United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Traverse City, MI, Employer
__________________________________________

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

Docket No. 07-2294
Issued: March 25, 2008

Case Submitted on the Record

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

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 23, 2007 which denied her recurrence of
disability 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 has established a recurrence of disability commencing
April 6, 2006 causally related to her January 16, 2005 employment injury.
FACTUAL HISTORY
On January 16, 2005 appellant, then a 34-year-old clerk, sustained a lower back condition
while lifting mail in the performance of duty. On May 12, 2005 the Office accepted her claim
for a lumbar strain. Appellant did not stop work.
On April 18, 2006 appellant was admitted to Munson Medical Center for deep venous
thrombosis. She also complained of back pain during this hospitalization. On May 2, 2006

appellant filed multiple CA-7 claims for compensation for the period April 6 to August 4, 2006.
On June 22, 2006 she filed a claim for recurrence of disability alleging that on April 6, 2006 she
sustained disability due to residuals of her January 16, 2005 employment injury.
On June 1, 2006 the Office requested additional information from appellant regarding her
claim. In a June 29, 2006 letter, appellant explained that she worked limited duty from January 6
to April 6, 2006 and modified duty from April 7 to 10, 2006. She stopped work altogether on
April 10, 2006. Appellant stated that she had not returned to work since April 10, 2006 at the
instruction of her doctor.
On July 14, 2006 the Office requested additional factual and medical information from
appellant, including a physician’s opinion as to why she was unable to work as of April 10, 2006.
On July 21, 2006 the Office denied appellant’s claim for compensation for the period
April 6 to 14, 2006. The Office found that the evidence was insufficient to establish that
appellant was disabled as a result of her accepted employment injury.
Duty status reports dated from February 11, 2005 to June 26, 2006 were submitted from
Dr. Raymond Tracey, a family practitioner. On February 1, 2006 Dr. Tracey noted work
restrictions in that appellant could not stand at all, was allowed intermittent walking, eight hours
of sitting and no reaching above the shoulder. On March 1, 2006 he allowed appellant to sit for
eight hours a day, stand for one hour with intermittent walking, with no bending or reaching
above the shoulder. An April 6, 2006 offer of modified assignment listed duties, as tolerated, of
hand stamp for 1 hour, hand sort flats while standing for 30 minutes, and hand sort letters while
standing for 30 minutes.
In an August 1, 2006 report, Dr. Tracey stated that he took appellant off work on
April 11, 2006 because her condition worsened every time she returned to work under light duty.
He noted that appellant was released to be able to stand intermittently for one hour a night
starting on March 1, 2006 but did not do so until March 21, 2006. Dr. Tracey opined that this
increase in activity and in range of motion aggravated her condition. He also opined that
appellant’s current condition was related to her January 16, 2005 injury. Dr. Tracey diagnosed
lumbar strain, disc displacement, lumbago, sciatica and back pain. He stated that if appellant
was not kept off work her condition would continue to be aggravated. The Office also received
patient visit reports dated from May 13, 2005 through September 22, 2006. The April 11, 2006
visit report noted that appellant reported an increase in back pain and an examination evidenced
such an increase. Dr. Tracey noted that her pain might be secondary to an increase in duties at
work.
On August 8, 2006 the Office received reports from Dr. J. Eric Zimmerman, a
neurosurgeon, dated October 17 and November 7, 2005.
Dr. Zimmerman noted that a
February 7, 2005 magnetic resonance imaging (MRI) scan showed an L5-S1 disc extrusion and a
L4-5 disc bulge. He opined that the January incident was the cause of appellant’s current
problem. On November 7, 2005 Dr. Zimmerman noted a slight disc bulge at L4-5 and
recommended physical therapy.

2

On August 21, 2006 the Office denied appellant’s claim finding that the medical evidence
did not support that she was disabled commencing April 15, 2006 as a result of her accepted
employment injury.
On August 23, 2006 appellant appealed the July 21, 2006 decision and requested an oral
hearing. On September 26, 2006 appellant appealed the August 21, 2006 decision and requested
an oral hearing. The hearing was held on March 21, 2007.
By decision dated July 23, 2007, an Office hearing representative affirmed the denial of
appellant’s claim, finding that the evidence was insufficient to establish that she sustained a
recurrence of disability commencing April 6, 2006. The Office hearing representative found that
there was no rationalized medical evidence to establish a worsening of appellant’s accepted
condition, nor any evidence of an inability to perform the modified job offer.
LEGAL PRECEDENT
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 resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.1 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to 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 her established physical limitations.2 Moreover,
when the claimed recurrence of disability follows a return to light-duty work, the employee may
satisfy her burden of proof by showing a change in the nature and extent of the injury-related
condition such that she was no longer able to perform the light-duty assignment.3
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, she has the burden of establishing that the recurrence of disability is causally
related to the original injury.4 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.5 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.6

1

20 C.F.R. § 10.5(x).

2

Id.

3

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

4

20 C.F.R. § 10.104(b); Helen K. Holt, 50 ECAB 279, 382 (1999); Carmen Gould, 50 ECAB 504 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
5

See Helen K. Holt, supra note 4.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

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ANALYSIS
Appellant sustained injury on January 16, 2005 accepted for a lumbar strain. She did not
stop work but continued with modified duty until April 10, 2006. Appellant has not alleged that
her claimed recurrence of disability was the result of a change in the nature and extent of her
light-duty assignment. There is no evidence that the employing establishment withdrew the
light-duty assignment or otherwise altered appellant’s job requirements. Appellant’s restrictions
were altered over time but at the direction of her physician. As of February 1, 2006, Dr. Tracey
instructed that appellant could work limited duty with no standing, no reaching above the head,
intermittent walking and eight hours of sitting. On March 1, 2006 appellant’s restrictions were
amended to allow for one hour of standing. On April 6, 2006 the employing establishment
offered a modified assignment for work between the hours of 21:00 to 5:50 a.m. to complete the
duties of hand stamp/nixies for one hour, hand sorting standing for one-half hour; and hand sort
letters standing for one-half hour. Appellant accepted this position on April 6, 2006. There is no
evidence that the employing establishment withdrew modified work duties which were within
the light-duty restrictions provided by appellant’s physician. If appellant is to prevail on her
recurrence claim, she must establish a change in the nature and extent of her employment-related
condition.7
Appellant has not established a material worsening of her accepted lumbar strain. She
claims she sustained an increase in back pain; however, she has not established how her back
condition on April 6, 2006 was related to her January 16, 2005 injury. The medical evidence
does not demonstrate a change in appellant’s condition related to her accepted injury.
Dr. Zimmerman’s October 17 and November 7, 2005 reports diagnosed a bulging disc at L4-5.
This is not a condition accepted by the Office. Dr. Zimmerman did not explain the cause of this
condition. Moreover, as these reports predate appellant’s claim, they are of limited probative
value as to the cause of her disability commencing April 10, 2006.
The April 18, 2006 medical center report noted appellant’s complaint of back pain but
did not provide any discussion on causal relationship. This record does establish however that
she was hospitalized on April 18, 2006 for deep venous thrombosis, a condition unrelated to
appellant’s accepted back condition.
On August 1, 2006 Dr. Tracey opined that an increase in activity and range of motion
aggravated appellant’s condition. He noted that appellant had not healed completely and her
injury was aggravated by returning to work too soon. However, Dr. Tracey did not provide
adequate medical rationale to explain how appellant’s accepted condition of lumbar strain had
worsened to the point that it caused or contributed to her disability for work as of April 10, 2006.
Dr. Tracey did not explain how the diagnosed conditions of disc displacement, lumbago
and sciatica were related to the January 16, 2005 injury. These conditions were not accepted by
the Office as caused by the January 16, 2005 injury. Dr. Tracey did not explain how a lumbar
strain would cause a disc displacement or contribute to appellant’s disability for work. The
treatment records merely noted findings on examination of appellant without providing any
7

Theresa L. Andrews, supra note 3.

