United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
GENERAL SERVICES ADMINISTRATION,
FEDERAL ARCHIVES & RECORDS CENTER,
Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1779
Issued: February 4, 2008

Case Submitted on the Record

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

JURISDICTION
On June 24, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ nonmerit decision dated March 30, 2007 which denied her request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than one year has elapsed from the last merit decision dated October 17,
2000 to the filing of this appeal, the Board lacks jurisdiction to review the merits of her claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
On April 6, 1983 appellant, then a 43-year-old archives technician, claimed that she
sustained low back and neck strains while lifting boxes on March 31, 1983. She stopped work

on April 1, 1983. On December 15, 1983 appellant underwent a lumbar hemilaminectomy,
which was performed by Dr. Thomas K. Craigmile, a neurosurgeon. The Office accepted her
claim for low back and neck strain and herniated nucleus pulposis. Appellant received
appropriate benefits.
On August 14, 1985 appellant underwent a second hemilaminectomy, also performed by
Dr. Craigmile, who diagnosed herniated nucleus pulposis and perineural scar at L4-5. On
October 24, 1985 Dr. Craigmile reported that appellant had recovered nicely and was free of
lower extremity radicular pain. He attributed appellant’s right hip symptoms to “changes in her
right hip joint which will probably require hip joint replacement.” On December 4, 1985
Dr. Craigmile noted that ischemic necrosis of the right femoral head would require hip joint
replacement. After further medical development, the Office, on August 15, 1986, denied the
claim for bilateral avascular necrosis of the femoral head base. The Office further developed the
medical evidence, which indicated that she continued to have some residuals of her work injury
that prevented her from returning to her regular duties and that her hip condition was not
employment related.
On July 7, 2000 the Office referred appellant to Dr. Richard Talbott, a Board-certified
orthopedic surgeon, for a second opinion examination. In a July 25, 2000 report, Dr. Talbott
noted appellant’s history and diagnosed postoperative lumbar laminectomies and probable
degenerative joint disease of the hips. He stated that appellant complained of back and leg pain
but also noted that she “was observed walking across the parking lot to the building for the
appointment and she demonstrated no gait abnormality whatsoever.” Dr. Talbott opined that she
understated her activity level. He advised that appellant had some residual disability but that it
was mostly subjective and that “it is questionable that the limitation of motion is objective.”
Dr. Talbott stated that appellant probably could not perform her date-of-injury job, but that this
conclusion was based on subjective factors. He found that appellant could work with
restrictions, based on her subjective, complaints for eight hours per day. The Office requested
clarification regarding whether objective evidence of appellant’s work injury remained. In an
August 8, 2000 report, Dr. Talbott explained that his work restrictions were based on her
subjective complaints. He reiterated that “from an objective standpoint, there are no disabling
residuals.” Dr. Talbott explained that, while appellant’s surgical history constituted objective
evidence, there was no objective evidence of residuals other than the surgical scar on appellant’s
back and the bone removed during the surgery.
On September 11, 2000 the Office proposed to terminate appellant’s compensation
benefits. On October 17, 2000 the Office finalized the termination effective November 4, 2000.
Appellant requested reconsideration on February 22, 2007, arguing that the Office erred
in relying upon Dr. Talbott’s reports to find that she had no continuing residuals when
Dr. Talbott found some objective evidence of continuing disability. She submitted medical
evidence. In a January 27, 1986 report, Dr. Theodore C. Hunt,1 stated that appellant sustained a
work injury while lifting boxes and that she had contributory hip problems. He rated a 12
percent “permanent partial disability measured as a working unit (the whole person).” An
1

The Board was unable to ascertain Dr. Hunt’s specialty based on the record.

2

April 23, 1986 note from Dr. Hunt found bilateral avascular necrosis of the femoral heads.
Dr. Hunt explained: “We are still in the process of trying to relate this causally to the injury in
question. At this point I cannot definitely relate the two. The hip pain, however, is perpetuating
and continuing her back pain.”2 In a November 25, 1985 report, Dr. Hunt noted that
Dr. Craigmile had discovered bilateral avascular necrosis of the femoral heads. He explained:
“This avascular necrosis is quite extensive, restricting the motion in her hips and giving her a
very exaggerated gait.” In a February 17, 1989 report, Dr. Jeffrey Hrutkay, a Board-certified
orthopedic surgeon, noted that appellant attributed 50 percent of her claimed pain to low back
pain and 50 percent to hip pain. On examination, he found a healed midline lower back scar and
tenderness in the buttock and low back region, but a normal lumbosacral spine x-ray.
Dr. Hrutkay diagnosed failed back syndrome. On February 23, 1989 he noted that a magnetic
resonance imaging (MRI) scan of appellant’s lower back revealed fibrosis at the L5 nerve,
“which may explain her persistent pain.”
In an August 31, 2001 report, Dr. Paul S. Hsieh, a Board-certified radiologist, reported
that appellant underwent a lumbar discogram. A July 5, 2001 lumbar MRI scan from
Dr. Raymond Yost, a radiologist, diagnosed previous surgery at L4-5 and L5-S1, minimal
bulging disc at L4-5, protrusion at L3-4 and some facet joint arthropathy contributing to bilateral
exit foraminal narrowing. A September 1, 2001 computerized tomography (CT) scan report
from Dr. Hsieh, diagnosed degenerative disc changes at L3-4, L4-5 and L5-S1.
By decision dated March 30, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and did not establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 does not entitle a claimant
to a review of an Office decision as a matter of right.4 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.5 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the application for reconsideration is filed within one
year of the date of that decision.6 The Board has found that the imposition of this one year time
limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).7
2

The Board notes that Dr. Hunt’s January 27 and April 23, 1986 reports were previously of record and
considered by the Office.
3

5 U.S.C. § 8128(a).

4

Thankamma Mathews, 44 ECAB 765, 768 (1993).

5

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

6

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
7

20 C.F.R. § 10.607(b); Thankamma Mathews, supra note 4 at 769; Jesus D. Sanchez, supra note 5 at 967.

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The Office’s regulations provide:
“[The Office] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [the Office] in its
most recent merit decision. The application must establish, on its face, that such
decision was erroneous.”8
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the application for reconsideration to determine
whether there is clear evidence of error pursuant to the untimely request in accordance with
section 10.607(b) of its regulations.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.10 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 This entails a limited review by the Office 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 the Office.14 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but 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 the Office’s decision.15
ANALYSIS
The Board finds that the Office properly denied appellant’s request for reconsideration as
untimely. The Act’s implementing regulations provide that a request for reconsideration must be
filed within one year from the date of the Office decision for which review is sought.16 The most
recent merit decision was the Office’s October 17, 2000 decision terminating her compensation
benefits effective November 4, 2000. As appellant’s February 2, 2007 reconsideration request
8

20 C.F.R. § 10.607(b).

9

Thankamma Mathews, supra note 4 at 770.

10

Id.

11

Leona N. Travis, 43 ECAB 227, 241 (1991).

12

Jesus D. Sanchez, supra note 5 at 968.

13

Leona N. Travis, supra note 11.

