United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF HOUSING & URBAN
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DEVELOPMENT, OFFICE OF FAIR HOUSING )
& EQUAL OPPORTUNITY, Los Angeles, CA,
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Employer
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__________________________________________ )
D.B., Appellant

Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0443
Issued: November 15, 2019

Case Submitted on the Record

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

JURISDICTION
On December 21, 2018 appellant, through counsel, filed a timely appeal from a June 27,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

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
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On June 29, 2017 appellant, then a 50-year-old equal opportunity specialist, filed a
traumatic injury claim (Form CA-1) alleging that on June 5, 2017 she sustained an emotional
condition due to actions of G.C., her first-line supervisor. She related that on June 5, 2017 G.C.
informed her by e-mail that she was being investigated for a workplace violation. G.C. provided
no other details and informed her that a meeting would be held in four days. Appellant reported
that she felt violated by her supervisors who had previously denied her reasonable
accommodations request one month earlier despite having provided two doctor’s notes. On the
reverse side of the claim form, J.B., a supervisor, controverted the claim noting that appellant was
claiming an emotional reaction to an e-mail notice which requested a meeting. She argued that
appellant’s emotional reaction was self-generated and did not arise out of or in the course of
employment.4
In support of her claim, appellant submitted medical reports dated May 4 through July 7,
2017 which discussed her psychiatric conditions in relation to employment-related factors.
By development letter dated July 17, 2017, OWCP informed appellant that the evidence of
record was insufficient to support her claim. It advised appellant of the factual and medical
evidence needed. OWCP requested that she clarify whether she was claiming a traumatic injury
or occupational disease and provided a questionnaire for completion. It afforded appellant 30 days
to submit the necessary evidence.
In an August 12, 2017 narrative statement, appellant responded to OWCP’s development
letter and reiterated that she was claiming a traumatic injury which occurred on June 5, 2017. She
reported while the continued mistreatment from her supervisors was both unfair and stressful, she
filed a Form CA-1 due to the e-mails and other events that occurred on June 5, 2017. Appellant
2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the June 27, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4

The Board notes that appellant has a prior occupational disease claim which had been separately adjudicated under
OWCP File No. xxxxxx818. In that claim appellant alleged an eye strain and post-traumatic stress disorder (PTSD)
due to her managers’ failure to provide accommodation and to stereo-type her as lazy. By decision dated
December 18, 2017 appellant’s occupational disease claim was denied. This file has been combined with File No.
xxxxxx224 with File No. xxxxxx818 serving as the master file.

2

explained that about a year ago, she had filed an Equal Employment Opportunity (EEO) claim
against her first, second, and third-line supervisors for failure to promote her and the preferential
hiring of G.C. Her first-line supervisor was G.C. and her second-line supervisor was D.Q.
Appellant explained that since G.C. became her supervisor, he had routinely sent her threatening
e-mails and randomly subjected her to acts of disparate treatment when compared to her peers.
She stated that she had recently requested a medical transfer from G.C.’s unit based on his lack of
understanding and inability to accommodate her severe anxiety and depression. Appellant
reported that she was working from home and awaiting the transfer. However, she went into the
office on Friday, June 2, 2017 because G.C. insisted. Appellant reported that on Monday, June 5,
2017 at 10:30 a.m., she was working from home on her regularly scheduled tour of duty when she
received an e-mail from G.C. informing her that he needed to meet with her on June 8, 2017 to
conduct an investigation and ask her questions regarding a workplace matter. He further informed
her that she had a right to have a union representative present. Appellant stated that employees
who were teleworking were not usually bothered unless it was a serious matter. She related that
she did not understand the purpose of the meeting and why G.C. was contacting her at home since
she had just been in the office on Friday. Appellant further contended that working for the
employing establishment over the course of nine years, she could not recall ever receiving a notice
of possible discipline which related that she could have a union representative present. She
reported that because she was advised that a union representative could be present, she was terrified
that she was in trouble, even though she had done nothing wrong, and feared that this was some
new form of retaliation for her transfer request. Appellant responded to G.C.’s e-mail at 11:46
a.m. and asked him when the matter to be discussed occurred. G.C. responded to her stating that
the details of the matter would be discussed at the meeting on Thursday. Appellant then e-mailed
G.C. at 11:56 a.m. informing him that this was triggering her anxiety and major depression and
that four days was too long to wait to address the issue. She asked that he please provide her
details so that she could know what the matter was about and prepare as not knowing was
aggravating her disability and triggering her PTSD. Appellant reported that she received no
response to her last e-mail. She tried to continue to work but her anxiety kept mounting as she
could not figure out what she had done, and she felt all of the past abuse by her supervisors rush
back to her. Appellant reported that this caused a panic attack as her face began to burn and
became numb, her breathing was short and quick, her chest tightened, and her head hurt. At 1:45
p.m. she again e-mailed G.C. informing him that he had triggered a panic attack and she needed to
go to urgent care. G.C. responded that if she was in need of urgent care then she should go seek
medical assistance. Appellant went to urgent care at Facey Medical Center and informed them
that she was having a nervous breakdown due to actions of the employing establishment. The
treating providers told her that because she alleged her condition was caused by the employing
establishment, they could not treat her unless the employing establishment agreed. Appellant
provided them with the contact information for her second-line supervisor, D.Q. However, D.Q.
refused to authorize her treatment, despite appellant protesting that it was a medical emergency.
Appellant reported leaving urgent care without medical treatment and self-medicated with her own
anti-depressants and anti-anxiety medications. She reported that she had previously been treated
for general anxiety disorder, major depressive disorder, and beginning in 2016, PTSD as a result
of interacting with rogue supervisors G.S., D.Q., and A.Q. who discriminated against her in hiring,
promotions, reasonable accommodations, and other retaliatory actions. Appellant reported that
she had never been hospitalized for an emotional condition. She further stated that she was
previously prescribed anti-depressants in 2005 after her son was born but stopped taking the

3

medication around 2008. Appellant had a period of wellness with no medication for several years
but then had to resume taking medication after she began working for the employing establishment
and the stress mounted from her job. She further stated that many of her medications were not
prescribed until after she began working for the employing establishment due to depression,
anxiety, prolonged stress, high blood pressure, and sleep deprivation.
In support of her claim, appellant provided the June 5, 2017 e-mail correspondence with
G.C. The record reflects that on June 5, 2017 at 11:02 a.m., G.C. e-mailed appellant relating that,
“I need to meet with you on Thursday, June 8, 2017 at 10:30 a.m. to conduct an investigation and
ask questions regarding a workplace matter. Please note that you have a right to have a union
representative present. Thursday is one of your telework days, therefore I will provide you with a
call-in number.” At 11:37 a.m., appellant responded to G.C. and asked, “When did the matter
occur?” G.C. replied at 11:46 a.m. and stated, “The details of the matter will be discussed at the
meeting on Thursday.”
At 11:54 a.m., appellant replied to G.C. and stated:
“You are creating anxiety. I didn’t want to come into the LA Office because of the
drama that you guys create. I requested 100% telework. I came because you
directed me to. Now you are triggering anxiety and major depression that is going
to require me to take additional medication. Four days is too long to wait to address
the issue. Please provide details, so that I can know what is going on and be
prepared. At this point you are aggravating my disability and triggering PTSD, with
your ‘secrets.’” No reply was received and appellant replied again at 1:45 p.m.
stating, “You have triggered a panic attack. I need to go to urgent care.” G.C.
replied at 1:55 p.m. stating, “Yes, if you are in need of urgent care, please go seek
medical assistance right away.”
Appellant also submitted medical reports documenting treatment for her emotional
condition.
In a July 28, 2017 report from Facey Medical Foundation, Vanessa Jimenez, the workers’
compensation coordinator, explained that appellant visited their urgent care facility on June 5,
2017 but that there was no medical report available as she was not seen by the provider. She
reported that appellant came into the office on that date with complaints of chest pain, shortness
of breath, stress, and anxiety. Appellant was provided with a short form to complete with the
reason for the visit, which included whether the visit was for a work-related condition. The
receptionist noticed that it was not checked off and she verbally asked appellant if her illness was
work related to which appellant responded “yes.” At that time the receptionist explained the
workers’ compensation process and let her know that, in order to treat her, they needed to obtain
authorization from her supervisor. If she was not able to obtain authorization, she would have to
be referred to the nearest emergency department for treatment as her insurance would not cover
work-related visits and she would end up with a bill. The receptionist then called appellant’s
supervisor in an attempt to get the veriﬁcation needed for treatment. The supervisor informed her
that he would not be able to authorize it at that moment since the authorization had to come from
Washington and it was already too late. She reported that appellant was very frustrated and clearly