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opinion as to how his current low back complaints were related to her January 16, 2005 injury.
Dr. Tracey did not explain how residuals of her lumbar strain precluded her from performing her
light-duty assignment.
The medical evidence does not demonstrate a change in the nature and extent of
appellant’s injury-related condition such that she was no longer able to perform her light-duty
assignment beginning April 6, 2007. The Office, therefore, properly denied her recurrence
claim.
CONCLUSION
Appellant has not established that she sustained a recurrence of disability on April 6,
2006, causally related to her January 16, 2005 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 25, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DALLAS VA MEDICAL CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 21-0492
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On February 12, 2021 appellant filed a timely appeal from a January 4, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $74,899.31, compromised to $48,961.60, for
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 4, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

which he was without fault, because he concurrently received FECA wage-loss compensation and
Social Security Administration (SSA) age-related retirement benefits for the period June 1, 2006
through July 18, 2020, without an appropriate offset; (2) whether OWCP properly denied waiver
of recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $475.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On December 13, 2005 appellant, then a 63-year-old program support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 30, 2005 he injured his lower back
when lifting boxes while in the performance of duty. He stopped work on December 1, 2005 and
returned to work on December 12, 2005. OWCP accepted the claim for lumbar sprain/strain,
lumbosacral spondylosis without myelopathy, and degeneration of lumbosacral intervertebral disc.
A February 5, 2006 notification of personnel action (PS Form 50) noted appellant’s retirement
plan as “K” Federal Employees Retirement System (FERS) and Federal Insurance Contributions
Act (FICA). OWCP paid him wage-loss compensation on its supplemental rolls from February 5,
2006 through August 30, 2008 and on its periodic compensation rolls as of August 31, 2008.
On November 7, 2019 OWCP forwarded a FERS/SSA benefits calculation worksheet to
the SSA to obtain information necessary for a determination of whether an offset of compensation
benefits was required.
On November 21, 2019 OWCP received from SSA a November 13, 2019 FERS/SSA dual
benefits calculation form, which indicated that appellant had been in receipt of SSA age-related
retirement benefits since June 2006. The form showed appellant’s SSA benefit rates with and
without a FERS offset as follows: beginning June 2006, the SSA rate with FERS was $1,166.00
and without FERS was $788.60; beginning December 2006, the SSA rate with FERS was
$1,205.00 and without FERS was $814.60; beginning December 2007, the SSA rate with FERS
was $1,232.00 and without FERS was $833.20; beginning December 2008, December 2009, and
December 2010, the SSA rate with FERS was $1,304.00 and without FERS was $881.60;
beginning December 2011, the SSA rate with FERS was $1,351.00 and without FERS was
$913.20; beginning December 2012, the SSA rate with FERS was $1,373.00 and without FERS
was $928.70; beginning December 2013, the SSA rate with FERS was $1,394.00 and without
FERS was $942.60; beginning December 2014 and December 2015, the SSA rate with FERS was
$1,418.00 and without FERS was $958.60; beginning December 2016, the SSA rate with FERS
was $1,422.00 and without FERS was $961.50; beginning December 2017, the SSA rate with
FERS was $1,450.00 and without FERS was $980.70; and beginning December 2018, the SSA
with FERS was $1,491.00 and without FERS was $1,008.10.
On December 19, 2019 OWCP again forwarded a FERS/SSA benefits calculation
worksheet to SSA. On January 17, 2020 it received from SSA a January 10, 2020 FERS/SSA dual
benefits calculation form, which indicated that, beginning December 2019, appellant’s SSA rate
with FERS was $1,515.20 and without FERS was $1,024.20.
OWCP completed a FERS offset calculation worksheet on July 29, 2020. It calculated the
overpayment amount by determining the daily FERS offset amount and multiplying th at amount

2

by the number of days in each period June 1, 2006 through July 18, 2020, resulting in a total
overpayment of $74,899.31. The form indicated that: from June 1 through November 30, 2006,
appellant received an overpayment in the amount of $2,276.84; from December 1, 2006 through
November 30, 2007, appellant received an overpayment in the amount of $4,697.67; from
December 1, 2007 through November 30, 2008, appellant received an overpayment in the amount
of $4,807.07; from December 1, 2008 through November 30, 2011, appellant received an
overpayment in the amount of $15,248.18; from December 1, 2011 through November 30, 2012,
appellant received an overpayment in the amount of $5,282.47; from December 1, 2012 through
November 30, 2013, appellant received an overpayment in the amount of $5,346.25; from
December 1, 2013 through November 30, 2014, appellant received an overpayment in the amount
of $5,431.68; from December 1, 2014 through November 30, 2016, appellant received an
overpayment in the amount of $11,071.04; from December 1, 2016 through November 30, 2017,
appellant received an overpayment in the amount of $5,541.18; from December 1, 2017 through
November 30, 2018, appellant received an overpayment in the amount of $5,647.07; from
December 1, 2018 through November 30, 2019, appellant received an overpayment in the amount
of $5,810.72; and from December 1, 2019 through July 18, 2020, appellant received an
overpayment in the amount of $3,739.15.
On August 20, 2020 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $74,899.31 had been created because it had
failed to reduce appellant’s wage-loss compensation payments for the period June 1, 2006 through
July 18, 2020 to offset his SSA age-related retirement benefits that were attributable to federal
service. It also determined that he was without fault in the creation of the overpayment. OWCP
requested that appellant submit a completed overpayment recovery q uestionnaire (Form OWCP20) to determine a reasonable repayment method and advised him that he could request a waiver
of the overpayment. It further requested that he provide supporting financial documentation,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. Additionally, OWCP further provided an overpayment
action request form and notified appellant that, within 30 days of the date of the letter, he could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing. Appellant did not respond.
By decision dated January 4, 2021, OWCP finalized the August 20, 2020 preliminary
overpayment determination for the period June 1, 2006 through July 18, 2020.3 It found that
appellant had received an overpayment of compensation in the amount of $74,899.31, which was
reduced to $48,961.60 by compromise. OWCP further found that he was not at fault in the creation
of the overpayment, but denied waiver of recovery of the overpayment as he had not submitted
evidence to substantiate that adjustment or recovery of the overpayment would defeat the purpose
of FECA or be against equity and good conscience. It required recovery by deducting $475.00
every 28 days from appellant’s continuing compensation payments.

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OWCP erroneously noted the overpayment period as June 1, 2006 through July 19, 2020. The overpayment was
calculated through July 18, 2020, as noted in the preliminary overpayment determination.