14

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

15

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

16

20 C.F.R. § 10.607(a).

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was made more than one year following the Office’s October 17, 2000 decision, the request was
untimely filed. Consequently, to have her claim reopened, appellant must establish clear
evidence of error by the Office in its October 17, 2000 decision.
In support of her request for reconsideration, appellant submitted several new medical
reports. However, none of the new reports established clear evidence of error on the part of the
Office. Dr. Hsieh indicated that appellant underwent a successful lumbar discogram. His
September 1, 2001 CT scan report diagnosed degenerative disc changes at L3-4, L4-5 and L5-S1
but did not address the issue of whether appellant had continuing employment-related residuals
at the time the Office terminated her compensation benefits. The reports did not discuss the
issue of appellant’s disability or provide a reasoned medical opinion that she continued to have
residuals of her employment injury after her benefits were terminated effective
November 4, 2000. The Board finds that Dr. Hsieh’s August 31 and September 1, 2001 reports
do not shift the weight of evidence in appellant’s favor. Dr. Yost’s July 5, 2001 MRI scan
report, similarly, diagnosed previous surgery at L4-5 and L5-S1, minimal bulging disc at L4-5,
protrusion at L3-4 and facet joint arthropathy. He did not provide an opinion concerning
appellant’s employment-related disability or condition, if any, at the time of termination. The
Board finds that Dr. Yost’s July 5, 2001 report is insufficient to establish clear evidence of error.
Appellant also submitted several reports from Dr. Hunt. The Board notes that Dr. Hunt’s
January 27 and April 23, 1986 notes were previously of record and considered prior to the
termination of her benefits. These reports do not establish that the Office’s October 17, 2000
decision was clearly erroneous. They do not raise a substantial question as to the correctness of
the Office’s decision. Dr. Hunt’s November 25, 1985 report predated the termination of benefits
and does not address the relevant issue of appellant’s employment-related condition or disability,
if any, at or after the time of the termination. Therefore, Dr. Hunt’s reports are insufficient to
establish clear evidence of error by the Office.
Additionally, appellant provided reports from Dr. Hrutkay. On February 17, 1989
Dr. Hrutkay noted that appellant attributed 50 percent of her pain to her low back condition and
50 percent to hip pain. He noted a healed midline scar and some tenderness in the lower back
and buttock region. On February 23, 1989 Dr. Hrutkay indicated that an MRI scan revealed
evidence of fibrosis at the L5 nerve and explained that the finding might explain appellant’s back
pain. However, both of these reports predate the termination of benefits. Accordingly, the
Board finds that Dr. Hrutkay’s reports are not of sufficient probative value to prima facie shift
the weight of the evidence in appellant’s favor and thus establish clear error on the part of the
Office.
On appeal, appellant asserted that the Office erred in relying on Dr. Talbott’s June 25 and
August 8, 2000 reports in terminating benefits. She noted that, although Dr. Talbott
characterized his findings as “mostly subjective,” he found that she had some residual disability
in her low back due to her work injury and subsequent surgery and that she had some work
restrictions that were not consistent with her job. However, the Board notes that in his July 25,
2000 report, he also noted that appellant walked without gait abnormality or apparent discomfort
and in his August 8, 2000 clarification report found that, from an objective standpoint, there were
no disabling residuals. Dr. Talbott noted that all findings and restrictions were due to subjective
complaints and that there was no objective basis for any continuing employment-related

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condition or disability.17 Thus, appellant’s assertions do not show that the Office’s decision was
clearly erroneous. As noted above, evidence that merely indicates that reasonable minds might
come to a contrary conclusion is not sufficient to establish clear evidence of error.18
Appellant also asserted that the Office erred in characterizing Dr. Talbott’s report as the
weight of the medical evidence and in not considering prior medical reports. The record reflects
that the Office considered the medical evidence of record prior to the termination of benefits on
November 4, 2000. It determined that the opinion of Dr. Talbott was the most probative.
Appellant has not established that the Office clearly erred in relying upon the most recent
medical reports when terminating her benefits.
Finally, appellant asserted that it was clear error to shift the burden of proof to her and to
terminate her medical benefits. However, the record reflects that the Office did not shift the
burden of proof but followed its standard procedures in termination cases. It issued a notice of
proposed termination, to which appellant had the opportunity to respond. The Office finalized
the termination after that time period for submitting additional evidence had elapsed.19 As noted,
the Office reviewed Dr. Talbott’s report and found that this report established that appellant had
no objective evidence of continuing residuals of the work-related condition. Appellant’s
assertion that the Office shifted the burden of proof to her is without merit.
The Board finds that appellant’s evidence and argument submitted in support of her
reconsideration request was not of sufficient probative value to shift the weight of the evidence
in favor of the claimant and raise a substantial question as to the correctness of the Office’s
decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
it was untimely filed and did not present clear evidence of error.

17

Cf. William A. Archer, 55 ECAB 674 (2004) (a physician’s opinion statements regarding an employee’s ability
to work without objective signs of disability are not a basis for payment of compensation).
18

See Leona N. Travis, supra note 11.

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Cases, Chapter 2.0812.3
(July 1993); see also Del K. Rykert, 40 ECAB 284, 295-96 (1988); Talmadge Miller, 47 ECAB 673, 679 (1996);
Wentworth M. Murray, 7 ECAB 570, 572 (1955).

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ORDER
IT IS HEREBY ORDERED THAT the March 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2008
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Maspeth, NY, Employer
________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket Nos. 18-1751 and 19-0792
Issued: May 6, 2019

Case Submitted on the Record

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

JURISDICTION
On September 17, 2018 appellant, through counsel, filed a timely appeal from an
August 17, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards assigned Docket No. 18-1751. On January 8, 2019 appellant,
through counsel, filed a timely appeal from a December 7, 2018 merit decision of OWCP, to which
the Clerk of the Appellate Boards assigned Docket No. 19-0792. Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

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.

ISSUES
The issue are: (1) whether appellant has met his burden of proof to establish that the
acceptance of his claim should be expanded to include cervical, lumbar, thoracic conditions and
additional right hand and shoulder conditions as causally related to his accepted employment
injuries; and (2) whether appellant has met his burden of proof to establish a recurrence of total
disability commencing April 18, 2018 causally related to his accepted employment-related
injuries.
FACTUAL HISTORY
On February 28, 2018 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim (Form CA-2) for injuries resulting from continued use of his right shoulder, back,
neck, elbow, and hands while performing his repetitive work duties.3 He noted that he first became
aware of his conditions and their relationship to his federal employment on January 29, 2018.
Appellant stopped work on February 8, 2018 and returned to part-time, light-duty work on
February 21, 2018. He stopped work again on April 18, 2018 and has not returned to work. On
May 24, 2018 OWCP accepted the claim for right hand and shoulder sprains.
OWCP subsequently received a letter dated May 2, 2018 from Dr. Barry M. Katzman, an
attending Board-certified orthopedic surgeon, to counsel. Dr. Katzman indicated that he first
examined appellant on May 11, 2016. He noted a history of appellant’s accepted February 16,
2016 and January 29, 2018 employment injuries and medical treatment. Dr. Katzman noted that
he had reviewed appellant’s medical records. He discussed findings on physical examination and
provided an impression of cervical disc herniations, status post left shoulder surgery, and right
shoulder, left elbow and knee, and bilateral wrist sprains. Dr. Katzman opined that appellant’s
conditions were causally related to the accepted February 16, 2016 and January 29, 2018 workrelated injuries. He recommended cervical surgery.
In a report dated April 25, 2018, Dr. Tanzania Khan, a pain medicine specialist, noted a
history that appellant sustained a traumatic back injury three months prior related to his
performance of repetitive activity at work. She reported physical examination findings and
provided an assessment of lumbar radiculopathy and lumbago.
A May 10, 2018 lumbar magnetic resonance imaging (MRI) scan report by
Dr. Francisco A. Delara, Jr., a diagnostic radiologist, provided an impression of multilevel
degenerative annular bulges identified at L2-3, L3-4, and L4-5 with mild-to-moderate central canal
stenosis at L3-4 and L4-5, and narrowing of the lateral recesses at L3-4 and L4-5. Dr. Delara also
provided an impression of small superimposed right extra foraminal disc protrusion at L2-3 that
nearly contacts the exiting right L2 nerve root. He further provided an impression of foraminal
narrowing at L2-3 through L4-5.

3

The record indicates that appellant has a prior claim for a February 16, 2016 traumatic injury, assigned OWCP
File No. xxxxxx484. OWCP accepted that claim for cervical and left shoulder sprains and right hand and left knee
contusions.