4

having a hard time. Nurses were in the receptionist area trying to assist her, as well making sure
that she was stable enough to go to the emergency department.
By decision dated October 26, 2017, OWCP denied appellant’s traumatic injury claim
finding that her alleged June 5, 2017 injury did not occur in the performance of duty. It accepted
that on June 5, 2017 she received an e-mail from G.C. regarding a June 8, 2017 investigation.
However, OWCP found that this event was not a compensable factor of employment because the
e-mail was administrative and the employing establishment had the right to perform the
investigation absent abuse.
On November 25, 2017 appellant requested an oral hearing before an OWCP hearing
representative.
A hearing was held on May 16, 2018. During the hearing, appellant described prior
interactions with her supervisors who discriminated against her and treated her unfairly, her
requests for reasonable accommodations, and the circumstances surrounding the June 5, 2017
employment incident.
Counsel subsequently submitted a brief in support of appellant’s emotional condition
claim, along with additional factual and medical evidence, including a July 10, 2017 final decision
from the employing establishment’s reasonable accommodations committee (RAC). The RAC
responded to appellant’s May 5, 2017 request to be reassigned and to telework full time, which
D.Q. and G.C had previously denied. The RAC approved in part appellant’s request to telework,
but found that she had to appear in the office one day per week. It further denied her request for
reassignment.
By decision dated June 27, 2018, OWCP’s hearing representative affirmed the October 26,
2017 decision finding that appellant failed to establish a compensable employment factor in the
performance of duty.
LEGAL PRECEDENT
A claimant has the burden of proof to establish by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by factors of his or her federal employment.5 To establish that he or she
sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to his
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
5

See Pamela R. Rice, 38 ECAB 830 (1987).

6

See C.M., Docket No. 17-1076 (issued November 14, 2018); S.J., Docket No. 12-1512 (issued February 12, 2013).

5

has some connection with the employment but nevertheless does not come within the concept or
coverage of workers compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.7 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer, not the regularly or specially assigned
work duties of the employee, and are not covered under FECA.9 However, the Board has held
that, where the evidence establishes error or abuse on the part of the employing establishment in
what would otherwise be an administrative matter, coverage will be afforded.10 In determining
whether the employing establishment has erred or acted abusively, the Board will examine the
factual evidence of record to determine whether the employing establishment acted reasonably.11
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.12 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor.13 When the matter asserted is
a compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.14
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.15 The nonadversarial policy of proceedings

7

Lillian Cutler, 28 ECAB 125 (1976).

8

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005).

9
B.S., Docket No. 19-0378 (issued July 10, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
10

O.G., Docket No. 18-0359 (issued August 7, 2019); William H. Fortner, 49 ECAB 324 (1998).

11

E.M., Docket No. 16-1695 (issued June 27, 2017); Ruth S. Johnson, 46 ECAB 237 (1994).

12
K.S., Docket No. 18-0845 (issued October 26, 2018); D.L., 58 ECAB 217 (2006); Jeral R. Gray, 57 ECAB
611 (2006).
13

B.B., Docket No. 19-0682 (issued September 9, 2019); David C. Lindsey, Jr., 56 ECAB 263 (2005).

14

K.J., Docket No. 17-1851 (issued September 25, 2019); Robert Breeden, 57 ECAB 622 (2006).

15

K.S., supra note 12.

6

under FECA is reflected in OWCP’s regulations at section 10.121.16 Once OWCP undertakes to
develop the evidence, it has the responsibility to do so in a proper manner.
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board notes initially that appellant’s allegations do not pertain to her regular or
specially assigned duties on June 5, 2017, under Lillian Cutler.17
The record reflects that on June 5, 2017 appellant’s supervisor G.C. advised her of a
meeting on June 8, 2017 in order to conduct an investigation and ask questions regarding a
workplace matter. G.C. further advised appellant that she had a right to have a union representative
present. Appellant requested that G.C. provide further information regarding the matter but he
declined and stated that the matter would be discussed in the meeting on Thursday. She again
requested that he provide some information pertaining to what the investigation was about and
stated that she could not wait four days as this was triggering her anxiety and major depression.
However, instead of advising appellant as to why she was part of an investigation regarding a
workplace matter, G.C. refused to provide her any information despite her repeated requests. This
refusal was contemporaneous with appellant’s treatment for stress-related conditions on June 5,
2017 as evidenced by the medical reports. Appellant further alleged that supervisor D.Q. denied
authorization of her medical treatment on that date when asked by the medical provider. She
provided a June 5, 2017 report from Facey Medical Foundation validating her claim that she
attempted to seek treatment on that date but could not be treated as authorization for medical
treatment was denied by her supervisor. Appellant submitted evidence which revealed that the
employing establishment was aware of her previously diagnosed emotional condition through her
requests for reasonable accommodations. When an employing establishment’s actions in an
administrative matter are shown to be erroneous or abusive, the claim is compensable.18 OWCP,
however, failed to obtain further information from the employing establishment regarding these
June 5, 2017 allegations before denying appellant’s claim.
In B.G., widow of M.G.,19 the Board set aside OWCP’s decision finding that appellant had
not established a compensable employment factor. The record revealed that on May 1, 2014 a
supervisor advised the employee that an investigation of his behavior was complete and informed
him of a meeting on May 5, 2014 regarding potential disciplinary action. However, the supervisor
refused to inform the employee of the results of the investigation and made him wait until May 5,
2014, the following Monday for a meeting. This refusal was contemporaneous with the
employee’s treatment for stress-related conditions. The Board found that there was sufficient

16

20 C.F.R. § 10.121.

17

Supra note 7; see also F.V., Docket No. 19-0006 (issued September 19, 2019).

18

Id.

19

Docket No. 18-1080 (issued March 26, 2019).

