United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lock Haven, PA, Employer
__________________________________________

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

Docket No. 07-945
Issued: September 24, 2007

Case Submitted on the Record

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

JURISDICTION
On February 21, 2007 appellant filed a timely appeal from an August 21, 2006 merit
decision of a hearing representative of the Office of Workers’ Compensation Programs that
affirmed the termination of appellant’s compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective March 1, 2006; and (2) whether appellant met his burden of
proof in establishing that he had any disability causally related to his employment injury after
March 1, 2006.
FACTUAL HISTORY
On August 14, 2002 appellant, then a 48-year-old clerk, filed a traumatic injury claim
stating that on August 12, 2002 he injured his lower back and experienced spasms while
“unsleeving” a tray of mail. He stopped work on August 17, 2002. Appellant returned to a light-

duty assignment for four hours per day on January 14, 2003. An August 22, 2002 magnetic
resonance imaging (MRI) scan report from a Dr. Stanley,1 diagnosed multiple disc herniations
from L3-4 to L5-S1. On August 28, 2002 Dr. A. Loren Amacher, a neurosurgeon, reported
normal findings upon physical examination. In a November 4, 2002 report, Dr. Asif Javed, a
Board-certified internist, diagnosed “multiple disc herniations, one particularly severe at L5-S1
level.” Beginning with a December 30, 2002 work capacity evaluation, Dr. Javed indicated that
appellant could work four hours per day with restrictions. The Office accepted appellant’s claim
for a herniated disc at L4-5 and paid appropriate wage-loss compensation.
In a May 22, 2003 report, Dr. Rene Rigal, a Board-certified anesthesiologist, noted
appellant’s history of employment injury and diagnosed “herniated disc L4-5, perhaps producing
functional spinal stenosis.” He noted that appellant was morbidly obese. Dr. Rigal reviewed the
MRI scan results. In a June 7, 2003 work capacity evaluation, Dr. Stephen Goykovich, an
osteopath and a treating physician, stated that appellant could work four hours per day in a lightduty position.
The Office referred appellant to Dr. Peter Feinstein, a Board-certified orthopedic surgeon,
for a second opinion. Dr. Feinstein examined appellant and prepared a report on August 5, 2003.
After reviewing the medical evidence, he noted that appellant’s August 22, 2002 MRI scan
report revealed disc herniations on multiple levels and stated: “My direct review of those films
is consistent with that of the radiologist in terms of there being severe degenerative disc disease
at L4-5 and L5-S1 with evidence of a left-sided herniated disc at L5-S1.” Upon physical
examination, Dr. Feinstein concluded that appellant had made a full and complete recovery -and has today, an entirely normal examination in all respects as far as his lumbar spine is
concerned. He explained that appellant had no residuals of his work injury and had returned to a
baseline situation for his lumbar spine, and had no symptoms referable to the work injury.
Dr. Feinstein advised that appellant had no work restrictions.
In a September 20, 2003 report, Dr. Rigal stated that he largely agreed with
Dr. Feinstein’s opinion. He noted that appellant had not responded to treatment with epidural
steroid injections and that his last physical examination was largely normal.
In a May 21, 2004 report, Dr. Goykovich opined that appellant’s condition was unlikely
to improve. He indicated that appellant could only perform part time restricted duties.
On October 7, 2004 the employing establishment advised that a surveillance videotape
recorded appellant performing activities allegedly beyond his capabilities on July 1 and 2, 2004.
The videotape recorded images of appellant lifting and moving items including ladders, wrought
iron chairs and plastic chairs and a garden hose, carrying lumber above his head, raking his lawn
and decorating his house. An investigative memorandum noted that appellant was observed
bending, twisting and stretching. In a July 23, 2007 interview, appellant explained that he hosted
a Fourth of July party at his home but that his brother and cousin performed the majority of the
set-up and most of the heavy lifting. He also stated that he could perform any activity for 20
minutes but then would have to rest. On October 25, 2004 the employing establishment placed
appellant in “off-duty” status.
1

Dr. Stanley’s full name or specialty is not discernible from the record.

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On March 1, 2005 the Office referred appellant to Dr. Russell N. Worobec, a Boardcertified orthopedic surgeon, for a second opinion. In a March 18, 2005 report, Dr. Worobec
noted appellant’s complaints of lumbar pain, diagnostic test results and examination findings.
He diagnosed degeneration of thoracic or lumbar intervertebral disc and intervertebral disc
disorder with myelopathy in the lumbar region. Dr. Worobec reviewed the surveillance video
and noted that appellant performed physical activities including mounting ladders, carrying and
moving objects and “frequently bending and stooping without any difficulty.” He noted: “All
activities were performed in a continuous manner throughout each hour period of observation
and [appellant] moved in an entirely normal manner.” Dr. Worobec noted that the Office
accepted that appellant sustained a herniated disc at the L4-5 levels but stated that “a positive
imaging study of itself does not make a diagnosis. The prevalence of degenerative changes,
bulges and herniations increase with advancing age.” Dr. Worobec explained that the physical
examination and appellant’s previous examinations had all been within normal limits and
concluded that “it would be my clinical impression that [appellant] did not have a herniated disc
at L4-5 that was symptom producing.” He stated that appellant’s back pain was mechanical and
not caused by residuals of his employment injury. The changes on his MRI scan were not
produced by his injury. In a work capacity evaluation prepared on the same day, Dr. Worobec
advised that appellant had reached maximum medical improvement and could perform full-duty
work, with the restriction that he could not lift greater than 50 pounds.
In an April 28, 2005 report, Dr. Goykovich disagreed with Dr. Worobec’s opinion that
appellant was fully recovered and capable of performing full duty. He found that appellant had
not completely recovered but was capable of performing a light-duty assignment.
Dr. Goykovich advised that appellant could work between three and five hours per day with
restrictions.
On May 19, 2005 the Office determined that there was a conflict in medical opinion
between Dr. Worobec and Dr. Goykovich.
Appellant was terminated from his position with the employing establishment on
June 14, 2005.
On October 5, 2005 the Office referred appellant to Dr. Charles R. Levine, a Boardcertified orthopedic surgeon, for an impartial medical examination. Dr. Levine examined
appellant on December 5, 2005. In a December 6, 2005 report, he reviewed the history of the
employment injury and appellant’s complaints of low back pain, as well as a history of back
problems while serving in the military. Dr. Levine indicated that appellant did not complain of
radiculopathy. He reported that previous examiners had concluded that there was nothing wrong
with appellant. Dr. Levine noted that an MRI scan report showed multilevel degenerative disc
disease. On a physical examination he noted that appellant was obese but nonetheless had
excellent leg and calf strength, normal lateral bends and sensory examination of the lower
extremities, and full range of motion in his low back and hips. Dr. Levine concluded that
appellant had lumbago, based upon his reported medical history, his diagnostic testing results,
and the physical examination. He stated:
“[Appellant] has no work-related condition either direct, indirect, aggravating,
perceptive, or excellerative. [He] has episodic lumbago. I do not feel that

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[appellant’s] lumbago is work related. His current complaint of back pain is not
related to the alleged work injury of August 12, 2002. I do feel that he is able to
work his previous job … without any restrictions, full time.”
In a December 5, 2005 work capacity evaluation, Dr. Levine stated that appellant could work full
time without restrictions.
On December 16, 2005 the Office proposed to terminate appellant’s compensation and
medical benefits based on Dr. Levine’s opinion that he could work full time without restrictions.
Appellant disagreed with the Office’s proposed termination of his benefits. In a January 17,
2002 x-ray report, Dr. Frank A. Piro, a Board-certified radiologist, diagnosed increased lumbar
lordosis, spurs from L2 to S1, and disc narrowing indicating degenerative disc disease.
By decision dated March 1, 2006, the Office terminated appellant’s compensation
benefits effective that day.
Appellant requested an oral hearing which was held on June 8, 2006. He submitted
additional evidence. In a February 24, 2006 attending physician’s report, Form CA-20,
Dr. Goykovich found multiple disc herniations and checked a box “yes” indicating that
appellant’s condition was caused or aggravated by bending over to lift a tray. In a May 26, 2006
report, Dr. Goykovich explained that appellant was essentially asymptomatic before his
employment injury. He stated:
“[Appellant] has been diagnosed with chronic back pain, degenerative disc
disease, and ruptured disc lumbar spine. This is due to his work injury. It is true
that the ‘degeneration’ could have been there to some degree before his injury, but
that does not change the fact that his difficulties started after his injury.”
By decision dated August 21, 2006, the hearing representative affirmed the March 1,
2006 decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.2 The Office may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.3 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4
Section 8123(a) of the Federal Employees’ Compensation Act provides that, if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
2

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

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Id.