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Dr. Khan, in a May 23, 2018 report, indicated that appellant had undergone a lumbar MRI
scan and an electromyogram (EMG). She reexamined him and provided an assessment of lumbar
disc displacement, spondylosis, and spinal stenosis, and lumbosacral degenerative disc disease.
Dr. Khan reiterated her assessment of lumbar radiculopathy. She responded “yes” to the question
of whether the diagnosed conditions were caused by appellant’s history of injury. Dr. Khan
advised that he was totally disabled.
OWCP, by letter dated June 7, 2018, referred appellant, together with a statement of
accepted facts, the case record, and a set of questions, to Dr. Jeffrey Guttman, a Board-certified
orthopedic surgeon, for a second opinion to determine the nature and extent of his injury-related
medical residuals and disability and to determine whether any additional conditions were causally
related to the accepted employment injuries.
Dr. Khan continued to treat appellant. In a duty status report (Form CA-17) dated May 23,
2018 and an attending physician’s report (Form CA-20) dated May 29, 2018, she noted a history
of the accepted employment injuries. Dr. Khan diagnosed spinal stenosis at L2-3, L4-5 and
restated her diagnoses of lumbar disc displacement, lumbosacral spondylosis derangement, lumbar
disc displacement, stenosis, degenerative disc disease, and radiculopathy. In the Form CA-17
report, she advised that the diagnosed conditions were due to the accepted employment factors. In
the Form CA-20 report, Dr. Khan checked a box marked “yes” indicating that the diagnosed
conditions were caused by the described employment activity. She related that appellant’s
conditions were likely related to repetitive lifting, pushing, bending, and twisting while moving
parcels. In both reports, Dr. Khan advised that appellant was unable to work and listed his physical
restrictions. She indicated that his disability began on January 29, 2018. In a May 29, 2018 work
capacity evaluation (Form OWCP-5c), Dr. Khan indicated that appellant was unable to work due
to pain and numbness along his lower back and leg that limited his daily functions of standing,
sitting, walking, and lifting.
In a thoracic spine x-ray report dated May 7, 2018, Dr. Baik H. Kang, a Board-certified
diagnostic radiologist, noted an impression of levoscoliosis of the thoracic and lumbar spines and
degenerative disc disease at L2, L3, L4, and osteoarthritis with muscle spasm.
OWCP received additional reports dated May 16 and 31, 2018 from Dr. Katzman who
diagnosed right shoulder sprain, cervical and lumbar radiculopathy, right elbow lateral
epicondylitis, right hand strain, thoracic back pain, muscle spasm, cervical spondylosis, and right
wrist sprain. Dr. Katzman advised that appellant was totally disabled from work and listed his
physical restrictions. In a Form CA-17 report date May 31, 2018, he indicated that appellant’s
thoracic back pain and muscle spasm were due to the January 29, 2018 employment injury. In a
May 31, 2018 Form CA-20 report, Dr. Katzman placed a check in a box marked “yes” indicating
that appellant’s diagnosed right shoulder, elbow, and hand conditions were caused by repetitive
overhead work. He advised that appellant was totally disabled from September 18, 2018 to the
date of his examination. In a Form OWCP-5c dated May 31, 2018, Dr. Katzman explained that
appellant was unable to work because he was still recovering from his injuries. In a disability
certificate dated May 31, 2018, he advised that appellant was totally incapacitated for work from
May 26 through June 27, 2018.

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In a report dated May 21, 2018, Dr. Peter Perdik, a Board-certified internist, indicated that
nerve conduction velocity (NCV) and EMG study revealed evidence of a mild peroneal motor
peripheral neuropathy predominantly affecting the bilateral lower extremity and bilateral L4-5
radiculopathy. In reports dated May 7, 10 and 16, 2018, he examined appellant and diagnosed
lumbar radiculopathy on the right at L2-3 and L3-4, strain of the muscle and tendon of unspecified
wall of the thorax, multilevel disc bulges on the right lumbar spine, and right L2 nerve
impingement.
Dr. Narayan B. Paruchuri, a Board-certified diagnostic radiologist, performed an MRI scan
of the right shoulder on June 5, 2018. He provided an impression of intermediate grade partialthickness bursal surface tear of the posterior ﬁbers of the supraspinatus tendon. Dr. Paruchuri also
provided an impression of intermediate grade interstitial tear of the anterior ﬁbers of the
subscapularis tendon and cyst in the myotendinous junction.
A report dated June 15, 2018 by Dr. Steven Ross, a Board-certified neurologist, was
received. He noted a history that appellant was status post a January 29, 2018 work-related injury
and that he sustained work-related injury in February 2016. Dr. Ross reported findings on physical
examination and provided an impression that appellant was status post a January 29, 2018 workrelated overuse injury resulting in cervical, thoracic, and lumbar myofascial derangement with
lumbar disc bulges, lumbar radiculopathy, and right shoulder pain. He advised that appellant was
markedly partially disabled.
Reports dated June 28 and 29 and July 17 and 19, 2018 were received from appellant’s
physical therapist.
Reports dated April 6 and June 15, 2018 by Dr. Jason M. Gallina, a Board-certified
orthopedic surgeon, noted appellant’s accepted February 16, 2016 employment injury and
discussed findings on physical and neurological examination and diagnostic testing. He provided
an assessment of neck pain and left greater than right radiating arm pain.
In a June 27, 2018 report, Dr. Katzman reexamined appellant and reiterated his diagnoses
of right shoulder sprain, cervical radiculopathy, and right elbow lateral epicondylitis.
Dr. Guttman, in a medical report dated July 26, 2018, described a history of appellant’s
accepted employment injuries and reviewed medical records. He discussed findings on physical
examination and diagnosed status post cervical and lumbar radiculopathy, status post right
shoulder, elbow, and wrist sprains. In response to OWCP’s questions, Dr. Guttman indicated that
the accepted right hand and right shoulder sprains were resolving. He noted that there were no
subjective complaints that did not correspond with his objective ﬁndings. Dr. Guttman further
noted that appellant had a prior accident and injured his neck, back, left shoulder, and right hand
and elbow. Appellant also had prior left shoulder surgery. Dr. Guttman advised that appellant’s
other diagnosed conditions were causally related superimposed upon preexisting conditions. He
did not suffer from any concurrent nonwork-related conditions. Dr. Guttman indicated that
appellant’s preexisting conditions were temporarily aggravated by his employment and were
resolving. He further indicated that appellant was temporarily moderately disabled due to his
accepted conditions. Appellant was not currently disabled from other nonwork-related preexisting
or subsequent conditions. Dr. Guttman advised that appellant had not reached maximum medical

4

improvement. Appellant could return to sedentary light-duty work with restrictions, eight hours a
day. Dr. Guttman noted that appellant’s September 29, 2016 left shoulder arthroscopy,
debridement of the labrum and rotator cuff, bursectomy, and subacromial decompression
sufﬁciently addressed an accepted work condition. He maintained that the requested cervical spine
surgery, C5-6 and C6-7 anterior cervical discectomy, and fusion were not medically necessary.
Dr. Guttman explained that this injury was superimposed upon a preexisting injury. He
recommended a series of two lumbar spine epidural steroid injections. Dr. Guttman indicated that
appellant’s prognosis was good and there were no specific problems hindering his recovery.
OWCP, by decision dated August 17, 2018, denied the expansion of the acceptance of
appellant’s claim to include the additional conditions. It found that the medical evidence of record
did not contain a rationalized opinion explaining how appellant’s diagnosed conditions were
caused or contributed to by the accepted employment conditions.
By a second decision dated August 17, 2018, OWCP expanded the acceptance of
appellant’s claim to include left shoulder, elbow, and wrist sprains, right wrist sprain, and right
and left shoulder derangement.
Appellant filed a notice of recurrence (Form CA-2a) on September 7, 2018 alleging that he
continued to experience symptoms of his January 29, 2018 work-related conditions on April 18,
2018, the date he stopped work. In support of his claim, he submitted reports from Dr. Ross. In a
Form CA-20 report dated April 17, 2018, Dr. Ross again related a history of the January 29, 2018
employment injury. He diagnosed right shoulder derangement and reiterated his diagnoses of
cervical/thoracic/lumbar spine myofascial derangement. Dr. Ross placed a check in a box marked
“yes” indicating that the diagnosed conditions were caused or aggravated by the described
employment activity. He explained that repetitive use of both shoulders and overhead work caused
the diagnosed conditions. Dr. Ross advised that appellant was totally disabled commencing
April 18, 2018. In a Form CA-17 report dated April 17, 2018, he again opined that appellant’s
cervical/thoracic/lumbar spine and right shoulder derangement were due to his accepted
January 29, 2018 employment injury. Dr. Ross indicated that appellant was unable to work. In a
Form OWCP-5c dated April 17, 2018, he restated his cervical, thoracic, and lumbar spine and right
shoulder diagnoses and opinion on appellant’s disability status. Dr. Ross also listed appellant’s
physical restrictions.
Appellant submitted a report dated April 18, 2018 from Dr. Katzman, who again diagnosed
right shoulder sprain, cervical radiculopathy, right elbow lateral epicondylitis, and right hand
strain. Dr. Katzman also reiterated his opinion on causal relationship. He advised that appellant’s
complaints were causally related to the January 29, 2018 employment injury superimposed on his
previous right shoulder injury.
In subsequently received reports dated August 1 and September 12, 2018, Dr. Katzman
continued to diagnose right shoulder sprain, cervical radiculopathy, right elbow lateral
epicondylitis, and right hand strain.
By development letter dated October 30, 2018, OWCP advised appellant of the
deficiencies of his recurrence claim by explaining the type of factual and medical evidence
required and provided a questionnaire for his completion. It afforded him 30 days to respond.