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evidence of record to establish that the actions of the supervisor from May 1 to 5, 2014 constituted
error or abuse on the part of the employing establishment.20
In this instance, appellant has submitted evidence which supports that the employing
establishment was aware of her emotional condition through her previous requests for reasonable
accommodations and EEO complaints. She submitted evidence which established that on June 5,
2017, her supervisor notified her of a workplace investigation to be held on June 8, 2017, and that
she had a right to have a union representative present. The corresponding e-mails also showed
that the supervisor refused to provide her any information regarding the investigation despite her
repeated requests and alerting him that this was triggering her anxiety and depression. Medical
evidence establishes that appellant went to urgent care that same date but that her supervisor
refused to authorize the medical treatment, causing her to go home untreated.
OWCP’s procedures recognize that in certain types of claims, such as a stress claim, a
statement from the employer is imperative to properly develop and adjudicate the claim.21
Although it is appellant’s burden to establish her claim, OWCP is not a disinterested arbiter, but
rather, shares responsibility in the development of the evidence, particularly when such evidence
is of the character normally obtained from the employing establishment or other government
source.22 OWCP failed to develop the evidence by requesting information from the employing
establishment regarding appellant’s allegations of abuse. It also did not request that the employing
establishment submit evidence of its policy regarding notifying employees of meetings regarding
investigations and possible disciplinary actions.
The Board finds that because OWCP failed to send a claim development letter to the
employing establishment requesting the required information, the present claim has not been
properly developed.23 Based on the case record before it, the Board cannot determine whether the
administrative actions on the part of the employing establishment amounted to error or abuse.
For these reasons, the case will be remanded to OWCP to obtain additional information
from the employing establishment regarding the June 5, 2017 work-related incident.24 After
carrying out such further development, OWCP shall issue a de novo decision, containing adequate
findings of fact and a statement of reasons, with respect to appellant’s emotional condition claim.25

20

See M.C., Docket No. 14-1135 (issued June 7, 2016) (the Board found error or abuse on the part of the employing
establishment where a security officer testified that another security officer did not follow its own de-escalation policy
when he placed the claimant in a control hold and escorted her off the premises).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2)
(June 2011).
22
C.F., Docket No. 18-1607 (issued March 12, 2019); D.M., Docket No. 14-0460 (issued February 11, 2016); C.S.,
Docket No. 14-1994 (issued January 21, 2015).
23

C.S., Docket No. 18-1733 (issued May 24, 2019).

24

L.B., Docket No. 17-1671 (issued November 6, 2018).

25

L.B., Docket No. 15-0905 (issued September 19, 2016).

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CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision.26
Issued: November 15, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

26

Upon remand OWCP shall administratively combine File No. xxxxxx209 (accepted for unspecified subjective
visual distances (eye strain) and aggravation (temporary) of convergence insufficiency) with File Nos. xxxxxx818 and
xxxxxx224.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., attorney for W.A., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Atlanta, GA, Employer
__________________________________________
Appearances:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-271
Issued: June 3, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Re: Attorney’s Fee
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On November 20, 2013 appellant, through his attorney, filed an application for review of
an August 22, 2013 decision of the Office of Workers’ Compensation Programs regarding his
application for attorney fees for services performed before OWCP. The Board assigned Docket
No. 14-271.
On December 31, 2012 appellant’s attorney submitted an application for approval of
attorney fees claiming that $340.50 in fees were due to him.1 Appellant did not approve the fees
listed in the request. In an August 22, 2013 decision, OWCP approved fees in the amount of
$13.50, indicating that the unapproved portion of the attorney’s fee request was for matters not
related to appellant’s OWCP claim.
Section 10.703(a)(1)(ii) of the Code of Federal Regulations provides in pertinent part that
a representative must submit a fee application, which includes a statement of agreement or
disagreement with the amount charged, signed by the claimant.2 OWCP will review the fee
1

In mid-1989, OWCP accepted that appellant, then a 49-year-old assistant air traffic manager, sustained major
depression due to his work. Appellant received disability compensation on the periodic rolls.
2

20 C.F.R. § 10.703(a).

application to determine whether the amount of the fee is substantially in excess of the value of
services received by looking at the following factors: (i) usefulness of the representative’s
services; (ii) the nature and complexity of the claim; (iii) the actual time spent on development
and presentation of the claim; and (iv) customary local charges for services for a representative
of similar background and experience.3
OWCP procedure provides that, when reduction of attorney’s fees is proposed, it will
issue a letter to the representative explaining the reasons for the proposed fee reduction and
advise him or her to submit evidence or argument against the reduction within 30 days of the
letter.4
In the present case, OWCP approved only a portion of the attorney’s fee request, but it
did not provide the attorney an opportunity to submit evidence or argument against the reduction
in approved fees. As it did not follow its own procedure, its August 22, 2013 decision will be set
aside and the case remanded for proper application of the relevant procedure.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 22, 2013 be set aside and the case remanded for further
action in conformance with this order of the Board to be followed by an appropriate decision.
Issued: June 3, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 10.703(c).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Representatives’ Services, Chapter 2.1200.6g (June 2012);
see K.C., Docket No. 06-2130 (issued July 24, 2007); Arthur B. Cole, 36 ECAB 349 (1984).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
DEPARTMENT OF DEFENSE, EDUCATION
ACTIVITY, Camp Lejeune, NC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1700
Issued: February 12, 2018

Case Submitted on the Record

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

JURISDICTION
On August 1, 2017 appellant, through counsel, filed a timely appeal from a June 21, 2017
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.
ISSUE
The issue is whether appellant met his burden of proof to establish a lumbar condition
causally related to the accepted February 13, 2015 employment incident.
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.

FACTUAL HISTORY
On February 20, 2015 appellant, then a 52-year-old custodial worker, filed a traumatic
injury claim (Form CA-1) alleging that he injured his lower back in the performance of duty on
February 13, 2015. He indicated that he was moving computers when he felt pain in his lower
back and right leg. Appellant further indicated that a physician characterized it as an
exacerbation of a prior back injury.3 He stopped work on February 18, 2015 and returned to
work on February 23, 2015.4 Appellant received continuation of pay for his brief absence from
work.
In a February 18, 2015 report, Dr. James Gargett, an attending Board-certified emergency
medicine physician, indicated that appellant reported pain in his lower back, which radiated to
his right lower extremity, after lifting computers on February 13, 2015. He diagnosed low back
strain. Dr. Gargett noted that, considering appellant worked as a custodian and was not able to
do desk work, he needed to rest at home for three days. He indicated, “This is exacerbation of
prior injury to back.”
In a duty status report (Form CA-17) dated February 18, 2015, Dr. Gargett listed the date
of injury as February 13, 2015 and the mechanism of injury as moving computers. He provided
a diagnosis due to injury of lumbar strain and indicated that appellant could return to regular
work on February 23, 2015.
Beginning in July 2016, appellant submitted a number of additional medical reports in
support of his claim for a February 13, 2015 work injury.5
In a June 2, 2015 report, Dr. Brian Battersby, Jr., an attending Board-certified orthopedic
surgeon, noted that appellant presented complaining of low back pain due to an injury that
occurred at work. He listed aggravating factors as bending and lifting. Dr. Battersby diagnosed
degeneration of lumbar or lumbosacral intervertebral disc, lumbar sprain, lumbosacral
spondylosis without myelopathy, and backache (unspecified). He advised appellant to return for
follow-up care in six months.
In an October 6, 2015 report, Dr. Battersby again noted that appellant presented
complaining of low back pain due to an injury that occurred at work. He diagnosed chronic pain
3

Appellant previously injured his lower back in the performance of duty on August 20, 2009 (OWCP File No.
xxxxxx682), October 31, 2012 (OWCP File No. xxxxxx987), and January 9, 2014 (OWCP File No. xxxxxx620).
OWCP accepted each of the prior traumatic injury claims for lumbar sprain.
4

Appellant returned to his regular work on February 23, 2015, but later began working modified duty.

5

On July 7, 2016 appellant filed a claim for a recurrence of disability (Form CA-2a) beginning September 30,
2015 due to his February 13, 2015 work injury. He indicated that he was working with restrictions up until
September 30, 2015 when he was told that the employing establishment was no longer able to accommodate him
because he was a liability due to his repeated back injuries. Appellant advised that his medical condition had not
changed and that his back continually hurt. In a July 7, 2016 letter, counsel argued that appellant’s work stoppage in
September 2015 constituted a recurrence of disability because the employing establishment sent him home due to
“multiple previous back injuries.” The Board notes that appellant’s work stoppage in September 2015 is not the
subject of the present appeal.

