United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, STONYRIDGE
STATION, Omaha, NE, Employer
__________________________________________

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

Docket No. 21-0085
Issued: August 9, 2021

Case Submitted on the Record

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

JURISDICTION
On October 28, 2020 appellant, through counsel, filed a timely appeal from an August 18,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the August 18, 2020 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that OWCP
should expand the acceptance of her claim to include additional conditions as a consequence of
her accepted June 9, 2016 employment injury; and (2) whether appellant has met her burden of
proof to establish disability from work for the period October 21, 2019 through February 14, 2020
causally related to her accepted employment injury.
FACTUAL HISTORY
On June 9, 2016 appellant, then a 30-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on that date she twisted her right ankle when scanning packages while in the
performance of duty. OWCP accepted her claim for a right peroneal tendon tear. It subsequently
expanded acceptance of the claim to include posterior tibial tendinitis of the left leg, traumatic
arthropathy of the right foot and ankle, and a strain of the muscles and tendons of the right foot
and ankle. On December 20, 2016 appellant underwent an OWCP-authorized repair of a right
peroneal tendon tear. She returned to limited-duty employment on June 15, 2017. On January 24,
2018 Dr. Patrick J. Nelson, a podiatrist, performed an OWCP-authorized right ankle arthroscopy
with extensive debridement, a repair of dislocating peroneals, a right lateral ankle stabilization.
In a report dated November 8, 2018, Dr. Nelson advised that he was treating appellant after
reconstructive surgery of the right peroneal tendons and anterior ankle ligaments. He indicated
that she had chronic back pain as a result of right lower extremity instability due to her employment
injury. Dr. Nelson related that appellant “had developed neuritis/neuralgia to the lower extremity
secondary to both [two] surgical interventions as well as the nature of the injury to the right lower
extremity. This significant instability that has developed has led to abnormal compensation of
[her] weight to the right lower extremity which is significantly affect[ing] [appellant’s] lower back
and right hip.”
On November 29, 2018 appellant accepted a position working six hours per day as a
modified clerk. The position required standing, bending, stooping, and twisting for six hours per
day, pushing, pulling, carrying, and lifting up to 25 pounds for six hours per day, reaching above
the shoulder for six hours per day, and sitting for at least two hours per day.
OWCP, on December 12, 2018, accepted that appellant had sustained a recurrence of
disability beginning October 6, 2018 such that she could only work six hours of modified
employment per day. It paid her wage-loss compensation for the two hours of time lost from
employment on the supplemental rolls.
In a report dated January 10, 2019, Dr. Nelson discussed appellant’s complaints of nerve
pain in her ankle radiating into her hip and back. On examination he found positive straight leg
raises bilaterally. Dr. Nelson diagnosed pain, contracture, and instability of the right ankle,
instability of the right foot, gait abnormalities, idiopathic progressive neuropathy, right peroneal
tendinitis, and left foot and ankle instability, pain and contracture. He advised that appellant had
neurological issues of the right lower extremity due to her prior surgeries to stabilize the lower
extremity. In a duty status report (Form CA-17) of even date, Dr. Nelson diagnosed chronic
instability and neuritis and listed work restrictions, including no lifting, pushing, or pulling over
25 pounds.

2

On February 20, 2019 Dr. Rafal Krejza, an osteopath, provided lumbar sympathetic nerve
blocks. He continued to provide progress reports describing his treatment of appellant for pain
management.
In a Form CA-17 dated April 4, 2019, Dr. Nelson diagnosed right ankle instability, sciatica,
and neuralgia and provided work restrictions.4 He advised that appellant should sit for two hours
each eight-hour shift. In a report of even date, Dr. Nelson repeated his diagnoses as in his
January 10, 2019 report. He related that appellant’s “sciatica and lower back pain are related to
her right ankle/foot problems due to the instability.”
Dr. Nelson, in a May 14, 2019 report, noted that appellant’s physician was evaluating her
for “fibromyalgia and sciatic issues related to the lower back and I do feel is a result of instability
and an unbalanced gait due to the chronic nature of her condition for her right lower extremity.”
In a work capacity evaluation (Form OWCP-5c) dated May 15, 2019, Dr. Nelson found that she
could work full time with permanent work restrictions. He provided a similar progress report on
June 4, 2019.
A magnetic resonance imaging (MRI) scan obtained on October 10, 2019 revealed mild
degenerative lumbar spondylosis with an interval increase in a moderate posterior disc protrusion
at L5-S1.
On October 25, 2019 Dr. Krejza reviewed the results of the MRI scan. He noted that
appellant’s complaints of low back pain and lumbar radiculopathy had begun on October 1, 2019
and her complaints of chronic pain on October 17, 2018.5 Dr. Krejza diagnosed chronic pain, right
ankle pain, low back pain, lumbar radiculopathy, and a prolapsed lumbar intervertebral disc. He
found that appellant should not lift over 10 pounds or sit or stand over 30 minutes at a time. In a
Form CA-17 of even date, Dr. Krejza advised that she could work four hours per day with
restrictions that included lifting up to 10 pounds continuously or 20 pounds intermittently.
On November 20, 2019 appellant filed a claim for compensation (Form CA-7) for total
disability from work for the period October 21 to November 8, 2019. On the form, the employing
establishment asserted that there was no medical evidence demonstrating that she was off work
due to her accepted employment injury, and that she was currently working light duty pending the
possible expansion of acceptance of her claim.
In a development letter dated November 25, 2019, OWCP advised appellant that it
appeared that she was requesting compensation from October 21 to 25, 2019 “and following” due
to a consequential injury of a herniated lumbar disc. It requested that she submit additional factual
and medical information in support of her claim, including a reasoned opinion from a physician
explaining how her disability was causally related to her accepted employment injury. OWCP
afforded appellant 30 days to submit the requested information.
On November 27, 2019 appellant filed a Form CA-7 requesting compensation for four
hours per day from November 9 to 22, 2019.
4

On April 2, 2019 Dr. Nelson, in response to questions from the employing establishment, advised that appellant
could not work for eight hours per day due to chronic nerve pain in the right lower extremity and hip.
5

On November 8, 2019 Dr. Krejza treated appellant with a steroid injection.

3

In a report dated November 25, 2019, Dr. Nelson advised that he had treated appellant
beginning July 19, 2018 for chronic right ankle pain and instability, chronic instability of the right
foot, gait abnormalities, idiopathic progressive neuropathy, and right lower extremity peroneal
tendinitis. He advised that she had developed right L5 radiculopathy on August 17, 2017 and that
an MRI scan had shown an annular disc bulge at L5-S1 superimposed on a central right paracentral
disc protrusion. Dr. Nelson indicated that the instability of appellant’s right lower extremity likely
resulted from her right knee and hip. He related, “It is my medical opinion that two significant
surgeries as well as the nature of [appellant’s] injury caused her to develop neuritis/neuralgia of
the right lower extremity which also led to significant instability and abnormal compensation [of
her] weight to the right lower extremity.” Dr. Nelson maintained that the chronic instability
affected her hip and lower back. He advised, “Based on my extensive workup and treatment of
[appellant], I feel that injury to the right ankle/foot, the long-standing instability of the right
foot/ankle, and the confirmed workup for [her] lower lumbar/lower back are directly correlated.”
On December 12, 2019 appellant filed a Form CA-7 for four hours per day of time lost
from work from November 23 to December 6, 2019.
In a statement dated December 16, 2019, appellant related that she believed that her back
condition was employment related as she had placed more weight on her left side and had altered
her gait due to her employment injury, causing a disc in her back to bulge and herniate. She related
that Dr. Nelson had told her that she overcompensated attempting to take pressure off her right
side.
Appellant submitted an August 17, 2017 report from Dr. Griffith F. Evans, a Boardcertified anesthesiologist, who noted that she had injured her ankle a year earlier and had
subsequently experienced symptoms of right L5 radiculopathy.
An August 23, 2017 lumbar MRI scan showed early degenerative lumbar spondylosis.
On August 28, 2017 Dr. Evans discussed appellant’s complaints of low back pain on the
right side. He found an antalgic gait and diagnosed chronic postprocedural pain, sacroiliitis,
lumbosacral spondylosis, and intervertebral lumbar disc disorder with radiculopathy.
In a report dated August 30, 2017, Dr. Nelson noted that appellant’s bilateral ankle pain
had not improved and diagnosed possible complex regional pain syndrome (CRPS) of the right
lower extremity possibly due to the trauma and unsuccessful surgery.
Appellant further submitted progress reports from Dr. Nelson dated 2017 to 2019. On
January 31, 2018 Dr. Nelson advised that she had pain in the hip due to her ankle condition. On
November 23, 2018 he indicated that appellant had hip and back problems due to “neurological
issues secondary to both the surgeries….”
In a May 15, 2019 report, Dr. Nelson advised that appellant had “radiating pain secondary
to neurological issues at the site of the ankle and at the lower back….” He attributed her right hip
and back pain to her unsteady gait, chronic pain, and a possible aggravation of a bulging disc.