5

On November 21, 2018 appellant responded to OWCP’s questionnaire. He noted that he
experienced a spontaneous change for the worse in his symptoms and nature and extent of his
work-related condition without an intervening cause. Appellant related that he continued to
experience symptoms of his work-related medical condition which resulted in work restrictions.
He maintained that his claim was not for a new occupational disease or traumatic injury due to his
worsening work-related condition without an intervening cause. Appellant further maintained that
he had continuing symptoms of his original injury from the time of this injury through the date of
his alleged recurrence. He indicated that he had not sustained any other injuries or illnesses on or
off work since his original injury. Appellant also had no hobbies and/or activities that may have
affected his work-related condition.
By decision dated December 7, 2018, OWCP denied appellant’s claim for a recurrence of
disability, finding that the medical evidence of record was insufficient to establish a material
change or worsening of his accepted conditions without an intervening cause.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.4
Causal relationship is a medical issue that must be established by rationalized medical
opinion evidence.5 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested, and the medical rationale
expressed in support of the physician’s opinion.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include cervical, lumbar, thoracic conditions and
additional right hand and shoulder conditions as causally related to his accepted employment
injuries.

4

Jaja K. Asaramo, 55 ECAB 200 (2004).

5

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

6

Leslie C. Moore, 52 ECAB 132 (2000).

7
Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

6

In a May 2, 2018 report, appellant’s physician, Dr. Katzman, noted a history of appellant’s
accepted employment injuries and his prior accepted February 16, 2016 employment injuries. He
provided examination findings and an impression of cervical disc herniations, status post left
shoulder surgery, and right shoulder, left elbow and knee, and bilateral wrist sprains. Dr. Katzman
opined that the diagnosed conditions were causally related to the accepted February 16, 2016 and
January 2018 work-related injuries. He recommended cervical surgery. Other reports from
Dr. Katzman dated May 16 and 31, 2018 diagnosed cervical and lumbar radiculopathy, right elbow
lateral epicondylitis, right hand strain, thoracic back pain, muscle spasm, cervical spondylosis, and
right wrist sprain. In a May 31, 2018 narrative report, he opined that the diagnosed conditions
were due to the accepted January 29, 2018 employment injury. The Board finds that, although
Dr. Katzman supported causal relationship in his May 2 and 31, 2018 reports, he did not provide
medical rationale explaining the causal relationship between appellant’s diagnosed conditions and
recommended surgery to the accepted work injuries.8 In a May 31, 2018 Form CA-20 report,
Dr. Katzman checked a box marked “yes” indicating that appellant’s diagnosed conditions were
caused by the accepted employment injuries. He advised that appellant was totally disabled from
September 18, 2018 to the date of his examination. The Board has held that a report that addresses
causal relationship with an affirmative checkmark, without medical rationale explaining how the
employment injuries caused or aggravated the diagnosed condition, is of diminished probative
value and insufficient to establish causal relationship.9 Dr. Katzman failed to offer medical
rationale explaining how appellant’s diagnosed cervical, lumbar right elbow, hand, and wrist,
thoracic back conditions and disability were caused or aggravated by the accepted employment
factors. In his remaining reports, he addressed appellant’s right shoulder and elbow and cervical
conditions and medical treatment, but failed to offer an opinion stating that the diagnosed
conditions and disability were caused or contributed to by the accepted employment injuries.10
Thus, this evidence is therefore insufficient to meet appellant’s burden of proof.11
In her April 25, 2018 report, Dr. Khan diagnosed lumbar radiculopathy and lumbago, but
failed to provide an opinion finding that the diagnosed conditions were caused or contributed to
by the accepted employment injuries. As there is no opinion on causal relationship, this report is
of no probative value.12 Other reports from Dr. Khan dated May 23 and 29, 2018 diagnosed spinal
stenosis at L2-3 and L4-5, lumbar disc displacement, lumbosacral spondylosis derangement,
lumbar disc displacement, stenosis, degenerative disc disease and lumbar radiculopathy. In a
May 23, 2018 Form CA-17, she opined that those diagnosed conditions were due to the accepted
January 2018 employment injury. In both reports, Dr. Khan found that appellant was totally
disabled from work. The Board finds that she did not provide medical rationale explaining the
causal relationship between his diagnosed conditions and attendant disability and the accepted

8

S.S., Docket No. 17-1256 (issued December 13, 2018).

9

See S.C., Docket No. 18-1242 (issued March 13, 2019).

10

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

11

See Y.C., Docket No. 17-1938 (issued January 7, 2019).

12

Supra note 10.

7

work injuries.13 Dr. Khan’s opinion, in a May 29, 2018 Form CA-20 report, that appellant’s
diagnosed conditions were “likely” related to his repetitive work activity is speculative in nature
and thus insufficient to meet appellant’s burden of proof.14 Thus, this evidence is insufficient to
meet appellant’s burden of proof.15
Dr. Gallina’s April 6 and June 15, 2018 reports found that appellant had neck pain and left
greater than the right radiating arm pain. Pain is a description of a symptom rather than a clear
diagnosis of a medical condition.16 Moreover, Dr. Gallina did not provide an opinion on causal
relationship.17 The Board finds that his report is insufficient to establish appellant’s burden of
proof.
The reports from appellant’s physical therapist have no probative medical value in
establishing appellant’s claim as physical therapists are not considered physicians as defined under
FECA.18 As such, this evidence is also insufficient to meet appellant’s burden of proof.
Appellant also submitted diagnostic reports from Drs. Kang, DeLara, Perdik, and
Paruchuri. However, the Board has held that diagnostic studies lack probative value as they do
not provide an opinion on causal relationship between the accepted employment factors and a
diagnosed condition.19
On appeal, counsel contends that the medical evidence of record was sufficient to expand
the acceptance of appellant’s claim to include his diagnosed cervical, thoracic, lumbar, conditions
and additional right and left shoulder, and left knee conditions. For the foregoing reasons, the
Board finds that the medical evidence of record is insufficient to establish that appellant sustained
additional conditions causally related to the accepted employment injuries.

13

S.S., supra note 8.

14

B.M., Docket No. 17-1079 (issued June 4, 2018).

15

See Y.C., supra note 11.

16

B.H., Docket No. 18-1219 (issued January 25, 2019); C.B., Docket No. 09-2027 (issued May 12, 2010); Robert
Broome, 55 ECAB 339 (2004) (the Board has consistently held that pain is a symptom rather than a compensable
medical diagnosis).
17

Supra note 12.

18

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See 5 U.S.C. § 8102(2); S.A., Docket No. 16-1128 (issued November 24, 2017); M.M., Docket No. 16-1617 (issued
January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician
assistants and physical therapists are not competent to render a medical opinion under FECA). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).
19

See E.V., Docket No. 18-1617 (issued February 26, 2019); R.G., Docket No. 18-1045 (issued February 1, 2019).

8

LEGAL PRECEDENT -- ISSUE 2
Section 10.5(x) of OWCP’s regulations provides that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness. The term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate
an employee’s physical limitations due to his or her work-related injury or illness is withdrawn
(except when such withdrawal occurs for reasons of misconduct, nonperformance of job duties or
a reduction-in-force), or when the physical requirements of such an assignment are altered so that
they exceed his or her established physical limitations.20
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden of
proof to establish by the weight of the reliable, probative, and substantive evidence, a recurrence
of total disability and to show that he or she cannot perform such light-duty work. As part of this
burden, the employee must show a change in the nature and extent of the light-duty job
requirements.21
Causal relationship is a medical issue that must be established by rationalized medical
opinion evidence.22 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.23 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested, and the medical rationale
expressed in support of the physician’s opinion.24
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing April 18, 2018 causally related to his accepted employment-related
injuries.

20

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

21

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

22

Supra note 5.

23

Supra note 6.

24

Supra note 7.

