United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Dillon, MT, Employer
__________________________________________

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

Docket No. 08-957
Issued: March 25, 2009

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 February 13, 2008 appellant filed a timely appeal from an April 25, 2007 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective April 16, 2006 on the grounds that he had no residuals of the
accepted bilateral carpal tunnel syndrome; and (2) whether appellant established that he had any
continuing employment-related disability or condition after that date due to his accepted
condition.
FACTUAL HISTORY
On November 20, 1984 appellant, then a 35-year-old seasonal forestry aid, filed an
occupational disease claim, alleging that factors of his federal employment caused carpal tunnel
syndrome. He resigned from the employing establishment on August 16, 1984 stating that he

was leaving to go to college and seek other work. Appellant underwent corrective surgical
procedures in 1985. On July 9, 1987 the Office accepted his claim for bilateral carpal tunnel
syndrome and he was placed on the periodic rolls.
By decision dated December 27, 1993, the Office determined that the selected position of
security guard fairly and reasonably represented appellant’s wage-earning capacity and reduced
his compensation accordingly. On March 22, 1994 appellant was granted a schedule award for a
10 percent impairment of the right arm and a 10 percent impairment of the left arm. In a July 13,
2001 decision, the Office denied appellant’s claim that a right rotator cuff and elbow conditions
were employment related.
On February 15 and April 15, 2005 the Office requested that appellant provide an
updated medical report. Appellant did not respond.1 On September 13, 2005 the Office referred
appellant to Dr. Dale M. Peterson, a Board-certified neurologist, for a second opinion evaluation.
In an October 7, 2005 report, Dr. Peterson reviewed the record and provided findings on
examination. He advised that, while appellant had fleeting, nonspecific pains and numbness in
his hands and arms, there were no clinical neurological findings to support a diagnosis of
bilateral carpal tunnel syndrome. Dr. Peterson concluded that appellant was capable of working.
In an attached work capacity evaluation, he advised that maximum medical improvement had
been reached and that appellant could work eight hours daily with no restrictions.
On March 8, 2006 the Office informed appellant that it proposed to terminate his wageloss compensation on the grounds that Dr. Peterson found that he had no residuals of the
accepted carpal tunnel condition. By letter dated March 22, 2006, appellant disagreed with the
proposed termination.
In an April 11, 2006 decision, the Office terminated his wage-loss compensation effective
April 16, 2006.
On December 19, 2006 appellant requested reconsideration, stating that he disagreed with
Dr. Peterson’s findings and conclusions and noted that he was a disabled veteran. In a
December 14, 2006 report, Dr. Peter P. Wendt, a Board-certified orthopedic surgeon, stated that
“This man still has residuals of bilateral carpal tunnel syndrome.
Recent EMG
2
[electromyography] at V[eterans] A[dministration] confirms this.”
In a merit decision dated April 25, 2007, the Office denied modification of the April 11,
2006 decision. The Board notes that Dr. Wendt did not provide any narrative of his examination,
objective findings or a rationalized explanation as to how appellant’s current findings were
related to work exposure in 1984.
1

The most recent medical evidence of record at that time was a report dated April 23, 2001 in which Dr. Allen M.
Weinert, Jr., an attending Board-certified physiatrist, provided examination findings and advised that appellant
continued to have mild right hand intrinsic weakness related to his occupational disease and subsequent surgeries.
Dr. Weinert noted that a May 2, 1996 functional capacity evaluation placed appellant in the medium physical
demand category and that he could exert up to 50 pounds of force occasionally and 25 pounds frequently.
2

Appellant also submitted an August 1, 2005 computerized tomography (CT) scan of the chest that demonstrated
an inflammatory process.

2

LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits due to his bilateral carpal tunnel syndrome effective April 16, 2006. The
only medical evidence contemporaneous with the Office’s termination is Dr. Peterson’s
comprehensive October 7, 2005 report. Dr. Peterson provided examination findings and advised
that appellant had no clinical findings, including neurological findings, of carpal tunnel
syndrome and could work eight hours a day without restriction. While appellant disagreed with
the proposed termination, he submitted no additional medical evidence. His attending
physiatrist, Dr. Weinert, had not provided a report since April 23, 2001.
The Board notes that Dr. Wendt did not provide any narrative of his examination,
objective findings or a rationalized explanation as to how appellant’s current findings were
related to work exposure in 1984.
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested and the medical rationale expressed in support of
the physician’s opinion are facts, which determine the weight to be given to each individual
report5 and contemporaneous evidence is entitled to greater probative value than later evidence.6
The Board finds that the weight of the medical evidence rests with the opinion of Dr. Peterson
who advised that appellant had no clinical evidence of carpal tunnel syndrome and could work
eight hours a day without restriction. Thus, the Office properly found that appellant had no
residuals of the accepted bilateral carpal tunnel syndrome and terminated his compensation
benefits effective April 16, 2006.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s wage-loss compensation on
February 24, 2003, the burden shifted to him to establish that he had any continuing disability

3

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

4

Id.

5

Michael S. Mina, 57 ECAB 379 (2006).

6

S.S., 59 ECAB ____ (Docket No. 07-579, issued January 14, 2008).

