United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 19-1195
Issued: November 15, 2019

Case Submitted on the Record

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

JURISDICTION
On May 7, 2019 appellant filed a timely appeal from a March 28, 2019 merit decision and
a May 2, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted November 28, 2018 employment incident; and
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 2, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 29, 2018 appellant, then a 39-year-old customs and border protection
officer, filed a traumatic injury claim (Form CA-1) alleging that on November 28, 2018 he injured
his right knee when it struck the metal corner of a secondary inspection area conveyor belt while
in the performance of duty.
In a report dated December 20, 2018, Dr. Trong B. Nguyen, a Board-certified orthopedic
surgeon, examined appellant and diagnosed internal derangement of right knee. In a work excuse
note of the same date, he indicated that appellant was to be off work until January 20, 2019. In a
diagnostic report of the same date, Dr. David P. Juice, a Board-certified diagnostic radiologist,
administered an x-ray of appellant’s right knee and noted an impression of no acute osseous
abnormality.
In a report dated January 22, 2019, Dr. Nguyen diagnosed right knee contusion in addition
to the previously diagnosed right knee internal derangement. He indicated that appellant was
unable to work for two weeks, but then could return to work without restrictions.
In a development letter dated February 22, 2019, OWCP informed appellant that, when his
claim was received, it appeared to be a minor injury that resulted in minimal or no lost time from
work, and thus it administratively approved payment of a limited amount of medical expenses.
However, it advised him that his claim was reopened for consideration of the merits because the
medical bills had exceeded $1,500.00. OWCP further informed appellant of the deficiencies of
his claim and requested that he provide medical evidence to establish that the diagnosed condition
resulted from the alleged incident. It afforded him 30 days to submit the necessary evidence. .
In response to OWCP’s development letter, appellant resubmitted Dr. Juice’s
December 20, 2018 diagnostic report and Dr. Nguyen’s January 22, 2019 report.
By decision dated March 28, 2019, OWCP denied appellant’s claim finding that the
evidence was insufficient to establish that his diagnosed conditions were causally related to the
accepted November 28, 2018 employment incident.
On April 30, 2019 appellant requested reconsideration of OWCP’s March 28, 2019
decision. He submitted no additional evidence along with his request.
By decision dated May 2, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

2

time limitation period,3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 The opinion of the physician must be based on a
complete factual and medical background, 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 incident.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted November 28, 2018 employment incident.
In support of his traumatic injury claim, appellant submitted two narrative reports dated
December 20, 2018 and January 22, 2019, and a work excuse note dated December 20, 2018, from
Dr. Nguyen. In his reports, Dr. Nguyen diagnosed internal derangement of right knee and right
knee contusion. However, he did not provide an opinion as to the cause of appellant’s diagnosed
conditions. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.10
Because Dr. Nguyen has not provided a reasoned opinion explaining how the November 28, 2018

3

J.C., Docket No. 18-1503 (issued May 2, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4
E.S., Docket No. 18-1750 (issued March 11, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
5

S.C., Docket No. 18-1242 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16,
2016); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

J.C., supra note 3; Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

C.W., Docket No. 19-0231 (issued July 15, 2019).

9

S.S., Docket No. 18-1488 (issued March 11, 2019).

10
L.C., Docket No. 19-0804 (issued August 23, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

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employment incident physiologically caused or aggravated appellant’s knee condition, his reports
are insufficient to establish this claim.11
In his December 20, 2018 diagnostic report, Dr. Juice noted an impression of no acute
osseous abnormality. The Board has held that diagnostic reports do not offer an opinion regarding
the cause of an employee’s condition and are therefore of no probative value on the issue of causal
relationship.12 Thus, Dr. Juice’s report is insufficient to meet appellant’s burden of proof.
The Board has held that a claimant has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence.13
Because appellant failed to provide such evidence demonstrating that his diagnosed knee
conditions were causally related to the accepted November 28, 2018 employment incident, he has
not met his burden of proof to establish his traumatic injury claim.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it
will review an award for or against compensation, either under its own authority or on application
by a claimant.14 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).15 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.16 Section 10.608(b) provides that when a request for reconsideration is

11

K.J., Docket No. 18-1520 (issued June 13, 2019).

12
J.T., Docket No. 18-0664 (issued August 12, 2019); see L.B., Docket No. 18-0533 (issued August 27,
2018); D.K., No. 17-1549 (issued July 6, 2018).
13

Supra note 9.

14

5 U.S.C. § 8128(a).

15
20 C.F.R. § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must
be received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System. Id. at Chapter 2.1602.4b.
16

Id. at 10.606(b)(3).

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timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument
not previously considered. As such, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under section 10.606(b)(3).
OWCP denied appellant’s claim as it determined that he had not established that his
diagnosed knee condition was causally related to the accepted November 28, 2018 employment
incident. Appellant did not submit additional evidence along with his April 30, 2019 request for
reconsideration. Because he has not submitted relevant and pertinent new evidence not previously
considered by OWCP, he is not entitled to a review of the merits of his claim based on the third
above-noted requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted November 28, 2018 employment incident. The Board
further finds that OWCP properly denied appellant’s request for reconsideration of the merits of
his claim pursuant to 5 U.S.C. § 8128(a).

17

Id. at § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the May 2 and March 28, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 15, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.F., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, OFFICE OF HEARINGS
& APPEALS, New York, NY, Employer
__________________________________________

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

Docket No. 07-2422
Issued: March 26, 2008

Case Submitted on the Record

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

JURISDICTION
On September 25, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated June 27, 2007 denying his request for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has established that he is entitled to a schedule award.
FACTUAL HISTORY
This case has been before the Board on two prior occasions. Appellant filed a claim
alleging that on May 30, 1982 he became aware that his atherosclerotic coronary heart disease,
peripheral and cerebral vascular disease, degenerative joint disease, essential hypertension,
hyperlipidemia, vertigo and diabetes mellitus were attributable to stress arising in the

performance of duties. The Office accepted his claim for aggravation of coronary and carotid
artery disease and hypertension. Appellant filed a claim for recurrence of disability on
November 13, 1998. The Office denied this claim on June 16, 1999. In a December 4, 2000
decision,1 the Board found that the claim was not in posture for decision and required additional
development of the medical evidence. The Office undertook additional development of the
medical evidence and, by decision dated May 11, 2001, denied his claim for recurrence of
disability finding that he had not established that the loss of vision in his left eye was due the
accepted aggravation of coronary and carotid artery disease and hypertension on May 16, 2002
the Board again found that the case was not in posture for a decision.2 The Board remanded the
case for the Office to resolve a conflict of medical opinion evidence between appellant’s
physician and an Office referral physician. The facts and the circumstances of the case as set out
in the Board’s prior decisions are incorporated herein by reference.
In a letter dated September 24, 2002, the Office requested additional factual and medical
evidence from appellant regarding his claim for an injury to his feet. The Office subsequently
accepted the additional conditions of temporary aggravation of peripheral vascular disease and
temporary aggravation of peripheral neuropathy.3 On March 7, 2005 appellant requested a
schedule award for loss of parts of his toes on both feet.
In a letter dated April 25, 2005, the Office requested additional information for schedule
award purposes. Appellant submitted notes dated November 12, 1997 through May 11, 2005
from his attending podiatrist, Dr. Steven L. Goldman. Dr. Joseph Tenenbaum, an attending
Board-certified internist of professorial rank, noted that appellant developed gangrene in multiple
toes with subsequent amputation following his aortic aneurysm surgery in 1982. He opined that
appellant’s amputations were associated with atherosclerotic vascular disease.4 Dr. Tenenbaum
completed the form report requested by the Office. He indicated that appellant reached
maximum medical improvement in 1999.
The Office referred appellant for a second opinion evaluation with Dr. Daniel J. Feuer, a
Board-certified neurologist, who noted appellant’s history of injury and complaints of pain in his
right big toe and feet. Dr. Feuer found that sensory examination was remarkable for hypesthesia
to pinprick and vibratory sensation in a stocking distribution. He diagnosed moderate peripheral

1

Docket No. 99-2421 (issued December 4, 2000).