2

syndrome, degeneration of lumbar or lumbosacral intervertebral disc, lumbar sprain, and
lumbosacral spondylosis without myelopathy. Dr. Battersby recommended that appellant
undergo back surgery, but appellant did not wish to pursue surgery.
In a December 16, 2015 form report, Dr. Battersby noted that appellant could not lift over
25 pounds. In a December 23, 2015 letter, he indicated that he was currently treating appellant
for a “low back work[ers’] comp[ensation] injury.” Dr. Battersby described appellant’s
symptoms and advised that he placed appellant on a permanent restriction of lifting no more than
25 pounds.
In a July 25, 2016 development letter, OWCP requested that appellant submit additional
factual and medical evidence within 30 days. Appellant did not respond.
In a September 13, 2016 decision, OWCP denied appellant’s claim for an alleged
February 13, 2015 employment injury. It accepted that the incident occurred as alleged and that
a medical condition had been diagnosed. However, OWCP denied appellant’s traumatic injury
claim finding the evidence insufficient to establish that the diagnosed medical condition was
causally related to the accepted employment incident.
Appellant submitted treatment notes, dated April 2 and June 3, 2014, in which
Dr. Battersby detailed his back symptoms. Dr. Battersby diagnosed several back conditions,
including degeneration of lumbar or lumbosacral intervertebral disc, lumbar sprain, backache
(unspecified), and lumbosacral spondylosis without myelopathy. In an April 7, 2016 report, he
noted that appellant presented complaining of low back pain due to an injury that occurred at
work.6
In a September 16, 2016 letter, counsel referenced Dr. Battersby’s reports dated between
2014 and 2016 and asserted that these reports supported that appellant’s back condition was
essentially unchanged throughout this period and that there were “no acute new reports of
injury.”
Appellant disagreed with the September 13, 2016 decision and requested a telephone
hearing with a representative of OWCP’s Branch of Hearings and Review. During the hearing
held on May 10, 2017, counsel argued that the present claim constitutes a flare-up of appellant’s
prior injury claim from January 9, 2014 (OWCP File No. xxxxxx620). He asserted that the case
file for (OWCP File No. xxxxxx620) should be combined with the case file for the present claim
(OWCP File No. xxxxxx296) and that the present claim should be accepted for chronic lumbar
sprain.
Appellant testified that on February 13, 2015 he was handling and distributing computers
that were in boxes weighing around 20 pounds. He delivered the boxes on dollies and lifted the
boxes off of the dollies to place them in classrooms. Appellant indicated that he lifted
approximately 25 boxes on February 13, 2015.7 The hearing representative noted that he had
6

This report appears to be missing one or more pages.

7

Appellant also asserted that the employing establishment sent him home on September 30, 2015 because he was
a liability due to his prior work injuries. He indicated that he did not return to work after September 30, 2015.

3

filed a notice of recurrence (Form CA-2a) for a claimed recurrence of disability beginning
September 30, 2015, but she advised him that his initial claim for a February 13, 2015
employment injury must first be adjudicated before the recurrence of disability claim could be
considered.8
In a June 21, 2017 decision, OWCP’s hearing representative affirmed the September 13,
2016 decision. The hearing representative accepted the occurrence of an employment incident
on February 13, 2015 in the form of lifting/handling boxes filled with computers and pushing
carts loaded with these boxes, but she found that appellant failed to submit medical evidence
establishing that his diagnosed lumbar conditions were causally related to the accepted
employment incident. She indicated that, while the January 9, 2014 employment injury and the
claimed February 13, 2015 employment injury both involved the lumbar spine, they still were
considered separate and distinct injuries. The hearing representative noted that the fact that
appellant had an approved claim from 2014 for a lumbar sprain/strain did not automatically mean
that the instant case should be approved for a low back condition without medical evidence to
support it. She further indicated that there were no provisions under FECA for approving a
recurrence of disability when the original claim is denied.
LEGAL PRECEDENT
A claimant seeking benefits under FECA9 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.10
To determine if an employee sustained a traumatic 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 that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.11 The second component is whether the employment incident caused a
personal injury.12 An employee may establish that an injury occurred in the performance of duty

8

After the hearing, appellant submitted a May 3, 2017 magnetic resonance imaging scan of his lumbosacral and
lower thoracic spine showing facet arthropathy and mild spondylosis.
9

Supra note 2.

10

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

11

Elaine Pendleton, 40 ECAB 1143 (1989).

12

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.

4

as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.13
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.14
ANALYSIS
Appellant filed a traumatic injury claim alleging that he sustained a work-related injury
on February 13, 2015. He claimed that he was lifting/handling boxes filled with computers and
pushing carts loaded with these boxes when he felt pain in his low back which radiated into his
right lower extremity. OWCP denied appellant’s claim for a February 13, 2015 work injury in
decisions dated September 13, 2016 and June 21, 2017. It accepted the occurrence of an
employment incident on February 13, 2015 as alleged and that a medical diagnosis had been
provided. However, OWCP found that appellant failed to submit medical evidence establishing
a causal relationship between the diagnosed lumbar condition(s) and the accepted employment
incident.
The Board finds that appellant has not met his burden of proof to establish an injury due
to the accepted February 13, 2015 employment incident.
In a February 18, 2015 report, Dr. Gargett indicated that appellant reported pain in his
lower back, which radiated to his right lower extremity, after lifting computers on
February 13, 2015. He diagnosed low back strain. Dr. Gargett noted that, considering, appellant
worked as a custodian and was not able to do desk work, he needed to rest at home for three
days. He indicated, “This is exacerbation of prior injury to back.” In a duty status report dated
February 18, 2015, Dr. Gargett listed the date of injury as February 13, 2015 and the mechanism
of injury as moving computers. He provided a diagnosis due to injury of lumbar strain and
indicated that appellant could return to regular work on February 23, 2015.
The Board notes that the submission of these reports do not establish appellant’s claim
for a February 13, 2015 work injury. While Dr. Gargett suggested a connection between moving
computers on February 13, 2015 and the diagnosed lumbar strain, his reports are of limited
probative value because he did not provide adequate medical rationale in support of his opinion.
The Board has held that a report is of limited probative value regarding causal relationship if it
does not contain medical rationale explaining how an employment activity could have caused or
aggravated a medical condition.15 Dr. Gargett did not describe the February 13, 2015
employment incident in any detail or explain how it could have caused the diagnosed medical

13

Shirley A. Temple, 48 ECAB 404, 407 (1997).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

15

See Y.D., Docket No. 16-1896 (issued February 10, 2017); D.R., Docket No. 16-0528 (issued August 24, 2016).