4

In a note dated October 25, 2019, Dr. Krejza advised that appellant had missed work for
two weeks due to a herniated lumbar disc.6
On December 27, 2019 appellant asserted that she had damaged her sciatic nerve due to
multiple ankle surgeries. She indicated that Dr. Nelson had informed her that her ankle instability
had affected her gait and caused a bulging disc. Appellant asserted that her disc herniated in
October 2019 such that she was unable to walk. She requested wage-loss compensation for four
hours of lost time from work.
On January 24, 2020 Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon serving as
a district medical adviser (DMA), discussed the opinion of appellant’s physicians that she had
sustained idiopathic progressive neuropathy, sacroiliitis, lumbosacral spondylosis, and
intervertebral disc disorders with radiculopathy as a consequence of her accepted employment
injury. He related that appellant’s twisting of her ankle was not a mechanism of injury consistent
with the additional diagnoses. Dr. Ugokwe further advised that objective testing did not support
stenosis that would cause radiculopathy. He noted that an MRI scan showed early degenerative
lumbar spondylosis without significant neural compressive abnormality.
Appellant submitted a January 21, 2020 report from a physician assistant.
On February 19, 2020 appellant filed a Form CA-7 for disability from work for the period
February 1 to 14, 2020.
By decision dated February 20, 2020, OWCP denied appellant’s request to expand
acceptance of her claim to include idiopathic progressive neuropathy, sacroiliitis, lumbosacral
spondylosis, and intervertebral disc disorders as a consequence of her accepted June 9, 2016
employment injury. It, thus, found that she had not established disability from work for the period
October 21, 2019 through February 14, 2020 as her work restrictions resulted from
nonemployment-related conditions.
Thereafter, OWCP received a progress report dated January 29, 2020 from Dr. Nelson.
Dr. Nelson advised that appellant had rolled on her left ankle, sustaining pain. He provided the
same diagnoses as in his prior reports and noted that her low back condition was related to her
lower extremity injury. In a work release of even date, Dr. Nelson found that appellant could
resume work working four hours per day with restrictions. He advised that the restrictions were
required due to her “left ankle giving out because of stability issues with the right….”
On March 4, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a March 4, 2020 work status report, Dr. Nelson provided work restrictions. On April 1,
2020 he indicated that appellant could resume work on April 1, 2020 with restrictions. Dr. Nelson
further provided progress reports on May 14 and 20, 2020.
Appellant submitted a June 2, 2020 report from a nurse practitioner.

6

The record contains reports dated August 8 and December 6, 2019 from Dr. Krejza describing his treatment of
appellant for pain.

5

A telephonic hearing was held on June 4, 2020. Appellant related that she walked with a
limp due to ankle instability which had caused a disc bulge in her lower back that had subsequently
herniated.
By decision dated August 18, 2020, OWCP’s hearing representative affirmed the
February 20, 2020 decision.
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.7
The medical evidence required to establish causal relationship between a specific
condition, as well as any attendant disability claimed, and the employment injury, is rationalized
medical opinion evidence.8 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the opinion of the physician 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 the
specific employment factor(s) identified by the claimant.10
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to the claimant’s own intentional misconduct.11 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that OWCP
should expand acceptance of her claim to include additional conditions as a consequence of her
accepted June 9, 2016 employment injury.
In support of her claim for consequential injuries resulting from her accepted June 9, 2016
employment injury, appellant submitted reports from Dr. Nelson, a podiatrist. On November 8,
2018 Dr. Nelson diagnosed neuritis/neuralgia of the lower extremity. He found that appellant’s
right hip had been affected by instability and her compensating from her work injury. On April 4,
7

T.B., Docket No .20-0182 (issued April 23, 2021); W.L., Docket No. 17-1965 (issued September 12, 2018).

8

T.C., Docket No. 19-1043 (issued November 8, 2019); M.W., 57 ECAB 710 (2006).

9

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

11

See I.S., Docket No. 19-1461 (issued April 30, 2020); Charles W. Downey, 54 ECAB 421 (2003).

12

J.M., Docket No. 19-1926 (issued March 19, 2021); Susanne W. Underwood (Randall L. Underwood), 53 ECAB
139, 141 n.7 (2001).

6

2019 Dr. Nelson attributed her sciatica and low back pain to instability from her right foot
condition. In a report dated November 25, 2019, he noted that an MRI scan had shown a disc
bulge at L5-S1 superimposed on a right central disc protrusion. Dr. Nelson opined that appellant’s
employment injuries and surgeries to treat the injury had resulted in right lower extremity
neuritis/neuralgia and instability that affected her hip and back. While he generally attributed
additional conditions to appellant’s prior OWCP-approved surgeries and resulting right lower
extremity instability, Dr. Nelson did not explain the mechanism by which her overcompensating
due to the injury or her surgeries to treat the employment injury caused pain and instability such
that she sustained additional injury-related conditions.13 Consequently, his reports are insufficient
to meet appellant’s burden of proof.
Dr. Krejza provided pain management treatment for appellant’s low back pain. On
October 25, 2019 he diagnosed chronic pain, right ankle pain, low back pain, lumbar
radiculopathy, and a prolapsed lumbar intervertebral disc. Dr. Krejza, however, did not provide
an opinion on the cause of the diagnosed conditions. The Board has held that medical evidence
offering no opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship.14 As Dr. Krejza did not offer an opinion regarding the cause of
appellant’s diagnosed conditions, his reports are of no probative value on the issue of causal
relationship.
On August 17, 2017 Dr. Evans noted appellant’s history of injuring her ankle one year
earlier and subsequent complaints of right L5 radiculopathy. On August 29, 2017 he indicated
that she had right-sided low back pain and diagnosed chronic pain postprocedure, sacroiliitis,
lumbosacral spondylosis, and intervertebral lumbar disc disorder with radiculopathy. While
Dr. Evans discussed appellant’s history of injury and subsequent symptoms, he did not address the
cause of her sacroiliitis, lumbosacral spondylosis, and intervertebral disc disorder with
radiculopathy. As he did not provide an opinion on the relevant issue of whether appellant’s claim
should be expanded to include these additional conditions or a consequential injury, his report is
of no probative value.15 Additionally, Dr. Evans found that appellant had chronic post-procedure
pain; however, the Board has held that a diagnosis of “pain” does not constitute the basis for
payment of compensation, as pain is a symptom rather than a specific diagnosis.16 Consequently,
his opinion is insufficient to meet her burden of proof.

13

See P.J., Docket No. 18-1738 (issued May 17, 2019); T.H., Docket No. 18-1736 (issued March 13, 2019).

14
See R.G., Docket No. 18-0792 (issued March 11, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
15

O.M., Docket No. 18-1055 (issued April 15, 2020); J.M., Docket No. 18-0853 (issued March 9, 2020).

16

See D.M., Docket No. 20-1347 (issued January 29, 2021).