9

Appellant has not alleged a change in the nature and extent of his light-duty job
requirements. Therefore, he must thus provide medical evidence establishing that he was disabled
due to a worsening of his accepted work-related conditions.25 The Board finds that appellant did
not submit medical evidence to support that he was disabled due to a worsening of his accepted
work-related conditions commencing April 18, 2018.
In an April 17, 2018 Form CA-20 report, Dr. Ross placed a check in a box marked “yes”
indicating that appellant’s diagnosed conditions of right shoulder derangement,
cervical/thoracic/lumbar spine myofascial derangement were caused or aggravated by his accepted
employment injuries. He explained that repetitive use of both shoulders and overhead work caused
the diagnosed conditions. Dr. Ross found that appellant was totally disabled commencing
April 18, 2018. OWCP only accepted right shoulder derangement. It has not accepted the other
diagnosed conditions. Dr. Ross did not adequately explain how appellant’s disability on or after
April 18, 2018 was due to a worsening of his accepted work-related right shoulder condition.26
Moreover, he did not explain how appellant’s other diagnosed conditions were due to a worsening
of his accepted work-related conditions. Without such an explanation, this report of Dr. Ross is
insufficient to establish a recurrence of disability. In a Form CA-17 report and Form OWCP-5c
report dated April 17, 2018, Dr. Ross again reiterated his opinion that appellant’s
cervical/thoracic/lumbar spine and right shoulder derangement were due to his accepted
employment injuries. He also reiterated his opinion that appellant was totally disabled from work.
Dr. Ross did not specifically explain whether appellant sustained a recurrence of disability causally
related to the accepted employment conditions or otherwise provide medical reasoning explaining
why any current condition or disability beginning April 18, 2018 was due to the accepted
employment injuries.27 For the reasons stated, his reports are insufficient to establish appellant’s
burden of proof.
Dr. Katzman’s April 18, August 1 and September 12, 2018 reports diagnosed right
shoulder sprain, cervical radiculopathy, right elbow lateral epicondylitis, and right hand strain. He
opined that the diagnosed conditions were causally related to the January 29, 2018 employment
injury superimposed on his previous right shoulder injury. However, Dr. Katzman did not
specifically explain whether appellant sustained a recurrence of disability causally related to the
accepted employment conditions or otherwise provide medical reasoning explaining why any
current condition or disability beginning April 18, 2018 was due to the accepted employment
injuries.28 Thus, his reports are insufficient to meet appellant’s burden of proof.
Dr. Khan’s May 29, 2018 Form OWCP-5c report found that appellant was totally disabled
from work due to his back and leg pain and numbness. As noted, pain is a description of a symptom
rather than a clear diagnosis of a medical condition.29 Moreover, Dr. Khan did not provide an
25

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

26

A.P., Docket No. 15-1513 (issued March 2, 2016).

27

D.H., Docket No. 18-0129 (issued July 23, 2018).

28

Id.

29

Supra note 15.

10

opinion as to whether appellant’s disability was due to a worsening of his accepted employmentrelated conditions.30 Likewise, his May 31, 2018 disability certificate did not offer an opinion as
to whether appellant’s disability from work from May 26 through June 27, 2018 was causally
related to a worsening of his accepted employment-related conditions.31 Thus, the Board finds
that his reports are insufficient to establish appellant’s burden of proof.
As noted, appellant must submit rationalized medical evidence supporting causal
relationship between the disabling conditions and the accepted injuries. Furthermore, the medical
evidence must directly address the dates of disability for work for which compensation is
claimed.32 None of the medical evidence of record provided a discussion of how appellant’s
accepted conditions caused total disability during the period in question, or supported a finding
that his newly diagnosed conditions were causally related to the accepted injury.33 Appellant
therefore did not meet his burden of proof.34
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 that the
acceptance of his claim should be expanded to include cervical, lumbar, thoracic conditions and
additional right hand and shoulder conditions as causally related to his accepted employment
injuries. The Board further finds that appellant has not met his burden of proof to establish a
recurrence of total disability, commencing April 18, 2018, causally related to his accepted
employment-related injuries.

30

L.B., supra note 10.

31

Id.

32

C.S., Docket No. 08-2218 (issued August 7, 2009); Sandra D. Pruitt, 57 ECAB 126 (2005).

33

See C.Y., Docket No. 17-0605 (issued January 11, 2018); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).
34

Supra note 27.

11

ORDER
IT IS HEREBY ORDERED THAT the December 7 and August 17, 2018 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 6, 2019
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.G., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Quantico VA,
Employer
__________________________________________

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

Docket No. 19-0871
Issued: November 9, 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 March 18, 2019 appellant filed a timely appeal from an October 29, 2018 merit decision
and a February 28, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a right wrist
condition causally related to his March 30, 2017 employment injury; and (2) whether OWCP

1
Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 201.5(b). After exercising its
discretion, the Board by July 20, 2020 order denied his request, noting that his arguments on appeal could be
adequately addressed in a Board decision based on a review of the case record. Order Denying Request for Oral
Argument, Docket No. 19-0871 (issued July 20, 2020).
2

5 U.S.C. § 8101 et seq.

properly denied appellant’s request for reconsideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 3, 2017 appellant, then a 39-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on March 30, 2017 he developed a loss of feeling and
weakness in his right hand due to using a thumb throttle to drive a snowmobile and pain in his left
wrist while in the performance of duty. He did not stop work.
An unsigned report dated April 5, 2017 noted that appellant sought medical treatment for
his right hand weakness and dysfunction. He was diagnosed with right hand weakness after
training to drive a snowmobile.
In an April 19, 2017 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence and provided a questionnaire for
his completion. OWCP afforded appellant 30 days to respond.
On April 27, 2017 the employing establishment reported that appellant was engaged in
official duties when the injury occurred. He was operating a snowmobile while engaged in
training.
By decision dated May 24, 2017, OWCP denied appellant’s claim finding that he had not
established the factual aspect of his claim as he did not respond to the development questionnaire.
On April 18, 2018 appellant requested reconsideration of the May 24, 2017 decision and
submitted additional evidence. He provided a narrative statement and noted that he was operating
a snowmobile during employing establishment training exercises on March 31, 2017.
Appellant also provided witness statements from M.F., a special agent, and R.H. and A.L.,
supervisory special agents, asserting that on March 31, 2017 the employing establishment engaged
in job-required cold-weather mobility training, which included snowmobile operations. He
operated a snowmobile for over seven hours through arduous terrain and extreme environmental
conditions which required constant manipulation of the controls including the throttle on the right
handgrip. Appellant informed his coworkers that he was experiencing significant pain and reduced
range of motion in his right hand.
Appellant subsequently resubmitted the April 5, 2017 note diagnosing right hand weakness
signed by Dr. Kevin E. Peltier, a Board-certified orthopedic surgeon.
Appellant also provided excerpts from internet publications regarding compression
neuropathies.
By decision dated May 9, 2018, OWCP affirmed, as modified, its March 24, 2017 decision.
It found that the March 30, 2017 incident occurred as alleged, however, appellant had not
submitted medical evidence containing a medical diagnosis in connection with the accepted
employment incident.

2

On July 27, 2018 appellant requested reconsideration of the May 9, 2018 decision. He
provided a June 27, 2018 note from Dr. Peltier which diagnosed posterior interosseous nerve (PIN)
and anterior interosseous nerve (AIN) palsies. Dr. Peltier found that appellant had gross weakness
in his right hand after prolonged operation of a snowmobile and noted that prolonged holding of a
throttle with vibration caused a radial nerve palsy. He determined that appellant’s condition had
returned to normal.
On June 21, 2017 appellant underwent electromyogram and nerve conduction velocity
(EMG/NCV) studies which demonstrated mild slowing of the right median nerve across the wrist.
By decision dated October 29, 2018, OWCP denied modification of its prior decision.
On January 7, 2019 appellant requested reconsideration of the October 29, 2018 decision.
He summarized Dr. Peltier’s June 27, 2018 report.
By decision dated February 28, 2019, OWCP denied appellant’s request for reconsideration
of the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.M., Docket No. 19-0380 (issued June 26, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

3

opinion evidence.8 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s) identified by the employee.9 The weight of the medical evidence
is determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted a June 27, 2018 note from Dr. Peltier which
diagnosed right PIN and AIN palsies. Dr. Peltier found that appellant had gross weakness in his
right hand after prolonged operation of a snowmobile and noted that prolonged holding of a throttle
with vibration caused a radial nerve palsy.
Dr. Peltier recounted an accurate history of injury and an opinion regarding causal
relationship in his June 27, 2018 note. Contrary to OWCP’s findings, he provided diagnoses of
PIN and AIN palsies. Dr. Peltier noted the specific employment duties of prolonged operation of
the thumb throttle of a snowmobile and found that the vibrations caused a radial nerve palsy.
As the medical evidence of record establishes a diagnosed condition, the case must be
remanded for consideration of the medical evidence with regard to the issue of causal relationship.
Following any further development deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.11

8

S.A., Docket No. 18-0399 (issued October 16, 2018); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
345 (1989).
10

D.R., Docket No. 19-0954 (issued October 25, 2019); James Mack, 43 ECAB 321 (1991).