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LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 4 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.5 When an overpayment of compensation has
been made to an individual because of an error of fact or law, adjustment shall be made under
regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled.6
Section 10.421(d) of FECA implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-based benefits that are attributable to federal
service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to 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. 8
The determination that the debt has been compromised does not carry the right to a hearing
or to review by the Board. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $74,899.31, compromised to $48,961.60, for which he was
without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period June 1, 2006 through July 18, 2020, without an
appropriate offset.
The evidence of record indicates that, while appellant was receiving wage -loss
compensation benefits under FECA, he also was receiving SSA age-related retirement benefits
based upon his federal service. A claimant cannot receive both compensation for wage-loss
compensation benefits under FECA and SSA age-related retirement benefits attributable to federal
service for the same period. 10 The information provided by SSA established that appellant
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (issued February 3, 1997); see M.S., Docket No. 20-0068 (issued May 14, 2021).

9

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.6
(September 2020).
10

Id.

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received SSA age-related retirement benefits that were attributable to federal service during the
period June 1, 2006 through July 18, 2020. Consequently, the fact of overpayment has been
established. 11
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amounts of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its benefit rates with FERS and without FERS for specific periods
June 2006 through December 2019. OWCP provided its calculations for each relevant period
based on the SSA worksheet and properly determined that appellant received an overpayment of
compensation in the amount of $74,899.31, compromised to $48,961.60.
The Board, thus, finds that appellant received an overpayment of compensation in the
amount of $74,899.31, compromised to $48,961.60, for the period Ju ne 1, 2006 through
July 18, 2020.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 12
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines. 13
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 14 Additionally, recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 15

11

P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020);
A.F., Docket No. 19-0054 (issued June 12, 2019).
12

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see M.C., Docket No. 19-0699 (issued
February 12, 2020).
13

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

14

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Supra note 9 at Chapter 6.400.4a(2) (September 2020).
15

Id. at § 10.437(a)(b).

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OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 16 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and n o further request
for waiver shall be considered until the requested information is furnished. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 18
In its preliminary overpayment determination dated August 20, 2020, OWCP explained the
importance of providing the completed overpayment questionnaire and supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income, expenses, and assets. Appellant, however, did not
respond and failed to provide any financial information. As he did not submit the information
required under section 10.438 of OWCP’s regulations, which was necessary to determine his
eligibility for waiver, OWCP properly denied waiver of recovery of the overpayment. 19 Appellant
did not establish that adjustment or recovery of the overpayment would defeat the purpose of
FECA or be against equity and good conscience20 Therefore, the Board finds that OWCP properly
denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 21

16

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

17

Id. at § 10.438(b).

18

Id. § 10.436.

19

Supra note 9 M.S.; D.C., Docket No. 19-0118 (issued January 15, 2020); see S.B., Docket No. 16-1795 (issued
March 2, 2017).
20

Id.

21

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

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Section 10.441(a) of OWCP s regulations 22 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.”23
Under OWCP’s procedures, the compromise of all or part of the overpayment and any
charges may be made depending upon the individual claimant’s financial circumstances in order
to set a repayment schedule. Such a determination is made at the time the repayment schedule is
established. 24 Compromise is a matter which rests in the discretion of OWCP and is not subject
to review by the Board. 25
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$475.00 every 28 days from appellant’s continuing compensation payments.
OWCP gave due regard to the financial information submitted, as well as the f actors set
forth in 20 C.F.R. § 10.441, including the compromised overpayment amount, and found that this
method of recovery would minimize resulting hardship. 26 When, as in this case, no response is
received to the preliminary overpayment determination, OWCP should set the rate of repayment
at 25 percent of the 28 days net compensation amount. 27 The record reflects that appellant was
earning $1,902.77 for 28 days of net compensation benefits. OWCP calculated that 25 percent of
the 28-day net compensation amount equates to $475.69. The Board finds that OWCP properly
required recovery of the overpayment by deducting $475.00 every 28 days from appellant’s
continuing compensation benefits.
On appeal appellant requests debt forgiveness be considered. As he did not provide a
completed Form OWCP-20 overpayment recovery questionnaire and supporting financial

22

Id. at § 10.441(a).

23

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

24

Supra note 9 at Chapter 6.500.6 (September 2020).

25

Id.; see supra note 9; M.S., Docket No. 20-0068 (issued May 14, 2021).

26

M.S., id.; M.B., Docket No. 20-1578 (issued March 25, 2021).

27

Supra note 9 at Chapter 6.500.8(c)(1) (September 2018); see D.C., Docket No. 19-0118 (issued
January 15, 2020).

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documentation as requested in OWCP’s August 20, 2020 letter, OWCP properly denied waiver of
recovery of the overpayment. 28
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $74,899.31, compromised to $48,961.60, for which he was
without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period June 1, 2006 through July 18, 2020, without an
appropriate offset, and that OWCP properly denied waiver of recovery of the overpayment. The
Board further finds that OWCP properly required recovery of the ov erpayment by deducting
$475.00 from his continuing compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

28

See 20 C.F.R. § 10.438 (in requesting waiver, the overpaid individual has the responsibility for providing
financial information); see also L.K., Docket No. 17-1393 (issued March 20, 2018).

8


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

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

Docket No. 11-737
Issued: November 17, 2011

Case Submitted on the Record

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

JURISDICTION
On January 31, 2011 appellant, through his representative, filed a timely appeal from the
Office of Workers’ Compensation Programs’ (OWCP) December 27, 2010 merit decision
denying his claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty.
FACTUAL HISTORY
On April 12, 2010 appellant, then a 38-year-old regular rural letter carrier, filed an
occupational disease claim alleging that he sustained nerve damage in both hands as a result of
his employment. He indicated that he was first aware of his condition on April 9, 2010.
1

5 U.S.C. § 8101 et seq.

Appellant initially thought the problem was a continuation of the symptoms from his two
bilateral carpal tunnel surgeries, which OWCP accepted under claim number xxxxxx378, but
then he realized that he sustained a new injury.2 He returned to work for a few days in a limitedduty position as a lobby director in February 2010 and then stopped work entirely.
In support of his claim, appellant submitted a February 24, 21010 nerve conduction study
and an April 13, 2010 report from Dr. Martin H. Rubin, a Board-certified internist, who indicated
that appellant had intractable pain in both hands and fingers and was unable to work in any
capacity.
In an April 27, 2010 letter, OWCP requested that appellant submit additional factual
evidence describing the work duties he believed were responsible for his condition along with
medical evidence from his physician which explained how the diagnosed condition was related
to his employment. It noted that if his current symptoms and disability were related to the
accepted conditions under claim number xxxxx378, then he should pursue the medical issues
under that claim. OWCP also advised appellant of the type of medical evidence needed to
establish his claim.
In a May 2, 2010 report, Dr. Rubin took appellant off work pending his visit with
Dr. Azmi Nasser, a Board-certified physiatrist.
By decision dated June 1, 2010, OWCP denied appellant’s claim. It found that he did not
identify any work factors he believed responsible for his condition and the medical evidence
submitted did not support a causal relationship between the work injury and event.
On June 7, 2010 appellant, through his attorney, requested a telephonic hearing, which
was held October 14, 2010. He testified that, following his bilateral carpal tunnel surgeries, he
returned to work in February 2010 and worked one to two weeks checking locks on vehicles and
sporadically working as a lobby director stocking shelves. Appellant indicated that the testing he
underwent in February 2010 showed nerve damage to his hands. He submitted copies of
diagnostic testing along with medical evidence.
In a September 21, 2009 report, Dr. Marcia Mastrin, a general practitioner, noted that
appellant’s hand pain began January 29, 2008 as a gradual onset due to his occupation and that
he was status post bilateral carpal tunnel surgery from March and April 2009. She further noted
that he has been off work for several months and the pain was worse with standing, lifting, work,
activity with hands and rising from sitting position. Dr. Mastrin diagnosed carpal tunnel
syndrome, paresthesia and medial epicondylitis.
In a March 23, 2010 report, Dr. Nasser noted that appellant was not working and the
medications appeared to provide some relief. An assessment of carpel tunnel syndrome,
paresthesia, medial epicondylitis and diabetic neuropathy was provided. In a May 17, 2010
report, Dr. Nasser diagnosed bilateral carpal tunnel syndrome, medial epicondylitis and diabetic
neuropathy. He opined that “repetitive use may have aggravated nerve compression and
2