2

Docket No. 01-1830 (issued May 16, 2002).

3

The Office accepted the additional conditions of impaired vision and bilateral iliac artery aneurysms as due to
his employment on April 20, 2005. The Office also informed appellant that his claim had been accepted for
aggravation of atherosclerotic coronary heart disease, aggravation of atherosclerotic peripheral vascular disease,
aggravation of cerebrovascular disease, aggravation of peripheral neuropathy, aggravation of peripheral vascular
disease and aggravation of hypertension. The Office denied his conditions of degenerative joint disease,
hyperlipidemia and diabetes as preexisting conditions not related to appellant’s federal employment.
4

The Office has not issued a final decision determining whether this surgery and its consequences are casually
related to the accepted aggravation of atherosclerotic peripheral vascular disease or to surgical treatment for
gangrene following aneurysm surgery in 1982. Therefore, the Board cannot address this issue for the first time on
appeal. 20 C.F.R. § 501.2(c).

2

neuropathy affecting distal sensation and opined that this condition was due to diabetes mellitus
and age.
The Office medical adviser reviewed the medical record on February 20, 2007 and found
that there was no ratable impairment due to the accepted employment injuries. By decision dated
June 27, 2007, the Office denied appellant’s claim for a schedule award for impairment to his
feet.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.
ANALYSIS
The Office has accepted appellant’s claim for aggravation of coronary and carotid artery
disease and hypertension, temporary aggravation of peripheral vascular disease and temporary
aggravation of peripheral neuropathy, impaired vision and bilateral iliac artery aneurysms as well
as aggravation of atherosclerotic coronary heart disease, aggravation of atherosclerotic peripheral
vascular disease, aggravation of cerebrovascular disease and aggravation of hypertension.
The second opinion physician, Dr. Feuer, a Board-certified neurologist, and the Office
medical adviser attributed appellant’s current foot condition to peripheral neuropathy. As the
Office has only accepted a temporary aggravation of peripheral neuropathy, appellant has not
sustained a permanent impairment of a scheduled member, his feet, as the result of an accepted
employment-related injury. Appellant is not therefore entitled to a schedule award for his foot
impairments based on the conditions currently accepted by the Office.7
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a permanent impairment of a scheduled member entitling him to a schedule award.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Rosie Esquivias, 41 ECAB 243, 255 (1989) (finding that if appellant’s employment-related aggravation was
found to be a permanent aggravation rather than a temporary one, then and only then the Office should consider his
claim for schedule award purposes); George Diamond, Docket No 06-335 (issued June 2, 2006); Hazel G. Johnson,
Docket No. 06-174 (issued March 14, 2006).

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ORDER
IT IS HEREBY ORDERED THAT the June 27, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE AIR FORCE, KELLY
AIR FORCE BASE, San Antonio, TX, Employer
__________________________________________

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

Docket No. 13-1415
Issued: December 13, 2013

Case Submitted on the Record

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

JURISDICTION
On May 24, 2013 appellant filed a timely appeal from the February 12, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $95,863.85 overpayment in
compensation; and (2) if so, whether he was at fault in creating the overpayment, thereby
precluding waiver of recovery.
FACTUAL HISTORY
On January 4, 1990 appellant, a 37-year-old sheet metal mechanic (aircraft), sustained a
traumatic injury in the performance of duty when he picked up a template. He reported
1

5 U.S.C. § 8101 et seq.

significant and severe back and leg pain.2 Appellant underwent surgery on March 14, 1990,
which was described as follows: Redo lumbar procedure, including subarticular decompression,
foraminotomies of L5 and S1 nerve roots bilaterally, neurolysis of L5 and S1 nerve roots
bilaterally, discectomy of L5 and S1 and posterior lumbar interbody fusion of L5-S1 using
banked iliac bone, with removal of epidural masses, exploration of old posterior interbody fusion
of L4-5.
OWCP accepted appellant’s claim for lumbar strain and a herniated nucleus pulposus at
L5-S1. It approved the surgery and paid compensation for wage loss on the periodic rolls. On
December 14, 1992 appellant received a schedule award for a 13 percent permanent impairment
of his right lower extremity. The impairment stemmed from sensory deficit and motor weakness
involving due to the L5 and S1 spinal nerve roots.
The Department of Veterans Affairs (DVA) confirmed that appellant received
compensation for a service-connected disability. At the time of his January 4, 1990 employment
injury, appellant had a 10 percent disability rating for service-connected (aggravated) acne
vulgaris. On January 27, 1993 he received a 40 percent rating upon evaluation of serviceconnected (incurred) degenerative joint disease lumbar spine status post lumbar fusion with
radiculopathy. This increased appellant’s total disability rating to 50 percent. On October 8,
2008 his rating increased to 70 percent with the addition of service-connected (secondary)
sensory deficit and motor weakness, right and left lower extremities, associated with
degenerative joint disease of the lumbar spine status post lumbar fusion with radiculopathy.3
Effective October 8, 2008, appellant was granted individual unemployability status, raising his
service-connected disability rating to 100 percent for permanent and total disability.
OWCP informed appellant that an increase in a veteran’s service-connected disability
brought about by an injury sustained while in federal civilian employment was considered a dual
benefit. As he received a Veterans Affairs (VA) disability rating for his back/lumbar condition
prior to his work-related injury on January 4, 1990 and his disability rating increased on
October 8, 2008 to reflect additional impairment caused by the work-related injury, OWCP
asked him to make an election of benefits. It advised that any failure to make the required
election within 30 days would be considered an election for VA benefits.
On January 2, 2013 OWCP made a preliminary determination that appellant received an
overpayment of $95,863.85 in workers’ compensation from October 8, 2008 through
December 15, 2012. Appellant received wage-loss compensation under FECA and an increased
2

Appellant had previously injured his back in November 1985 while delivering a refrigerator. He bent down to
lift it over a curb and felt a lot of pulling in the left side of his back with an immediate onset of left leg pain.
Appellant underwent surgery on March 7, 1986, including a lumbar laminectomy at L5, laminotomies at L4
bilaterally, a decompression and foraminotomies of the L5 and S1 nerve roots bilaterally and a discectomy and
posterior lumbar interbody fusion at L4-5. Decompression of the L4 and L5 nerve roots was also noted.
Appellant’s leg pains completely resolved postoperatively. He developed a deep wound infection, which completely
resolved by December 1986. Appellant was left with occasional tightness and spasm in his back but no leg pain or
significant residual back pain.
3

Appellant received a 20 percent rating for each lower extremity, but a bilateral factor increased his total rating
from 50 to 70 percent.

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VA annuity for his back condition. OWCP found that he was at fault in the creation of this
overpayment because he accepted payment that he knew or should have known was incorrect.
In a decision dated February 12, 2013, OWCP found appellant at fault in creating a
$95,863.85 overpayment of compensation. It noted that he failed to response to its preliminary
determination.
On appeal, appellant contends that he did not receive dual benefits: “The injuries I
sustained while serving in the military have absolutely nothing to do with the injuries that I
sustained while working as a Civil Service Employee at Kelly AFB.” He explained that he was
not receiving VA benefits for his back/lumbar condition prior to the January 4, 1990 work injury.
Appellant added that his service-connected disability was for an L3-4 and L4-5 injury during
basic training in 1971, while his work injury in 1990, medically described as a new injury, was at
L5-S1. He alleges other back incidents while in the Marine Corps and the Army, which took the
VA 20 years to start compensating.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of FECA outlines limitations on the right to receive compensation and the
necessity for an election between certain prohibited dual benefits. While an employee is
receiving compensation under FECA, he or she may not receive salary, pay or remuneration of
any type from the United States, with certain exceptions, including other benefits administered
by the DVA unless such benefits are payable for the same injury or death.4
When a claimant is entitled to or is receiving a benefit from another agency, OWCP must
determine if that benefit constitutes a prohibited dual benefit and requires an election or if it is an
exception that will not affect the claimant’s compensation entitlement.5 When the record shows
that an applicant for FECA benefits is receiving veterans’ benefits, OWCP must determine the
nature of those benefits.6 If the reply shows that the veteran’s award is other than “pension for
service in the Army, Navy or Air Force,” OWCP must determine whether the award is based on
a finding that the same disability or death for which FECA benefits are payable was caused by
the military service or whether the DVA increased an award or found an award was payable for
service-connected disability, because of the civilian employment injury for which FECA benefits
are claimed. If so, section 8116(a)(3) requires an election between these benefits.7
For example, a federal employee is receiving benefits from the DVA for a 20 percent
disability based on a service-connected injury to the right knee. A subsequent injury to the same
knee while in civilian employment results in a 25 percent disability of the leg, for which FECA
benefits are payable. The DVA increases its award to 30 percent because of the civilian
employment injury. An election is required between a schedule award for the full extent of the
4

5 U.S.C. § 8116(a)(3).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.3. (February 1995).

6

Id. at Chapter 2.1000.8.a (December 1997).