4

See Del K. Rykert, 40 ECAB 284, 295-296 (1988).

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examination.5 When the case is referred to an impartial medical specialist for the purpose of
resolving a conflict in medical evidence, the opinion of such specialist will be given special
weight when based on a proper factual and medical background and sufficiently well rationalized
on the issue presented.6
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation as the weight of the medical evidence shows that appellant’s employment-related
condition has resolved.
Appellant sustained injury on August 12, 2002 accepted for a herniated disc a L4-5. He
worked part time and the Office paid appellant wage-loss compensation for the difference for the
hours that he was unable to work due to his employment injury. The Office referred appellant to
Dr. Worobec for a second opinion examination. Dr. Worobec provided a March 18, 2005
medical report concluding that appellant no longer experienced residuals from his employment
injury and was capable of working full-time regular duty. In an April 28, 2005 report,
Dr. Goykovich disagreed with Dr. Worobec. Based on this evidence, the Office properly
determined that a conflict arose. To resolve the medical conflict, the Office referred appellant to
Dr. Levine.
In a December 6, 2005 report, Dr. Levine found that appellant experienced mechanical
back pain due to degenerative disc disease, not his accepted employment injury. He noted
appellant’s history of back problems, both in the military and at the employing establishment and
reviewed the reports of prior examiners and the diagnostic testing results. Dr. Levine noted that
appellant’s diagnostic testing results all indicated that he had degenerative disc disease. He
performed a physical examination and determined that appellant had good strength, full range of
motion in his low back, and normal results of all physical tests. Dr. Levine concluded that
appellant’s medical history, diagnostic testing and the findings on physical examination were all
consistent with a diagnosis of nonemployment-related lumbago. The Board finds that Dr. Levine
provided a thorough review of the factual and medical evidence, detailed his findings on physical
examination of appellant, referenced the diagnostic tests obtained and provided explanation
supporting his conclusion that appellant no longer had residuals or disability related to his
accepted injury. Dr. Levine explained that appellant could return to his previous position
without restrictions. He found no basis on which to attribute any continuing symptoms or
disability to the accepted employment injury.
The Board finds that the weight of the medical evidence rests with Dr. Levine, the
impartial medical examiner, whose report is based on a proper factual and medical background
and sufficiently well rationalized such that it is entitled to special weight and establishes that
appellant no longer has residuals from his employment injury. Therefore, the Office met its
burden of proof in terminating appellant’s compensation benefits.

5

5 U.S.C. § 8123(a); see Elsie L. Price, 54 ECAB 734 (2003); Raymond J. Brown, 52 ECAB 192 (2001).

6

See Bernadine P. Taylor, 54 ECAB 342 (2003); Anna M. Delaney, 53 ECAB 384 (2002).

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LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.7
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, must be one
of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by appellant.8
ANALYSIS -- ISSUE 2
The Board finds that appellant did not meet his burden of proof for reinstating his
compensation benefits. In support of his claim, appellant submitted two reports from
Dr. Goykovich.
In a February 24, 2006 form report, Dr. Goykovich checked a box “yes” to indicate that
appellant’s condition was work related. In a May 26, 2006 report, he opined that appellant’s
symptoms were causally related to his employment injury because he was asymptomatic before
the injury. Dr. Goykovich acknowledged that appellant had degenerative disc disease but stated
that appellant’s problems only began after the employment injury. These reports are insufficient
to meet appellant’s burden of proof. Regarding the February 24, 2006 report, the Board has held
that an opinion on causal relationship which consists only of a physician checking “yes” on a
medical form report without further explanation or rationale is of little probative value.9
Dr. Goykovich did not provide any explanation for his opinion other than noting the history of
injury provided by appellant. As to the May 26, 2006 report, the Board has previously held that
the opinion of a physician that a condition is causally related to an employment injury because
the employee was asymptomatic before the injury is insufficient, without supporting medical
rationale, to establish causal relationship.10 Moreover, the Board notes that, as Dr. Goykovich
was on one side of the conflict that Dr. Levine resolved, the additional reports from
Dr. Goykovich, without any new findings or rationale, is insufficient to overcome the weight
accorded Dr. Levine’s report as the impartial medical specialist’s report, or to create a new

7

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

8

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

9

Alberta S. Williamson, 47 ECAB 569 (1996).

10

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

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conflict with it.11 Dr. Goykovich did not present any new rationale or explanation supporting his
conclusion that appellant’s condition was due to his employment injury.
Accordingly, the Board finds that appellant did not meet his burden of proof for
reinstating his compensation and medical benefits because he did not present medical evidence
establishing that his current condition was due to residuals of his employment injury and not to
his nonemployment-related degenerative condition.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation and medical benefits and that appellant did not meet his burden of proof for
reinstating his benefits.
ORDER
IT IS HEREBY ORDERED THAT the August 21 and March 1, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 24, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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See Dorothy Sidwell, 41 ECAB 857 (1990); Helga Risor, 41 ECAB 939 (1990).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
DEPARTMENT OF EDUCATION, SPECIAL
EDUCATION REHABILITATION SERVICES,
Washington, DC, Employer
__________________________________________

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

Docket No. 14-1298
Issued: January 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 16, 2014 appellant filed a timely appeal from a May 7, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation benefits effective May 5, 2013; and (2) whether appellant has
established continuing employment-related residuals or disability on or after May 5, 2013 as a
result of his accepted July 20, 2009 employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. By decision dated February 26, 2014, the
Board remanded the case as OWCP had failed to review newly submitted medical reports. It
advised OWCP to issue a de novo final decision after properly considering all of the evidence.
The findings of fact and conclusions of law from the prior decision and order are hereby
incorporated by reference.
On July 27, 2009 appellant, then a 42-year-old management program analyst, filed a
traumatic injury claim alleging that on July 20, 2009 he sustained a muscle sprain when a box
fell on his shoulder. He sought emergency medical treatment that same date. Appellant stopped
work on July 20, 2009 and received wage-loss and compensation benefits.
By decision dated September 24, 2009, OWCP accepted the claim for sprain and
contusion of the right shoulder and upper arm.
On September 11, 2009 appellant began seeking treatment with Dr. Nigel M. Azer, a
Board-certified orthopedic surgeon, who reported that appellant complained of shoulder pain and
diagnosed acromioclavicular (AC) joint separation, right shoulder impingement syndrome, and
neuropraxia of the right arm.
On March 18, 2010 Dr. Azer performed arthroscopy of the right shoulder with
debridement of the glenoid labrum and an open anterior acromioplasty and distal clavicle
excision. The surgery was approved by OWCP. On February 7, 2012 Dr. Azer performed
another arthroscopy of the right shoulder with arthroscopic lysis of adhesion and debridement of
a retear of the labrum. Both surgeries were approved by OWCP.
In a July 13, 2012 medical report, Dr. Azer noted physical examination revealed 95
degrees forward flexion. At 90 degrees abduction appellant had 80 degrees of external rotation
and 85 degrees of internal rotation, noting negative impingement signs, and good rotator cuff
strength. Dr. Azer diagnosed status post right shoulder reconstruction, right carpal tunnel
syndrome (CTS), brachial plexopathy, and chronic pain syndrome. He restricted appellant from
returning to work.
On September 5, 2012 OWCP referred appellant to Dr. Robert A. Smith, a Boardcertified orthopedic surgeon, for a second opinion evaluation. Dr. Smith detailed the
employment incident, noting that on July 20, 2009 a box full of copy paper fell from a shelf and
landed directly on top of appellant’s right shoulder. He noted a medical history of no prior
shoulder injuries. Dr. Smith provided a detailed review of appellant’s medical and diagnostic
reports since the onset of injury on July 20, 2009. He reported that the only accepted conditions
in the case were sprain and contusion of the right shoulder and upper arm which were consistent
with the mechanism of injury. Dr. Smith noted that any diagnoses pertaining to the neck, elbow,
and wrist would be unrelated since there was no evidence of any injury to these parts of the
body. He determined that appellant also suffered from neuropraxia to the suprascapular nerve,
grade 2 AC joint separation, and a right torn labrum as a result of the July 20, 2009 employment
incident. Based on the recent electromyogram (EMG) study and clinical examination, Dr. Smith
reported that the right suprascapular neuropraxia and sprains and contusions of the right shoulder