5

condition. His reports are of limited probative value on the relevant issue of this case for the
further reason that he did not provide a detailed factual and medical history.16
In June 2 and October 6, 2015, and April 7, 2016 reports, Dr. Battersby noted that
appellant presented complaining of low back pain due to an injury that occurred at work. In his
June 2 and October 6, 2015 reports, he diagnosed such conditions as degeneration of lumbar or
lumbosacral intervertebral disc, lumbar sprain, lumbosacral spondylosis without myelopathy,
backache (unspecified), and chronic pain syndrome. However, the submission of these reports
do not establish appellant’s claim for a February 13, 2015 work injury. Dr. Battersby’s reports
are of no probative value on causal relationship because he did not provide any opinion on the
cause of the diagnosed conditions.17
On appeal, counsel argues that the present claim constitutes a flare-up of appellant’s prior
employment injury from January 9, 2014 (OWCP File No. xxxxxx620). He asserts that the case
file for (OWCP File No. xxxxxx620) should be combined with the current case record (OWCP
File No. xxxxxx296) and that the present claim should be accepted for a chronic lumbar sprain.
The Board notes, however, that counsel has not adequately articulated why combining these case
files would be appropriate in the present case. As noted by OWCP’s hearing representative in
her June 21, 2017 decision, appellant’s January 9, 2014 employment-related traumatic injury is a
separate and distinct injury from his claimed February 13, 2015 traumatic injury, and therefore,
combining the case files would not be necessary to render a reasoned decision regarding his
claim for a February 13, 2015 injury.18
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumber
condition causally related to the accepted February 13, 2015 employment incident.

16

See supra note 12.

17

See Charles H. Tomaszewski, 39 ECAB 461 (1988) (finding that medical evidence which does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of causal relationship). In
December 16 and 23, 2015 reports, Dr. Battersby indicated that appellant could not lift more than 25 pounds, but he
did not indicate that this restriction was necessitated by a February 13, 2015 work injury. Appellant also submitted
reports of Dr. Battersby from 2014, but these reports are not relevant to the injury that was alleged to have occurred
on February 13, 2015.
18

See supra note 14 at Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5 (June 2011).

6

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Orlando, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-26
Issued: November 17, 2009

Case Submitted on the Record

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

JURISDICTION
On October 2, 2008 appellant filed a timely appeal of a July 11, 2008 merit decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed a January 2,
2008 decision that she forfeited her compensation benefits resulting in an overpayment for which
she was not without fault. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit issues of this case.
ISSUES
The issues are: (1) whether appellant forfeited her right to compensation for the period
March 22, 1997 to January 1, 2002 because she knowingly failed to report earnings from selfemployment; (2) whether she received an overpayment in compensation in the amount of
$126,390.60 during the period of the forfeiture; (3) whether the Office properly found that
appellant was at fault in the creation of the overpayment and not subject to waiver; and
(4) whether he Office properly directed recovery of the overpayment.

FACTUAL HISTORY
On November 20, 1986 appellant, then a 41-year-old flat sorter machine operator, injured
both knees and her back in the performance of duty. The Office accepted sprains of the
lumbosacral spine and both knees. On May 12, 1987 it placed appellant on the periodic rolls for
temporary total disability.
As a benefit recipient, the Office periodically required appellant to submit updated
information (Form EN1032) regarding her employment, volunteer work, dependents, other
federal benefits or payments received and any third-party settlements. The reports required that
she provide information covering the 15-month period preceding the date of the request. The
reports contained advised her that a false or evasive answer to any question or the omission of an
answer may be grounds for forfeiting her compensation benefits. The record contains EN1032
forms, signed by appellant on January 23, 1998, January 22, 1999, January 25, 2000,
February 12, 2001, January 24, 2002 and February 3, 2003. In response to whether she worked
for any employer during the previous 15 months, in each instance she answered, “No.” As to
whether appellant was self-employed or involved in any business enterprise during the previous
15 months, she responded, “No.” She answered “Yes” when asked to state whether she was
unemployed for all periods during the previous 15 months.
In a December 5, 2007 investigative memorandum, the employing establishment
informed the Office that appellant was vice president and secretary of Little Tykes Learning
Center, Inc. The investigation revealed that both appellant and Little Tykes Learning Center
were listed as defendants in a breach of contract case filed by General Electric Capitol
Corporation and that appellant was listed in the bankruptcy filing of Little Tykes Learning
Center. The record contains annual corporate reports dated March 22, 1997, April 8, 1998,
March 12, 1999, April 20, 2000 and April 12, 2001 which listed appellant as vice president and
secretary and the articles of dissolution for the corporation dated January 1, 2002. The
investigator submitted copies of checks and correspondence signed by appellant on behalf of
Little Tykes Learning Center and records from the civil lawsuit against appellant and Little
Tykes Learning Center by General Electric Capitol Corporation.
In a January 2, 2008 decision, the Office found that appellant’s compensation should be
forfeited for all periods covered by EN1032 forms completed by her between March 22, 1997
and January 1, 2002. It determined that appellant forfeited compensation in the amount of
$126,390.60 for the period.
The record contains a December 28, 2007 payment history reflecting that she was paid
compensation in the amount of $126,390.60 from March 22, 1997 to January 1, 2002.
On January 2, 2008 the Office issued a preliminary overpayment determination in the
amount of $126,390.60 due to appellant’s failure to notify it of her self-employment with Little
Tykes Learning Center. It found that she was at fault in the creation of the overpayment by
knowingly misrepresenting her employment status during the periods covered by EN1032 forms.
The Office concluded that she had forfeited her right to compensation. It informed her that she
had 30 days to request a prerecoupment hearing on the issues of fault and a possible waiver.

2

On January 28, 2008 appellant requested a prerecoupment hearing before an Office
hearing representative and submitted an overpayment recovery questionnaire. She denied having
received an overpayment. Appellant also requested an oral hearing before an Office hearing
representative on the January 2, 2008 forfeiture decision. She contended that she did not have to
report this employment as she received no salary.
A telephonic hearing was held on May 13, 2008, at which appellant was represented by
counsel. She testified that her parents lent her daughter the money to open the day care center,
but had her open the business in her name to protect their money. Appellant testified that she
spent time at her daughter’s business and that she used her charge cards and money to help her
daughter out. She stated that at no time was she paid or worked at the business; however,
appellant acknowledged that she wrote checks for the business and showed her daughter how to
do payroll and accounting. Appellant testified that she occasionally went on trips and picked up
one child and her grandchildren to bring them to the day care center.
By decision dated July 11, 2008, an Office hearing representative affirmed the January 2,
2008 forfeiture decision. She also finalized the overpayment determination, finding that
appellant had received an overpayment of compensation in the amount of $126,390.60 due to her
falsification of EN1032 forms from March 22, 1997 to January 1, 2002. As appellant was at
fault in the creation of the overpayment, she was not entitled to a waiver of recovery. The
hearing representative found the overpayment was due in full as appellant failed to provide any
supporting documentation and failed to include her ongoing compensation payments under her
reported monthly income.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Federal Employees’ Compensation Act provides that an employee
who fails to make an affidavit or report when required or knowingly omits or understates any
part of his earnings, forfeits his right to compensation with respect to any period for which the
affidavit or report was required.1
The Office has the burden of proof to establish that appellant did, either with knowledge,
consciously, willfully or intentionally, fail to report earnings from self-employment. To meet
this burden of proof, it is required to closely examine appellant’s activities and statements in
reporting employment earnings.2
The Office may meet this burden by appellant’s own subsequent admission that she failed
to report employment or earnings, which she knew she should report. It may meet this standard
without an admission by appellant, if she failed to fully and truthfully complete the EN1032
forms and the circumstances of the case establish that she failed to fully and truthfully reveal the
full extent of her employment activities and earnings. The Office may also meet this burden if it

1

5 U.S.C. § 8106(b)(1) and (2)

2

See Michael D. Mathews, 51 ECAB 247 (1999).