7

Id. at Chapter 2.1000.8.a(5)(a).

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permanent loss of the use of the leg under FECA plus the amount received from the DVA prior
to the employment injury, on the one hand and the total benefits provided by the DVA
subsequent to its increase, on the other hand.8
ANALYSIS -- ISSUE 1
At the time appellant injured his low back on January 4, 1990 while in the performance
of his civilian employment, he had a 10 percent disability rating for service-connected acne
vulgaris. No election was necessary because his DVA benefits were not for the same injury.
Whether an election was necessary when appellant received an increased disability rating
on January 27, 1993 is not clear. He injured his low back in civilian employment in 1990 and
underwent a complex lumbar surgery two months later. In 1992 appellant received a schedule
award under FECA for a 13 percent impairment of his right lower extremity due to permanent
sensory deficit and motor weakness. When the DVA examined him in 1993 for his low back
condition, the findings -- for limitation of motion of the lumbar spine, for example -- reflected, at
least in part, the effects of his injury in civilian employment.
OWCP did not declare an overpayment dating back to 1993. It found an overpayment
beginning October 8, 2008. It was on that date that appellant received an increased disability
rating from the DVA, which included service-connected (secondary) sensory deficit and motor
weakness of the right lower extremity associated with degenerative joint disease of the lumbar
spine status post lumbar fusion with radiculopathy. Also effective October 8, 2008, the DVA
granted individual unemployability status, increasing his rating to 100 percent for permanent and
total disability.
The Board found that the increased disability rating reflected appellant’s 1990 injury in
civilian employment. FECA had already compensated him for permanent sensory deficit and
motor weakness in his right lower extremity and was currently compensating him for his total
disability for work. OWCP properly determined that the DVA increased appellant’s rating for
service-connected disability at least in part because of the civilian employment injury for which
he was receiving FECA benefits.
Under these circumstances, section 8116(a)(3) of FECA requires an election between
FECA benefits and DVA benefits appellant was receiving prior to the October 8, 2008 rating
increase. These were dual benefits. When appellant did not make an election, an overpayment
of compensation arose beginning October 8, 2008. A worksheet of all the compensation he
received beginning October 8, 2008, which OWCP included in its January 2, 2013 preliminary
determination, confirms the amount of the overpayment as $95,863.85. The Board will therefore
affirm OWCP’s February 12, 2013 decision on the issues of fact and amount of overpayment.
Appellant argued that the injuries he sustained in the military have nothing to do with the
injuries he sustained working in civil service at the employing establishment. The question is
whether the increased disability rating he received on October 8, 2008 had anything to do with
his 1990 civilian injury. Appellant distinguishes the 1990 civilian injury to the L5-S1 level of
8

Id. at Chapter 2.1000.8.b(2).

4

his spine from the injuries to the L3-4 and L4-5 levels, for which he received DVA benefits. The
DVA’s disability ratings do not show such apportionment. The rating appellant received for
sensory deficit and motor weakness in his right lower extremity simply reflected the symptoms
he demonstrated on examination, without regard to the precise level or levels of origin in the
lumbar spine. As it is established that he received compensation under FECA for permanent
sensory deficit and motor weakness in his right lower extremity caused by the 1990 civilian
injury, as well as continuing compensation for total disability caused by the 1990 civilian injury,
a portion of the increased DVA benefits he received beginning October 8, 2008 must be
considered a dual benefit, as it overlaps the compensation he received under FECA.9
LEGAL PRECEDENT -- ISSUE 2
When an overpayment of compensation has been made because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled. Section 8129(b) of FECA describes the only
exception:
“Adjustment or recovery by the United States may not be made when incorrect
payment had been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of [FECA] or would be against
equity and good conscience.”10
Thus, OWCP may consider waiving an overpayment only if the individual to whom it
was made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure that payments
he or she receives from OWCP are proper. The recipient must show good faith and exercise a
high degree of care in reporting events which may affect entitlement to or the amount of benefits.
A recipient who has done any of the following will be found to be at fault with respect to
creating an overpayment: (1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; (2) Failed to provide information which he or she
knew or should have known to be material; or (3) Accepted a payment which he or she knew or
should have known to be incorrect.11
Whether an individual was at fault with respect to the creation of an overpayment
depends on the circumstances. The degree of care expected may vary with the complexity of
those circumstances and the individual’s capacity to realize that he is being overpaid.12
9

See Gary J. Bartolucci, 34 ECAB 1569 (1983) (where the DVA paid benefits for a service-related herniated
nucleus pulposus at L5-S1 and postoperative residuals and the claimant later slipped and fell in civilian employment,
causing an acute back strain and temporary total disability and the DVA later increased the rating for his back
condition and found individual unemployability, the Board held that the increased rating represented a dual benefit
requiring an election).
10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.433(a).

12

Id. at § 10.433(b).

5

The fact that OWCP may have erred in making the overpayment does not by itself relieve
the individual who received the overpayment from liability for repayment if the individual also
was at fault in accepting the overpayment.13
ANALYSIS -- ISSUE 2
OWCP found appellant at fault in creating the overpayment because he accepted payment
that he knew or should have known was incorrect. It did not adequately explain this finding.
OWCP based fault on appellant’s knowledge at the time of acceptance.14 It must establish that
he knew or should have known beginning October 8, 2008 that he was accepting incorrect
compensation payments. The Board finds that appellant had no such knowledge. The payments
he received after October 8, 2008 were correct at the time he accepted them. They became
“incorrect” only years later, retroactively, when appellant failed to make an election. Had
appellant elected late in 2012 to receive FECA benefits, none of the payments would be
considered incorrect.
The Board will set aside OWCP’s February 12, 2013 decision on the issue of fault. On
remand, OWCP must determine whether appellant is eligible for waiver of recovery of the
overpayment and if he is not, OWCP must, by law, recover the debt. The Board will remand the
case for further development of the evidence on appellant’s current financial circumstances and
for an appropriate final decision on the issue of waiver.
CONCLUSION
The Board finds that appellant received a $95,863.85 overpayment in compensation
beginning October 8, 2008. The Board also finds that OWCP did not establish that he was at
fault in creating this overpayment. Further development on the issue of waiver is therefore
warranted.

13

Id. at § 10.435(a).

14

Tammy Craven, Docket No. 05-249 (issued July 24, 2006) (order granting petition for reconsideration and
reaffirming prior decision).