7

Appellant submitted reports from a nurse practitioner and physician assistant; however,
medical reports signed solely by a physician assistant or nurse practitioner are of no probative
value as such providers are not considered physicians as defined under FECA.17
The record further contains the results of diagnostic testing; however, the Board has held
that diagnostic studies, standing alone, lack probative value on the issue of causal relationship as
they do not address whether employment caused any of the diagnosed conditions.18 Thus, this
evidence is also insufficient to meet appellant’s burden of proof.
Moreover, the record contains evidence negating causation between additional conditions
and the accepted employment injury. OWCP referred the evidence to Dr. Ugokwe, a DMA, for
an opinion regarding whether appellant had established additional employment-related conditions.
In a January 24, 2020 report, he noted that her physicians had diagnosed idiopathic progressive
neuropathy, sacroiliitis, lumbosacral spondylosis, and intervertebral disc disorders with
radiculopathy as a consequence of her accepted employment injury. Dr. Ugokwe advised that
appellant’s twisting her ankle was not a mechanism that would cause the additional diagnoses and
also noted that objective testing failed to support the diagnoses.
The Board finds that appellant has not submitted reasoned evidence supporting that she
sustained additional conditions as a consequence of her accepted June 9, 2016 employment injury.
As such, appellant has not met her burden of proof.19
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA20 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.21 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
for work as a result of the accepted employment injury. 22 Whether a particular injury causes an

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); M.C., Docket No. 19-1074 (issued June 12, 2020); S.L., Docket No. 19-0607 (issued January 28, 2020) (nurse
practitioners are not considered physicians under FECA.
17

18

O.M., supra note 15.

19

G.M., Docket No. 19-0933 (issued October 1, 2019).

20

Supra note 2.

21

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
22

M.C., Docket No. 18-0919 (issued October 18, 2018).

8

employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.23
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury. 24 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.25 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.26
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period October 21, 2019 through February 14, 2020 causally related to her accepted
employment injury.
On January 29, 2020 Dr. Nelson evaluated appellant for left ankle pain, noting that she
rolled on her left ankle on January 27, 2020. He noted that her back condition was related to her
lower extremity condition. Dr. Nelson found that appellant could work four hours per day with
restrictions, which he opined were required due to stability issues of the ankles and chronic right
foot and ankle issues. He did not, however, provide any rationale for his disability opinion other
than to note that the left ankle gave out as she had stability issues with the right ankle. The Board
has held that a report is of limited probative value regarding causal relationship if it does not
contain medical rationale explaining how appellant’s claimed disability is causally related to the
accepted injury.27 Thus, Dr. Nelson’s report is insufficient to meet her burden of proof to establish
her disability claim.
In reports dated October 25, 2019, Dr. Krejza indicated that appellant had experienced the
onset of chronic pain beginning October 17, 2018 and low back pain with radiculopathy beginning
October 1, 2019. He diagnosed chronic pain, right ankle pain, low back pain, lumbar
radiculopathy, and a prolapsed lumbar intervertebral disc. Dr. Krejza found that appellant should
not lift over 10 pounds or sit or stand over 30 minutes at a time. In a CA-17 form report of the
same date, he determined that she could work four hours per day with restrictions. In a work status
report of even date, Dr. Krejza advised that appellant had been off work for two weeks due to a
herniated disc. In his reports, however, he failed to address the cause of appellant’s disability or
find it related to her accepted employment injury. The Board has held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition or disability is of no

23

See D.W., Docket No. 18-0644 (issued November 15, 2018); K.C., Docket No. 17-1612 (issued
October 16, 2018).
24

20 C.F.R. § 10.5(f); B.O., Docket No. 19-0392 (issued July 12, 2019); S.T., Docket No. 18-0412 (issued
October 22, 2018).
25

See L.W., Docket No. 17-1685 (issued October 9, 2018).

26

See D.P., Docket No. 18-1439 (issued April 30, 2020); D.G., Docket No. 18-0597 (issued October 3, 2018).

27

See J.E., Docket No. 19-1758 (issued March 16, 2021); G.R., Docket No. 19-0940 (issued December 20, 2019).

9

probative value on the issue of causal relationship.28 Therefore, Dr. Krejza’s reports are of no
probative value with regard to the issue of appellant’s disability for the claimed period, and are
insufficient to establish her claim for wage-loss compensation.29
As the medical evidence of record does not include a rationalized opinion regarding causal
relationship between appellant’s claimed disability and her accepted June 9, 2016 employment
injury, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that OWCP
should expand acceptance of her claim to include additional conditions as a consequence of her
accepted June 9, 2016 employment injury. The Board further finds that he has not met her burden
of proof to establish disability from work for the period October 21, 2019 through February 14,
2020 causally related to her accepted employment injury.

28

S.J., Docket No. 20-0310 (issued April 21, 2021).

29

Id.

10

ORDER
IT IS HEREBY ORDERED THAT the August 18, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 9, 2021
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE NAVY,
MARINE CORPS, Albany, NY, Employer
__________________________________________

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

Docket No. 14-568
Issued: December 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 16, 2014 appellant, through counsel, filed a timely appeal from a
December 11, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on February 25, 2013, as alleged.
FACTUAL HISTORY
On March 20, 2013 appellant, then a 38-year-old painting worker, filed a claim alleging
that on February 25, 2013 he injured his right shoulder while moving waste drums on a pallet.
The employing establishment controverted his claim, noting that he did not report an injury until
1

5 U.S.C. § 8101 et seq.

almost a month after the alleged injury. Don Holloway, an acting supervisor, noted that he was
not informed of the incident.
By letter dated April 2, 2013, OWCP requested that appellant submit further evidence in
support of his claim.
In an undated statement received by OWCP on April 16, 2013, Patrick C. Deariso, a
coworker, noted that on February 25, 2013 at around 7:45 a.m., he observed appellant attempting
to adjust a drum on a pallet. He noticed that the pallet was about to slip and he assisted appellant
in readjusting the drum on the pallet. After moving the drum, appellant stated that he thought he
pulled a muscle in his shoulder.
In an April 15, 2013 statement, appellant advised that on March 5, 2013 he informed
Keithon Smith, his acting supervisor, that his hand was numb and his shoulder hurt. He
experienced pain from March 5 through 19, 2013 and then went to the base doctor for treatment.
Appellant noted that, prior to March 19, 2013, he informed his supervisor of the accident to
which there was a witness, but the information was not recorded.
Appellant submitted the March 5 and 11, 2013 reports of Dr. Tracy S. McGee, a Boardcertified orthopedic surgeon, who treated appellant and recommended a return to light-duty
work. Dr. McGee noted right shoulder pain and stated that appellant’s prior left shoulder
problems from 2012 might have caused his right shoulder pain.
In a March 15, 2013 treatment note, Dr. Phillip D. Hajek, a Board-certified orthopedic
surgeon, advised that appellant had a probable rotator cuff tear, should not use his right upper
extremity and prescribed medication.2
In an April 17, 2013 memorandum, Joe Blanton, an injury compensation specialist, noted
that a meeting was held that day with appellant, management and the union concerning his
injury. When questioned why he did not go to the dispensary before going to his personal
doctor, appellant explained that his supervisor told him that he needed to see the nurse first.
Mr. Smith stated that he did not know appellant had been injured, but when “put on the spot,” he
acknowledged that he knew about the injury but failed to complete paperwork at that time.3 The
memorandum noted that appellant would be accommodated while awaiting a compensation
decision.
In a May 2, 2013 memorandum, Mr. Blanton noted that appellant did not inform his
supervisor or his chain of command of an injury until almost a month after the fact. He stated
that appellant had an accepted left shoulder claim for a rotator cuff tear. Mr. Blanton noted that
prior to his left shoulder injury, appellant was a weight lifter. He stated that the notification of
injury was extremely late, and the Form CA-1 was not completed until after issuance of a
medical requirement letter almost a month after the incident.
2

Notes from a physician’s assistant addressed appellant’s work restrictions limiting lifting to 10 pounds and no
prolonged use of the right arm or overhead work.
3

In an April 18, 2013 memorandum, Mr. Smith noted speaking to appellant about his work restrictions and
medical documentation. He noted vaguely recalling appellant mentioning an injury with a drum.

