
Appellant submitted a June 6, 2017 report from Dr. Neff who found that, from a clinical
standpoint, appellant had a potential injury to the capsular ligaments around the triangular
fibrocartilage. He indicated, “This is a result of repetitive activity, especially with ulnar pushing
the package just to the side.” Dr. Neff recommended that appellant’s condition be treated as a
work-aggravated overuse syndrome and diagnosed a TFCC injury of the left wrist.
The Board finds that, although Dr. Neff concluded that appellant sustained an employmentrelated left wrist injury, his opinion is of limited probative value on the underlying issue of causal
relationship because he did not provide medical rationale in support of his opinion.10 In addition,
there is a speculative aspect of Dr. Neff’s report which limits its probative value in that he
diagnosed TFCC of the left wrist, but also noted that there was a “potential injury” to the capsular
ligaments around the triangular fibrocartilage. The Board has held that an opinion which is
speculative or equivocal is of limited probative value regarding a given medical matter.11 Therefore,
Dr. Neff’s June 6, 2017 report is insufficient to establish appellant’s claim for an employmentrelated condition.
In a Form CA-20 report dated June 7, 2017, Dr. Neff noted findings of wrist pain and
diagnosed “overuse” due to an unspecified employment activity. This report is of limited probative
value regarding causal relationship because he did not implicate a specific employment activity or
provide medical rationale for his opinion that the diagnosed condition was causally related to
appellant’s employment.12 Moreover, the Board has held that the fact that a condition manifests
itself or worsens during a period of employment or that employment activities produce symptoms

7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

11

See E.B., Docket No. 18-1060 (issued November 1, 2018); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

12

See supra note 11.

4

revelatory of an underlying condition does not raise an inference of causal relationship between a
claimed condition and employment factors.13
Appellant also submitted a May 17, 2017 medical status report from Dr. Palmer, who
advised that appellant could resume work on May 19, 2017 with restrictions through
June 19, 2017. In a note dated June 6, 2017, Dr. Neff returned appellant to light-duty work on
June 7, 2017 and, in a Form CA-17 report dated June 7, 2017, he advised that appellant was totally
disabled from work. In a June 28, 2017 narrative report, Dr. Neff diagnosed TFCC injury on the
left and released appellant to regular duty. However, these reports are of no probative value on
the underlying issue of this case because they do not contain an opinion that appellant sustained
an employment-related injury. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition or disability is of no probative value on the
issue of causal relationship.14 Therefore, these reports are insufficient to establish appellant’s claim.
As the medical evidence does not contain a physician’s reasoned opinion regarding the
causal relationship between appellant’s claimed conditions and factors of his employment,
appellant has not met appellant his burden of proof to establish his occupational disease claim.
On appeal appellant argues that, in the January 16, 2018 decision, the hearing
representative incorrectly referenced a Dr. Damazo. The Board notes, however, that the hearing
representative was referring to Board case precedent which was applicable to the present case. As
explained above, the evidence of record is insufficient to establish the 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 met his burden of proof to establish an occupational
disease causally related to the accepted factors of his federal employment.

13

J.S., Docket No. 18-0944 (issued November 20, 2018).

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the January 16, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

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