3

establishes through the totality of the factual circumstances that appellant’s certification in the
EN1032 forms that she was not employed or self-employed, was false.3
ANALYSIS -- ISSUE 1
The record contains EN1032 forms signed by appellant on January 23, 1998, January 22,
1999, January 25, 2000, February 12, 2001, January 24, 2002 and February 3, 2003. She
informed the Office that she was unemployed, not engaged in any self-employment activities and
earned no income for the respective 15-month period covered by each form.4 The record,
however, contains clear evidence to the contrary and reflects that appellant failed to report her
employment activities with her daughter’s day care facility. Although she alleged that she did
not believe that EN1032 forms required her to report her activity with her daughter’s business,
she acknowledged performing activities such as transporting children, going on field trips,
writing checks, accounting and payroll work and teaching her daughter how to perform
accounting. The Board has held that, if work was performed in furtherance of a relative’s
business, the employee must show as the rate of pay what it would have cost the employer or
organization to hire someone to perform the work performed. The Board has held that the test of
what constitutes reportable earnings is not whether appellant received a salary but what it would
have cost to have someone else to do the work. Appellant took an active role in the operation of
the day care business and was obligated to report as earnings the amount that would have been
paid to a person to do the work.5
The Office regulations define knowingly as with knowledge, consciously, willfully or
intentionally.6 Absent an admission by appellant, a knowing omission or understatement of
income can be established where circumstances indicate that she did not fully and truthfully
complete EN1032 forms and thus failed to reveal the full extent of her employment activities and
earnings.7
The evidence establishes that appellant assisted her daughter in the operations of Little
Tykes Learning Center, which was a business enterprise, for the period March 22, 1997 to
January 1, 2002. She served as vice president and secretary of the corporation and is listed on
annual corporate reports dated March 22, 1997, April 8, 1998, March 12, 1999, April 20, 2000
and April 12, 2001 and the January 1, 2002 articles of dissolution. In addition appellant signed
her name on both checks and correspondence for Little Tykes Learning Center. The Board finds
that her work and management activities are consistent with self-employment in furtherance of

3

See Donald L. Overstreet, 54 ECAB 678 (2003). See also Terry A. Geer, 51 ECAB 168 (1999).

4

The Board notes that the respective 15-month periods referenced are as follows: October 23, 1996 to
January 23, 1998; October 22, 1997 to January 22, 1999; October 25, 1998 to January 25, 2000; November 12, 1999
to February 12, 2001; October 24, 2000 to January 24, 2002 and November 3, 2001 to February 3, 2003.
5

J.S., 58 ECAB ___ (Docket No. 06-2113, issued May 10, 2007); Anthony A. Nobile, 44 ECAB 268 (1992).

6

20 C.F.R. § 10.5(n).

7

See Donald L. Overstreet, supra note 3.

4

her daughter’s business. The record contains persuasive evidence that she knowingly
misrepresented her employment activities on the EN1032 forms.8
Appellant expressed her belief that she was not required to report her assistance in her
daughter’s business as she earned no wages. However, she was clearly informed by the Office
that she had an affirmative obligation to report any work or ownership interest in any business
enterprise and that her failure to do so would result in forfeiture of compensation. Therefore, the
Board finds appellant’s claim of ignorance to be without merit.
Office regulations provide that, if an employee knowingly omits or understates earnings
or work activity in making a report, he or she shall forfeit the right to compensation with respect
to any period for which the report was required.9 Appellant misrepresented her employment
status and, therefore, forfeited her right to all compensation during the periods in question. The
Board finds that the Office met its burden of proof to establish that she knowingly
misrepresented her employment status to it in the EN1032 forms dated January 23, 1998,
January 22, 1999, January 25, 2000, February 12, 2001, January 24, 2002 and February 3, 2003.
Therefore, appellant is required to forfeit the amount of compensation received during the
15-month period preceding the signing of these reports.
LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of the Office’s implementing regulations provides as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, [the Office] shall recover any
compensation already paid for the period of the forfeiture pursuant to 5 U.S.C.
[§] 8129 [recovery of overpayments] and other relevant statues.”10
ANALYSIS -- ISSUE 2
If a claimant has any earnings during a period covered by a Form CA-1032 which he or
she knowingly fails to report, he or she is not entitled to any compensation for any portion of the
period covered by the report, even though he or she may not have had earnings during a portion

8

Earnings from employment or self-employment means either gross earnings or wages before deductions or a
reasonable estimate of the cost to have someone else perform the duties of an individual who accepts no
remuneration. See 20 C.F.R. § 10.5(g).
9

5 U.S.C. § 8106(b)(1) and (2).

10

20 C.F.R. § 10.529

5

of that period.11 The Board has determined that appellant forfeited compensation because she
misrepresented her employment activities on EN1032 forms returned to the Office which paid
appellant compensation in the amount of $126,390.60 from March 22, 1997 to January 1, 2002.
As appellant forfeited compensation for this period because she omitted earnings and
employment activities on EN1032 forms covering this period, she received an overpayment of
compensation in the amount of $126,390.60.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of the Act12 provides: Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act of would be against equity and
good conscience.13
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
received 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 with respect to creating
an overpayment: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; 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).14
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.15
ANALYSIS -- ISSUE 3
The Office found that appellant was at fault in the creation of the overpayment because
she failed to provide information as to a material fact which she knew or should have known to
be incorrect. The record establishes that appellant was engaged in employment activities and
knowingly omitted this material information to the Office.

11

F.H., 60 ECAB ___ (Docket No. 07-1379, issued November 24, 2008); Louis P. McKenna, Jr., 46 ECAB
328 (1994).
12

5 U.S.C. § 8129(b).

13

J.K., 60 ECAB ___ (Docket No. 08-1761, issued January 8, 2009).

14

20 C.F.R. § 10.433(a).

15

Id. at § 10.433(b).

6

Appellant signed a certification clause on CA-1032 forms dated January 23, 1998,
January 22, 1999, January 25, 2000, February 12, 2001, January 24, 2002 and February 3, 2003.
In response to the question as to whether she worked for any employer during the previous 15
months, in each instance she answered, “No.” In response to the question as to whether she was
self-employed or involved in any business enterprise in the previous 15 months, she responded,
“No.” Appellant answered “Yes” when asked to state whether she was unemployed for all
periods during the previous 15 months. The certification clause advised her that she might be
subject to civil, administrative or criminal penalties if she knowingly made a false statement or
misrepresentation or concealed a fact to obtain compensation. By signing the forms, appellant
acknowledged her duty to fill out the form properly, including the duty to report any employment
or self-employment activities. The evidence of record establishes that even thought she provided
various services to the operation of her daughter’s day care center, she failed to report such
activities to the Office as required. Appellant was aware or should have been aware of the
materiality of the information that she was engaged in work activities which she did not list on
the relevant forms. As she failed to provide material information to the Office regarding her
employment during the periods covered by the forms, the Board finds that she is at fault in
creating the overpayment based on her forfeiture of compensation for these periods and,
therefore, is not entitled to waiver.
LEGAL PRECEDENT -- ISSUE 4
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where the Office seeks recovery from continuing compensation under the Act. Section
10.441(a) of the regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”16
ANALYSIS -- ISSUE 4
The record reflects that appellant continues to receive wage-loss compensation under the
Act. As noted, she failed to timely submit supporting documentation or properly represent all
her income on the overpayment questionnaire form as she omitted her compensation payments
on the form. In cases where the appropriate financial documentation or overpayment
questionnaire as required by 20 C.F.R. § 10.441 is not submitted, the Office is unable to consider
her financial circumstances. The Board finds that the Office did not abuse its discretion in
following its regulations and finding that the overpayment was due in full.

16

Id. at § 10.441.