2

By decision dated May 10, 2013, OWCP denied appellant’s claim. It accepted the
February 25, 2013 incident occurred, as alleged, but found that the medical evidence was not
sufficient to establish that his right shoulder condition was caused or contributed to by the
incident with the drums.
By letter dated May 23, 2013, appellant, through counsel, requested a telephonic hearing
before an OWCP hearing representative. At the November 1, 2013 hearing, he testified that on
the morning of February 25, 2013 he was working as a hazmat coordinator to remove hazardous
waste as needed. While working with another person, appellant was stacking 55-gallon full
drums when he noted that the lip of one drum was on another. As they tried to move it, the drum
tilted over and he tried to catch it to keep it from falling over and hitting the floor. Appellant
experienced a sharp pain in his right hand and his fingers started tingling. He informed his
supervisor and ultimately sought treatment from Dr. McGee. Appellant continued to work after
the injury, but not with the drums. He reported the injury to his original supervisor, who retired.
As his employer was going through a transition, appellant also informed Mr. Smith, on March 4
or 5, 2013.4
In a March 15, 2013 report, Dr. McGee noted that appellant complained of pain in the
right shoulder. Appellant had a history of a complex rotator cuff tear reconstruction to his left
shoulder in the recent past. Dr. McGee stated that there were multiple factors that resulted in
rotator cuff pathology, but noted that appellant had a manual labor job. He opined that the job
was one factor and, although it was his feeling that the activity at work was contributory;
appellant’s native anatomy, the shape of his acromion, his health maintenance activities in terms
of stretching and strengthening the rotator cuff were also factors. Dr. McGee stated that the
“bottom line is [appellant’s] left side was done under workers’ comp[ensation] and he wants
back to work.” He diagnosed impingement and rotator cuff bursitis.
On June 3, 2013 Dr. Bobby Prince, a Board-certified orthopedic surgeon, stated that
appellant was scheduled for right shoulder arthroscopic rotator cuff repair. He anticipated that
recovery time would be at least 14 weeks and appellant would have light-duty restrictions. In a
June 6, 2013 report, Dr. Prince performed a right shoulder arthroscopic massive rotator cuff
repair, a right shoulder acromioplasty and a right shoulder acromioclavicular (AC) joint
resection. On July 3, 2013 he completed a questionnaire. In handwritten responses, Dr. Prince
noted that appellant stated that, while at work, he tried to catch a 55-gallon barrel that was falling
and felt pain in his right shoulder. He noted that appellant had pain with forward flexion and
abduction and breakaway weakness was present with external rotation and abduction. Dr. Prince
was also tender over the AC joint. A computerized tomography scan on May 17, 2013 and an
x-ray on May 29, 2013 revealed a right rotator cuff tear and AC osteoarthritis.5 As to causal
relationship, Dr. Prince’s typed response stated that the fact of injury was the direct and
proximate cause of the diagnosis based on reasonable medical probability. He noted that there
may be other causes for appellant’s medical problem, but one of the causes was clearly the
activities described at work.
4

Appellant submitted the March 19 and 20, 2013 progress notes from a physician’s assistant, who listed a history
that his right shoulder was treated after he moved a 55-gallon drum at work.
5

The diagnostic tests were submitted to the record.

3

By decision dated December 11, 2013, an OWCP hearing representative affirmed the
denial of appellant’s claim. She found that he failed to establish the February 25, 2013 incident
at work; noting inconsistencies in the histories contained in the medical and factual evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.9
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient
doubt on a claimant’s statements. The employee has not met this burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.10

6

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

8

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

9

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

10

T.B., Docket No. 13-1823 (issued March 20, 2014).

4

ANALYSIS
Appellant alleged injury on February 25, 2013 while attempting to move drums on a
pallet. He stated that he was attempting to adjust a drum with a coworker when he pulled a
muscle in his right shoulder. While the hearing representative determined that there were
inconsistencies in the record which cast doubt on appellant’s claim. The Board finds that the
February 25, 2013 incident occurred at the time, place and in the manner alleged.
In his claim form, appellant stated that on February 25, 2013 he was moving waste drums
on a pallet when he sustained injury to his right shoulder. An employee’s statement that an
injury occurred at a given time and in a given manner is of great probative value and will stand
unless refuted by strong or persuasive evidence.11 The evidence of record does not refute
appellant’s statement as to the incident at work. Mr. Deariso, a coworker, submitted a statement
that he was working with appellant on February 25, 2013 when they attempted to adjust a drum
on the pallet. After adjusting the drum, appellant stated that he pulled a muscle in his right
shoulder. He related that he informed his supervisor about the incident, but the supervisor
subsequently retired. Appellant then informed his acting supervisor of the incident on March 4
or 5, 2013, several weeks prior to submitting his claim. Mr. Smith noted on April 18, 2013 that
he vaguely recalled appellant mentioning an injury involving a drum. Mr. Blanton, the injury
compensation specialist, noted in an April 7, 2013 memorandum that Mr. Smith acknowledged
that he knew about the injury but failed to prepare paperwork at that time.
The evidence from the employing establishment is not sufficient to cast doubt on the fact
that appellant was attempting to move waste drums with a coworker on February 25, 2013.
While it was contended that notice of the injury was late, the Board finds that appellant timely
informed his supervisors of the incident and submitted his claim within several weeks of the
event at work. The delay of several weeks in submitting the claim is not sufficient to cast doubt
on the incident alleged in this case. Further, when he saw Dr. McGee on March 5, 2013
appellant provided a history of injury consistent with the moving of a 55-gallon drum when he
experienced the onset of pain in his right shoulder. Based on this evidence, the Board finds that
the February 25, 2013 incident occurred as alleged.
Appellant must also establish that the accepted employment incident caused a personal
injury by probative medical evidence.12 The Board finds, however, that the medical evidence of
record is not sufficient to establish that his right shoulder condition for which he underwent
surgery on June 6, 2013, was caused or contributed to by the February 25, 2013 incident.13
The treatment notes from Dr. McGee are insufficient to establish that appellant sustained
a right shoulder condition causally related to the accepted employment incident. Dr. McGee saw
appellant for right shoulder pain, but he addressed treatment for a complex rotator cuff tear of the
left shoulder which might have contributed to appellant’s current condition. He stated that there
11

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

12

C.M., Docket No. 13-2009 (issued July 14, 2014).

13

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

5

were multiple factors that resulted in rotator cuff pathology: including manual labor; appellant’s
native anatomy; the shape of his acromion; and activities involving the rotator cuff. The Board
finds that Dr. McGee did not provide a fully-rationalized opinion addressing how the
February 25, 2013 incident caused or aggravated appellant’s right shoulder condition.
Dr. McGee did not provide a full or accurate medical history, did not address appellant’s prior
weight lifting activities or address the diagnostic studies obtained prior to surgery. For these
reasons, the Board finds that his reports are of diminished probative value on the issue of causal
relation.
Dr. Prince performed a right shoulder arthroscopic rotator cuff repair, acromioplasty and
joint resection of the AC joint on June 6, 2013. In a questionnaire dated July 3, 2013, he
diagnosed rotator cuff tear and AC osteoarthritis. Dr. Prince listed a history that appellant was
trying to catch a 55-gallon barrel that was falling when he experienced pain in his right shoulder
at work but did not provide the date of the incident at work. He stated that the factors of injury
were the direct and proximate cause of the diagnosis based on reasonable medical probability,
but noted that there could be other causes for appellant’s medical problem, but one cause was
clearly the activities of work described by appellant. The Board finds that Dr. Prince’s reports
are insufficient to establish causal relationship. Dr. Prince did not provide a full history of the
incident accepted in this case. He did not list the date of the employment incident but made
general reference to appellant’s activities at work. It is not apparent that Dr. Prince based his
opinion on the traumatic incident of February 25, 2013 or on work activities occurring over more
than one shift. He did not adequately explain how the February 25, 2013 incident caused or
contributed to appellant’s rotator cuff tear or AC osteoarthritis. Dr. Prince did not address the
diagnostic testing, the history of appellant’s left shoulder rotator cuff tear or weight lifting
activities. The Board finds that the opinion of Dr. Prince on causal relationship is of diminished
probative value.
The reports from the physician’s assistants and diagnostic studies are not probative on the
issue of causal relation. A physician’s assistant is not a “physician” as defined under FECA.14
The diagnostic studies do not address causal relationship.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment or his belief that his condition was caused by his employment sufficient to establish
causal relationship.15 Appellant did not submit sufficient medical opinion to establish a causal
relationship between the February 25, 2013 incident and his right shoulder condition. He did not
meet his burden of proof.
CONCLUSION
The Board finds that the employment incident of February 25, 2013 is established, but the
medical evidence of record does not establish that appellant sustained a right shoulder injury as a
result.
14