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and upper arm had resolved. He further stated that the surgical procedures performed were
reasonably related since grade 2 AC joint separation and associated labrum injury could have
occurred as a direct result of the incident, but that the conditions had resolved as appellant had
undergone successful surgery.
Upon physical examination, Dr. Smith reported that appellant did not have any objective
clinical findings since his injuries had resolved. He found that appellant declined moving his
shoulder in any meaningful way which was contradictory to physical findings made by Dr. Azer
in his examination just a few months earlier. Dr. Smith noted that appellant’s loss of motion in
his right arm seemed to be voluntary and did not appear to be related to any specific pathology
since, with strength testing, he appeared to have normal strength of the rotator cuff. He
concluded that appellant required no further medical care and could return to full-duty work as a
management program analyst which was a sedentary job.
By decision dated October 3, 2012, OWCP accepted appellant’s claim for sprain of the
right shoulder and upper arm, contusion of shoulder and upper arm, suprascapular neuropraxia
(right) shoulder, grade 2 right AC joint separation, and right torn labrum.
On January 2, 2013 OWCP referred appellant, a statement of accepted facts, the case file,
a medical conflict statement, and a series of questions to Dr. Robert O. Gordon, a Board-certified
orthopedic surgeon, for an impartial referee examination in order to resolve the conflict between
Dr. Smith and Dr. Azer regarding appellant’s right upper arm and shoulder conditions.
Dr. Gordon reviewed appellant’s medical history and provided findings on physical examination.
Appellant informed Dr. Gordon that on July 20, 2009, a box of copy paper fell off a shelf and
struck him on his right shoulder. Dr. Gordon noted that upon physical examination, appellant
hardly moved his shoulder which he believed had no physiologic basis, suspecting that his
motion limitation was voluntary. Appellant informed Dr. Gordon that though his employment as
a management program analyst was not very physical, he could not return to work because it hurt
him to sit for prolonged periods of time. Dr. Gordon found that not supported physiologically.
He further noted that appellant’s medical and diagnostic reports revealed AC joint degenerative
change and some superficial irregularity at the labrum, but no evidence of any rotator cuff tear.
Upon review of EMG testing, Dr. Gordon stated that the findings made were unrelated to the
July 20, 2009 work incident other than the possibility of some suprascapular nerve changes,
which had long since resolved as evidenced by a subsequent EMG study and lack of symptoms
in that area. He opined that the July 20, 2009 incident caused soft tissue injuries as well as
possible mild AC separation which had resolved within a few months after the injury occurred.
Dr. Gordon stated that appellant’s subjective complaints led to his surgical procedures which
were on a functional rather than a physiological basis. The only residual objective findings
found were well-healed scars in the right shoulder area. Dr. Gordon concluded that appellant did
not require further treatment, there were no limitations on his physical capacity, and that he
could resume his normal work activities.
On February 13, 2013 OWCP notified appellant of a proposal to terminate his medical
and wage-loss compensation benefits based on Dr. Smith and Dr. Gordon’s opinions that
appellant was not experiencing any residuals or disability connected to the July 20, 2009
employment injury as his conditions had ceased. Appellant was provided 30 days to submit
additional information.

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In support of his claim, appellant submitted medical reports dated February 15 and 25,
2012 from Dr. Azer, who provided a diagnosis of status post right shoulder reconstruction, right
CTS, brachial plexopathy, and chronic pain syndrome. Dr. Azer opined that appellant had
residuals of his neurologic injury that occurred back in 2009 and was unable to perform any
activities that would require repetitive use or lifting of his upper extremities on a permanent
basis.
By decision dated April 1, 2013, OWCP terminated appellant’s medical and wage-loss
compensation benefits effective May 5, 2013. It noted that the report of appellant’s treating
physician was void of objective evidence demonstrating that his injury was ongoing.
On April 26, 2013 appellant requested an oral hearing before the Branch of Hearings and
Review. A hearing was held on August 16, 2013.
In a May 8, 2013 medical report, Dr. Azer reported that appellant was unable to work, but
was able to occasionally lecture at Howard University due to lack of physical demands while
lecturing. He diagnosed status post reconstruction of right shoulder, brachial plexopathy, and
right median nerve neuropathy at the wrist. Dr. Azer opined that the majority of appellant’s
impairment related to his brachial plexus injury and concluded that he did not have the ability or
capability to return to work as a management analyst. He recommended an EMG and nerve
conduction study (NCS).
By letter dated June 12, 2013, appellant stated that he was submitting additional medical
evidence.
In support of his claim, appellant submitted medical reports dated May 20 through
October 30, 2013 from a Dr. Daniel R. Ignacio. A May 20, 2013 EMG and NCS revealed right
brachial neuritis with denervation along the right arm. In his May 20, 2013 report, Dr. Ignacio
stated that on July 20, 2009 appellant was treated in the emergency room for injuries sustained to
the neck and right shoulder and received multiple medical treatments including physical therapy,
nerve blocks, joint injections, and two surgeries. Despite treatment, appellant complained of
worsening right shoulder pain, which radiated to the arm with numbness and weakness, worse
with repetitive movements. Dr. Ignacio provided findings on physical examination and
diagnosed status post multiple surgeries to the right shoulder with residual pain, chronic right
shoulder strain, chronic right brachial neuritis, chronic right AC joint dislocation, and complex
regional pain syndrome (CRPS), which were related to the injuries sustained on July 20, 2009.
He further stated that appellant could not return to work as an analyst and remained
symptomatic.
In a July 11, 2013 medical report, Dr. Annapurni Jayam Trouth, a Board-certified
neurologist, reported that he evaluated appellant on July 9, 2013. He noted that appellant
complained of severe unbearable pain, and occasional burning, in the right shoulder, arm,
forearm, and hand. All symptoms began after appellant sustained a right shoulder injury when a
heavy box fell on his shoulder. Dr. Trouth provided detailed review of past medical reports and
findings on physical examination. He diagnosed CRPS or reflex sympathetic dystrophy (RSD),
which was triggered by trauma to the brachial plexus. Dr. Trouth further stated that appellant

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had sensory, motor, and vasomotor problems involving the right brachial plexus and required
continued treatment.
In a July 22, 2013 medical report, Dr. Christopher Kalhorn, a Board-certified
neurological surgeon, reported that appellant had a history of a prior shoulder injury status post
having a box falling on his shoulder. Appellant described a dysesthetic severe burning pain in
the right shoulder, forearm, and into the hand. Dr. Kalhorn noted that the character of the pain
was consistent with a CRPS. He recommended an MRI scan of the cervical spine.
In a July 31, 2013 medical report, Dr. Ignacio reported that he had a complex clinical
course with intractable and progressive painful conditions along the right upper extremity related
to the joint injury and nerve damage. He subsequently underwent multiple surgeries to the
shoulder. Despite surgery on March 18, 2010 and February 7, 2012, appellant developed severe
neuropathic pain and CRPS (causalgia of the right upper extremity), which had been bothering
him over the past several years. He had continued pain along the right shoulder and arm,
numbness and weakness along the right arm, and severe neuropathic pain that required him to
take multiple medications for pain control.
Dr. Ignacio reported that appellant’s diagnostic studies included an MRI scan, which
confirmed the AC joint dislocation, the tear of the labrum and the tear of the rotator cuff tendon.
EMG studies confirmed the right brachial plexus neuropathy and the most recent EMG study
demonstrated the chronic and stable right brachial neuritis. Dr. Ignacio reported that, with regard
to the prior EMG study which demonstrated right ulnar neuritis, it was simply an extension of
the right brachial plexus and a component of the right shoulder nerve injury. Dr. Ignacio
diagnosed status post multiple surgeries to the right shoulder with residual pain, chronic injury to
the right shoulder (brachial neuritis), chronic sprain of the right shoulder, chronic dislocation of
the AC joint, chronic contusions along the right shoulder, and CRPS. He recommended
continued medical treatment and noted that appellant was restricted from working as an analyst.
Dr. Ignacio further stated that he disagreed with the termination of appellant’s benefits and
Dr. Smith’s September 5, 2012 report. He noted that Dr. Smith’s report was subjective as he
referred to appellant’s clinical situation as voluntary self-limitation. Dr. Ignacio further noted
that his report neglected the significant accepted right shoulder nerve injury and multiple
surgeries. He further disagreed with Dr. Smith stating that appellant’s right shoulder injury and
nerve damage had not resolved as evidenced by the recent May 20, 2013 EMG study, which
demonstrated the persistence of the right brachial neuritis with associated pain. Dr. Ignacio
concluded that appellant required continued medical treatment and was unable to return to work
as an analyst due to his limited physical capability.
In an August 13, 2013 medical report, Dr. Daniel R. Kendall, an osteopath, reported that
he evaluated appellant for an initial comprehensive pain consultation. He noted a history of a
box falling on appellant’s right shoulder four years ago. Dr. Kendall provided review of
diagnostic testing and noted that a July 2, 2013 MRI scan of the right shoulder revealed
abnormal intrasubstance signal along the undersurface of the superior labrum, mild AC joint
osteoarthrosis, and probable sequella of and old low grade AC joint injury with no rotator cuff
identified. An August 1, 2013 MRI scan of the brachial plexus revealed no acute pathology of
the right brachial plexus. An August 1, 2013 MRI scan of the cervical spine revealed minimal
central disc protrusions at C3-4 and C5-6. Dr. Kendall diagnosed chronic regional pain