11

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

4

ORDER
IT IS HEREBY ORDERED THAT the February 28, 2019 and October 29, 2018
decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: November 9, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.N., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Stockton, CA, Employer
__________________________________________

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

Docket No. 16-0134
Issued: March 8, 2016

Case Submitted on the Record

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

JURISDICTION
On October 29, 2015 appellant filed a timely appeal of the September 25, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$14,234.11 overpayment of compensation for the period June 1, 2012 to June 27, 2015;
(2) whether OWCP properly determined that appellant was at fault in creating the overpayment
of compensation, thereby precluding waiver of recovery of the overpayment; and (3) whether
OWCP properly required repayment of the overpayment by deducting $200.00 every 28 days
from appellant’s continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a June 4, 2004 decision, the Board
affirmed a June 29, 2003 OWCP decision finding an overpayment of compensation in the
amount of $5,610.14 from October 12, 1998 to December 28, 2002 for which appellant was
without fault.3 The overpayment was created because he had received a prohibited dual benefit
for the period noted. The prior facts and circumstances of the case are set forth in the Board’s
prior decision and are incorporated herein by reference.
From April 5, 2002 to April 7, 2015 OWCP provided appellant an EN1032 form to
complete which stated:
“PART D--OTHER FEDERAL BENEFITS OR PAYMENTS
“2. SSA Retirement Benefits. Report any benefits received from the Social
Security Administration (SSA) which you receive as part of an annuity under the
Federal Employees’ Retirement System (FERS). DO NOT report any benefits
received from the SSA on account of employment in the private sector.
“a. Do you receive benefits from the SSA as part of an annuity for Federal
service? Yes or No: ______ Monthly Amount: __________ Note: If you receive
Social Security disability benefits, those SSA benefits may be reduced due to your
receipt of FECA benefits. Please report SSA disability benefits in the response to
question 4, Part D, below.”
***
“PART H -- CERTIFICATION
“I understand that I must immediately report to OWCP any employment or
employment activity, any change in the status of claimed dependents, any third[]party settlement, and any monies or income or change in monies or income from
Federally assisted disability or benefit programs.
“I certify that all the statements made in response to questions on this form are
true, complete and correct to the best of my knowledge and belief. I have placed
‘Not Applicable’ (N/A) or ‘None’ next to those questions that do not apply to me
or my claim.”
From April 5, 2002 to April 14, 2015 appellant completed the EN1032 forms.
2

On January 2, 1997 appellant, then a 52-year-old meat cutter, filed a claim alleging that on January 2, 1997 he
injured his back when lifting a piece of beef. OWCP accepted that appellant sustained a lumbar strain and
displacement of lumbar intervertebral disc without myelopathy and authorized a lumbar fusion. He stopped work on
January 2, 1997 and thereafter retired. Appellant was placed on the periodic compensation rolls.
3

Docket No. 04-172 (issued June 4, 2004).

2

In a memorandum dated October 30, 2014, the employing establishment advised OWCP
that appellant was a Federal Employment Retirement Systems (FERS) retiree who had reached
full retirement age. It indicated that there was currently no information to determine if appellant
was in receipt of SSA benefits. The employing establishment instructed OWCP to contact SSA
to determine present benefits and the FERS offset amount that should be deducted from
compensation benefits.
On November 26, 2014 the SSA provided OWCP with a FERS/SSA dual benefits
calculation form. It noted that appellant was entitled to retirement benefits subject to an
SSA/FERS offset from June 2012 through the present time. In a FERS offset calculation dated
June 26, 2015, OWCP calculated that for the period June 1 to November 30, 2012 appellant
received an overpayment of $2,211.08; from December 1 to 31, 2012 appellant received an
overpayment of $380.99; from January 1, 2013 to November 30, 2014 appellant received an
overpayment of $4,226.02; from December 1, 2013 to November 30, 2014 appellant received an
overpayment of $4,686.84 and from December 1, 2014 to June 27, 2015 appellant received an
overpayment of $2,729.17. The total overpayment for the period June 1, 2012 to June 27, 2015
was $14,234.11.4
In a letter dated June 30, 2015, OWCP informed appellant that he was receiving
FERS/SSA dual benefits. It advised that the portion of SSA benefits earned as a federal
employee is part of the FERS retirement package and the receipt of FECA benefits and federal
retirement benefits concurrently is a prohibited dual benefit. Therefore, SSA benefits which are
attributable to the federal service of an employee covered under FECA must be adjusted for the
FERS portion of the SSA benefits and in compliance his compensation would be offset.
On July 7, 2015 OWCP made a preliminary determination that appellant had received a
$14,234.11 overpayment of compensation from June 1, 2012 to June 27, 2015 because he was in
receipt of FERS and SSA benefits for the period June 1, 2012 to June 27, 2015. It noted that the
portion of SSA benefits earned as a federal employee, which is part of the FERS retirement
package, and the receipt of FECA benefits concurrently is a prohibited dual benefit. Therefore,
the SSA benefits which were attributable to the federal service of an employee covered under
FECA must be deducted from FECA.5
OWCP also found appellant at fault in the creation of the overpayment because the
EN1032 forms for that period submitted by appellant specifically denied receipt of any
retirement or SSA benefits. It informed appellant that he had the right to submit evidence or
arguments to dispute the overpayment or finding of fault. OWCP also informed him that he had
a right to a prerecoupment hearing before an OWCP hearing representative. It instructed
appellant to complete an enclosed overpayment recovery form and submit supporting
documentation.
4

The total amount calculates to $14,234.10 rather than $14,234.11.

5

OWCP calculated the overpayment noting that the SSA benefits prepared a dual benefits calculation outlining
appellant’s entitlement to SSA benefits with and without FERS. It noted FECA benefits are issued every 28 days
and SSA benefits are paid monthly. To accurately calculate his overpayment benefits OWCP determined the 28-day
and the daily amount of his SSA benefits based on his federal service.

3

On July 14, 2015 appellant requested a telephone conference. He submitted an
overpayment recovery form and argued that the overpayment occurred through no fault of his
own. Appellant indicated that, when his wife died, he notified SSA of her death and was
informed that he could collect social security benefits. He noted being informed that there would
be no conflict if he received FECA benefits concurrently with SSA benefits. Appellant noted
reporting his wife’s death in 2010 to OWCP and his benefits were reduced. He reported monthly
income of $2,384.00, monthly expenses of $3,652.00, no cash on hand, a checking account
balance of $2,200.00, and a savings account balance of $400.00.
In a decision dated September 25, 2015, OWCP found that appellant received a
$14,234.11 overpayment of compensation from June 1, 2012 to June 27, 2015 for which he was
at fault in creating. It advised that the overpayment occurred because he was in receipt of FERS
and SSA dual benefits for the period June 1, 2012 to June 27, 2015. OWCP noted that the
portion of SSA benefits earned as a federal employee is part of the FERS retirement package and
the concurrent receipt of FECA benefits and those federal retirement benefits is a prohibited dual
benefit. It found that appellant was at fault in creating the overpayment because he failed to
provide information which he knew or should have known to be incorrect. OWCP noted that for
the period June 1, 2012 to June 27, 2015 appellant failed to report on the EN1032 forms his
receipt of SSA benefits. As he knowingly failed to report the receipt of those benefits, he was
found at fault in the creation of the overpayment. OWCP noted that appellant had submitted a
completed overpayment questionnaire form, and after reviewing appellant’s financial situation
determined that the overpayment would be collected by withholding $200.00 from continuing
compensation payments every four weeks, beginning October 17, 2015.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(a) of FECA6 states:
“(a) While an employee is receiving compensation under this subchapter or if he
has been paid a lump sum in commutation of installment payments until the
expiration of the period during which the installment payments would have
continued, he may not receive salary, pay or remuneration of any type from the
United States, except -(1) in return for service actually performed;
(2) pension for service in the Army, Navy or Air Force;
(3) other benefits administered by the Department of Veterans Affairs
unless such benefits are payable for the same injury or the same death; and
(4) retired, retirement pay, retainer pay or equivalent pay for service in the
Armed Forces or other uniformed services....