6

ORDER
IT IS HEREBY ORDERED THAT the February 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed on the issues of fact and amount of overpayment
and is otherwise remanded for further action consistent with this decision of the Board.
Issued: December 13, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.Z., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Washington, DC,
Employer
__________________________________________

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

Docket No. 14-274
Issued: March 16, 2015

Case Submitted on the Record

ORDER OF ERRATUM
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

The Board issued a decision in the above-entitled matter on November 10, 2014. By that
decision, the Board set aside the September 9, 2013 decision of the Office of Workers’
Compensation Programs (OWCP) and remanded the case, in accordance with the Board’s
holding in Linda Johnson, 45 ECAB 439 (1994), for consideration of the evidence OWCP
received on the date it issued its final decision. The Clerk of the Board, however, inadvertently
mailed the Board’s November 10, 2014 decision to an incorrect address.
Board regulations provide that it will send its decisions and orders to appellant at the time
of issuance.1 In Bertha Keeble,2 the Board, citing Ralph W. Moody,3 noted that a decision of the
Board is issued when it is filed and mailed, and that the presumption will be that this was
accomplished on the date the decision is dated.4 The Board found in Keeble that, as the decision

1

20 C.F.R. § 501.6(f).

2

45 ECAB 355 (1994).

3

44 ECAB 375 (1993).

4

See also B.B., Docket No. 14-799 (issued September 12, 2014).

in that case was mailed to an incorrect address, the decision was not properly issued.
Consequently, the Board ordered that the decision be correctly issued.
Similarly, as the Board in the instant case mailed its November 10, 2014 decision to an
incorrect address, the Board concludes that such decision was not properly issued and must be
correctly issued in accordance with the Board’s regulations.
IT IS HEREBY ORDERED THAT the Board’s November 10, 2014 decision is
reissued.5
Issued: March 16, 2015
Washington, DC

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

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

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

5

Michael E. Groom, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective December 27, 2014.

2


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

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

Docket No. 11-1984
Issued: April 5, 2012

Case Submitted on the Record

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

JURISDICTION
On September 8, 2011 appellant filed a timely appeal from an August 9, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim. 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 sustained an injury on April 2, 2011 in the performance of
duty.
FACTUAL HISTORY
On April 6, 2011 appellant, then a 39-year-old letter carrier, filed a traumatic injury claim
alleging that on April 2, 2011 she injured her lower back when she grabbed a parcel from the
back of her truck and the back door flew back up. She did not stop work.
1

5 U.S.C. § 8101 et seq.

On April 2, 2011 appellant received treatment in the emergency room. She provided a
history of experiencing burning in her back after an injury at work earlier that day. Dr. Erika
Schroeder, Board-certified in emergency medicine, diagnosed back sprain.
In a duty status report dated April 6, 2011, Dr. Izzat Chalabi, a Board-certified internist,
found pain and tenderness of the low back and right shoulder. He checked “yes” that the history
provided by appellant corresponded to that on the form of her sustaining an injury lifting the
back door of her truck. Dr. Chalabi determined that she was disabled from employment.
On June 20, 2011 appellant filed a claim for compensation from June 4 to 9, 2011. By
letter dated July 8, 2011, OWCP informed her that it had initially paid medical expenses as it
appeared to be an uncontroverted, minor injury but would now consider the merits of her claim.
It advised appellant of the type of evidence required to establish her claim, including a
rationalized medical opinion from her physician addressing how the work incident caused or
aggravated a diagnosed condition.
Appellant submitted May 11 and 24, 2011 duty status reports from Dr. Chalabi, who
provided clinical findings of tenderness and pain in the right shoulder and lower back and
advised that she was disabled from work. Dr. Chalabi again checked “yes” that the history of
injury she provided corresponded to that on the form of an injury occurring when she lifted the
back door of her truck.
Appellant also submitted disability certificates dated April and May 2011 signed by an
employee of Dr. Chalabi listing dates of disability and reports from a physical therapist. On
April 15, 2011 Dr. Chalabi asserted that she was totally disabled from April 15 to 17, 2011 and
could perform no heavy lifting.
By decision dated August 9, 2011, OWCP denied appellant’s claim after finding that she
did not establish an injury as alleged. It accepted the occurrence of the alleged April 2, 2011
incident but found that the medical evidence was insufficient to show that she sustained a
medical condition causally related to the April 2, 2011 employment
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4

2

5 U.S.C. § 8101 et seq.

3

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

4

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

2

To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.5 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.6 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.7
ANALYSIS
Appellant filed a claim alleging that on April 2, 2011 she injured her back offloading a
parcel from a truck. She sought medical treatment at the emergency room on the date of injury.
The employing establishment did not controvert the claim and there are no inconsistencies
sufficient to cast doubt that the April 2, 2011 employment incident occurred as alleged.8 The
issue is thus whether appellant sustained a compensable injury as a result of the accepted work
incident.
The Board finds that appellant has not established that the April 2, 2011 employment
incident resulted in an injury to her back or right shoulder. In an emergency room report dated
April 2, 2011, appellant provided a history of burning in her back after an injury at work.
Dr. Schroeder diagnosed back sprain. She did not, however, specifically address the cause of the
diagnosed back sprain or provide any rationale for her opinion; thus, her opinion is insufficient to
meet appellant’s burden of proof.9
In duty status reports dated April 6 and May 11 and 24, 2011, Dr. Chalabi found right
shoulder and back pain and tenderness and checked “yes” that the history of injury corresponded
to that on the form of appellant sustaining an injury back lifting the back door of her truck. He
asserted that she was unable to work. The Board has held, however, that an opinion on causal
relationship which consists only of a physician checking “yes” to a medical form question on
whether the claimant’s condition was related to the history given is of little probative value.

5

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

6

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

7

Id.

8

See Betty J. Smith, 54 ECAB 174 (2002) (an employee has not met his or her burden of proof of establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim).
9

Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causation. See A.D., 58 ECAB 149 (2006).

3

Without any explanation or rationale for the conclusion reached, such report is insufficient to
establish causal relationship.10
In a report dated April 15, 2011, Dr. Chalabi indicated that appellant was totally disabled
from April 15 to 17, 2011. He further advised that due to her injuries she was unable to perform
heavy lifting. Dr. Chalabi, however, did not reach a diagnosis, provide findings on examination
or explain how the work incident resulted in disability. Without a firm diagnosis supported by
medical rationale, the report is of little probative value.11
Appellant additionally submitted disability certificates signed by an employee with
Dr. Chalabi’s office and numerous reports from a physical therapist. Section 8101(2) of FECA
provides that the term “physician” includes surgeons, podiatrist, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.12 Lay individuals such as physical therapist are not “physicians” as defined
under FECA and thus their reports do not constitute competent medical evidence.13
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between her claimed condition and her
employment.14 She must submit a physician’s report in which the physician reviews those
factors of employment she identified as causing her condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.15 Appellant failed to submit such evidence and therefore failed
to discharge her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on April 2,
2011 in the performance of duty.

10

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).
11

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaire’s disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
12

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).

13

See David P. Sawchuk, 57 ECAB 316 (2006).

14

D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

15

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

4

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

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF AGRICULTURE, JOB
CORPS PROGRAM, Lorana, WI, Employer
__________________________________________

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Appearances:
James G. Chakeres, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-125
Issued: June 25, 2007