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syndrome, cervical disc displacement, brachial neuritis or radiculitis, RSD upper extremity,
rotator cuff syndrome, and shoulder pain.
In an August 14, 2013 medical report, Dr. Azer reported that he reviewed appellant’s
recent diagnostic testing and medical reports. He opined that appellant’s clinical picture,
diagnostic testing, and two surgeries on his right shoulder were consistent with CRPS. Dr. Azer
diagnosed status post reconstruction of right shoulder, brachial plexopathy, right median nerve
neuropathy at the wrist, and CRPS of the right arm. He stated that appellant sustained a
significant injury to his right shoulder where he was initially diagnosed as having brachial
plexopathy, as well as AC joint separation and impingement. Dr. Azer opined that appellant had
permanent impairment despite undergoing extensive treatment and would be unable to perform
any activities that required repetitive use of his upper extremity.
A medical article discussing CRPS in adults was submitted.
By decision dated November 12, 2013, the Branch of Hearings and Review affirmed the
April 1, 2013 decision terminating appellant’s medical and wage-loss compensation benefits
effective May 5, 2013 and finding that he failed to establish ongoing disability on or after May 5,
2013 causally related to one or more of the accepted employment-related conditions.
As previously noted, by decision dated February 26, 2014, the Board set aside the
November 24, 2013 decision finding that OWCP failed to review newly submitted medical
reports. The Board remanded the case to OWCP to issue a de novo final decision after properly
considering all of the evidence.2
By decision dated May 7, 2014, the Branch of Hearings and Review affirmed the April 1,
2013 decision terminating appellant’s medical and wage-loss compensation benefits. It found
that he failed to establish ongoing disability on or after May 5, 2013 causally related to the
accepted July 20, 2009 incident or injury sustained as a result thereof. It noted that the weight of
the medical evidence rested with the opinions of Dr. Smith and Dr. Gordon.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment,
2

Id.

3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

Roger G. Payne, 55 ECAB 535 (2004).

6

OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.6 OWCP’s burden of proof includes the necessity of
furnishing rationalized medical opinion evidence based on a proper factual and medical
background.7
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.8 In situations where there are opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual background, must be given special
weight.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a sprain of the right shoulder and upper arm,
contusion of shoulder and upper arm, suprascapular neuropraxia (right) shoulder, grade 2 right
AC joint separation, and right torn labrum as a result of the July 20, 2009 work-related incident.
The issue is whether it properly terminated his benefits effective May 5, 2013, as he was not
experiencing any residuals of the July 20, 2009 injury. The Board finds that OWCP properly
terminated appellant’s compensation benefits.
In a July 13, 2012 medical report, Dr. Azer, appellant’s treating physician, diagnosed
status post right shoulder reconstruction, right CTS, brachial plexopathy and chronic pain
syndrome, and restricted appellant from returning to work.
In a September 5, 2012 report, Dr. Smith, an OWCP second opinion physician, reported
that appellant sustained a sprain and contusion of the right shoulder and upper arm, neuropraxia
to the suprascapular nerve, grade 2 AC joint separation, and a right torn labrum as a result of the
July 20, 2009 employment incident. He explained that the right suprascapular neuropraxia and
sprains and contusions of the right shoulder and upper arm had resolved as evidenced by the
recent EMG study and clinical examination. Dr. Smith further stated that the AC joint
separation, grade 2 and associated labrum injury had resolved as appellant underwent surgery
and the torn portion was debrided. He reported that all of appellant’s conditions had resolved, he
required no further medical care and could return to full-duty work.
OWCP properly found a conflict of medical opinion evidence between Dr. Smith, the
second opinion physician, and Dr. Azer, appellant’s treating physician, regarding whether his
accepted conditions had resolved. It referred appellant to Dr. Gordon, a Board-certified

6

Pamela K. Guesford, 53 ECAB 726 (2002).

7

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

8

5 U.S.C. § 8123(a).

9

Nathan L. Harrell, 41 ECAB 402 (1990).

7

orthopedic surgeon, for an impartial medical examination to resolve the conflict, pursuant to 5
U.S.C. § 8123(a).
In his January 2, 2013 report, Dr. Gordon reviewed EMG study testing and stated that the
findings made were unrelated to the July 20, 2009 work incident other than the possibility of
some suprascapular nerve changes, which had long since resolved as evidenced by a subsequent
EMG study and lack of symptoms in that area. He opined that the July 20, 2009 incident caused
soft tissue injuries as well as possible mild AC joint separation, which had resolved within a few
months after the injury occurred. Dr. Gordon stated that appellant’s subjective complaints led to
his surgical procedures, which were on a functional rather than a physiological basis. The only
residual objective findings found were well-healed scars in the right shoulder area. Dr. Gordon
concluded that appellant did not require further treatment, there were no limitations on his
physical capacity, and that he could resume his normal work activities. His opinion is sufficient
to resolve the question of whether appellant continued to suffer from any residuals or disability
causally related to his accepted July 20, 2009 injury.10
The Board finds that, under the circumstances of this case, the opinion of Dr. Gordon is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant’s work-related conditions have ceased.11 Where
there exists a conflict of medical opinion and the case is referred to an impartial specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, is entitled to special weight.12
The Board has carefully reviewed the opinion of Dr. Gordon and finds that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue in the present case. Dr. Gordon reviewed the statement of accepted facts and
provided detailed findings regarding appellant’s prior medical treatment and test results.13 He
related his comprehensive examination findings in support of his opinions. Dr. Gordon’s
findings were substantiated by Dr. Smith’s report who noted that a recent EMG study, clinical
examination, and surgery established that appellant’s conditions had resolved. As there were no
objective findings related to appellant’s right arm and shoulder condition, Dr. Gordon opined
that, his disability had ceased, there were no limitations on his physical capacity, and that he
could resume his normal work activities. He provided medical rationale for his opinion by
explaining that appellant’s subjective complaints led to his surgical procedures which were on a
functional rather than a physiological basis. Dr. Gordon further provided support for his opinion
that appellant’s conditions had resolved as evidenced by a subsequent EMG study and lack of
symptoms in the right arm and shoulder area. His opinion is sufficiently probative, rationalized,
and based upon a proper factual background.14 Dr. Gordon’s report is entitled to special weight
10

D.C., Docket No. 12-1921 (issued August 13, 2013).

11

T.B., Docket No. 13-1960 (issued February 18, 2014).

12

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

13

See Melvina Jackson, 38 ECAB 443 (1987).

14

L.S., Docket No. 13-716 (issued June 4, 2013).