5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

15

Walter D. Morehead, 31 ECAB 188 (1986).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 11, 2013 is affirmed, as modified.
Issued: December 9, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OLIN E. TEAGUE VETERANS MEDICAL
CENTER, Temple, TX, Employer
__________________________________________

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Appearances:
Haley Maiocchi, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0167
Issued: January 13, 2022

Case Submitted on the Record

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

JURISDICTION
On November 13, 2020 appellant, through counsel, filed a timely appeal from a May 18,
2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated January 17, 2019, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case. 3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 18, 2020 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review
of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus,
the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s May 6, 2020 request for
reconsideration, finding that it was untimely filed and failed to demonstrate cle ar evidence of error.
FACTUAL HISTORY
On September 8, 2016 appellant, then a 45-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on September 1, 2016 she sustained injuries to her right
side, upper left leg, buttock, and hip area when removing a wheelchair with oxygen from the rear
of a van while in the performance of duty. She stopped work on October 17, 2016. On October 26,
2016 OWCP accepted the claim for lumbar spine and left hip sprain. On April 23, 2018 it
expanded acceptance of the claim to include lumbar radiculopathy. OWCP paid appellant wageloss compensation on the supplemental and periodic rolls through March 31, 2018.
On March 19, 2018 appellant returned to work in a modified limited-duty position.
Appellant filed claims for compensation (Form CA-7) for disability from work
commencing June 14, 2018.
By decision dated January 17, 2019, OWCP denied appellant’s claim for compensation for
disability commencing June 14, 2018. It explained that the medical evidence supported that
appellant could perform a limited-duty job and that she had been performing a limited-duty job
since March 9, 2018, which was in accordance with the restrictions provided by a second opinion
physician and an impartial medical examiner.
On May 6, 2020 appellant filed a request for reconsideration.
OWCP received additional evidence including: numerous treatment notes from
Dr. Thomas E. Martens, an osteopath specializing in family medicine, dated November 20, 2018
through December 10, 2019; letters of medical necessity and requests for upgrade to include
additional medical conditions from Dr. Martens dated January 21 and May 5, 2020; duty status
reports (Form CA-17) from Dr. Martens dated January 23 and February 12, 2019; referrals for
physical rehabilitation from Dr. Martens dated January 24, March 7, and September 6, 2019 and
March 10, 2020; psychotherapy dated January 4 and February 15, 2019; x-rays of the right
shoulder dated November 13, 2018; a July 18, 2019 x-ray of the lumbar, thoracic, and cervical
areas of the spine; November 13, 2018, June 12, August 14, September 11, 2019, and January 22
and 29, 2020 diagnostic tests; an August 26, 2019 computerized tomography (CT) scan of the
lumbar spine; magnetic resonance imaging (MRI) scans of the lumbar spine dated June 29, 2017
and June 24, 2019; an August 26, 2019 operative report; physical therapy notes dated April 18,
2018 to April 15, 2020; and treatment notes from Dr. Torrence J. Stepteau, a pain medicine
specialist, dated July 30 and September 11, 2019, and January 22, 2020. OWCP also received
progress reports from physician assistants in Dr. Martens’ and Dr. Stepteau’s offices dated
December 5, 2018 to March 9, 2020.
By decision dated May 18, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

2

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.5 The one-year period for requesting reconsideration begins
on the date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.6 Timeliness is determined by the document receipt date, i.e., the “received date” in
OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 7 Imposition of this oneyear filing limitation does not constitute an abuse of discretion.8
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 9 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.10 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. 12 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the

4

5 U.S.C. § 8128(a); see T.J., Docket No. 21-0586 (issued September 30, 2021); L.W., Docket No. 18-1475 (issued
February 7, 2019); Y.S., Docket No. 08-0440 (issued March 16, 2009).
5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (February 2016).

7

Id.

8

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
9

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499 (1990).
10

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 6 at Chapter 2.1602.5 (February 2016).
11

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

12

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 6 a t Chapter 2.1602.5(a) (February 2016).

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evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.13
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence, which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report, which, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.14 The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP. 15
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The last merit decision was issued on January 17, 2019. As her request for reconsideration
was not received by OWCP until May 6, 2020, more than one year after the January 17, 2019 merit
decision, pursuant to 20 C.F.R. § 10.607(a), the request for reconsideration was untimely filed.
Consequently, appellant must demonstrate clear evidence of error by OWCP in denying the
claim.16
The Board further finds that OWCP summarily denied appellant’s request for
reconsideration without complying with the review requirement of FECA and its implementing
regulations.17
As noted, section 8124(a) of FECA provides that OWCP shall determine and make a
finding of fact and make an award for or against payment of compensation.18 Its regulations at 20
C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and facts
and a statement of reasons. 19 As well, OWCP’s procedures provide that the reasoning behind

13

C.M., Docket No. 19-1211 (issued August 5, 2020).

14

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 a t Chapter 2.1602.5(a) (February 2016).

15

D.S., Docket No. 17-0407 (issued May 24, 2017).

16

20 C.F.R. § 10.607(b); S.C., Docket No. 20-1537 (issued April 14, 2021); R.T., Docket No. 19-0604 (issued
September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).
17

See Order Remanding Case, W.D., Docket No. 20-0859 (issued November 20, 2020); Order Remanding Case,
C.G., Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P., Docket No. 19-1533 (issued April 30,
2020); see also 20 C.F.R. § 10.607(b).
18

5 U.S.C. § 8124(a).

19

20 C.F.R. § 10.126.

4

OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence, which would overcome it. 20
In the May 18, 2020 decision, OWCP failed to analyze the evidence submitted on
reconsideration as to whether it was sufficient to demonstrate clear evidence of error. The Board,
thus, finds that OWCP failed to properly explain the findings with respect to the issue presented
so that appellant could understand the basis for the decision, i.e., whether she had demonstrated
clear evidence that OWCP’s last merit decision was incorrect.
The Board will, therefore, set aside OWCP’s May 18, 2020 decision in part and remand
the case for findings of fact and a statement of reasons regarding clear evidence of error, to be
followed by an appropriate decision on appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed. The Board
further finds that the case is not in posture for decision regarding whether he has demonstrated
clear evidence of error.

20

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).

5

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2020 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded for further
proceedings consistent with this decision of the Board.
Issued: January 13, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rio Piedras, PR, Employer
__________________________________________

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

Docket No. 06-2027
Issued: March 6, 2007

Case Submitted on the Record

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

JURISDICTION
On September 1, 2006 appellant filed a timely appeal of an August 17, 2006 merit
decision of the Office of Workers’ Compensation Programs which found that she received an
overpayment of compensation in the amount of $4,987.14. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $4,987.14; (2) whether the Office properly determined that she was at fault in
accepting the overpayment and was, therefore, not entitled to waiver; and (3) whether the Office
properly required repayment of the overpayment by deducting $200.00 every four weeks from
appellant’s continuing compensation. On appeal she contends that she should not have to pay
interest.