Claim number xxxxxx378 is not before the Board in the present appeal. Under claim number xxxxxx378,
appellant underwent multiple bilateral carpal tunnel surgeries, which OWCP authorized.

2

neuropathy.” In an April 6, 2010 report, Dr. Nasser reported appellant’s complaints of pain and
that his activity had increased since last visit. An assessment of carpal tunnel syndrome,
paresthesia, medial epicondylitis and diabetic neuropathy was provided. In a May 4, 2010
report, Dr. Nasser indicated that appellant’s pain was made worse by lifting, work, activity,
rising from a seated position, driving, everything. He continued to diagnose carpal tunnel
syndrome, paresthesia, medial epicondylitis and diabetic neuropathy.
Several reports from Dr. Rubin in July 2010 diagnosed diabetes, carpal tunnel syndrome
and peripheral neuropathy.
In a November 15, 2010 letter, the employing establishment indicated that appellant
worked modified duty since the acceptance of his prior claim with intermittent periods of
disability and that he had been off work since August 3, 2009. Appellant was released to return
to duty following his carpal tunnel surgeries on February 22, 2010.
The employing
establishment stated that he returned to work for one full day on February 23, 2010 in a very
light minimally physical-duty assignment working as a lobby greeter, greeting customers and
providing verbal guidance on mailing procedures. Appellant also stocked shelves on his own
accord with the supplies that weighed no more than several pounds. The supplies consisted of
rolls of tape, empty boxes and envelopes. The employing establishment denied that appellant
performed vehicle checks, indicating that it was against his restrictions.
By decision dated December 27, 2010, an OWCP hearing representative affirmed the
denial of appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability 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
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing the
3

5 U.S.C. § 8101 et seq.

4

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

Michael R. Shaffer, 55 ECAB 386 (2004).

7

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

3

employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.9 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,10 must be one of reasonable medical certainty11 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.12
ANALYSIS
Appellant attributed the worsening of his bilateral carpal tunnel condition to the duties he
performed after his release to work following his bilateral carpal tunnel surgeries. Although he
stated that he worked for a few days, the evidence from the employing establishment reflects that
he returned to work for one full day on February 23, 2010 in a very light minimally physicalduty assignment working as a lobby greeter and stocking supplies of light weight rolls of tape,
empty boxes and envelopes. There is no indication that appellant performed vehicle checks or
that he worked for more than one day. Thus, it is accepted that on February 23, 2010 appellant
worked in a very light minimally physical-duty assignment as a lobby greeter and that he had
stocked some light weight supplies. The issue, therefore, is whether the medical evidence
establishes a causal relationship between the claimed conditions and the identified employment
factors.
In the May 17, 2010 report, Dr. Nasser diagnosed bilateral carpal tunnel syndrome,
medial epicondylitis and diabetic neuropathy. He opined that repetitive use may have aggravated
median nerve compression and neuropathy. However, the full history of the claimed injury,
including appellant’s return to work in February 2010, was not addressed. The statement
regarding causation is equivocal in nature and merely asserts that repetitive use may have
aggravated his median nerve compression and neuropathy but does not specifically attribute his
aggravation to specific work factors. The Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative
value.13 Dr. Nasser did not provide medical rationale explaining why appellant’s duties of
greeting and stocking light weight supplies for about one day would cause or aggravate the
8

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

9

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

10

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

11

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

12

Judy C. Rogers, 54 ECAB 693 (2003).

13

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).

4

diagnosed condition. Dr. Nasser’s other reports provide no opinion on the cause of appellant’s
conditions. 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
Thus, Dr. Nasser’s reports are insufficient to establish appellant’s claim.
While Dr. Rubin notes the worsening of appellant’s hand symptoms, he does not offer an
opinion on the cause or aggravation of appellant’s bilateral carpal tunnel syndrome condition.
Thus, his reports are of diminished probative value.15 Appellant also submitted several
diagnostic reports. However, such studies do not address causation and thus are of limited
probative value. Dr. Mastrin’s September 21, 2009 report predates the time appellant returned to
work and thus does not address how his duties in February 2010 caused or aggravated a
diagnosed medical condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.16 Causal relationship must be established by
rationalized medical opinion evidence. OWCP advised appellant of the type of evidence
required to establish his claim; however, he failed to submit such evidence establishing that the
February 23, 2010 employment incident caused or aggravated the bilateral carpal tunnel
conditions. Therefore, it properly denied his claim for compensation.
Appellant may submit new evidence or argument with a written request 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 failed to establish that he sustained nerve damage to both
hands in the performance of duty.

14

S.E., Docket No. 08-2214 (issued May 6, 2009); see Conard Hightower, supra note 9.

15

Id.