Case Submitted on the Record

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

JURISDICTION
On October 17, 2006 appellant filed a timely appeal from an August 11, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs which denied his request for
reconsideration. He also appealed March 22 and May 3, 2006 nonmerit decisions of the Office
which denied his requests for reconsideration and a December 20, 2005 merit decision of the
Office that denied modification of its prior decision terminating his compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim as well
as over the nonmerit decisions.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective April 5, 2004; (2) whether appellant met his burden of proof to
establish that he had any disability after April 5, 2004 causally related to the February 2, 1981
employment injury; and (3) whether the Office properly refused to reopen appellant’s case for
further review of the merits of his claim under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On February 2, 1981 appellant, then a 39-year-old central standards officer, injured his
back after falling on a sheet of ice at work. He stopped work on the same day, returned to light
duty briefly in August 1985, before stopping work again. Appellant did not return to work. The
Office accepted his claim for acute lumbosacral strain, herniated disc at the L4-S1 levels, bulging
disc at the L4-5 level, a decompressive laminectomy at L4-5 and L5-S1 on June 26, 1981 and a
resolved episode of depression and paid appropriate compensation.
On July 11, 1981 Dr. Richard Foltz, a Board-certified orthopedic surgeon, diagnosed
degenerative disc disease at L4-5 and L5-S1, with spinal stenosis. Dr. Foltz noted that testing
revealed mild, diffuse disc bulging at the L4-5 level. Appellant underwent a decompressive
laminectomy at L4-5 and L5-S1 on June 26, 1981. On December 5, 1991 Dr. Foltz found
appellant “totally disabled” while, in a December 24, 1991 report, he stated that appellant could
work eight hours per day within restrictions.
In developing the claim, the Office referred appellant to Dr. Mark Kircher, a Boardcertified orthopedic surgeon, who in a December 8, 2000 report noted that appellant had been
referred to him “apparently for establishment of a doctor to see him.”1 However, Dr. Kircher
stated that he did not treat back conditions on a chronic basis but observed that appellant reported
continuing complaints for which he was totally disabled. He opined that appellant seemed to be
in no acute distress and recommended that he follow up with another physician.
The Office subsequently referred appellant to Dr. David R. Silva, an osteopath and a
Board-certified physiatrist, for a second opinion. The Office’s statement of accepted facts noted
that appellant’s date-of-injury job as a central standards officer involved maintaining the
employing establishment’s behavioral tracking system by receiving event reports and recording
pertinent data or appropriate forms, compiling various other reports and transcripts and
inspecting dorms for safety hazards and cleanliness.
In a March 1, 2001 report, Dr. Silva reported appellant’s history and noted examining
appellant. He diagnosed “status post work-related injury of February 2, 1981 with related: L4-5,
L5-S1 disc bulge with subsequent laminectomy at L5 and partial laminectomies at L4 and S1.”
On examination, Dr. Silva noted that appellant was moderately obese and presented with a “wellhealed surgical incision over the central low back region.” He indicated that appellant had fair
range of motion on forward flexion and extension, lateral side bending and rotation but did not
provide specific measurements. Dr. Silva advised that appellant described a “tearing type
sensation” in his left lower back but noted that there was “no obvious spasm.” He then stated
that straight-leg raising did not produce radicular pain but did produce “a tightness or spasm in
the back or what he describes as a tearing-type sensation in low back region.” Dr. Silva
explained that he did not “find any evidence of an ongoing radiculopathy through the left lower
extremities, although [appellant] does complain of moderate pain through the left leg.” He
1

The Office also previously referred appellant for a second opinion examination. In an April 19, 1990 report,
Dr. Gay R. Anderson, a Board-certified orthopedic surgeon, opined that appellant’s lumbar laminectomy had healed
and that he could work within restrictions, while, in an October 18, 1995 report, Dr. Warren J. Roberts, a Board
certified orthopedic surgeon, opined that appellant’s continuing disability remained due to his employment injury.

2

noted: “no strong objective findings which would indicate an active or ongoing lumbosacral
radiculopathy.” Dr. Silva opined that there were no active physical findings indicating that
appellant “could not perform work[-]related activities, at least in the light to medium category
work activity.” He also noted that appellant had irritable bowel syndrome which would likely
interfere with his ability to conduct work activities. Dr. Silva concluded that, “based on my
knowledge of [appellant’s] prior surgery, his most recent magnetic resonance imaging (MRI)
scan and my structural findings today, I would place him in the work category of a full[-]time
position with a maximum lifting capacity of approximately 40 pounds on an occasional basis,
20 to 30 pounds on a frequent basis and up to 10 pounds on a constant basis.” He noted that the
“restrictions are based on his lumbosacral findings and do not take into account other medical
diagnoses.” Dr. Silva indicated that there was “no way to objectify pain” but found that
appellant’s “subjective complaints of pain far outweigh any physical findings or known
structural findings on objective radiologic imaging and objective electromyogram (EMG) nerve
conduction findings.” He also noted that he was unable to find records of diagnostic testing
conducted since about 1994, but stated that appellant’s examination was normal except for his
well-healed scar over the lumbosacral spine. On April 6, 2001 Dr. Silva listed appellant’s work
limitations, which included four hours of sitting, three hours of walking, two hours of standing,
four hours of reaching above the shoulder, one hour of twisting, four hours of repetitive wrist
movement, pushing and pulling up to 45 pounds for one hour, lifting up to 15 pounds for three
hours, squatting for one hour, kneeling for two hours and climbing up to four hours.2
The Office issued a notice of proposed termination on January 6, 2004 finding that
Dr. Silva’s report established that appellant’s employment-related disability had resolved.
By letter dated January 14, 2004, appellant disagreed with the proposed termination of
his benefits. On February 3, 2004 his attorney contended that the Office had not proved that jobs
were available and contested the Office’s reliance on Dr. Silva’s report, asserting that his report
was stale and that he was not qualified to render an opinion on appellant’s musculoskeletal
condition. A June 26, 2003 diagnostic report from Dr. Robert Orbelo, a Board-certified
radiologist, noted that an MRI scan of appellant’s cervical spine revealed disc bulges and
narrowing at each level. He diagnosed “degenerative disc disease at multiple levels.” Appellant
also submitted a January 23, 2004 MRI scan report from Dr. Orbelo discussing the results of
testing of appellant’s lumbar spine. Dr. Orbelo diagnosed postoperative changes at L5 and
degenerative disc disease.
On April 5, 2004 the Office terminated appellant’s wage-loss benefits, effective that same
day. The Office noted that appellant’s entitlement to medical benefits was not affected.
On May 6, 2004 appellant requested reconsideration and submitted additional evidence.
In an April 26, 2004 report, Dr. Eleanore Barry-Prather, a Board-certified internist, noted that
appellant had “many chronic illnesses,” including insulin-dependant diabetes mellitus, ulcerative
colitis, gastroesophageal reflux disease, erosive esophagitis, bilateral epicondylitis, osteoarthritis,
2

The employing establishment characterized the date-of-injury position as “normal light-duty work associated
with a typical office job.” This entailed light lifting and carrying of under 15 pounds, occasional reaching above the
shoulder, use of fingers, walking up to one hour, intermittent standing consistent with an office job, occasional
bending and occasional operation of a motor vehicle.

3

hyperlipidemia and a history significant for prostate cancer, as well as “chronic back pain and
left leg radiculopathy.” Dr. Barry-Prather concluded that “based upon these conditions and
[appellant’s] age ... he is disabled.” On May 3, 2004 Dr. Linda Miller, a Board-certified
internist, noted treating appellant for ulcerative colitis with prednisone which might adversely
affect his underlying bone disease. On May 4, 2004 Dr. R.C. Lehmer, a Board-certified
orthopedic surgeon, advised that appellant had bilateral lateral epicondylitis, bilateral carpal
tunnel syndrome and “elbow problems.”
By decision dated May 14, 2004, the Office denied modification of its April 5, 2004
decision. Appellant requested reconsideration on August 3, 2004 and forwarded an August 2,
2004 report from Dr. Barry-Prather stating that despite surgery, physical therapy and other
treatments appellant had “significant chronic back pain and left greater than right radiculopathy
which limits his activities.” Dr. Barry-Prather stated that appellant had “trigger points in his
neck, tense and tender trapezius muscles bilaterally, tender thoracic and lumbar spine,
paraspinous muscles and sacroiliac joints. Appellant also has diminished flexion and extension
as well as lateral bending involving his spine.” Dr. Barry-Prather stated that appellant had
paraspinous muscle spasm and diminished strength of the proximal muscles in both legs. She
noted that his symptoms had progressed over the years.
By decision dated October 20, 2004, the Office denied modification of its April 5, 2004
decision. Appellant requested reconsideration on December 3, 2004 and provided a June 9, 2005
report from Dr. Barry-Prather who reiterated findings from her August 2, 2004 report and added
that appellant was unable to walk on his toes or heels and had “decreased dorsi and
plantarflexion of the left foot.” In a June 17, 2005 report, Dr. Barry-Prather stated: “Back
surgery and various other treatment modalities have not succeeded in allowing [appellant] to
return to work, including sedentary work where prolonged sitting would aggravate his
symptoms. Based upon reasonable medical certainty, [appellant is] disabled from working in
any occupation five days a week due to his February 1981 on[-]the[-]job back injury.”
In a September 1, 2005 decision, the Office denied modification of its April 5, 2004
decision. Appellant requested reconsideration on September 15, 2005 and provided several
medical reports already of record. He also resubmitted a March 21, 1988 report from
Dr. Rebecca D. Niehaus,3 which stated that ulcerative colitis may have contributed to appellant’s
back problems and noted that “people can have joint problems with this disease and also referral
of colon pain to the back.” Appellant also resubmitted evidence previously of record.
By decision dated December 20, 2005, the Office denied modification of its April 5, 2004
decision.
On December 31, 2005 appellant requested reconsideration. He resubmitted certain
evidence and asserted that the Office improperly evaluated the evidence. By decision dated
March 22, 2006, the Office denied appellant’s reconsideration request without conducting a
merit review. On March 27, 2006 appellant disagreed with the Office’s decision. In a May 3,
2006 decision, the Office denied appellant’s request for reconsideration without conducting a
merit review.
3