FACTUAL HISTORY
On July 19, 1976 appellant, then a 41-year-old clerk, injured both wrists when she
dropped a postage meter. The Office accepted that she sustained an employment-related strain
of both arms and wrists and bilateral carpal tunnel syndrome. Appellant sustained a recurrence
of disability on December 2, 1976 and did not return to work. She received compensation at the
augmented three-fourths rate and on September 10, 1984 the Office expanded the claim to
include an employment-related emotional condition. On August 21, 1995 appellant submitted a
form authorizing that her compensation payments should be directly deposited. By letters dated
April 24, 2003 and May 28, 2004, she informed the Office that her husband died on March 26,
2003 and included a copy of his death certificate. Office EN1032 forms contained in the record
indicated that she has no other dependents. Compensation payments at the two thirds rate
became effective August 8, 2004.
On August 12, 2004 the Office issued a preliminary determination that appellant had
received an overpayment in compensation in the amount of $4,987.14, for the period March 27,
2003 through August 7, 2004 because she continued to receive disability compensation at the
augmented three-fourths rate after her husband’s death. The Office found appellant to be at fault
in the creation of the overpayment because she reasonably should have been aware that she was
not entitled to receive augmented compensation. Office forms and printouts contained in the
record provide that, during this period, appellant received compensation at the three-fourths rate
totaling $44,817.85 and that compensation at the two-thirds rate would total $39,830.71, which
yielded an overpayment in compensation of $4,987.14. In a September 16, 2004 letter, appellant
stated that, since she had timely informed the Office of her husband’s death, the overpayment
was created by negligence on the Office’s part and advised that it would be a financial hardship
to repay the debt.
A telephone conference was held on August 17, 2006 between an Office claims examiner
and appellant. Appellant was informed that her overpayment was being finalized, that she would
be found at fault and that repayment would be deducted from her continuing compensation. The
conference memorandum stated that she would repay the overpayment and that she could afford
a repayment of $200.00 per compensation period. By decision dated August 17, 2006, the Office
finalized the determination that appellant was at fault in the creation of an overpayment in
compensation in the amount of $4,987.14, because she should have known that she was not
entitled to receive wage-loss compensation at the augmented three-fourths rate after her
husband’s death on March 26, 2003. Appellant was advised that repayment would be made by
deducting $200.00 every four weeks from her continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act1 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal

1

5 U.S.C. §§ 8101-8193.

2

injury sustained while in the performance of his duty.2 Section 8129(a) of the Act provides, in
pertinent part:
“When an overpayment has been made to an individual under this subchapter
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 an
individual is entitled.”3
The basic rate of compensation paid under the Act is 66 2/3 percent of the injured
employee’s monthly pay. Where the employee has one or more dependents as defined in the
Act, the employee is entitled to have his or her basic compensation augmented at the rate of 8 1/3
percent for a total of 75 percent of monthly pay.4 Section 8110(a)(2) of the Act provides that a
husband qualifies as a dependent if he is a member of the same household as the employee, is
receiving regular contributions from the employee for his support or the employee has been
ordered by a court to contribute to his support.5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $4,987.14. The record supports that appellant continued to receive compensation at the
augmented three-fourths rate after her husband’s death on March 26, 2003 until August 17, 2004
and she had no other dependents. For this period she received augmented compensation in the
amount of $44,817.85. As appellant was not entitled to compensation at the augmented rate after
the death of her husband, she should have received compensation of $39,830.71. The Office
properly found that an overpayment in compensation in the amount of $4.987.14 had been
created.6
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”7

2

5 U.S.C. § 8102(a).

3

5 U.S.C. § 8129(a).

4

5 U.S.C. § 8110(b).

5

5 U.S.C. § 8110(a)(2); see Nancy J. Masterson, 52 ECAB 507 (2001).

6

5 U.S.C. §§ 8101, 8110.

7

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

3

Section 10.433(a) of the Office’s regulation provides that the Office:
“ ... may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from [the Office] are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) made an
incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; or (2) failed to provide information which he or she knew
or should have known to be material; or (3) accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”8
In determining fault under section 10.433(a)(3), where the claimant receives
compensation through direct deposit, the payment goes directly from the U.S. Treasury to the
claimant’s account. The Office may not deposit compensation into a claimant’s account without
authorization. The claimant must first complete a form authorizing the electronic transfer of
payment to a named financial institution to be deposited to a designated account. It is only with
the claimant’s intent that these payments are deposited to his or her account which is something
more than receipt; it is acceptance. When control of the funds passes to the claimant upon
deposit, the acceptance necessary under section 10.433(a)(3) is established.9
ANALYSIS -- ISSUE 2
In finding appellant at fault in the creation of the $4,987.14 overpayment, the Office
stated that she should have known that the payments she received by direct deposit for the period
March 27, 2003 through August 7, 2004 were not proper because they were at the augmented
three-fourths rate and, as she had no dependents after her husband’s death on March 26, 2003,
she was only entitled to compensation at the two-thirds rate.
Even though the Office may have been negligent in making incorrect payments, this does
not excuse a claimant from accepting payments he or she knew or should have known to be
incorrect.10 The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments are incorrect.11 It is not appropriate, however, to
make a finding that a claimant has accepted an overpayment via direct deposit until such time as
a reasonable person would have been aware that this overpayment had occurred. This awareness
could be established either through documentation such as a bank statement or notification from
8

20 C.F.R. § 10.433 (1999); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

9

Tammy Craven, 57 ECAB ____ (Docket No. 05-249, issued July 24, 2006).

10

William E. McCarty, 54 ECAB 525 (2003).

11

See Karen K. Dixon, 56 ECAB ____ (Docket No. 03-2265, issued November 9, 2004).

4

the Office or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.12
In this case, appellant continued to receive augmented compensation by direct deposit
from the time of her husband’s death on March 26, 2003 until August 7, 2004. Since Office
regulations define fault by what the claimant knew or should have known at the time of
acceptance, one of the consequences of electronic fund transfers is that in many cases the
claimant will not be at fault for accepting the first incorrect payment because the requisite
knowledge is lacking at the time of deposit and the Board so finds in this case as there is no
evidence of record to show the period covered by this direct deposit.13 A finding of no fault does
not mean, however, that the claimant may keep the money, only that the Office must consider
eligibility for waiver for this period and the case must be remanded for the Office to determine
whether she is entitled to waiver for this period.
By her own admission, appellant acknowledged that she was not entitled to augmented
compensation. Thus, after her receipt of the first direct deposit for which fault may not be
imputed to her, under the reasonableness standard delineated above, for the subsequent direct
deposits appellant knew or should have known that the compensation paid by direct deposits
issued by the Office after the first direct deposit subsequent to her husband’s death on March 26,
2003 were in error and the Board finds that she was at fault under the third standard outlined
above for any period after the first direct deposit after her husband’s death. Recovery of the
overpayment in compensation may not be waived for this time period and the decision dated
August 17, 2006 is affirmed in this respect. The record in this case, however, does not show
when appellant’s individual direct deposits were made. As she was not at fault for the first direct
deposit after March 26, 2003, the case must be remanded to the Office to determine the exact
period appellant would not be at fault and would thus, be entitled to waiver.
Based on the Board’s determination in the second issue in this case, issue three need not
be addressed at this time.14
CONCLUSION
The Board finds that the Office properly determined that an overpayment in
compensation in the amount of $4,987.14 had been created and that appellant was at fault for the
overpayment period commencing subsequent to the first direct deposit after appellant’s
12

See K.H., Docket No. 06-191 (issued October 30, 2006).

13

See Karen K. Dixon, supra note 11.

14

Regarding appellant’s argument on appeal that she should not have to pay interest, the Board notes that the
statutory authority for the Office to charge interest on an overpayment is found in 31 U.S.C. § 3717(a)(1) and (g)(1).
Section 3717(a)(1) provides in relevant part that the head of an executive or legislative agency shall charge a
minimum annual rate of interest on an outstanding debt on a United States Government claim owed by a person.
Subsection (g)(1) states that section 3717 does not apply if a statute, regulation required by statute, loan agreement
or contract prohibits charging interest or assessing charges or explicitly fixes the interest or charges. Since the Act
does not prohibit the charging of interest on overpayments, the Office has the requisite statutory authority to assess
interest on an overpayment and the Office did not abuse its discretion by charging interest in this case. 5 U.S.C.
§ 3717(a)(1), (g)(1); see Jorge O. Diaz, 51 ECAB 124 (1999).