16

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

5

ORDER
IT IS HEREBY ORDERED THAT the December 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 17, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
U.S. MARSHALS SERVICE, Concord, NH,
Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1688
Issued: June 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 15, 2011 appellant, through his attorney, filed a timely appeal from the May 9,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed
a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
an eight percent permanent impairment of his left leg for which he received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 17, 2001 appellant, then a 44-year-old Chief Deputy U.S. Marshal, was
injured while moving a file cabinet. OWCP accepted his claim for aggravation of arthritis of the
spine. Appellant received wage-loss compensation benefits.2
In a February 21, 2001 report, Dr. William J. Bruton, a Board-certified orthopedic
surgeon, noted that appellant was seen for back pain. Lumbar spine x-rays showed significant
narrowing at L5-S1 and diagnosed degenerative disc disease. A February 26, 2001 magnetic
resonance imaging (MRI) scan of the lumbar spine read by Dr. Gerard V. Smith, a Boardcertified diagnostic radiologist, revealed moderate degenerative disc disease, facet arthritis at L45 without spinal foraminal stenosis, central disc herniation at L5-S1 with extensive degenerative
disc disease, mild-to-moderate facet arthritis and reactive narrow changes in the adjacent
vertebral bodies.
In an April 10, 2002 report, Dr. William C. Meade, a Board-certified orthopedic surgeon
and an OWCP referral physician, noted appellant’s history and examined appellant. Reflexes in
the lower extremities were equal and no clonus. Sensation in the left L5 distribution was
decreased and it was possible his extensor hallucis longus on the left side was weak. Dr. Meade
noted that the straight leg test was positive at 80 degrees causing left buttocks pain. He noted
that appellant was able to touch his toes, with his knees bent to six inches off the floor.
Dr. Meade also found that appellant had 10 degrees of extension and a lateral bend of 15 degrees
both ways.
On April 1, 2010 appellant filed a claim for a schedule award. He submitted a
January 18, 2010 report from Dr. David Weiss, an osteopath,3 who described the history of
injury and examined appellant. Using the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (6th ed. 2009) (hereinafter, A.M.A., Guides), he rated 36
percent impairment to the left leg. Appellant complained of daily and constant low back pain
and stiffness. He had radicular pain into the bilateral lower extremities, left greater than right,
with numbness and tingling into the left lower extremity and foot. Appellant had difficulty with
household chores and caring for his children but did not have any difficulty with his self-care.
He could sit and stand comfortably for five minutes but had difficulty when walking more than
20 minutes and sleeping. Appellant also had difficulty with climbing stairs, going from a seated
to a standing position, repetitive bending and twisting and lifting more than 50 pounds. This
resulted in him no longer being able to engage in basketball, golf, working out at the gym or
prolonged driving. Dr. Weiss explained that appellant had a pain level from 2 to 8 out of 10
involving the lumbar spine as objectified by using the visual analogue scale. The Pain Disability
Questionnaire (PDQ) revealed a raw score of 71, which was equivalent to a moderate pain
disability. Appellant ambulated with a slapping gait with the left leg consistent with early drop
foot pathology. The lumbar spine had muscle spasm and tenderness over the posterior midline
and posterior superior iliac spine had tenderness bilaterally. There was also tenderness at the
2

Appellant has a prior claim No.xxxxxx112 for a low back injury on March 1, 1991.
conservatively with physical therapy.
3

Dr. Weiss also provided findings for the right lower extremity.

2

He was treated

L4-5 and L5-S1 facet joints. Appellant had found forward lumbar flexion of 50 degrees,
backward extension of 15 degrees and left lateral flexion of 10 degrees. All ranges of motion
had pain at the extremes. The sitting root sign was positive on the left at 35 degrees producing
radicular pain down the left leg. Straight leg raising was positive on the left at 75 degrees
producing radicular pain down the left leg. The extensor hallucis longus was graded at 4/5 motor
strength on the left. Manual muscle strength testing of the legs revealed the hip flexors were
graded at 3/5 on the left while the gastrocnemius was graded at 4/5 on the left. SemmesWeinstein monofilament testing revealed a diminished sensibility at 4.31 milligrams over the S1
dermatome on the left. Dr. Weiss diagnosed chronic post-traumatic lumbosacral strain and
sprain, herniated nucleus pulposus L5-Sl, right lumbar radiculopathy, post-traumatic lumbar
facet joint syndrome superimposed upon preexisting age-related facet joint arthropathy and left
foot drop. He noted appellant’s symptoms, including radicular pain into both legs, greater on the
left and numbness and tingling into the left leg to the foot.
Dr. Weiss attributed appellant’s findings to his accepted conditions and rated appellant
for peripheral nerve impairment. He utilized the net adjustment formula (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).4 Dr. Weiss determined that appellant had a class 1 severe
sensory deficit for the left L5 and S1 nerve roots (sciatic), which was equivalent to 12 percent.5
He utilized grade modifiers based on Functional History (GMFH) of 2 based on the PDQ score
of 71. Dr. Weiss utilized a grade modifier of 2 based on Clinical Studies (GMCS) and
determined that appellant had 14 percent impairment to the left lower extremity after net
adjustment. For the left gastrocnemius/extensor, hallucis longus (sciatic), he advised that
appellant had a class 1 and IV/V motor strength deficit or a 12 percent left lower extremity
impairment.6 Dr. Weiss advised that appellant fell into a class 2 with a 3 out of 5 for motor
strength deficit left hip flexors and warranted a 14 percent left lower extremity impairment after
net adjustment.7 He combined the values and determined that final impairment to the left lower
extremity was equal to 36 percent. Dr. Weiss opined that appellant reached maximum medical
improvement on January 18, 2010.
In a report dated November 9, 2010, Dr. Christopher R. Brigham, Board-certified in
occupational medicine and an OWCP medical adviser, noted appellant’s history and reviewed
the report of Dr. Weiss. He utilized the A.M.A., Guides and determined that appellant reached
maximum medical improvement on April 10, 2002, the date of Dr. Meade’s evaluation.
Dr. Brigham explained that Dr. Weiss’ objective findings did not support his rating. He noted

4

A.M.A., Guides 521.

5

Id. at 535.

6

Id.

7

Id.

3

that evaluating spinal nerve impairment (such as radiculopathy affecting the extremities) under
the A.M.A., Guides was discussed in the July/August issue of The Guides Newsletter.8
Dr. Brigham explained that the A.M.A., Guides did not provide a separate approach to rating
spinal nerve impairments affecting the extremities but that the proposed tables in the newsletter
provided a process for such a rating. He explained that “[t]he proposed new tables provided
values for rating spinal nerve impairment by means of the process defined for the [s]ixth
[e]dition in rating peripheral nerve injuries. Due to the need for consistency with the [s]ixth
[e]dition’s Chapter 17, The Spine and Pelvis, all impairment values are class 1.” Dr. Brigham
noted that page 430 of the A.M.A., Guides explained the process for the upper extremity and
noted that the lower extremity process was similar. For the left leg, he determined that the
findings were not consistent. Dr. Brigham advised that in an earlier report, Dr. Meade reported
that appellant had decreased sensation in the left L5 distribution as well as 4+/5 weakness of the
extensor hallucus longus. He explained it was reasonable to assign impairment for mild sensory
and motor deficits due to the L5-S1 disc herniation. For motor deficits, Dr. Brigham referred to
Proposed Table 2, Spinal Nerve Impairment: Lower Extremity Impairments. He noted that
appellant was a class 1, for mild motor deficit related to the 4+/5 weakness of the extensor
hallucus longus with a default impairment of five percent of the leg. Dr. Brigham referred to
section 16.3a, Adjustment Grid -- Functional History and Table 16-6, Functional History
Adjustment -- Lower Extremities, and determined that, based on the PDQ score of 71, appellant
was assigned a grade modifier 2.9 He referred to section 16.3b, Adjustment Grid -- Physical
Examination, and advised that physical examination adjustment was excluded since this factor
was used to place in the correct diagnostic class.10 Dr. Brigham referred to section 17.3c,
Adjustment Grid -- Clinical Studies, and Table 16.8, Clinical Studies Adjustment -- Spine, and
advised that appellant was assigned a grade modifier 1, based on imaging studies confirming
mild pathology with disc injury and L5 nerve pathology.11 He concluded that appellant had a
functional history grade modifier 2, physical examination N/A and clinical studies grade
modifier 1. Dr. Brigham determined that net adjustment compared to diagnosis class 1 equated
to +1, which warranted a grade D and translated into seven percent left leg impairment for motor
deficit.
For sensory deficit, Dr. Brigham referred to Proposed Table 2, Spinal Nerve Impairment,
and utilized a class 1 rating for mild sensory deficit related to the diminished sensation in the L5
distribution, and advised that this translated to a default impairment of one percent left leg
impairment. He referred to section 16.3a, Adjustment Grid -- Functional History, and Table 166, Functional History Adjustment -- Lower Extremities12 and advised that appellant was not
8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010)
(Exhibit 1, 4). Exhibit 1 provides that impairment to the upper or lower extremities that is caused by a spinal injury
should be rated consistent with the article Rating Spinal Nerve Extremity Impairment using the sixth edition in the
July-August 2009 edition of The Guides Newsletter published by the American Medical Association. The JulyAugust 2009 edition of The Guides Newsletter is set forth at exhibit 4.
9

A.M.A., Guides 516.