Dr. Niehaus’s specialty could not be ascertained from the record.

4

On May 11 and July 11, 2006 appellant requested reconsideration, asserting that the
Office did not properly consider his contentions and evidence.
By decision dated August 11, 2006, the Office denied appellant’s reconsideration request
without conducting a merit review.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 The Office may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.5 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
ANALYSIS
The Board finds that the Office did not meet its burden of proof in terminating
appellant’s wage-loss compensation.
The Office based its termination decision on Dr. Silva’s March 1, 2001 report. Dr. Silva,
an Office referral physician, examined appellant and opined that he had no objective findings
attributable to his employment-related conditions that would prevent him from working eight
hours per day in a light or medium-duty position. The Board finds that the Office improperly
relied upon Dr. Silva’s report to terminate wage-loss compensation. To support his opinion that
could return to limited-duty work, Dr. Silva advised his findings for the lumbar spine and lower
extremities were normal except for appellant’s well-healed surgical scar. However, he did not
explain an apparent discrepancy in his report where he advised at one point that lumbosacral
examination did not reveal obvious spasm while he subsequently advised that straight-leg raising
produced “tightness or spasm” in the back. Likewise, Dr. Silva did not explain why appellant
had work restrictions based on lumbosacral findings when he had indicated that examination of
the lumbosacral spine was essentially normal. The Board has held that a medical report not
fortified by sufficient explanation or rationale is of diminished probative value.7
The Board also notes that Dr. Silva’s March 1, 2001 report was nearly three years old
when the Office proposed to terminate appellant’s wage-loss compensation on January 6, 2004.
The Office did not explain why a report more reasonably current with the proposed termination
was not procured to assess appellant’s current work-related findings and restrictions closer to the
time the Office sought to terminate wage-loss compensation. The Board has previously
considered the age of a medical report as a factor to be considered when the Office modifies

4

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

5

Id.

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

See, e.g. Caroline Thomas, 51 ECAB 451, 456 n.10 (2000); Brenda L. Dubuque, 55 ECAB 212, 217 (2004).

5

benefits.8 It should also be noted that, in forming his opinion in March 2001, Dr. Silva also
relied, in part, on diagnostic testing from about 1994 and acknowledged that there was no more
recent testing. Rather than relying upon a nearly three-year-old opinion, the Office should have
obtained a more current medical report, which would take into account appellant’s condition
closer to the time his wage-loss compensation was terminated. The record contains no medical
report more contemporaneous with the termination of appellant’s wage-loss compensation which
supports that appellant’s work-related disability had ceased.
Consequently, Dr. Silva’s report was insufficient to meet the Office’s burden of proof in
terminating appellant’s wage-loss compensation effective April 5, 2004.9
CONCLUSION
The Board finds that the Office did not meet its burden of proof in terminating
appellant’s compensation benefits.

8

See, e.g., Keith Hanselman, 42 ECAB 680 (1991) (a report almost two years old was deemed an invalid basis
for a disability determination or loss of wage earning capacity decision); Anthony Pestana, 39 ECAB 980 (1988) (a
three-year-old medical report was not reasonably current for purposes of a wage-earning capacity determination).
See also Ellen G. Trimmer, 32 ECAB 1878 (1981) (the passage of time lessens the relevance of work tolerance
limitations).
9

Due to the Board’s disposition of the first issue, it is unnecessary to address issues two and three.

6

ORDER
IT IS HEREBY ORDERED THAT the August 11, May 3 and March 22, 2006 and
December 20, 2005, decisions of the Office of Workers’ Compensation Programs are reversed.
Issued: June 25, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-744
Issued: July 22, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 28, 2007 appellant filed a timely appeal from the August 23, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied modification of the
termination of his compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant’s current neck condition is causally related to the
November 2, 1999 work incident. Appellant argues that the Office’s decision incompletely
described his accident. He alleges the Office showed bias by sending him to an impartial
medical specialist who would send him back to work. Appellant argues that the opinion of the
impartial medical specialist should be disallowed for other reasons.

FACTUAL HISTORY
On the prior appeal,1 the Board found that the Office met its burden of proof to justify
termination of compensation. Appellant, a carpenter, sustained a cervical strain and concussion
on November 2, 1999 when a panel coated with lead fell on his head.2 On February 28, 2001 the
Office terminated his compensation on the grounds that the weight of the evidence, represented
by the opinion of Dr. Richard H. Bennett, a Board-certified neurologist and impartial medical
specialist, established that he no longer had residuals of the accepted condition. Finding that
Dr. Bennett’s opinion carried special weight, the Board affirmed the Office’s termination of
compensation.
On September 6, 2005 appellant requested reconsideration. He submitted an August 22,
2005 report from Dr. Joseph A.W. Kozielski, a Board-certified orthopedic surgeon, who related
appellant’s history and complaints. Dr. Kozielski described his findings on physical examination
and noted: “In view of MRI [magnetic resonance imaging] and CAT scan studies from the
period following his injury, indicating that he does have discs bulging at C3-4 on the left and C67 central and to the right, consistent with a post[-]traumatic condition.” He concluded: “Based
on the above history and examination, I would have to conclude that the symptoms for which he
is currently suffering are the direct result of the injuries sustained at work on November 2, 1999,
since there was no preexisting history.”
In a decision dated August 23, 2007, the Office reviewed the merits of appellant’s case
and denied modification of its prior decision. It found that Dr. Kozielski did not offer a
sufficiently reasoned and detailed opinion and did not discuss why Dr. Bennett’s findings were
in error. The Office found that the weight of the medical opinion evidence still rested with the
impartial medical specialist.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,4
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.5
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The claimant must submit a rationalized medical opinion that supports a
causal connection between his current condition and the employment injury. The medical
1

Docket No. 02-972 (issued March 4, 2003).

2

Appellant wishes it to be known that the lead-lined panel weighed over 100 pounds.

3

5 U.S.C. §§ 8101-8193.

4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

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

2

opinion must be based on a complete factual and medical background with an accurate history of
the claimant’s employment injury, and must explain from a medical perspective how the current
condition is related to the injury.6
When a physician concludes that a condition is causally related to an employment
because the employee was asymptomatic before the employment injury, the opinion is
insufficient, without supporting medical rationale, to establish causal relationship.7
When the Office meets its burden of proof to justify termination of compensation
benefits, the burden is on the claimant to establish that any subsequent disability is causally
related to the accepted employment injury.8
ANALYSIS
In its March 4, 2003 decision, the Board found that the weight of the medical evidence
rested with the opinion of Dr. Bennett, the impartial medical specialist. Appellant continues to
take issue with Dr. Bennett’s selection, examination and opinion, but the Board’s finding and
decision in this matter became final upon the expiration of 30 days from the date of the issuance
of the Board’s March 4, 2003 decision and order.9 The matter is res judicata and is not subject
to further consideration by the Board on this appeal.10
As the Board found that the Office met its burden of proof to terminate appellant’s
compensation, it is now appellant’s burden to establish that his current neck condition is causally
related to the November 2, 1999 work incident. At issue in the present appeal is whether the
evidence appellant submitted to support his September 6, 2005 request for reconsideration is
sufficient to discharge that burden.
The August 22, 2005 report from Dr. Kozielski, a Board-certified orthopedic surgeon, is
generally supportive of appellant’s claim. Dr. Kozielski noted that diagnostic studies from the
period following the November 2, 1999 injury indicated disc bulging at C3-4 on the left and C67 central and to the right, which was “consistent with a post-traumatic condition.” But he did not
explain how this disc bulging was consistent with a post-traumatic condition, and he offered no
convincing medical rationale to explain how this disc bulging was inconsistent with a preexisting
age-related degenerative discogenic disease, as Dr. Bennett reported.