7

CONCLUSION
The Board finds that the Office properly applied the penalty provision of 5 U.S.C.
§ 8106(b)(2) as appellant knowingly omitted as earnings what it would have cost her daughter to
hire someone to perform the duties she performed. Appellant concealed her work activities and
forfeited her right to compensation for the periods covered by the EN1032 disclosure forms. The
Board finds that she was at fault in the creation of the resulting overpayment, thereby, precluding
waiver of the recovery. Appellant failed to provide information that she knew or should have
known was material. The Board further finds that the Office acted within its discretion in
concluding the overpayment was due in full as she failed to provide supporting documentation
and failed to include her compensation payments as income on the overpayment recovery form.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 11, 2008 is affirmed.
Issued: November 17, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Albany, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-1558
Issued: December 23, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On July 1, 2014 appellant filed an appeal from a June 18, 2014 nonmerit decision and a
January 28, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Board assigned Docket No. 14-1558.
Appellant, a 29-year-old registered nurse, filed a claim for recurrence of an accepted
lower back injury on October 30, 2013. She had previously filed a claim for traumatic injury
under File No. xxxxxx164, which was accepted on December 12, 2013. The traumatic incident
related to this claim occurred on October 10, 2013, and appellant returned to work on
October 16, 2013. Appellant stated that her recurrence occurred over the course of several
weeks as her injury had not completely healed, and she noted that she had reinjured her lower
back due to performing everyday duties of her position.
On December 26, 2013 OWCP notified appellant that it had administratively converted
her claim for recurrence to a new occupational disease claim based upon her description of the
circumstances related to her condition. It noted in a memorandum dated December 12, 2013 that
she had been released to full duty twice before the alleged recurrence. OWCP denied this
occupational disease claim, by decision dated January 28, 2014, on the grounds that appellant
had not submitted sufficient medical evidence to establish a diagnosis in connection with duties

of her employment. On June 10, 2014 it received her request for reconsideration of its
January 28, 2014 decision. By decision dated June 18, 2014, OWCP denied appellant’s request
for reconsideration, finding that she did not raise substantial legal questions or included new and
relevant evidence, as she had only submitted the appeal request form.
The record on appeal indicates that File No. xxxxxx164 may contain evidence pertinent
to the present claim under File No. xxxxxx311. Appellant’s claim was denied on the basis that
she had not submitted a firm medical diagnosis in connection with duties of her federal
employment. As appellant’s claim for occupational disease occurred within a month of her
claim for traumatic injury, dealt with the same bodily member, and alleged that her back
condition had worsened after the traumatic event over the period of several weeks due to duties
of her employment, medical evidence relating to the earlier traumatic injury under File No.
xxxxxx164 would be relevant to the present claim. The Board, therefore, finds that the appeal
docketed as No. 14-1558 is currently not in posture for decision. Because the record is
incomplete, the Board is unable to render a fully informed adjudication of the case. OWCP
procedures also require that cases should be combined where proper adjudication depends on
cross-referencing evidence between files, such as when “a new injury case is reported for an
employee who previously filed an injury claim for a similar condition or the same part of the
body. For instance, a claimant with an existing case for a back strain submits a new claim for a
herniated lumbar disc.”1 In the instant appeal, it appears that for a full and fair adjudication,
appellant’s occupational injury claim should be combined with her traumatic injury claim
pertaining to an incident on October 10, 2013. Accordingly, the case is remanded to OWCP for
reconstruction and proper assemblage of the case record, to be followed by the issuance of an
appropriate decision.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1)
(February 2000). See also J.M., Docket No. 13-1111 (issued July 15, 2013).

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IT IS HEREBY ORDERED THAT the June 18 and January 28, 2014 decisions of the
Office of Workers’ Compensation Programs is set aside and the case is remanded for further
action consistent with this order of the Board.
Issued: December 23, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.N., Appellant
and
U.S. POSTAL SERVICE, JAF/MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

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

Docket No. 20-0902
Issued: May 21, 2021

Case Submitted on the Record

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

JURISDICTION
On March 19, 2020 appellant, through counsel, filed a timely appeal from a February 27,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 27, 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted May 3, 2019 employment incident.
FACTUAL HISTORY
On July 2, 2019 appellant, then a 60-year-old building equipment mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on May 3, 2019 he injured his right shoulder
when removing a cooking tower fan guard that slipped out of his hand while in the performance
of duty. He stopped work on May 7, 2019.
In an undated narrative statement, appellant explained that he was assigned to work without
a partner and was instructed to check a cooling tower. He related that, in the course of the
inspection, the tower fell and when he tried to grab it, he pulled his right arm and shoulder.
Appellant explained that the initial pain was minimal; however, as time progressed, he was unable
to move his arm without pain. He noted that he remained off work until May 28, 2019.
Dr. Joseph Quist, Board-certified in critical care medicine, provided a series reports. In a
May 13, 2019 work excuse note, he indicated that appellant could return to work on May 29, 2019
following a right shoulder injury. In a May 20, 2019 work excuse note, Dr. Quist advised that
appellant had pain in his right shoulder and difficulty lifting heavy objects, and that appellant could
return to work on May 28, 2019. In a July 3, 2019 work excuse, he noted that appellant had
restrictions regarding heavy lifting.
In a July 12, 2019 disability certificate, Dr. Shahid Mian, a Board-certified orthopedic
surgeon, advised that appellant should remain off work. In a separate disability certificate also
dated July 12, 2019, he indicated that appellant was temporarily totally disabled from July 13 to
26, 2019.
In a July 26, 2019 duty status report (Form CA-17), Dr. Mian related appellant’s history of
injury. He noted appellant’s physical findings including tenderness in his right shoulder and
decreased range of motion (ROM). In response to a question as to the diagnosis due to injury,
Dr. Mian indicated a tear of rotator cuff and impingement syndrome. He provided a separate work
excuse also dated July 26, 2019, and indicated that appellant was unable to return to work.
Dr. Mian requested authorization for arthroscopic surgery of the right shoulder.
On July 29, 2019 appellant filed a notice of recurrence of medical treatment (Form CA2a), alleging a recurrence on July 2, 2019.
In an August 2, 2019 development letter, OWCP advised appellant that, when his claim
was received, it appeared to be a minor injury that resulted in minimal or no lost time from work.
It requested that he submit factual and medical information, including a comprehensive report from
his physician regarding how a specific work incident contributed to his claimed injury. OWCP
provided appellant with a questionnaire for completion and afforded him 30 days to submit the

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necessary evidence. It requested that he clarify whether he was filing a traumatic injury or
occupational disease claim.4
OWCP received a May 6, 2019 x-ray of appellant’s right shoulder which revealed
acromioclavicular (AC) osteoarthritis. A July 17, 2019 magnetic resonance image (MRI) scan of
the right shoulder revealed findings to include a full-thickness tear of the supraspinatus tendon, an
intermediate grade partial thickness tear of the infraspinatus, an intermediate grade partial
thickness tear of the subscapularis, a type II superior labrum anterior superior (SLAP) tear, bursitis,
muscle atrophy, and edema.
In a July 26, 2019, report, Dr. Mian diagnosed a tear of the rotator cuff, shoulder labrum
SLAP tear, bursitis, tenosynovitis, and impingement syndrome, right shoulder.
In an August 8, 2019 response to OWCP’s questionnaire, appellant denied any other
injuries prior to, or after the work injury. He confirmed that he was filing a traumatic injury claim.
In an August 27, 2019 attending physician’s report (Form CA-20), Dr. Mian noted the
history of appellant’s injury, physical examination findings including right shoulder joint stiffness,
and diagnoses of a right torn rotator cuff, SLAP tear and bursitis. He checked a box marked “Yes”
in response to whether he believed that the conditions found were caused or aggravated by an
employment activity.
By decision dated September 3, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not established a causal relationship between his diagnosed right shoulder
rotator cuff tear, SLAP tear, and bursitis and the accepted May 3, 2019 employment incident. It
noted that Dr. Mian failed to consider appellant’s preexisting conditions or explain how the
underlying conditions were aggravated or precipitated by the employment incident.5
On September 11, 2019 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review. The hearing was held on
January 14, 2020. Appellant’s counsel noted that appellant had a prior work injury in 2004 which
involved a motor vehicle accident. Appellant explained that he was examined as a precaution
following the 2004 motor vehicle accident, but that he did not sustain a right shoulder injury. He
noted that he only had one emergency room visit and no follow-up or additional treatment
following that event.
In a July 12, 2019 report, Dr. Mian noted that, on May 3, 2019 appellant was removing a
metal guard of a cooling tower fan when a piece slipped out of his hand, he was trying to hold on
to it, and felt a sharp pain with a pulling sensation in the right shoulder. He indicated the pain
worsened and a few days later, appellant sought treatment at an emergency room. Dr. Mian
4
In a separate letter also dated August 2, 2019, OWCP explained that no further action would be taken on the claim
for recurrence, as his initial claim was under development.
5