10

Id. at 517.

11

Id. at 518, 519.

12

Id. at 516.

4

assigned a grade modifier as this was already used in the motor adjustment. Regarding, section
16.3b, Adjustment Grid -- Physical Examination,13 Dr. Brigham noted that physical examination
adjustment was excluded as this factor was used to place in the correct diagnostic class. He
referred to section 17.3c, Adjustment Grid -- Clinical Studies and Table 16.8, Clinical Studies
Adjustment -- Spine, and explained that appellant was assigned grade modifier 1, based on
imaging studies confirming mild pathology with disc injury and L5 nerve pathology.14
Dr. Brigham determined that the net adjustment compared to diagnosis class 1 was 0, which was
equivalent to a grade C and translated into one percent leg impairment. He combined the seven
percent leg impairment for motor deficits and one percent leg impairment for sensory deficits to
arrive at eight percent impairment of the left lower extremity.15
On November 24, 2010 OWCP granted appellant a schedule award for eight percent
permanent impairment of the left leg. The award covered a period of 23.04 weeks from April 10
to September 18, 2002.
In a letter dated December 20, 2010, appellant’s representative requested a telephonic
hearing, which was held on April 4, 2011.
In a December 17, 2010 report, Dr. Weiss disagreed with the findings of Dr. Brigham.
He noted that, while permanent impairment evaluation must be performed in accordance with the
A.M.A., Guides, Dr. Brigham used The Guides Newsletter to calculate impairment. He
suggested that it was not the appropriate standard to evaluate schedule losses. Dr. Weiss noted
that OWCP’s medical adviser relied on Dr. Meade’s April 10, 2002 findings. He further noted
that Semmes-Weinstein monofilament testing was not performed to ascertain the degree of
sensory deficit and a mild sensory deficit was arbitrarily assigned by the medical adviser to
calculate the sensory impairment in the left leg. Dr. Weiss noted that he agreed regarding the
grade modifier for functional history. Regarding clinical studies, he noted that OWCP’s medical
adviser found a grade 1, whereas he believed that appellant was a grade 2 based on the need to
undergo anterior lumbar underbody fusion. Dr. Weiss opined that his January 18, 2010 findings
were valid and in accordance with the A.M.A., Guides.
In a May 9, 2011 decision, an OWCP hearing representative affirmed the November 24,
2010 decision.16 He found that Dr. Brigham properly applied the A.M.A., Guides and that his
opinion represented the weight of the medical evidence.

13

Id. at 517.

14

Id. at 518 and 519.

15

Dr. Brigham determined that there was no impairment on the right leg.

16

OWCP’s medical adviser also noted that appellant had claimed a schedule award for the right lower extremity;
but advised that OWCP had not issued a decision regarding this.

5

LEGAL PRECEDENT
The schedule award provision of FECA,17 and its implementing federal regulations,18 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.19 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.20
For decisions issued after May 1, 2009, the sixth edition will be used.21
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on GMFH, GMPE and GMCS.22 The net adjustment formula is (GMFH-CDX) + (GMPECDX) + (GMCS-CDX).23
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.24 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.25
ANALYSIS
In support of his claim for a schedule award, appellant provided reports dated January 18
and December 17, 2010 from Dr. Weiss who examined appellant and provided an impairment
rating of 36 percent for the left leg. Dr. Weiss based his impairment calculation upon peripheral
nerve impairments at Table 16-12.26 However, the sixth edition of the A.M.A., Guides provides
17

5 U.S.C. § 8107.

18

20 C.F.R. § 10.404.

19

Id. at § 10.404(a).

20

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

21

FECA Bulletin No. 09-03 (issued March 15, 2009).

22

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

23

A.M.A., Guides 521.

24

L.J., Docket No. 10-1263 (issued March 3, 2011).

25

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
26

A.M.A., Guides 535.

6

a specific methodology for rating spinal nerve extremity impairment.27 It was designed to be
used when a particular jurisdiction mandated ratings for extremities and precluded ratings for the
spine.28 The Board notes that Table 16-12, Peripheral Nerve Impairment, is not the preferred
method adopted by OWCP for rating the lower extremities due to spinal nerve impairment.
OWCP’s medical adviser explained that Dr. Weiss did not utilize the July/August issue of The
Guides Newsletter.29 The Board notes that this is also addressed in section 16.4c Peripheral
Nerve Rating Process.30 While Dr. Weiss questioned why the newsletter was used to rate
impairment, OWCP has, as noted, adopted this approach for rating impairment to the upper or
lower extremities caused by a spinal injury.31 Board precedent is well settled that when an
attending physician’s report gives an estimate of impairment but does not address how the
estimate is based upon the A.M.A., Guides, OWCP is correct to follow the advice of its medical
adviser or consultant where he has properly applied the A.M.A., Guides.32
Dr. Brigham explained his findings for the left lower extremity in his November 9, 2010
report. As noted, he discussed why he evaluated spinal nerve impairments to the left leg under
the July/August issue of The Guides Newsletter. For the left lower extremity, Dr. Brigham had
mild sensory and motor deficits in the L5 distribution. For motor deficits, he referred to
Proposed Table 2, Spinal Nerve Impairment: Lower Extremity Impairments. In section 16.3a,
Adjustment Grid -- Functional History, and Table 16-6, Functional History Adjustment -- Lower
Extremities, based on the PDQ score of 71 appellant was assigned a grade modifier 2.33
Dr. Brigham referred to section 16.3b, Adjustment Grid -- Physical Examination, and noted that
Physical Examination Adjustment was excluded as it was used to place in the correct diagnostic
class.34 He referred to section 17.3c, Adjustment Grid -- Clinical Studies, and Table 16.8,
Clinical Studies Adjustment -- Spine, and advised that appellant was assigned a grade modifier 1,
based on imaging studies confirming mild pathology with disc injury and L5 nerve pathology.35
Dr. Brigham concluded that appellant had a functional history grade modifier 2, physical
examination N/A, and clinical studies grade modifier 1. Dr. Brigham determined that the net
adjustment compared to diagnosis class 1 is +1, which warranted a grade D and translated into
seven percent lower extremity impairment.
27

Supra note 25.

28

Id.

29

Rating Spinal Nerve Extremity Impairment using the sixth edition, The Guides Newsletter (A.M.A., Chicago,
IL), July/August 2009. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700
(January 2010) (Exhibit 1, 4). Exhibit 1.
30

A.M.A., Guides 533.

31

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010) (Exhibit
1, 4); T.T., Docket No. 10-880 (issued November 9, 2010).
32

J.Q., Docket No. 06-2152 (issued March 5, 2008); Laura Heyen, 57 ECAB 435 (2006).

33

A.M.A., Guides 516.

34

Id.at 517.