8

as the impartial medical examiner and establishes that appellant is not entitled to continued
benefits.
Subsequent to Dr. Gordon’s report, appellant submitted medical reports dated
February 15 and 25, 2012 from Dr. Azer, who provided a diagnosis of status post right shoulder
reconstruction, right CTS, brachial plexopathy, and chronic pain syndrome. Dr. Azer opined that
appellant had residuals of his neurologic injury that occurred back in 2009 and was unable to
perform any activities that would require repetitive use or lifting of his upper extremities on a
permanent basis.
The Board notes that Dr. Azer’s reports are insufficient to establish appellant’s claim as
he failed to provide a rationalized opinion that he remained disabled as a result of his accepted
July 20, 2009 injuries.15 Though Dr. Azer generally supported that appellant had residuals of his
neurologic injury that occurred back in 2009, his opinion on causal relationship was conclusory
without any additional explanation as to how the conditions caused disability or remained
symptomatic.16 Moreover, he was on one side of the conflict that gave rise to the referral to
Dr. Gordon.17 Dr. Azer’s reports are insufficient to overcome the opinion of Dr. Gordon or to
create a new medical conflict.18
Thus, the Board finds that Dr. Gordon’s opinion constitutes the weight of the medical
evidence. There is no other medical evidence contemporaneous with the termination of
appellant’s benefits, which supports that he has any continuing residuals or disability related to
his accepted work-related injuries.19 OWCP properly terminated his compensation benefits.20
LEGAL PRECEDENT -- ISSUE 2
After termination of compensation benefits clearly warranted on the evidence, the burden
for reinstating compensation benefits shifts to the claimant. To prevail, the claimant must
establish by the weight of the reliable, probative, and substantial evidence that he had an
employment-related disability, which continued after the termination of compensation benefits.21
OWCP is not a disinterested arbiter but rather performs the role of adjudicator on the one
hand and gatherer of the relevant facts and protector of the compensation fund on the other, a
15

J.H., Docket No. 12-1848 (issued May 15, 2013).

16

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
17

C.B., Docket No. 12-1572 (issued February 21, 2013).

18

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Azer’s reports did not contain new findings or rationale on
causal relationship upon which a new conflict might be based.
19

D.R., Docket No. 12-1697 (issued January 29, 2013).

20

D.M., Docket No. 11-386 (issued February 2, 2012); Marshall E. White, 33 ECAB 1666 (1982).

21

I.J., 59 ECAB 408 (2008).

9

role that imposes an obligation to see that its administrative processes are impartially and fairly
conducted.22 Although the employee has the burden of establishing entitlement to compensation,
OWCP shares responsibility in the development of the evidence.23
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for a decision on the issue of whether
appellant had an employment-related disability on or after May 5, 2013, causally related to his
accepted July 20, 2009 employment injuries.
As OWCP met its burden to terminate appellant’s medical and wage-loss compensation
benefits effective May 5, 2013, the burden shifted to appellant to establish that he had disability
causally related to his accepted injury on or after May 5, 2013.
In support of his claim, appellant submitted medical reports dated May 20 through
October 30, 2013 from Dr. Ignacio, his treating physician, who noted appellant’s history of
injury on July 20, 2009 and stated that a May 20, 2013 EMG and NCS revealed right brachial
neuritis with denervation along the right arm. Dr. Ignacio reported that with regard to the prior
EMG study, which demonstrated right ulnar neuritis, it was simply an extension of the right
brachial plexus and a component of the right shoulder nerve injury. He related that appellant
received multiple medical treatments including physical therapy, nerve blocks, joint injections,
and two surgeries. Despite such treatment modalities, appellant developed severe neuropathic
pain and CRPS (causalgia of the right upper extremity), which had been bothering him over the
past several years. Dr. Ignacio reported that appellant’s diagnostic studies included an MRI
scan, which confirmed the AC joint dislocation, the tear of the labrum and the tear of the rotator
cuff tendon. He provided findings on physical examination and diagnosed status post multiple
surgeries to the right shoulder with residual pain, chronic right shoulder strain, chronic right
brachial neuritis, chronic right AC joint dislocation and CRPS, which he opined were related to
the injuries sustained on July 20, 2009. Dr. Ignacio reviewed Dr. Smith’s second opinion report
and disagreed with his findings. He argued that Dr. Smith’s report was subjective as he referred
to appellant’s clinical situation as voluntary self-limitation and neglected the significantly
accepted right shoulder nerve injury and multiple surgeries. Dr. Ignacio further disagreed with
Dr. Smith stating that appellant’s right shoulder injury and nerve damage had not resolved as
evidence by the recent May 20, 2013 EMG study, which demonstrated the persistence of the
right brachial neuritis with associated pain that appellant described. He noted that appellant had
complex damage to the right shoulder not only with the nerve injury but the associated complex
regional pain syndrome which had been confirmed by other physicians. Dr. Ignacio concluded
that appellant could not return to work as an analyst due to continued severe pain and limited use
of the right upper extremity.
In an August 14, 2013 medical report, Dr. Azer reported that he reviewed appellant’s
recent diagnostic testing and medical reports. He opined that appellant’s clinical picture,
diagnostic testing and two surgeries on his right shoulder were consistent with complex regional
22

Richard F. Williams, 55 ECAB 343, 346 (2004); Thomas M. Lee, 10 ECAB 175, 177 (1958).

23

D.N., Docket No. 07-1940 (issued June 17, 2008); Mary A. Barnett, 17 ECAB 187, 189-90 (1965).

10

pain syndrome. Dr. Azer diagnosed status post reconstruction of right shoulder, brachial
plexopathy, right median nerve neuropathy at the wrist, and complex regional pain syndrome of
the right arm. He stated that appellant sustained a significant injury to his right shoulder where
he was initially diagnosed as having brachial plexopathy as well as AC joint separation and
impingement. Dr. Azer opined that appellant had permanent impairment despite undergoing
extensive treatment and would be unable to perform any activities that required repetitive use of
his upper extremity.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.24 The Board
notes that, while none of appellant’s physician’s reports are completely rationalized, they are
consistent in indicating that he continues to experience residuals and/or disability causally related
to the July 20, 2009 incident.25 As appellant’s attending physicians, Dr. Ignacio and Dr. Azer
provided treatment since the onset of injury in July 2009. Their reports provided detailed
findings on physical examination and review of diagnostic testing, with a clear opinion that
appellant continued to suffer from residuals and/or disability causally related to the July 20, 2009
incident. Moreover, Dr. Ignacio addressed his disagreement with Dr. Smith’s report, providing
reasoning for his opinion. While the reports of Dr. Ignacio and Dr. Azer are not sufficient to
meet appellant’s burden of proof, they raise an uncontroverted inference between his continued
disability and the accepted employment incident and are, therefore, sufficient to require OWCP
to further develop the medical evidence and the case record.26
The Board further notes that the May 7, 2014, OWCP decision found that the weight of
the medical evidence rested with the opinions of Dr. Smith and Dr. Gordon. Subsequent to
Dr. Smith and Dr. Gordon’s examinations, appellant underwent additional diagnostic testing,
specifically, a May 20, 2013 EMG study, a July 2, 2013 MRI scan of the right shoulder, an
August 1, 2013 MRI scan of the brachial plexus and an August 1, 2013 MRI scan of the cervical
spine. Dr. Ignacio and Dr. Azer reviewed these additional studies, which they used to form the
basis of their opinion that appellant remained disabled as a result of the July 20, 2009
employment incident. In its May 7, 2014 decision, the hearing representative improperly
afforded the weight of the medical evidence to Dr. Smith and Dr. Gordon as the physicians had
not been provided an opportunity to review this additional, more recent diagnostic testing.27

24

A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004).

25

P.A., Docket No. 09-319 (issued November 23, 2009).

26

See P.K., Docket No. 08-2551 (issued June 2, 2009); see also Virginia Richard, claiming as executrix of the
estate of Lionel F. Richard, 53 ECAB 430 (2002); Jimmy A. Hammons, 51 ECAB 219 (1999); Horace Langhorne,
29 ECAB 820 (1978).
27

Gloria J. Godfrey, 52 ECAB 486 (2001) (the Board found that the opinion of the impartial medical specialist
was no longer afforded special weight as appellant submitted subsequent medical reports which provided findings
and opinions based on more recent diagnostic studies, which were not reviewed by the impartial medical specialist).

11

Thus, the Board finds that there remains an unresolved issue as to whether appellant has
continuing disability due to the July 20, 2009 injury.28 On remand, OWCP should further
develop the medical evidence. Following such further development as OWCP deems necessary,
it shall issue an appropriate merit decision on appellant’s claim.29
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective May 5, 2013. The Board further finds that the case is not in
posture for a decision as to whether appellant continued to suffer from employment-related
residuals or disability on or after May 5, 2013 as a result of his accepted July 20, 2009
employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2014 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded for
further action consistent with this decision of the Board.
Issued: January 7, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

28

D.N., Docket No. 09-651 (issued April 20, 2010).