5

husband’s death but was not at fault for the first direct deposit of compensation. The case is
remanded for a determination of whether she would be entitled to waiver for this brief period.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 17, 2006 be affirmed in part, vacated in part, and the case
remanded for further proceedings consistent with this opinion of the Board.
Issued: March 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 07-985
Issued: October 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 28, 2007 appellant filed a timely appeal from the September 13 and
December 11, 2006 merit decisions of the Office of Workers’ Compensation Programs, which
denied his claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant sustained an injury on June 5, 2006 in the performance of
duty.
FACTUAL HISTORY
On June 9, 2006 appellant, then a 58-year-old transportation security officer, filed a claim
alleging that he sustained an injury in the performance of duty on June 5, 2006: “While walking
during break from Terminal B to A Terminal, I slipped on pavement and injured my right knee

and shoulder and back.” He stated the injury occurred at 4:45 p.m. Appellant’s regular work
hours were from 1:00 p.m. to 9:30 p.m. Her screening manager indicated that the injury did not
occur in the performance of duty because appellant was on break. Appellant submitted medical
opinion evidence supporting that his diagnosed right knee, right shoulder and spinal sprains were
directly related to his slip and fall at work.
Appellant’s screening manager informed the Office that the injury occurred during his
unpaid lunch break. “On the other hand,” he stated, “TSA employees at Philadelphia Int’l
Airport do not have any physical clock-in & out mechanism for them to use to clock out for their
lunch breaks and the only time tracking tool is just a sign in/out sheet which shows only the start
and end of their shift.” The screening manager stated that the approximate distance from
Terminal A East, which was appellant’s duty station, and the location he claimed the incident
occurred was 175 feet. He further stated there were two ways to get to Terminal A from
Terminal B: an inside route containing two moving walkways and a curbside route linking all
the terminals.
Appellant stated that he was on an assigned break, “which means I was still on the
clock.” He stated he chose the outside route to Terminal A to get some fresh air.
In a decision dated September 13, 2006, the Office denied appellant’s claim. It found
that he was not in the performance of duty at the time his injury occurred because the area in
which he was injured was not federally owned, operated, and/or maintained. It also found that
the injury happened during a lunch break which was unpaid.
Appellant requested reconsideration. His attorney argued that, while he was not actually
engaged in the furtherance of his employer’s business at the time of his injury because he was on
a lunch break, he was on the premises and was required by the nature of his employment to be
present on these premises. Appellant argued that since there was no mechanism by which he
could leave the premises for a lunch break, and because he was only 175 feet from his duty
station at the time of injury, his injury must come within the course and scope of his
employment.
In a decision dated December 11, 2006, the Office reviewed the merits of appellant’s
claim and denied modification of its September 13, 2006 decision. It found that appellant was on
an unpaid lunch break and did not have to leave the terminal to take lunch: “The claimant
decided to go outside of his terminal and off the premises of his worksite and placed himself in
the ordinary nonemployment hazards shared by all travelers and outside the performance of
duty.”
LEGAL PRECEDENT
Congress, in providing a compensation program for federal employees, did not contemplate
a program of insurance against every injury, illness or mishap that might befall an employee
contemporaneous or coincidental with his employment; liability does not attach upon the mere
existence of an employer-employee relationship.1 Instead, Congress provided compensation for
1

Christine Lawrence, 36 ECAB 422 (1985); Minnie M. Huebner, 2 ECAB 20 (1948).

2

personal injuries sustained while in the performance of duty.2 The Board has interpreted the phrase
“sustained while in the performance of duty” as the equivalent of the coverage formula commonly
found in workers’ compensation laws, namely, “arising out of and in the course of employment.”3
“In the course of employment” relates to 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 his employer’s business, at a place where he may reasonably be expected to be in
connection with his employment, and while he was reasonably fulfilling the duties of his
employment or engaged in doing something incidental thereto.4
As a general rule, off-premises injuries sustained by employees having fixed hours and
place of work, while going to or coming home from work or during a lunch period, are not
compensable as they do not arise out of and in the course of employment but are merely the
ordinary, nonemployment hazards of the journey itself that are shared by all travelers. But if the
employee is on the premises of the employing establishment, an injury will generally fall within
the performance of duty. 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’ the “premises” may include all the
“property” owned by the employer. In other cases, even though the employer does not have
ownership and control of the place where the injury occurred, the place is nevertheless considered
part of the premises. The premises of the employer may therefore be broader or narrower than the
property of the employer, depending more on the relationship of the property to the employment
than on the status or extent of legal title.5
The Office is not a disinterested arbiter but rather performs the role of adjudicator on the
one hand and gatherer of the relevant facts and protector of the compensation fund on the other, a
role that imposes an obligation on the Office to see that its administrative processes are
impartially and fairly conducted.6 Although the claimant has the burden of establishing
entitlement to compensation, the Office shares responsibility in the development of the evidence.7
ANALYSIS
The Office denied appellant’s claim on the grounds that his injury occurred off the
employer’s premises during a lunch break. However, the Office has not developed sufficient
evidence to support this finding. Appellant works as a transportation security officer at a major
international airport. In this case, it is not clear where the federal premises begins and where it
2

5 U.S.C. § 8102(a).

3

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
4

Carmen B. Gutierrez, 7 ECAB 58, 59 (1954).

5

Linda D. Williams, 52 ECAB 300 (2001).

6

Thomas M. Lee, 10 ECAB 175 (1958).

7

William J. Cantrell, 34 ECAB 1233 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

3

ends. Before the Office can support a finding that appellant was off the premises, it must first
establish what the parameters of the premises. The mere fact that appellant’s injury occurred in
an area of the airport that is not federally owned or operated or maintained is not dispositive.
The employer’s premises may well extend beyond the immediate ground upon which appellant
performs his screening duties inside Terminal A East. The premises could extend to bathrooms
and restaurants and other public areas of the airport that are not owned or operated or maintained
by the federal government. The premises could extend to any place on the airport grounds where
appellant might reasonably be expected to be in connection with his employment and this, in
turn, on whether the employer instructed appellant to take lunch only at certain designated
locations or whether the employer specifically prohibited appellant from going to Terminal B for
any incidental activities, such as getting a drink or a snack or taking an assigned break. The
evidence, as developed does not allow the Board to make a fully informed adjudication of this
claim.
The Office also found that appellant did not have to leave Terminal A East to take lunch,
but the evidence is again insufficient to support the Office’s finding. The record does not
disclose when appellant may take lunch, where in the airport he may go for lunch, or when or
where or for how long he may take assigned breaks. Although appellant’s attorney appears to
concede that appellant was returning from lunch, the record does not show where appellant went
inside Terminal B, what he did while he was there or how long he stayed before making his way
back to Terminal A East.
The Board will set aside the Office decisions denying compensation and remand the case
for further development of the evidence. After such further development as may be necessary, it
shall issue an appropriate final decision on appellant’s claim for compensation.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
evidence is warranted.

4

ORDER
IT IS HEREBY ORDERED THAT the September 13 and December 11, 2006
decisions of the Office of Workers’ Compensation Programs are set aside. The case is remanded
for further action consistent with this opinion.
Issued: October 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Lewis, WA, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1470
Issued: June 23, 2011

Case Submitted on the Record

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

JURISDICTION
On May 6, 2010 appellant, through her representative, filed a timely appeal from a
December 22, 2009 merit decision of the Office of Workers’ Compensation Programs. Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
June 12, 2008.
FACTUAL HISTORY
Appellant filed a traumatic injury claim (Form CA-1) alleging an injury in the
performance of duty on April 23, 2002, when her right knee was struck while getting on a
forklift. The Office accepted the claim for right knee contusion, right torn medial meniscus and
1