35

Id. at 518-19.

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Regarding a sensory deficit, Dr. Brigham explained that in Proposed Table 2, Spinal
Nerve Impairment, there was a class 1 rating for mild sensory deficit related to the diminished
sensation in the L5 distribution, which translated to a default impairment of one percent of the
leg. He referred to section 16.3a, Adjustment Grid - Functional History, and Table 16-6,
Functional History Adjustment -- Lower Extremities36 and advised that appellant was not
assigned a grade modifier as this was used in the motor adjustment. Regarding, section 16.3b,
Adjustment Grid -- Physical Examination,37 Dr. Brigham noted that physical examination
adjustment was excluded as this was used to place in the correct diagnostic class. He referred to
section 17.3c, Adjustment Grid -- Clinical Studies and Table 16.8, Clinical Studies Adjustment -Spine, advised that appellant was assigned grade modifier 1, based on imaging studies
confirming mild pathology with disc injury and L5 nerve pathology.38 Dr. Brigham determined
that the net adjustment compared to diagnosis class 1 was 0, which was equivalent to a grade C
and translated into one percent lower extremity impairment. He combined the seven percent
impairment for motor deficits and one percent for sensory deficits on the left to arrive at eight
percent left leg impairment.39 The Board finds that Dr. Brigham’s November 9, 2010 report
properly applied the findings of Dr. Weiss to the A.M.A., Guides, and establishes that appellant
has no more than an eight percent permanent impairment of his left lower under the sixth edition
of the A.M.A., Guides.
On appeal, appellant’s representative contends that Dr. Weiss’ opinion was sufficient to
create a conflict in the medical evidence. However, his opinion did not comport with the
A.M.A., Guides. Thus, Dr. Weiss’ report is insufficient to create a conflict.40 Appellant’s
representative also argued that no decision had been rendered on the right lower extremity. The
Board notes that as no decision has been rendered, it cannot address this issue on appeal.41
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
more than an eight percent permanent impairment of his left lower extremity, for which he
received a schedule award.

36

Id. at 516.

37

Id. at 517.

38

Id. at 518-19.

39

Id. at 604.

40

See John D. Jackson, 55 ECAB 465 (2004) (a simple disagreement between two physicians does not, of itself,
establish a conflict; to constitute a conflict of medical opinion, the opposing physicians’ reports must be of virtually
equal weight and rationale).
41

20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the May 9, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 5, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 16-0466
Issued: July 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 13, 2016 appellant, through counsel, filed a timely appeal from a
September 4, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty.
FACTUAL HISTORY
On July 1, 2015 a traumatic injury claim was filed on appellant’s behalf. The employing
establishment indicated that on June 24, 2015 appellant, then a 47-year-old clerk, fell in the
parking garage and broke her hip as she was walking into the building. It controverted her claim
because it attributed her fall to her history of dizziness related to high and low blood sugar. The
employing establishment also indicated that security footage showed that appellant braced her
fall with her arm on a doorway and that the incident was unlikely to have caused a traumatic
injury unless an underlying medical condition existed. It noted that the health unit nurse
indicated that appellant collapsed in the parking garage with possible heat exhaustion. The
employing establishment advised that she was coming into the building from the garage when
she collapsed “into the doorway on G1 center wing.” Appellant stopped work that day.
By letter dated July 29, 2015, OWCP notified appellant of the evidence needed to
establish the claim. It noted that the employing establishment was challenging the claim as she
had a history of dizziness to high or low blood sugar. OWCP asked appellant to provide a
detailed description of where she was and what she was doing when she fell. That same date
OWCP requested information from the employing establishment regarding the ownership of the
parking garage. No statement was received from either appellant or the employing
establishment.
In a June 25, 2015 report, Dr. John Bleazard, a Board-certified osteopath specializing in
orthopedic surgery, advised that appellant fell on June 24, 2015 after a syncopal episode. He
noted that appellant was hyperglycemic when she reported to the emergency department and that
she had a history of diabetes mellitus. Dr. Bleazard indicated that she related that she was
experiencing pain in the left lateral hip and groin. An x-ray revealed a minimally displaced
intertrochanteric hip fracture. Dr. Bleazard diagnosed left intertrochanteric hip fracture. In a
separate June 25, 2015 operative report, he noted performing a cephalomedullary nail fixation to
treat the left intertrochanteric hip fracture.
In a July 8, 2015 report, Dr. Bleazard advised that appellant was two weeks postsurgery
and that she was doing well. On examination he noted a nicely healing incision, no signs of
infection, intact light touch sensation, grossly normal muscle tone, and normal strength without
atrophy. Dr. Bleazard noted that a left hip x-ray revealed that alignment was acceptable.
An August 4, 2015 physical therapy report was submitted. The physical therapist advised
that appellant became overheated in the garage at the employing establishment, that she had not
been paying attention, and that the garage door came up and hit her on the hip.
In an August 5, 2015 report, Dr. Bleazard advised that appellant was six weeks post left
gamma nail surgery and that she was doing remarkably well, only experiencing intermittent pain
at the end of the day. Examination revealed a healed incision, no erythema or signs of infection,
intact sensation, grossly normal muscle tone, and normal strength without atrophy. Dr. Bleazard
2

noted that alignment was acceptable and healing was evident. He recommended that appellant
continue physical therapy and weight bearing as tolerated. In an August 5, 2015 disability status
report, Dr. Bleazard advised that appellant was only able to work a sitting job.
By decision dated September 4, 2015, OWCP denied appellant’s traumatic injury claim
because the evidence was insufficient to establish that her injury arose during the course of
employment and within the scope of compensable work factors. It noted that her injury was
caused by an idiopathic incident noting that the evidence indicated that she had a syncope
episode and was hyperglycemic.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.3 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula commonly
found in workers’ compensation laws, namely, arising out of and in the course of employment.4 In
the course of employment relates to the elements of time, place, and work activity. To arise in the
course of employment, an injury must occur at a time when the employee may reasonably be said
to be engaged in her master’s business, at a place when he or she may reasonably be expected to be
in connection with his or her employment and while he or she was reasonably fulfilling the duties
of his or her employment or engaged in doing something incidental thereto. As to the phrase in the
course of employment, the Board has accepted the general rule of workers’ compensation law that,
as to employees having fixed hours and places of work, injuries occurring on the premises of the
employing establishment, while the employees are going to or from work, before or after working
hours or at lunch time, are compensable.5
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting but also a causal concept. The facts of the case must show
some substantial employer benefit is derived or an employment requirement gave rise to the
injury.6
It is a well-settled principle of workers’ compensation law, and the Board has so held,
that an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology
causes an employee to collapse and to suffer injury upon striking the immediate supporting
surface, and there is no intervention or contribution by any hazard or special condition of
3

Id. at § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
5

Narbik A. Karamian, 40 ECAB 617, 618 (1989). With regard to what constitutes the premises, the Board has
stated that the term “premises” as it is generally used in workers’ compensation law, is not synonymous with
property. The former does not depend on ownership, nor is it necessarily coextensive with the latter. In some cases
premises may include all the property owned by the employing establishment; in other cases even though it does not
have ownership and control of the place where the injury occurred the place is nevertheless considered part of the
premises. Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).
6

See Eugene G. Chin, 39 ECAB 598, 602 (1988).