6

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

7

Thomas D. Petrylak, 39 ECAB 276 (1987).

8

Maurice E. King, 6 ECAB 35 (1953); Wentworth M. Murray, 7 ECAB 570 (1955) (after a termination of
compensation payments, warranted on the basis of the medical evidence, the burden shifts to the claimant to show
by the weight of the reliable, probative and substantial evidence that, for the period for which he claims
compensation, he had a disability causally related to the employment resulting in a loss of wage-earning capacity).
9

20 C.F.R. § 501.6(d).

10

Hugo A. Mentink, 9 ECAB 628 (1958).

3

Dr. Kozielski concluded that appellant’s current symptoms were the direct result of the
injuries sustained at work on November 2, 1999 “since there was no preexisting history.” But
the mere fact that diagnostic testing revealed disc bulging after the November 2, 1999 incident is
no proof that particular incident caused the bulging. Noting what is, at best, a temporal
relationship between the incident and a condition later seen on studies is not enough to establish
a causal relationship. To establish causal relationship, Dr. Kozielski must offer sound medical
reasoning to support his conclusion.
The Board finds that Dr. Kozielski’s opinion, while somewhat supportive of appellant’s
claim, carries little evidentiary weight and is insufficient to discharge appellant’s burden of proof
or to create a conflict in medical opinion with the impartial medical specialist, Dr. Bennett. The
Board will therefore affirm the Office’s August 23, 2007 decision denying modification of the
termination of appellant’s compensation.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his current
neck condition is causally related to the November 2, 1999 work incident.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
DEPARTMENT OF THE ARMY, PICATINNY
ARSENAL, Picatinny, NJ, Employer
__________________________________________

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

Docket No. 07-1928
Issued: December 18, 2007

Case Submitted on the Record

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

JURISDICTION
On July 17, 2007 appellant filed a timely appeal from the April 19 and July 2, 2007
decisions of the Office of Workers’ Compensation Programs’ denying his claim for an injury on
March 16, 2006. 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 sustained a left knee injury on March 16, 2006 while in the
performance of duty.
FACTUAL HISTORY
On March 22, 2006 appellant, then a 59-year-old supervisory general engineer, filed a
claim for a traumatic injury alleging that on March 16, 2006 he twisted and strained his left knee
when he slipped walking down stairs while looking at a document.
In an unsigned report dated November 15, 2006, a medical provider with the initials
“DG” indicated that he examined appellant for ongoing left knee pain. He noted that appellant

had no tenderness or significant patellofemoral pain. The medical provider indicated that he
discussed with appellant the difference between arthritis and a meniscal tear. Appellant had both
conditions in the same side of his left knee. The medical provider stated that the history of the
left knee condition and the way in which it was healing was more characteristic of mild arthritis.
On March 14, 2007 the Office requested that appellant submit additional evidence within
30 days, including a more detailed description of the March 16, 2006 incident and medical report
from a physician containing a diagnosis of his left knee condition and a rationalized explanation
as to how the condition was causally related to the alleged March 16, 2006 work incident.
Appellant did not respond.
By decision dated April 19, 2007, the Office denied appellant’s claim on the grounds that
the medical evidence did not establish that the March 16, 2006 incident occurred as alleged or
that he sustained a work-related left knee injury on March 16, 2006.
In a letter received by the Office on April 23, 2007, appellant indicated that on March 16,
2006 he was returning to his office after a staff meeting. As he descended the stairs, he was
reading his meeting notes when his foot slipped and he fell to the landing. Appellant indicated
that he consulted Dr. David Gold in late March 2006 who took x-rays and diagnosed a sprained
left knee. He indicated that he had submitted the March 2006 report from Dr. Gold to the
Office.1 On April 27, 2007 appellant requested reconsideration. In a May 15, 2007
memorandum, an employing establishment representative stated that appellant often used the
stairs rather than the elevator while going to different floors of the building.
By decision dated July 2, 2007, the Office denied modification of the April 19, 2007
decision. The Office accepted that the March 16, 2006 work incident occurred. However, the
medical evidence was not sufficient to establish that appellant sustained a left knee injury as a
result of the incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden to establish the essential elements of his 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, that
an injury was sustained in the performance of duty as alleged and that any disability or medical
condition for which compensation is claimed is causally related to the employment injury.3
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
1

There is no March 2006 report of record from Dr. Gold.

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

2

employment incident at the time, place and in the manner alleged.4 Second, the employee must
submit medical evidence to establish that the employment incident caused a personal injury.5 An
employee may establish that the employment incident occurred as alleged but fail to show that
his disability or condition relates to the employment incident.
To establish a causal relationship between a claimant’s condition and any attendant
disability claimed and the employment event or incident, he must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes 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. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6
ANALYSIS
The Board finds that the evidence is insufficient to establish that appellant sustained a left
knee injury on March 16, 2006 while in the performance of duty.
Appellant submitted a November 2006 medical report which was unsigned and did not
appear on a physician’s letterhead. Therefore, it is unclear whether the report was prepared by a
physician. The medical provider stated that appellant was examined for ongoing left knee pain
and indicated that he discussed with appellant the difference between arthritis and a meniscal
tear. He indicated that the circumstances of the left knee injury were more characteristic of mild
arthritis. The medical provider did not provide a definite diagnosis of appellant’s left knee
condition or medical rationale explaining how the left knee condition was causally related to the
March 16, 2006 employment incident. Although appellant indicated that he had submitted
another medical report in March 2006, there is no such report of record. The Office advised
appellant of the medical evidence necessary for establishing a work-related injury but such
evidence was not forthcoming. Appellant failed to provide medical evidence containing a
history of his left knee condition, a clear diagnosis and a rationalized explanation as to how the
diagnosed condition was causally related to the March 16, 2006 employment incident.
Therefore, he has failed to establish that he sustained an employment-related left knee injury on
March 16, 2006.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a left knee injury on
March 16, 2006 while in the performance of duty.
4

John J. Carlone, 41 ECAB 354 (1989).

5

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

6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, supra note 5.

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 2 and April 19, 2007 are affirmed.
Issued: December 18, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
GOVERNMENT PRINTING OFFICE,
Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1641
Issued: July 8, 2021

Case Submitted on the Record

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

On September 14, 2020 appellant filed an appeal from a March 11, 2020 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 20-1641.
The Board, having duly considered this matter, concludes that the appeal docketed as No.
20-1641 must be dismissed. The Board’s jurisdiction is limited to the review of final adverse
OWCP decisions issued under the Federal Employees’ Compensation Act.1 For final adverse
decisions of OWCP issued on or after November 19, 2008, the Board’s review authority is limited
to appeals which are filed within 180 days from the date of issuance of OWCP’s decision.2 The
180th day following the March 11, 2020 decision was Monday, September 7, 2020, a federal
holiday. If the last day to file an appeal falls on a Saturday, Sunday, or federal holiday, the 180day period runs until the close of the next business day. 20 C.F.R. § 501.3(f)(2). Appellant,
therefore, had until Tuesday, September 8, 2020 to file the appeal. She did not file an appeal
with the Board, however, until September 14, 2020, more than 180 days after the March 11,

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2

Id. at § 501.3(e) (2009).