5 U.S.C. § 8101 et seq.

right knee degenerative joint disease. Appellant underwent arthroscopic right knee surgery on
July 9, 2002 and May 6, 2003. On July 10, 2007 she underwent a unicompartment arthroplasty
of the right knee. Appellant returned to a full-time, light-duty position on October 9, 2007.
On June 13, 2008 appellant filed a claim for compensation (Form CA-7) commencing
June 12, 2008. In a treatment note dated June 12, 2008, Dr. W. Brandt Bede, the attending
orthopedic surgeon, indicated that appellant was seen for a follow-up from her surgery, and he
stated “no improvement has been noted over time. He reported that appellant had persistent pain
during the day and at night, making it very difficult for her to continue working or be active.
Dr. Bede provided results on examination, diagnosed status post unicompartment knee
replacement and stated, “no work.” In a note dated June 24, 2008, he stated that appellant was
taken off work due to increasing right knee pain, and at the present time she was unable to walk,
sit or stand without discomfort.
In a report dated August 14, 2008, Dr. Bede stated that appellant was being treated for an
employment-related torn medial meniscus and acceleration of osteoarthritic changes that were
treated by knee replacement surgery. He stated that appellant had a tumultuous postoperative
recovery and x-rays revealed advanced arthritic changes in the right knee. Dr. Bede opined that
appellant was totally disabled.
By decision dated August 22, 2008, the Office denied the claim for compensation
commencing June 12, 2008. It found that the medical evidence from Dr. Bede was not sufficient
to establish the claim.
On September 19, 2008 appellant requested a hearing before an Office hearing
representative. A hearing was held on January 14, 2009. Following the hearing, appellant
submitted a July 30, 2008 report from Dr. Bede. In this report, Dr. Bede explained that she could
not return to her date-of-injury position or her light-work position because she was significantly
limited in sitting, standing, walking, ascending and descending stairs due to her ongoing knee
pain. Appellant also submitted a February 13, 2009 report from Dr. Bede, who stated that since
surgery appellant had increasing knee pain. He stated that x-rays of that date revealed loosening
of the tibial compartment and appellant would be scheduled for removal of the unicompartmental
knee replacement and conversion to a full total knee replacement. Dr. Bede further stated that
appellant’s “time loss has been discontinued six to eight months ago. Retroactively it should be
reinstated because her ongoing pain is most likely related to gradual and now obvious loosening
of the tibial component.”
By decision dated April 28, 2009, an Office hearing representative remanded the case for
further development. The hearing representative found the reports from Dr. Bede sufficient to
require further development.
The Office referred the case to Dr. Clarence Fossier, an orthopedic surgeon selected as a
second opinion physician. In a report dated July 14, 2009, Dr. Fossier reviewed the medical
evidence of record.2 In response to a question as to objective findings showing a worsening
condition on June 12, 2008, he stated that appellant had undergone a right knee arthroplasty and
2

There is no indication that Dr. Fossier examined appellant.

2

there was radiographic evidence of loosening of the tibial compartment. In response to a
question regarding documented worsening for the light-duty job, Dr. Fossier responded, “Yes.
The claimant is having increased pain with any increased activity which would have prevented
her from working any condition [sic] regardless of the description.”
Appellant underwent a right total knee replacement on August 4, 2009, which was
performed by Dr. Edward. A. Posuniak Jr., an osteopathic physician.
By decision dated August 5, 2009, the Office found that appellant had established a
recurrence of disability commencing February 13, 2009. As to the claim for compensation from
June 12, 2008 to February 12, 2009, it found the medical evidence did not establish a change in
the employment-related condition.
Appellant again requested a hearing before an Office hearing representative. By decision
dated November 3, 2009, the hearing representative remanded the case. The hearing
representative found the Office should clarify Dr. Fossier’s opinion as it was unclear regarding
disability commencing June 12, 2008.
In a report dated December 1, 2009, Dr. Fossier noted the August 14, 2008 report from
Dr. Bede regarding arthritic changes and a September 10, 2008 note as to a failed arthroplasty.
He stated that he would “consider this an ongoing process and not one that specifically started on
June 12, 2008.” Dr. Fossier stated that there was no evidence, other than Dr. Bede’s opinion,
that would have prevented appellant from continuing to work at her light-duty assignment. He
also stated that there was no indication that any medication would have prevented appellant from
working.
By decision dated December 22, 2009, the Office denied the claim for compensation
from June 12, 2008 to February 12, 2009. It found the weight of the evidence was represented
by Dr. Fossier.
LEGAL PRECEDENT
The Office’s regulations define the term recurrence of disability as follows:
“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. This 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 or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical
limitations.”3

3

20 C.F.R. § 10.5(x).

3

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 of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.4 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.5
The Act provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.6
The implementing regulations further explains however that, if the medical evidence
supporting one conclusion is more consistent, logical and well reasoned than evidence
supporting a contrary conclusion, the Office will use the conclusion that is supported by the
weight of the medical evidence as the basis for awarding or denying further benefits.7
ANALYSIS
On appeal, appellant’s representative alleges that, as appellant’s right knee replacement
of August 4, 2009 was employment related, her disability preceding the surgical procedure was
causally related to the accepted employment injury.
In this case, Dr. Bede, appellant’s attending orthopedic surgeon, since June 2002, opined
that appellant was disabled due to an employment-related right knee condition as of
June 12, 2008. He noted arthritic changes in the knee and stated that there was increased pain in
the right knee which rendered appellant disabled due to restricted sitting, standing, walking and
stair climbing. Dr. Bede also indicated that the loosening of the tibial compartment,
demonstrated by x-rays dated February 13, 2009, would have been a gradual process, causing
right knee pain.
Dr. Fossier, the second opinion physician, conducted a medical records review of
appellant’s knee injury and treatments. He neither physically examined appellant nor took an
oral history from her. Dr. Fossier’s report mainly consists of a recitation of Dr. Bede’s extensive
record of his treatment of appellant. In response to the Office’s question as to whether there
4

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman , 38 ECAB
222 (1986).
5

Maurissa Mack 50 ECAB 498 (1999).

6

5 U.S.C. § 8123.

7

20 C.F.R. § 10.502 (1999)

4

were any objective findings to support a worsening of appellant’s right knee condition that
occurred specifically on June 12, 2008, he stated in his July 14, 2009 report that appellant had
undergone a unicompartmental arthroplasty of her right knee, there was radiographic evidence of
loosening of the tibial component, and that appellant was not doing well with arthritic changes of
the patellofemoral and lateral compartments of the knee. Upon further questioning as to whether
the documented worsening would have prevented appellant from working, Dr. Fossier stated that
appellant was having increasing pain with any increased activity which would have prevented
her from working at any position. When asked for clarification of his opinion as to whether
appellant was disabled as of June 12, 2008, he reported on December 1, 2009 that only
Dr. Bede’s opinion supported a finding of disability as of that date. Dr. Fossier did not explain
or offer any medical rationale as to why appellant was not disabled as of June 12, 2008, given
that he stated in his July 14, 2009 report that appellant had a documented worsening of her
condition as of June 12, 2008.
The Board has stated that factors which enter into the evaluation of the weight of the
medical evidence are the opportunity for and thoroughness of examination, the accuracy and
completeness of the doctor’s knowledge of the facts and medical history, the care of analysis
manifested and the medical rationale expressed in support of the doctor’s opinion.8
When there are opposing reports of virtually equal weight and rationale, the case must be
referred to a referee physician, pursuant to 5 U.S.C. § 8123(a), to resolve the conflict.9 A referral
to an impartial medical specialist, however, is not required if the medical evidence supporting
one conclusion is more consistent, logical and well reasoned than evidence supporting a contrary
conclusion. The Office’s own regulations and long-standing Board precedent allow a finding of
disability to be made on the weight of the medical evidence.10
The Board concludes that both Dr. Bede and Dr. Fossier support a finding that appellant’s
condition had worsened as of June 12, 2008, there is no conflict of medical opinion in this
regard. Dr. Bede offered a well-rationalized opinion explaining why appellant’s condition as of
June 12, 2008 also caused total disability due to multiple work restrictions, based upon his
examination and treatment of appellant, as well as the x-ray evidence. The Board concludes that
Dr. Fossier’s opinion that appellant was not disabled as of June 12, 2008 is of limited probative
value as it was inconsistent with his previous opinion that appellant’s condition had objectively
worsened as of June 12, 2008 was not based upon a physical examination given the nature of the
injury. The Board thus concludes that Dr. Bede’s opinion that appellant’s right knee worsened
and caused disability as of June 12, 2008 is the weight of the medical opinion evidence and
establishes appellant’s claim of recurrence of disability.

8

See Adrienne L. Wintrip, 38 ECAB 373 (1987).

9

William C. Bush, 40 ECAB 1064 (1989).

10

Supra note 8.

5

CONCLUSION
The Board finds that appellant has established a recurrence of disability as of
June 12, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2009 is reversed.
Issued: June 23, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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