6

5 U.S.C. § 8116(a).

4

“However, eligibility for or receipt of benefits under subchapter 3 of [C]hapter 83
of this title or another retirement system for employees of the Government, does
not impair the right of the employee to compensation for scheduled disabilities
specified by section 8107(c) of this title.”7
Section 10.421(d) of the implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA benefits that are attributable to federal
service of the employee.8 FECA Bulletin No. 97-7 explains that FECA benefits would be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a lumbar strain and displacement of lumbar
intervertebral disc without myelopathy and authorized a lumbar fusion. He stopped work on
January 2, 1997 and thereafter retired. Appellant was placed on the periodic compensation rolls
and he was paid compensation benefits under FECA. The record establishes that starting on
June 1, 2012 appellant began receiving SSA benefits. The record supports that he simultaneously
received SSA and FECA benefits for the period June 1, 2012 to June 27, 2015. In this case,
OWCP properly determined that for the period June 1, 2012 to June 27, 2015, appellant received
an overpayment in the amount of $14,234.11 due to his receipt of dual benefits. Appellant did
not dispute that he received the overpayment in question, nor does he dispute the amount of the
overpayment. FECA explained how the overpayment occurred and provided this to appellant
with the preliminary notice of overpayment. The Board finds that OWCP properly determined
fact and amount of the overpayment that covered the period June 1, 2012 to June 27, 2015.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that “[a]djustment 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 this subchapter or would be
against equity and good conscience.”11 No waiver of an overpayment is possible if the claimant
is at fault in creating the overpayment.12

7

Id.

8

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

9

FECA Bulletin No. 97-9 (issued February 3, 1997).

10

The Board finds that the one cent calculation error is harmless error.

11

5 U.S.C. § 8129(b).

12

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

5

On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; or (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.13
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provides that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.14
ANALYSIS -- ISSUE 2
OWCP applied the second standard of 20 C.F.R. § 10.433(a) in determining that
appellant was at fault in creating the overpayment. In order for OWCP to establish that he was at
fault in creating the overpayment of compensation, it must establish that appellant failed to
furnish information which the individual knew or should have known to be material.
Appellant began to receive SSA benefits on June 1, 2012 and continued to receive them
until June 27, 2015. From April 5, 2002 to April 14, 2015 appellant had regularly completed the
Form EN1032 which specifically stated that he must immediately report “any monies or income
or change in monies or income from federally assisted disability or benefit programs,” and any
retirement benefits or SSA benefits under FERS. As noted above, the evidence establishes for
the EN1032 forms covering the period June 1, 2012 to June 27, 2015, appellant failed to report
his receipt of SSA benefits. These EN1032 forms provided information to appellant regarding
reporting income or monies from federally-assisted programs such as SSA.
The record reflects that on EN1032 forms dated April 15, 2013, April 23, 2014 and
April 14, 2015, which cover the previous 15 months, appellant signed and acknowledged: “I
understand that I must immediately report to OWCP any employment or employment activity,
any change in the status of claimed dependents, any third-party settlement, and any monies or
income or change in monies or income from federally-assisted disability or benefit programs.”
In these forms he reported receiving no retirement benefits, no SSA benefits and no other federal
benefits.
Each of these forms advised appellant of the need to update information or change in
monies or income from April 5, 2002 to April 14, 2015, and is evidence supporting that appellant
was not forthcoming with providing information that was material. Consequently, the evidence
establishes that appellant failed to furnish information which he knew or should have known to
be material. The Board therefore finds that OWCP met its burden of proof to establish that
appellant was with fault in creating the overpayment, thereby precluding waiver of recovery.
13

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116 (1999).

14

Id. at § 10.433(b).

6

Appellant noted that his wife died, he had notified SSA of her death, and he was
informed that he could collect SSA benefits. He indicated that he was informed that there would
be no conflict in receiving OWCP benefits and SSA benefits concurrently. Appellant further
noted that he was told that he could receive his wife’s social security benefits. However, as
previously set forth, the EN1032 forms sent to him clearly advised appellant of the
circumstances in which he had to report any monies or income or change in monies or income
from federally-assisted disability or benefit programs.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441(a) of Title 20 of the Code of Federal Regulations provides in pertinent
part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to
minimize any hardship.”15
ANALYSIS -- ISSUE 3
With respect to the $200.00 withheld from appellant’s continuing compensation
payments to recoup the amount of the outstanding overpayment, OWCP’s regulations note the
factors to be considered in determining repayment from continuing compensation.16 As noted
above OWCP must take into account the probable extent of future payments, the rate of
compensation, the financial circumstances of the individual and any other relevant factors, so as
to minimize any hardship.17
Prior to OWCP’s September 25, 2015 decision, appellant submitted an overpayment
recovery questionnaire dated July 14, 2015 in which he indicated that his monthly income was
$2,384.00 and that his monthly expenses totaled $3,652.00. Although there was no proof
submitted by appellant to verify the specific income and expenses claimed, the record indicates
that appellant’s monthly expenses exceed his monthly income by approximately $1,268.00.
There is no indication in OWCP’s September 25, 2015 decision or elsewhere in the record that
OWCP evaluated appellant’s financial situation in setting the rate of adjustment at $200.00 from
each continuing compensation payment. Therefore, the Board finds that OWCP abused its
discretion in determining the rate of adjustment in this case and must redetermine the rate of

15

Id. at § 10.441(a). See Fred A. Cooper, Jr., 44 ECAB 498 (1993); Roger Seay, 39 ECAB 441 (1988).

16

Id.

17

Id.

7

adjustment after considering the evidence of record concerning appellant’s financial
circumstances.18
CONCLUSION
The Board finds that appellant received an overpayment of compensation from June 1,
2012 to June 27, 2015 in the amount of $14,234.11. The Board finds that he was not “without
fault” in the creation of the overpayment. The Board further finds that the case is set aside with
respect to the rate of recovery from continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the September 25, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed as to the issues of fact and amount of
overpayment and waiver of recovery but is remanded on the issue of recovery.
Issued: March 8, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

See Stephen A. Hund, 47 ECAB 432 (1996) (where the Board found that OWCP abused its discretion in
determining the rate of adjustment without considering the evidence of record including an overpayment
questionnaire).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-309
Issued: June 18, 2010

Case Submitted on the Record

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

JURISDICTION
On November 13, 2008 appellant, through his attorney, filed a timely appeal from April 2
and October 27, 2008 merit decisions of the Office of Workers’ Compensation Programs
denying his traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained an injury on May 14, 2004 in
the performance of duty.
FACTUAL HISTORY
This case was previously before the Board. By decision dated November 27, 2006, the
Board set aside a May 2, 2006 nonmerit decision denying appellant’s request for a hearing as

untimely under 5 U.S.C. § 8124.1 The Board found that the Office properly determined that he
was not entitled to a hearing as a matter of right but remanded the case for the Office to properly
exercise its discretionary authority. In an order dated March 20, 2008, the Board set aside a
September 11, 2007 Office merit decision denying appellant’s traumatic injury claim.2 The
Board found that the hearing representative considered medical evidence associated with a prior
claim that was not included as part of the record on appeal. The Board determined that it was
unable to make an informed adjudication of the case and remanded the case to the Office for
proper assemblage. The findings of fact and conclusions of law from the prior decision and
order are hereby incorporated by reference. The relevant facts of record are set forth.
On December 30, 2004 appellant, then a 50-year-old letter box mechanic, filed a claim
alleging that on May 14, 2004 he twisted his back and legs rupturing three discs and tearing
cartilage in his left knee when he slipped while pulling down an overhead door on the back of his
truck. He stopped work on May 17, 2004.
In a report dated July 11, 2004, Dr. John C. Kohl, a chiropractor, indicated that he was
treating appellant for muscle spasm in his spine and legs. He noted that appellant had missed
work beginning May 14, 2004.
In a report dated August 2, 2004, Dr. Robert A. Dixon, an osteopath, who is Boardcertified in neurosurgery by the American Osteopathic Association, discussed appellant’s
complaints of “recurrent right leg pain causing him to slip and fall and actually injuring his left
knee.” He stated, “[appellant] has been unable to return to work since May 17[, 2004].
Dr. Dixon describes right-sided hip pain, radiation into his thigh and lateral calf on the right side
in approximately an L5 distribution.” He referred appellant for a magnetic resonance imaging
(MRI) scan study.
On September 29, 2004 Dr. Dixon stated:
“I reevaluated [appellant] who I previously operated [on] in December of 2003.
[Appellant] returned to work, had some discomfort, but was completely off of
medication and was not requiring ongoing treatment. He had abrupt worsening of
his symptoms on May 17, 2004. [Appellant] describes pulling down on his mail
truck door when he had a pop in his back, and developed acute back pain with
radiation down both legs. His symptoms are now primarily right-sided although
he is beginning to develop left leg pain. [Appellant] actually states that he twisted
his left knee due to his abnormal gait attributable to his sciatica in his right leg.
The left knee pain he has been told is the result of a meniscus tear.”