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employment -- is not within coverage of FECA.7 Such an injury does not arise out of a risk
connected with the employment and is, therefore, not compensable. The Board has made equally
clear, the fact that the cause of a particular fall cannot be ascertained or that the reason it
occurred cannot be explained, does not establish that it was due to an idiopathic condition. This
follows from the general rule that an injury occurring on the industrial premises during working
hours is compensable unless the injury is established to be within an exception to such general
rule.8 If the record does not establish that the particular fall was due to an idiopathic condition, it
must be considered as merely an unexplained fall, one which is distinguishable from a fall in
which it is definitely proved that a physical condition preexisted and caused the fall.9
To properly apply the idiopathic fall doctrine, there must be two elements present: a fall
resulting from a personal, nonoccupational pathology, and no contribution from the
employment.10 If the record does not establish the fall was due to an idiopathic condition, it
must be considered as merely an unexplained fall, which is covered under FECA.
ANALYSIS
The issue is whether appellant’s fall on June 24, 2015 arose in the performance of duty.
The Board finds that the case is not in posture for a decision.
As a preliminary matter, the Board finds that the case must be further developed with
regard to whether appellant’s fall occurred on the employing establishment’s premises. As
noted, the Board has held that injuries occurring on the premises of the employing establishment,
while the employees are going to or from work, before or after working hours or at lunch time, are
compensable.11 The employing establishment advised that appellant was coming into the
building from the garage when she collapsed “into the doorway on G1 center wing.” It noted
that security footage revealed a fall where appellant used her arm to brace herself on a doorway.
An August 4, 2015 physical therapy report, however, advised that appellant related that she
became overheated in the garage at the employing establishment and that a garage door came up
and hit her on the hip. OWCP did not make a specific finding on the point and the Board has
insufficient evidence to determine whether appellant’s fall occurred in the performance of duty.12
The Board finds that OWCP did not adequately develop the question of whether appellant’s
June 24, 2015 accident occurred in the performance of duty and will remand the case for further
development on that aspect of the claim.
Furthermore, the Board finds that OWCP has failed to meet its burden of proof to
establish the existence of a prior pathology which caused the fall.
7

See Carol A. Lyles, 57 ECAB 265 (2005).

8

Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35 ECAB 176, 182 (1983).

9

John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).

10

E.C., Docket No. 15-0823 (issued February 2, 2016).

11

See supra note 4.

12

See M.C., Docket No. 09-1718 (issued March 5, 2010) (regarding factors to consider if a parking facility may
be considered part of the employment premises).

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To properly apply the idiopathic fall exception to the general compensability created
under the premises rule, two elements must be present: first, the fall must be caused by a
personal, nonoccupational pathology, and second, there must be no contribution from the
employment.13 OWCP has the burden of proof to establish existence of a personal,
nonoccupational pathology. If the record does not establish the fall was due to an idiopathic
condition, it must be considered as merely an unexplained fall, which is covered under FECA.14
In his June 25, 2015 report, Dr. Bleazard described appellant’s fall as a syncopal episode.
He noted that appellant was hyperglycemic when she reported to the emergency department and
noted that she had a history of diabetes mellitus. Although Dr. Bleazard described the incident
as syncopal, he noted that appellant was hyperglecemic, and indicated that she had a history of
diabetes mellitus, he failed to provide an opinion regarding the cause of the fall. Furthermore,
there is no evidence of a history of falling due to diabetes or a history of uncontrolled diabetes.
The record also fails to establish a history of dizziness due to high and low blood sugar, as
reported by the employing establishment in the Form CA-1. The mere fact that an employee has
a preexisting medical condition, without supporting medical rationale, is not sufficient to
establish that a fall is idiopathic.15 If the cause of the fall cannot be determined or the reason it
occurred cannot be explained, then it is an unexplained fall and any resulting injury would be
compensable.16 The Board finds that the evidence of record is not sufficient to meet OWCP’s
burden of proof to establish the fall as idiopathic.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish her claim, OWCP shares responsibility in
the development of the evidence to see that justice is done.17 Accordingly, the case will be
remanded to further develop the evidence and make appropriate fact findings with regards to the
location, time, and circumstances surrounding appellant’s fall on June 24, 2015. If appellant’s
fall is found to have occurred on the employment premises, OWCP should further develop the
medical evidence with regard to whether the June 24, 2015 incident caused an injury. Following
this and such further development as is deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

Id.

14

N.P., Docket No. 08-1202 (issued May 8, 2009).

15

L.R., Docket No. 15-255 (issued April 1, 2015).

16

Id.

17

See K.C., Docket No. 08-2355 (issued May 15, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the September 4, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this opinion.
Issued: July 18, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 16-1368
Issued: April 3, 2017

Case Submitted on the Record

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

JURISDICTION
On June 22, 2016 appellant filed a timely appeal from a June 9, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The record includes additional evidence received after OWCP issued its June 9, 2016 decision. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore,
this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 4, 2016 appellant, then a 54-year-old sales and services associate, filed an
occupational disease claim (Form CA-2) for a left thumb condition that she attributed to
repetitive motion in her duties of federal employment. She indicated that she first became aware
of her condition on March 28, 2016.
By letter dated April 18, 2016, OWCP advised appellant that it required additional factual
and medical evidence to determine whether she was eligible for FECA benefits. It noted it had
not received any other documentation with appellant’s claim form. In a separate questionnaire,
OWCP asked appellant to provide a detailed description of the employment-related activities she
believed contributed to her condition, as well as to provide information regarding the frequency
and duration of the activities. It afforded appellant at least 30 days to submit the requested
information.
An April 12, 2016 duty status report (Form CA-17) included a diagnosis of left trigger
thumb. The date of injury was March 16, 2016, and the reported history of injury was “Fell on
outstretched hand” and “repetitive gripping.” The healthcare provider’s signature was illegible.
No additional factual or medical evidence was received within the allotted 30-day time
frame.
By decision dated June 9, 2016, OWCP denied appellant’s claim because “the evidence
[did] not support that the injury and/or events occurred.”
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his/her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or

3

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question, which generally requires rationalized medical opinion evidence to resolve the issue.
See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.

2

occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the identified employment factors.4
ANALYSIS
In the instant case, OWCP denied appellant’s claim because she failed to identify
employment factors alleged to have caused or contributed to her claimed left thumb condition.
On her April 4, 2016 Form CA-2 appellant indicated her injury was due to “repetitive
movement.” However, she did not identify any particular employment duties that required
repetitive hand/wrist/thumb movements. On April 18, 2016 OWCP informed appellant of the
deficiencies in her claim and specifically requested that she provide a detailed description of the
employment-related activities or incidents she believed contributed to her claimed left thumb
condition. The only evidence received was an April 12, 2016 duty status report which suggested
a fall. As noted, appellant’s burden of proof includes submission of a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition.5 Under the circumstances, her mere notation of
“repetitive movement” on the Form CA-2 and the contrary evidence of the Form CA-17 will not
suffice. Accordingly, OWCP properly denied appellant’s occupational disease claim.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish an
injury in the performance of duty on or about March 28, 2016.
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.

4

Victor J. Woodhams, id.

5

Id.

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ORDER
IT IS HEREBY ORDERED THAT the June 9, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 3, 2017
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

4