29

H.G., Docket No. 09-512 (issued October 2, 2009).

12


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

)
)
)
)
)
)
)
)

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

Docket No. 09-1189
Issued: January 25, 2010

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 April 1, 2009 appellant filed a timely appeal from the March 16, 2009 merit decision
of the Office of Workers’ Compensation Programs concerning the denial of an employment
injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on March 20, 2006.
FACTUAL HISTORY
This is the second appeal in this case. The Board issued a decision on April 16, 2008
affirming an April 9, 2007 Office decision finding that appellant did not sustain an employment-

related injury on March 20, 2006.1 The Board found that, although he established the existence of
a March 20, 2006 employment incident, the Office properly found that he did not submit a
rationalized medical report showing that he sustained a medical condition due to that incident. It
noted that appellant sustained injury to his low back while in military service, but that the medical
evidence did not provide any explanation based on reasonable medical certainty detailing how his
low back degenerative disc disease was aggravated or contributed to by the March 20, 2006 slip in
snow. Dr. Charles M. McIntosh, an attending Board-certified emergency medicine physician, who
was the first to treat appellant after March 20, 2006, noted a myofascial strain of the low back after
an April 4, 2006 examination, but he did not provide any explanation of how the strain was related
to the accepted employment incident. Dr. Kingsley A. Ozoude, an attending Board-certified
radiologist, saw appellant on January 19, 2007 and stated that he thought appellant’s symptoms
were “the result of a fall on March 20, 2006.” The Board found that this opinion was inaccurate as
appellant made it clear he did not fall on March 20, 2006 and noted that Dr. Ozoude provided no
rationale for his stated conclusion on causal relationship. The facts and the circumstances of the
case up to that point are set forth in the Board’s prior decision and are incorporated herein by
reference.
Appellant submitted a July 23, 2008 report of Dr. Girija Gopalswamy, an attending Boardcertified internist,2 who noted that appellant reported a service-related injury of 1997 which
resulted in a diagnosis of a bulging lumbar disc. Dr. Gopalswamy indicated that appellant reported
that he was “medically boarded” out of the army due to his back condition and continued to have
back pain while working as a letter carrier. Appellant reported that, from the time of his discharge
from the military until March 20, 2006 (when he slipped on ice at work and twisted his back), his
back pain stayed about the same at 5 out of a scale of 10. After March 20, 2006, he reported an
increase in back pain and moderate spasm in the lower lumbar area bilaterally with decreased
range of motion of the lumbar spine. Dr. Gopalswamy noted that appellant slowly got out of his
chair in the waiting room and walked slowly into the examination room. Upon examination,
appellant exhibited some loss of lordosis and decreased range of motion upon extension, forward
flexion, bilateral lateral flexion, and bilateral lateral rotation, mild paralumbar spasm upon flexion
and normal motor and sensory function. Dr. Gopalswamy described x-ray findings from July 23,
2008 demonstrating “early degenerative changes in the form of spurs from the lumbar vertebral
bodies” and diagnosed chronic lumbar strain, moderate, with early degenerative disc disease and
spurring of the lumbar vertebrae. She stated, “The injury he suffered working for the [employing
establishment] most likely aggravated the service-connected lumbar condition.” The report ended
by stating that it was felt that appellant exaggerated his pain during the examination in that he
never showed any facial expressions of severe pain. Appellant was observed walking from the
examination room to the waiting room with a quicker pace and a gait that was “almost normal.”
Appellant also submitted a December 18, 2008 report of Dr. Martin Fritzhand, an attending
Board-certified preventive medicine physician, who noted that appellant reported that on
1

Docket No. 07-1415 (issued April 16, 2008). On April 4, 2006 appellant, then a 35-year-old letter carrier, filed a
traumatic injury claim alleging that he injured his low back on March 20, 2006 when he slipped on ice while walking
his postal route. He indicated that he did not fall to the ground but that he twisted his back. Appellant stopped work on
April 4, 2006.
2

The report was also produced and signed by Ken Abney, an attending physician’s assistant.

2

March 20, 2006 he slipped on ice at work and twisted his back and described the medical care he
initially received for his back in April 2006. Dr. Fritzhand indicated that appellant complained of
continuing back pain that progressively worsened and indicated that magnetic resonance imaging
(MRI) scan testing from December 2006 showed degenerative changes of the low back compatible
with his age and a condition that was not amenable to surgical intervention.”3 X-ray testing from
July 2008 revealed spurs at L2, L3 and L4. Dr. Fritzhand stated that appellant reported injuring his
back during military service 10 years prior but asserted that he was “basically pain free” from 2003
until the March 20, 2006 incident. Appellant now complained of a constant sharp to dull low back
pain radiating to his hips. Dr. Fritzhand stated that on examination appellant ambulated with a
normal gait and was comfortable sitting and in the supine position. Appellant had normal spine
curvature, tenderness to palpation throughout the low back region, difficulty forward bending,
decreased range of motion upon extension and flexion, diminished straight leg raise to 50 degrees
bilaterally, diminished range of motion of the hips with knees flexed to 90 degrees bilaterally, and
intact strength and sensory function. Dr. Fritzhand noted that appellant had a “well-documented
injury” to his low back in 2006 and experienced persistent musculoskeletal distress since that time
which has gotten worse with each day. He stated:
“The patient has a well-documented underlying back condition characterized as
degenerative joint disease, lumbar spine with chronic low back pain and this latest
injury (March 2006) is obviously an aggravation of the degenerative
joint/disease/facet arthropathy with chronic low back pain. His history is clear
that low back pain had essentially ceased by 2003 only to recur directly following
his March 2006 injury. This was described to me by [appellant] and also noted by
Dr. Poelstra and the [Veterans Administration]…. The patient has certainly
demonstrated sufficient evidence to establish that he sustained a specific incident
at the time, place, and in the manner alleged and that the incident resulted in an
exacerbation of his low back pain. His history could not be clearer. The patient
had ongoing low back pain dating to the March 2006 accident which led directly
to medical care not sought out for his low back during the previous three years.”
In a March 16, 2009 decision, the Office found that appellant did not submit sufficient
medical evidence to establish that he sustained an injury in the performance of duty on
March 20, 2006. It found that Dr. Gopalswany and Dr. Fritzhand did not provide adequate
medical rationale for their opinions that appellant’s preexisting back condition was aggravated
on March 20, 2006.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
3

Dr. Fritzhand indicated that the testing was obtained by Dr. Raymond Poelstra, an attending Board-certified
neurosurgeon.
4

5 U.S.C. §§ 8101-8193.

3

sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.5 These are the
essential elements of each compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the “fact of injury” has been
established. There are two components involved in establishing the fact of injury. First, the
employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place and in the manner alleged.7 Second, the employee must
submit evidence, in the form of medical evidence, to establish that the employment incident
caused a personal injury.8 The term “injury” as defined by the Act, refers to some physical or
mental condition caused by either trauma or by continued or repeated exposure to, or contact
with, certain factors, elements or conditions.9
ANALYSIS
In the present case, the Office properly determined that on March 20, 2006 appellant
sustained an employment incident when he slipped on ice while walking his postal route.
Appellant twisted his back during the incident but he did not fall to the ground. The Board finds
that the Office also properly determined that appellant did not submit sufficient medical evidence
to establish that he sustained a medical condition due to this incident.
In a July 23, 2008 report, Dr. Gopalswamy, an attending Board-certified internist,10 stated
that, upon examination, appellant exhibited some decreased range of motion on various back
motions, mild paralumbar spasm upon flexion, and normal motor and sensory function. She stated
that x-ray findings from July 23, 2008 demonstrated degenerative changes in the form of spurs
from the lumbar vertebral bodies and diagnosed chronic lumbar strain, moderate, with early
degenerative disc disease and spurring of the lumbar vertebrae. Dr. Gopalswamy noted, “The
injury [appellant] suffered working for the [employing establishment] most likely aggravated the
service-connected lumbar condition.”
This report, however, is of limited probative value on the relevant issue of the present case
in that Dr. Gopalswamy did not provide adequate medical rationale in support of her conclusion on

5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990).