2020 OWCP decision.3 Therefore, the Board finds that the appeal docketed as No. 20-1641 is
untimely filed and the Board is without jurisdiction to review the appeal.
On appeal, appellant asserts that her failure to timely file her appeal was due to compelling
circumstances as she initially mailed her appeal request to OWCP instead of the Board. The
record establishes that by letter dated August 25, 2020, OWCP instructed appellant to resubmit
her appeal to the Board. That letter was mailed to appellant’s last known address of record and
there is no evidence of nondelivery that would have jeopardized her right to file her appeal with
the Board. Appellant had time to file the appeal by U.S. Mail, facsimile, or e-filing. The Board,
thus, finds that appellant has not provided a compelling reason for her delay in filing her appeal
with the Board as she failed to exercise due diligence in ensuring her appeal was properly mailed
to the Board instead of OWCP, as required by the Board’s Rules of Procedure.4 Because there is
no final adverse decision issued by OWCP within 180 days of the September 14, 2020 filing of the
instant appeal, the Board concludes that the appeal docketed as No. 20-1641 must be dismissed.5
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”5 Either appellant or the Director may file a petition for reconsideration of a
decision or order issued by the Board within 30 days of the date of issuance of this order.6

3

The Board notes that the envelope was postmarked September 10, 2020.

4

20 C.F.R. § 501.3(e) (2009).

5

Id. at § 501.6(d).

6

Id. at § 501.7.

2

IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-1641 is dismissed.
Issued: July 8, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, RUGBY POST
OFFICE, Brooklyn, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1448
Issued: February 16, 2011

Case Submitted on the Record

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

JURISDICTION
On May 4, 2010 appellant, through her attorney, filed a timely appeal from a
November 12, 2009 merit decision of the Office of Workers’ Compensation Programs denying
her claim for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained a recurrence of disability commencing July 15,
2003 causally related to a left lower extremity contusion.
On appeal, counsel asserts that a September 7, 2002 workplace incident caused right knee
and other injuries, resulting in a July 15, 2003 recurrence of total disability.
FACTUAL HISTORY
The Office accepted that on September 7, 2002 appellant, then a 34-year-old letter
carrier, sustained a contusion of the left lower leg when she jumped up on a car to escape a
pursuing dog. Appellant was placed on light duty as of September 7, 2002 and returned to full

duty on October 2, 2002.1 The record indicates that her case was closed. On February 26, 2004
appellant stopped work and underwent right knee surgery. She did not return to work.2
On April 26, 2004 appellant filed a claim for a recurrence of disability, asserting that,
while delivering mail on July 15, 2003, she experienced left knee swelling, right wrist pain and
paraspinal muscle spasms. In a July 14, 2004 letter, the Office advised her of the evidence
needed to establish her claim and afforded her 30 days for submission.
In reports dated from August to November 2003, Dr. Todd B. Soifer, an attending Boardcertified orthopedic surgeon, diagnosed internal derangement and osteoarthritis of the left knee.
He prescribed a knee brace and noted work restrictions. In a March 10, 2003 report,
Dr. Himanshu Patel, an attending Board-certified internist, diagnosed back pain and a pinched
nerve.
In an April 22, 2006 report, Dr. Slobodan N. Aleksic, an attending Board-certified
psychiatrist and neurologist, noted that appellant attributed lumbar and right upper extremity
pain to the September 7, 2002 incident. He diagnosed internal derangement of the right
shoulder, wrist and knee and cervical and lumbar radiculopathy. Dr. Aleksic opined that the
diagnosed conditions were “clearly related to the work[-]related accident as described.”3
By decision dated July 17, 2007, the Office denied appellant’s claim for a recurrence of
disability on the grounds that causal relationship was not established. It found that she did not
establish a change either in the accepted condition or her light-duty job requirements.
In a July 11, 2008 letter, appellant, through counsel, requested reconsideration and
submitted new medical evidence. In a March 2, 2007 report, Dr. Aleksic related appellant’s
account of left knee swelling in July 2003. Appellant was placed on light duty in August 2003.
She developed right knee swelling in November 2003 and underwent right knee surgery in
February 2004 to repair torn cartilage. Dr. Aleksic diagnosed cervical and lumbar radiculopathy,
internal derangement of both knees, the right wrist and right shoulder.
By decision dated September 18, 2008, the Office modified the July 17, 2007 decision. It
found that appellant had not established that she sustained a recurrence of disability commencing
July 15, 2003. The Office corrected its statement of her burden of proof, finding that the medical

1

In September 7, 2002 x-rays of the left lower leg were negative for fracture. Appellant submitted September 11
and 18, 2002 reports from a podiatrist whose signature is illegible, diagnosing a left ankle sprain.
2

On April 19, 2004 appellant filed a occupational disease (Form CA-2) claiming that she sustained neck, right
arm, right shoulder, bilateral knee and bilateral hip injuries on September 7, 2002 The Office did not conduct
additional development on this claim or issue a final decision. Therefore, this claim is not before the Board on the
present appeal.
3

Appellant submitted physical therapy notes from March to November 2006 regarding her neck, knees hips and
right arm.

2

evidence did not establish that the claimed July 15, 2003 recurrence of disability was causally
related to the accepted September 7, 2002 injuries.4
In a September 8, 2009 letter, appellant, through counsel, requested reconsideration.
Counsel asserted that Dr. Aleksic’s reports were sufficient to establish that the September 7,
2002 workplace incident caused a right knee injury, resulting in the July 15, 2003 recurrence of
disability and February 26, 2004 right knee surgery.5 He enclosed a copy of Dr. Aleksic’s
September 17, 2002 report.
By decision dated November 12, 2009, the Office denied modification on the grounds
that the evidence submitted was insufficient to warrant modification.
LEGAL PRECEDENT
The Office’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”6 When an appellant claims a
recurrence of disability due to an accepted employment-related injury, he has the burden of
establishing by the weight of reliable, probative and substantial evidence that the recurrence of
disability is causally related to the original injury. This burden includes the necessity of furnishing
evidence from a qualified physician, who on the basis of a complete and accurate factual and
medical history, concludes that the condition is causally related to the employment injury.
Moreover, sound medical reasoning must support the physician’s conclusion.7 An award of
compensation may not be based on surmise, conjecture or speculation or on appellant’s
unsupported belief of causal relation.8
ANALYSIS
The Office accepted that on September 7, 2002, appellant sustained a contusion of the left
lower extremity. She claimed a recurrence of total disability commencing July 15, 2003 related
to this injury. Appellant has the burden to provide sufficient evidence, including rationalized
medical opinion, to establish the causal relationship asserted.9

4

The Office also noted that the July 17, 2007 decision contained a nondispositive clerical error, referring to a
July 15, 2007 recurrence of disability and not the claimed July 15, 2003 recurrence.
5

The record contains an October 22, 2009 decision approving counsel’s attorney fee application, based on
appellant’s approval of the charges. This decision is not before the Board on the present appeal.
6

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter.
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
7

Ricky S. Storms, 52 ECAB 349 (2001).

8

Alfredo Rodriguez, 47 ECAB 437 (1996).

9

Ricky S. Storms, supra note 7.

3

The Board finds that an intervening incident negated the causal relationship between the
accepted lumbar injuries and appellant’s condition as of July 15, 2003. Appellant stated that she
experienced knee swelling while delivering mail on July 15, 2003. In essence, she asserted a
new injury. The exposure to new work factors broke the chain of causation stemming from the
accepted left lower extremity injury. The circumstances did not involve a spontaneous change in
the accepted condition.10 For this reason, the Office’s denial of the claimed recurrence of
disability was proper under the law and facts of the case.11
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability commencing July 15, 2003.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 12, 2009 is affirmed.
Issued: February 16, 2011
Washington, DC

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

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

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

10

Bryant F. Blackmon, 56 ECAB 752 (2005).

11

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

4