1

Docket No. 06-1452 (issued November 27, 2006). By decision dated March 22, 2005, the Office denied
appellant’s claim for an injury on May 14, 2004 as alleged. On March 24, 2006 appellant’s attorney requested an
oral hearing. In a decision dated May 2, 2006, the Office denied appellant’s request for a hearing as untimely.
2

Order Remanding Case, Docket No. 08-81 (issued March 20, 2008). In a decision dated January 4, 2007, the
Office found that appellant failed to establish an injury on May 14, 2004 in the performance of duty. By decision
dated September 11, 2007, a hearing representative affirmed the January 4, 2007 decision.

2

Dr. Dixon noted that a September 21, 2004 MRI scan study showed recurrent disc
herniations at L3-4, L4-5 and L5-S1. He stated, “Since clinically [appellant’s] symptoms
resolved and he returned to full, gainful employment with abrupt worsening on May 17, 2004
while doing his usual duties, clearly the findings on his MRI scan study are of recurrent disc
herniation.” Dr. Dixon recommended possible further surgery and a change in vocation to avoid
heavy or repetitive lifting.
On October 13, 2004 Dr. Kohl advised that he was treating appellant for left knee and
lumbar spine complaints. He related that an MRI scan study of the left knee revealed a cartilage
tear and an MRI scan study of the lumbar spine showed that the discs repaired on
December 2003 had reherniated. Dr. Kohl stated, “I am treating his subluxated vertebrae in his
low back with flexion distraction manipulation.”
By decision dated April 2, 2008, the Office denied appellant’s traumatic injury claim on
the grounds that the medical evidence was insufficient to establish that he sustained an injury
causally related to the May 14, 2004 work incident. It noted that he initially filed his claim for a
traumatic injury on May 14, 2004 as a notice of recurrence of disability under file number
xxxxxx190.
On April 7, 2008 appellant, through his attorney, requested a telephone hearing that was
held on August 12, 2008. Appellant related that he injured himself shutting the back door of his
truck on May 14, 2004. He initially sought medical treatment from his chiropractor. The
hearing representative requested that appellant submit additional documentation showing that he
sought medical treatment soon after the May 14, 2004 work incident. Appellant related that he
had back surgery due to a work injury in 2003. He was back at work for a month and a half
before the May 14, 2004 incident.
By decision dated October 27, 2008, the hearing representative affirmed the April 2, 2008
decision. He found that there was no medical evidence prior to Dr. Dixon’s September 29, 2004
report containing a history of the May 14, 2004 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 (the
Act) has the burden of establishing the essential elements of his or her claim, including the fact
that the individual is an “employee of the United States” within the meaning of the Act; that the
claim was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.5
3

5 U.S.C. §§ 8101-8193.

4

Paul Foster, 56 ECAB 208 (2004); Anthony P. Silva, 55 ECAB 179 (2003).

5

See Ellen L. Noble, 55 ECAB 530 (2004).

3

To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether “fact of injury” is established. First, an employee has
the burden of demonstrating the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.7 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.8
ANALYSIS
Appellant filed a traumatic injury claim alleging that on May 14, 2004 he sustained
ruptured discs in his back and a torn cartilage in his left knee when he slipped while closing an
overhead door on the back of his truck. The Office accepted the occurrence of the May 14, 2004
employment incident and there are no inconsistencies in the evidence sufficient to cast doubt that
it occurred at the time, place and in the manner alleged.9 The issue is whether the medical
evidence establishes that he sustained an injury as a result of the May 14, 2004 employment
incident.
The Board finds that appellant has not established that the May 14, 2004 employment
incident resulted in an injury. The determination of whether a work incident caused an injury is
generally established through probative medical evidence.10
In a report dated July 11, 2004, Dr. Kohl described his treatment of appellant for a
muscle spasm in his spine and legs and indicated that he was off work commencing
May 14, 2004. On October 13, 2004 he related that diagnostic studies showed a cartilage tear of
the left knee and a reherniation of lumbar discs. Dr. Kohl asserted that he was treating
appellant’s “subluxated vertebrae in his low back with flexion distraction manipulation.”
Section 8101(2) of the Act provides that the “term ‘physician’ includes chiropractors only to the
extent that their reimbursable services are limited “to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist….”11 A
chiropractor is not considered a physician under the Act unless it is established that there is a

6

Deborah S. Stein, 56 ECAB 494 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Id.

9

See Betty J. Smith, 54 ECAB 174 (2002) (an employee has not met his or her burden of proof to establish the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim).
10

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

11

5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).

4

subluxation as demonstrated by x-ray evidence.12 Dr. Kohl did not establish that he obtained an
x-ray in diagnosing a subluxation. He is not considered a “physician” under the Act and his
reports are of no probative medical value.13
On August 2, 2004 Dr. Dixon evaluated appellant for complaints of right leg pain that
resulted in a slip and fall and left knee injury. He noted that appellant had been unable to work
since May 17, 2004 and currently complained of right hip pain radiating into the thigh and calf.
Dr. Dixon did not address the cause of appellant’s right leg pain or provide a history of the
May 14, 2004 employment incident. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of diminished probative
value on the issue of causal relationship.14
On September 29, 2004 Dr. Dixon indicated that he had operated on appellant in
December 2003 and that he had subsequently returned to work with some continued symptoms
but no need of further medical treatment. On May 17, 2004 appellant’s back symptoms
worsened after he pulled the door of his truck. He experienced radiating back pain into his right
leg and injured his left knee due to his abnormal gait. Dr. Dixon diagnosed recurrent disc
herniations at L3-4, L4-5 and L5-S1. He related that, as appellant’s symptoms had resolved and
he had resumed work prior to May 17, 2004, the sudden worsening performing his job duties was
due to the recurrent disc herniations. Dr. Dixon did not, however, provide sufficient rationale for
his opinion that the recurrent disc herniations resulted from the May 2004 work incident.15 A
physician must provide a narrative description of the identified employment incident and a
reasoned opinion on whether the employment incident described caused or contributed to
appellant’s diagnosed medical condition.16 A mere conclusion without the necessary rationale
explaining how and why the physician believes that a claimant’s accepted exposure could result
in a diagnosed condition is not sufficient to meet a claimant’s burden of proof.17 Dr. Dixon’s
only reason for supporting causal relationship was that appellant’s symptoms substantially
increased after the incident. The Board has held, however, that the mere fact that a disease or
condition manifests itself during a period of employment does not raise an inference of causal
relationship between the condition and the employment.18
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
12

The Office’s regulations, at 20 C.F.R. § 10.5(bb), defines subluxation to mean an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See
Mary A. Ceglia, 55 ECAB 626 (2004).
13

Isabelle Mitchell, 55 ECAB 623 (2004).

14

A.D., 58 ECAB 149 (2006); Conrad Hightower, 54 ECAB 796 (2003).

15

Dr. Dixon further indicated that the incident occurred on May 17, 2004 rather than May 14, 2004.

16

John W. Montoya, 54 ECAB 306 (2003).

17

See Beverly A. Spencer, 55 ECAB 501 (2004).

18

D.E., 58 ECAB 448 (2007); Roy L. Humphrey, 57 ECAB 238 (2005).

5

employment.19 Appellant must submit a physician’s report in which the physician reviews those
factors of employment identified by him as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his opinion.20 He failed to submit such evidence. Appellant further did not provide
any medical evidence contemporaneous with the May 14, 2004 work incident providing an
accurate history of injury or a reasoned opinion explaining the lack of such evidence.
Consequently, he failed to discharge his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on May 14,
2004 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 27 and April 2, 2008 are affirmed.
Issued: June 18, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

19

D.E., supra note 18; Patricia J. Glenn, 53 ECAB 159 (2001).

20

Robert Broome, 55 ECAB 339 (2004).

6