7

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
8

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact
of Injury, Chapter 2.803.2a (June 1995).
9

Elaine Pendleton, supra note 5; 20 C.F.R. § 10.5(a)(14).

10

The report was also produced and signed by Ken Abney, an attending physician’s assistant.

4

causal relationship.11 Dr. Gopalswamy did not adequately explain why she felt that appellant’s
condition upon examination in July 2008 was related to the March 20, 2006 incident that occurred
more than two years prior. She did not describe the medical process of how the specific
employment incident could have contributed to such a long-standing aggravation of the underlying
back condition. Although Dr. Gopalswamy acknowledged that appellant sustained a servicerelated back injury in 1997 and had continuous back pain since that time up through the March 20,
2006 incident, she did not provide a detailed discussion of appellant’s back condition prior to
March 20, 2006. She did not explain how physical examination and diagnostic testing findings
showed that appellant sustained an employment-related aggravation of his back condition. For
example, Dr. Gopalswamy did not compare the findings of diagnostic testing from periods shortly
before and after March 20, 2006 and describe how the findings showed an employment-related
aggravation. Although appellant reported worsening symptoms after March 20, 2006, the Board
has held that the fact that a condition manifests itself or worsens during a period of employment12
or that work activities produce symptoms revelatory of an underlying condition13 does not raise an
inference of causal relationship between a claimed condition and employment factors.
On December 18, 2008 Dr. Martin Fritzhand, an attending Board-certified preventive
medicine physician, stated that, upon examination, appellant had normal spine curvature,
tenderness to palpation throughout the low back region, difficulty forward bending, decreased
range of motion upon extension and flexion, diminished straight leg raise to 50 degrees
bilaterally, diminished range of motion of the hips with knees flexed to 90 degrees bilaterally,
and intact strength and sensory function. He stated that appellant had a well-documented
underlying back condition characterized as degenerative joint disease of the lumbar spine and
posited that his March 2006 accident aggravated this condition. Dr. Fritzhand stated, “His
history is clear that low back pain had essentially ceased by 2003 only to recur directly following
his March 2006 injury.”
Dr. Fritzhand also failed to provide adequate medical rationale in support of his opinion
that appellant sustained an aggravation of his preexisting back condition due to the March 20, 2006
employment incident. He did not describe the medical process of how the March 20, 2006 incident
could have aggravated appellant’s underlying back condition. Dr. Fritzhand noted that appellant
sustained a service-related back injury about 10 years prior, but he did not provide any notable
discussion of appellant’s medical history, including examination and testing findings, prior to
March 20, 2006. Moreover, his opinion on causal relationship is not based on an accurate factual
and medical history. In reaching his conclusion, Dr. Fritzhand placed great emphasis on the fact
that appellant did not complain of back pain between 2003 and the March 2006 incident. The
Board notes that there are a number of medical reports of record, including the July 23, 2008 report
of Dr. Gopalswamy, that show that appellant complained of significant back pain between 2003
and 2006.
11

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on
the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale).
12

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

13

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

5

For these reasons, appellant did not submit medical evidence showing that she sustained a
medical condition on March 20, 2006 due to the accepted employment incident and the Office
properly denied his claim.14
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on March 20, 2006.
ORDER
IT IS HEREBY ORDERED THAT the March 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2010
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

14

The Board notes that it is not necessary to review the medical evidence appellant submitted prior to the Office’s
April 9, 2007 decision as the Board has already found, in its April 16, 2008 decision, that this evidence did not
establish his claim.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Reading, MA Employer
__________________________________________

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

Docket No. 20-0494
Issued: September 14, 2021

Case Submitted on the Record

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

JURISDICTION
On January 20, 2020 appellant filed a timely appeal from an August 7, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $27,527.54 for the period June 1, 2012 through
May 25, 2019, for which he was without fault, because he concurrently received FECA wage-loss
compensation and Social Security Administration (SSA) age-related retirement benefits without
an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly required recovery of the overpayment by deducting $300.00
every 28 days from appellant’s continuing compensation benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 19, 1996 appellant, then a 46-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he developed left abdominal pain on that date due to lifting mail
sacks while in the performance of duty. On December 20, 1996 he underwent surgery for right
groin abscess. On February 21, 1997 OWCP accepted the claim for neck sprain. On August 8,
1997 it expanded the acceptance of appellant’s claim to include abdominal hematoma and abscess
and work-related strain. Appellant underwent additional surgery on August 11, 1997. On
February 13, 1998 OWCP paid him wage-loss compensation on the periodic rolls, effective
February 1, 1998.
In a letter dated May 3, 2012, OWCP notified appellant that pursuant to section 8116(d)(2)
of FECA (5 U.S.C. § 8116(d)(2)) a reduction of continuing compensation benefits is required if
he begins receiving SSA retirement benefits based on age and federal service. It noted that he was
approaching his 62nd birthday and advised him that failure to report receipt of SSA retirements
could result in an overpayment of compensation, which could be subject to recovery.
On April 25, 2019 OWCP received from SSA a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form which reported that appellant had been in receipt of
SSA age-related retirement benefits since June 2012. SSA reported appellant’s benefit rates with
and without FERS as follows: beginning June 2012, his monthly rate with FERS was $1,138.40
and without FERS was $881.80; beginning December 2012, his monthly rate with FERS was
$1,157.70 and without FERS was $896.70; beginning December 2013, his monthly SSA rate with
FERS was $1,175.10 and without FERS was $910.20; beginning December 2014, appellant’s
monthly SSA rate with FERS was $1,195.00 and without FERS was $925.60; beginning
May 2016, his monthly rate with FERS was $1,664.50 and without FERS was $1,227.40;
beginning December 2016 his monthly rate with FERS was $1,669.40 and without FERS was
$1,231.00; beginning December 2017 appellant’s monthly rate with FERS was $1,702.70 and
without FERS was $1,255.60; beginning December 2018, his monthly rate with FERS was
$1,750.30 and without FERS was $1,290.70. At the bottom of the FERS/SSA dual benefits
calculation form, SSA noted that appellant had two periods of retirement and two periods of
disability. The first retirement period started in June 2012 while the second began in May 2016.
On June 6, 2019 OWCP issued a preliminary overpayment determination, finding that
appellant had received an overpayment of compensation in the amount of $27,527.54 because he
received FECA wage-loss compensation benefits concurrently with SSA age-related retirement
benefits for the period June 1, 2012 through May 25, 2019 without an appropriate offset. It noted
that SSA had confirmed that a portion of his SSA age-related retirement benefits were attributed
to his years of federal service as an employee under the FERS retirement program and that portion
required an offset of his FECA compensation benefits until May 26, 2019 when his monthly
compensation for wage loss was adjusted. OWCP explained that it had calculated the overpayment
of compensation by determining the difference between appellant’s SSA amount with and without
FERS for each period, and then multiplying that amount by the number of days in each period.
The FERS offset calculation worksheet indicated that OWCP had utilized a 28-day FERS offset
amount of $236.86 for June 1 through November 30, 2012, $240.92 for December 1, 2012 through
November 30, 2013, $244.52 for December 1, 2013 through November 30, 2014, $248.68 for
December 1, 2014 through November 30, 2015, $403.48 for May 1 through November 30, 2016,

2

$404.68 for December 1, 2016 to November 30, 2017, $412.71 for December 1, 2017 through
November 30, 2018, and $424.89 for December 1, 2018 through May 25, 2019. Using these
figures, OWCP calculated that the total overpayment amount was $27,527.54. It found that
appellant was without fault in the creation of the overpayment. OWCP requested that he complete
an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting
financial documentation. Additionally, it notified appellant that, within 30 days of the date of the
letter, he could request a final decision based on the written record or request a prerecoupment
hearing.
In a June 10, 2019 letter, OWCP informed appellant that he had been receiving dual FERS
and SSA benefits. It further informed him that his FECA benefits must be adjusted based on the
FERS portion of SSA benefits that were attributable to federal service. OWCP indicated that
appellant’s FECA benefits would be reduced by $424.89 to $2,721.11 every 28 days beginning
May 26, 2019.
On July 5, 2019 appellant requested that OWCP issue a decision based on the written
evidence regarding possible waiver of recovery of the overpayment. He provided a completed
Form OWCP-20 overpayment recovery questionnaire, listing his total monthly income as
$6,667.90 including SSA age-related retirement benefits and FECA wage-loss compensation
benefits. Appellant listed his monthly expenses as: mortgage $1,180.00; food $1,200.00; clothing
$450.00; utilities $940.00; miscellaneous $750.00; and debts paid in monthly installments totaling
$1,240.00; for a total of $5,760.00 in monthly expenses. Appellant listed his available funds as
$1,820.39.
By decision dated August 7, 2019, OWCP finalized the preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $27,527.54 for the period June 1, 2012 through May 25, 2019 because it failed to offset his
compensation payments by the portion of his SSA age-related retirement benefits attributable to
his federal service. It further found that he was without fault in the creation of the overpayment,
but denied waiver of recovery of the overpayment as there was no evidence that recovery would
defeat the purpose of FECA or be against equity and good conscience. OWCP required recovery
of the overpayment by deducting $300.00 from appellant’s continuing compensation payments
every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 2 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 3

2

5 U.S.C. § 8102(a).

3

Id. at § 8116.