OWCP referred to a prior claim OWCP File No. xxxxxx431 with a July 15, 2004 date of injury. It noted that
appellant’s vehicle was rear-ended by another vehicle and appellant claimed an injury to his right arm/shoulder.
OWCP noted that he was prescribed Naprosyn and explained that this was typically used to treat pain or inflammation
caused by conditions such as rheumatoid arthritis, osteoarthritis, ankylosing spondylitis, tendinitis, and bursitis. It
explained that it was unclear whether the alleged May 3, 2019 work injury caused or contributed to the diagnosed
conditions or if they were the result of a preexisting condition.

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examined appellant’s right shoulder and provided findings which included tenderness to the AC
joint, greater tuberosity, positive impingement sign, apprehension test, cross-arm test, clicking on
abduction and O’Brien’s test, and decreased ROM. He diagnosed tear of the right rotator cuff and
impingement syndrome. Dr. Mian noted that appellant stopped working after July 3, 2019,
because the employing establishment did not accept appellant’s limited-duty work restrictions.
In July 26, 2019 notes, Dr. Mian reported the results of the July 17, 2019 MRI scan and
updated the diagnoses to a tear of the right rotator cuff, a right SLAP tear, right bursitis, right
tenosynovitis, and right impingement syndrome. He requested authorization for right shoulder
arthroscopy and opined that appellant was temporarily totally disabled.
Dr. Mian continued to treat appellant on September 6, October 18, and November 22, 2019.
He reiterated his prior findings and diagnoses to include tear of right rotator cuff, SLAP tear,
bursitis, tenosynovitis, and impingement syndrome. Dr. Mian indicated that appellant was
temporarily totally disabled and was awaiting authorization for physical therapy and surgery.
In a January 27, 2020 report, Dr. Mian noted appellant’s symptoms, functional difficulties,
positive findings upon examination, and MRI scan results. He diagnosed a right shoulder rotator
cuff tear, Type 2 SLAP tear, biceps tendon tear, and bursitis. Dr. Mian recommended physical
therapy and surgical arthroscopy and advised that appellant was temporarily totally disabled. He
provided an opinion on causal relationship and explained that appellant worked as a mechanic with
duties that included fixing and building machinery, boilers, changing air condition filters,
mailboxes, and lockers. Dr. Mian explained that appellant’s duties required frequent lifting,
carrying, pulling, and pushing. He noted the history of injury and related that appellant reported
that “while removing the metal guard of a cooling tower fan which according to the patient is
heavy, it slipped out of [appellant’s] hand, pulling right arm causing severe pain to right shoulder.”
Dr. Mian opined that appellant’s right shoulder injury was causally related to May 3, 2019
accident.
By decision dated February 27, 2020, an OWCP hearing representative affirmed the
September 3, 2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,7 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

6

See supra note 2.

7

See A.O., Docket No. 20-0038 (issued August 26, 2020); F.H., Docket No. 18-0869 (issued January 29, 2020);
J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989).

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employment injury.8 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.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.10
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.11 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted May 3, 2019 employment incident.
OWCP received work excuse notes from Dr. Quist dated May 13 and 20 and July 3, 2019.
It also received disability certificates from Dr. Mian dated July 12 and 26, 2019, as well as reports
dated July 12 and 26, September 6, October 18, and November 22, 2019. Dr. Mian provided
diagnoses including tear of right rotator cuff, type II SLAP tear, bursitis, muscle atrophy and
edema, tenosynovitis, and impingement syndrome. However, neither Dr. Quist nor Dr. Mian
addressed causation in these reports. The Board has held that medical evidence that does not offer

8

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
9

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
10
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
11

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
12

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

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an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.14 Consequently, these reports are insufficient to establish appellant’s claim.
In an August 27, 2019 Form CA-20, Dr. Mian checked a box marked “Yes” in response to
a question as to whether he believed that the conditions found were caused or aggravated by an
employment activity. The Board has held that an opinion on causal relationship which consists
only of a physician checking a box in response to a form question, without more by way of medical
rationale, is of little probative value.15 Dr. Mian did not provide any rationale in support of his
response. This report is, therefore, of diminished probative value and insufficient to establish that
appellant’s diagnosed conditions should be accepted as employment related.16
In a January 27, 2020 report, Dr. Mian noted that appellant reported “that while removing
the metal guard of a cooling tower fan which according to the patient is heavy, it slipped out of
[appellant’s] hand, pulling right arm causing severe pain to right shoulder.” He opined that
appellant’s right shoulder injury was causally related to the May 3, 2019 employment incident.
However, this report is conclusory. The Board has held that a medical opinion is of limited value
if it is conclusory in nature.17 A medical opinion must explain how the implicated employment
factors physiologically caused, contributed to, or aggravated the specific diagnosed conditions.18
This is particularly important as the May 6, 2019 x-ray of the right shoulder revealed preexisting
AC osteoarthritis. Dr. Mian did not explain with medical rationale how he concluded that the
preexisting conditions could have been aggravated by the May 3, 2019 incident at work.19 His
reports are, therefore, insufficient to meet appellant’s burden of proof.
Appellant also submitted the results of diagnostic studies, including the May 6, 2019 x-ray
and July 17, 2019 MRI scan of the right shoulder. The Board has held that reports of diagnostic
tests standing alone lack probative value on the issue of causal relationship as they do not address
whether the employment factors caused the diagnosed condition.20
The Board finds that appellant has not submitted sufficient medical evidence to establish
an injury causally related to the accepted May 3, 2019 employment incident and thus has not met
his burden of proof to establish his claim.21

14

See R.C., Docket No. 19-0376 (issued July 15, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
15

See A.R., Docket No. 19-0465 (issued August 10, 2020); C.T., Docket No. 20-0020 (issued April 29, 2020); M.R.,
Docket No. 17-1388 (issued November 2, 2017); Gary J. Watling, 52 ECAB 278 (2001).
16

Id.

17

C.M., Docket No. 19-0360 (issued February 25, 2020); C.D., Docket No. 17-0292 (issued June 19, 2008);
Mary A. Ceglia, 55 ECAB 626 (2004).
18

R.S., Docket No. 19-1774 (issued April 3, 2020); K.G., Docket No. 18-1598 (issued January 7, 2020).

19

Supra note 13.

20

See R.S., supra note 18; C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued
February 6, 2009).
21

C.T., supra note 15; S.H., Docket No. 19-1897 (issued April 21, 2020).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted May 3, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT March 19, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 21, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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