3

Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.4 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
age-related retirement benefits earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual
benefit.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits without an appropriate offset.
The record reflects that appellant received FECA wage-loss compensation on the periodic
rolls effective February 1, 1998, and that he received SSA age-related retirement benefits that were
attributable to federal service initially on June 1, 2012 without an appropriate offset. A claimant
cannot receive both FECA compensation for wage loss and SSA age-related retirement benefits
attributable to federal service for the same period.6 As OWCP failed to offset appellant’s FECA
wage-loss compensation, he received an overpayment of wage-loss compensation. 7 Therefore,
fact of overpayment is established. 8
The Board further finds, however, that the case is not in posture for decision regarding the
period and amount of overpayment.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA
regarding age-related SSA retirement benefits that were attributable to federal service. SSA
provided its benefit rates with FERS, and without FERS for specific periods commencing June
and December 2012, December 2013, December 2014, May and December 2016, December 2017,
and December 2018. In the remarks section, SSA noted that appellant had two periods of
retirement and two periods of disability; the first retirement period began on June 2012 and the
second retirement period began on May 2016. The specific beginning and end dates of the two
periods of disability, however, were not provided by SSA.

4

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

5

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

6

5 U.S.C. § 8116(d)(2); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued
May 17, 2019).
7

A.C., Docket No. 18-1550 (issued February 21, 2019).

8

See K.H., Docket No. 18-0171 (issued August 2, 2018).

4

OWCP provided its calculations for each relevant period on a FERS offset calculation
worksheet and in its June 6, 2019 preliminary overpayment determination.
OWCP explained that it had calculated the overpayment of compensation by determining
the difference between appellant’s SSA benefit rates with and without FERS for each period, and
then multiplying that amount by the number of days in each period. The FERS offset calculatio n
worksheet indicated that it had utilized a 28-day FERS offset amount of $236.86 for June 1 through
November 30, 2012, $240.92 for December 1, 2012 through November 30, 2013, $244.52 for
December 1, 2013 through November 30, 2014, $248.68 for December 1, 2014 through
November 30, 2015, $403.48 for May 1 through November 30, 2016, $404.68 for December 1,
2016 to November 30, 2017, $412.71 for December 1, 2017 through November 30, 2018, and
$424.89 for December 1, 2018 through May 25, 2019. Using these figures, OWCP calculated that
the total overpayment amount was $27,527.54.
The Board finds that SSA did not provide specific information regarding the beginning and
end dates for the two periods of SSA disability benefits referenced on the bottom of the FERS/SSA
dual benefits calculation form. SSA only provided the effective dates for SSA age-related
retirement benefits. Thus, it is unclear, based upon the current record, whether OWCP properly
excluded the two periods of SSA disability benefits, which are not subject to offset,9 when
calculating the period and amount of the overpayment.
Accordingly, the Board finds that the case must be remanded to OWCP. On remand ,
OWCP shall request additional information from SSA regarding the exact periods of SSA
disability benefits in order to determine the proper period and amount of the overpayment of
compensation. OWCP shall then issue a new preliminary overpayment determination, with an
overpayment action request form, a Form OWCP-20, and instructions for appellant to provide
supporting financial information. After this, and other such further development as deemed
necessary, OWCP shall issue a de novo decision.10
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation because he concurrently received FECA wage-loss compensation and SSA age-

9

Supra notes 4 and 5.

10

In light of the Board’s disposition regarding Issue 1, Issues 2 and 3 are rendered moot.

5

related retirement benefits without an appropriate offset. The Board further finds that the case is
not in posture for decision with respect to the period and amount of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the August 7, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
to OWCP for further proceedings consistent with this decision of the Board.
Issued: September 14, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Spokane, WA,
Employer
__________________________________________

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

Docket No. 15-1272
Issued: September 4, 2015

Case Submitted on the Record

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

JURISDICTION
On May 19, 2015 appellant filed a timely appeal from a March 30, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
right arm condition casually related to his federal employment.2

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted additional evidence. The Board can review only evidence that was before
OWCP at the time of the final decision on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On January 15, 2015 appellant, then a 41-year-old maintenance mechanic, filed a Form
CA-2 (claim for occupational disease or illness) alleging that he sustained a right wrist injury
causally related to repetitive activity while vacuuming in his federal employment. He indicated
on the claim form that he realized his condition was related to his federal employment on
December 11, 2014. Appellant also noted that he had initially filed a Form CA-1 (traumatic
injury).3 His supervisor noted on the claim form that appellant had not stopped work, but that he
was placed on light duty, with lifting restrictions and vacuuming limited to one hour a day.
In a December 11, 2014 statement, appellant related that he vacuumed two to four hours
a day, and his wrist hurt from the strain. He stated that he first noticed wrist pain on
June 1, 2014. Appellant submitted form reports from a physician assistant, and physical therapy
notes.
By letter dated January 21, 2015, OWCP advised appellant that he should submit
additional factual and medical evidence to support his claim. It indicated that medical evidence
must be from a physician, and a physician assistant was not considered a qualified physician
under FECA.
Appellant submitted a statement dated January 25, 2015. He stated that he vacuumed
three to four hours a day, and the pain in his wrist and forearm became worse in December 2014.
The record indicates that appellant continued to submit reports from physician assistants
regarding treatment for this right wrist and arm. In a report dated February 3, 2015, Patrick
Castellano, a physician assistant, stated that appellant had a wrist strain with bilateral positive
Tinel’s sign.
By decision dated March 30, 2015, OWCP denied the claim for compensation. It found
the medical evidence was insufficient to establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing 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.4
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
3

A traumatic injury is an injury caused by an incident or incidents occurring within one workday or shift. An
occupational disease or illness is a condition produced by the work environment over a period longer than a single
workday or shift. 20 C.F.R. §§ 10.5(ee) and (q).
4

Id. at § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

2

and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.5
5 U.S.C. § 8101(2) provides that a physician includes, “surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of
their practice as defined by state law.”6 Certain healthcare providers such as physician assistants,
nurse practitioners, physical therapists, and social workers are not considered physicians as defined
under FECA.7 Consequently, their medical findings and/or opinions will not suffice for purposes
of establishing entitlement to FECA benefits.8
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.9 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.10
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.11
ANALYSIS
In the present case, appellant has alleged that he sustained a right arm condition casually
related to vacuuming, one of his job duties. He stated that his daily work activity involved up to
four hours of vacuuming. OWCP found that appellant had not submitted sufficient medical
evidence to establish his claim.
The medical evidence of record does not contain a report from a physician. As noted
above, neither physician assistants nor physical therapists are considered physicians under
FECA. To meet his burden of proof, appellant must submit evidence from a physician who
provides a diagnosis of a medical condition, and a rationalized medical opinion substantiating
causal relationship between the identified work activity and the diagnosed condition.

5

Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

5 U.S.C. § 8101(2).

7

M.M., Docket No. 14-1021 (issued July 1, 2015); J.M., Docket No. 12-469 (issued January 9, 2013).

8

See K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006); George H. Clark, 56
ECAB 162 (2004).
9

See Robert G. Morris, 48 ECAB 238 (1996).

10

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Id.

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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 appellant did not meet his burden of proof to establish that he sustained a
right arm condition causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 30, 2015 is affirmed.
Issued: September 4, 2015
Washington, DC

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

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

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

4