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causally related to his accepted right shoulder injury.7 To establish a causal relationship between
the condition, as well as any attendant disability claimed and the employment injury, an
employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.8 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical evidence.9
Rationalized medical evidence is medical evidence which includes a physician’s rationalized
medical 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.10
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence with his
December 19, 2006 reconsideration request to establish that he continued to be disabled from the
accepted bilateral carpal tunnel syndrome after April 16, 2006. With his reconsideration request,
appellant submitted a brief December 14, 2006 report in which Dr. Wendt advised that appellant
had residuals of bilateral carpal tunnel syndrome as demonstrated on recent EMG studies.
Dr. Wendt, however, did not provide a copy of the study or discuss specific findings and did not
provide an opinion regarding whether appellant continued to be disabled. The Board therefore
finds that, as appellant did not provide a rationalized medical opinion sufficient to meet his
burden of proof, he did not substantiate that any claimed disability on or after April 16, 2006 was
causally related to the accepted bilateral carpal tunnel syndrome.11
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective April 16, 2006 and that appellant failed to meet his burden of
proof to establish that he had any disability after April 16, 2006 causally related to his accepted
right shoulder condition.12

7

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

8

Jennifer Atkerson, 55 ECAB 317 (2004)..

9

Id.

10

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

11

See Mary A. Ceglia, 55 ECAB 626 (2004).

12

The Board notes that appellant submitted evidence to the Office after the April 25, 2007 decision and with his
appeal to the Board. The Board cannot consider this evidence, however, as its review of the case is limited to the
evidence of record that was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 25, 2007 be affirmed.
Issued: March 25, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF LABOR, WAGE & HOUR
DIVISION, Chicago, IL, Employer
__________________________________________

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

Docket No. 17-1738
Issued: February 8, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 7, 2017 appellant, through counsel, filed a timely appeal from a February 7,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury in the
performance of duty on July 17, 2015.
1

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

5 U.S.C. § 8101 et seq.

On appeal counsel generally asserts that, as there is no contrary evidence, the claim
should be accepted.
FACTUAL HISTORY
On July 31, 2015 appellant, then a 45-year-old wage and hour investigator working parttime modified duty, filed a traumatic injury claim (Form CA-1) alleging that at 10:00 a.m. on
Friday, July 17, 2015 she injured her left shoulder, hands, and feet while adjusting her chair.
N.H., appellant’s supervisor, signed the claim form on August 3, 2016. She indicated that the
incident did not occur at 10:00 a.m. on July 17, 2015 as alleged because appellant left a file for
her at 11:56 a.m. that day and left work for the day at 12:10 p.m. N.H. further indicated that
appellant notified her by e-mail on July 20, 2015 that her left shoulder hurt, but did not mention
her hands and feet. She also related that a safety and health specialist had adjusted appellant’s
chair on April 2, 2015 during an ergonomic assessment.3
In an August 5, 2015 report, Dr. Kaihua Kevin Lai, an attending Board-certified internist,
noted seeing appellant for follow up examinations for multiple medical issues including severe
neck, back, and shoulder pain, status post a fall at work, plus knee pain and morbid obesity. He
indicated that appellant was having difficulty working four hours daily and had gone to an
emergency room on July 28, 2015 due to stress. Dr. Lai noted examination findings and
diagnosed cervical facet syndrome, accidental fall, low back pain, morbid obesity, unsteady gait,
osteoarthritis of multiple sites, and back strain. He noted that appellant had been injured “quite a
while ago” and had many muscular symptoms. Dr. Lai advised that she was totally disabled
from work until after follow up with a spine specialist and psychiatrist. An August 17, 2015
attending physician’s report (Form CA-20) indicated a July 15, 2015 date of injury. On that
form report Dr. Lai noted seeing appellant for neck and shoulder pain. He opined that appellant
was totally disabled.
On August 27, 2015 appellant filed claims for compensation (Form CA-7) for the period
July 30 to August 22, 2015.
By development letter dated September 4, 2015, OWCP noted that, because the
employing establishment did not controvert continuation of pay, payment of limited medical
expenses were administratively approved, but the merits had not been formally adjudicated. It
noted that the claim was reopened for consideration as she had claimed wage loss. OWCP
informed appellant of the evidence needed to support her claim and requested that she complete
a fact development questionnaire describing in detail how her injury had occurred. Appellant
was afforded 30 days to respond.

3
The record in this case, adjudicated by OWCP under File No. xxxxxx524, indicates that appellant has two other
FECA claims. One is an accepted traumatic injury claim, adjudicated by OWCP under File No. xxxxxx390. Under
that claim, appellant has a pending Board appeal of a January 20, 2017 OWCP decision. It has been assigned
Docket No. 17-1004 and will be adjudicated separately. She also has a claim denied by OWCP, adjudicated under
File No. xxxxxx039. Under that claim, appellant has a pending Board appeal of a May 30, 2017 OWCP decision,
Docket No. 17-1469, that will also be adjudicated separately.

2

In a report dated August 31, 2015, received by OWCP on September 9, 2015, Dr. Lai
advised that appellant should be off work due to multiple joint pain, arthritis, and an unsteady
gait. He indicated that she could return to modified duty on December 1, 2015.
By decision dated October 5, 2015, OWCP denied appellant’s claim. It found the
evidence of record insufficient to establish that appellant actually experienced the incident as
alleged.
On October 2, 2015 appellant responded to OWCP’s development questionnaire
regarding the July 17, 2015 claimed injury. She related that the injury occurred while she was
sitting in her chair facing her laptop monitor, pulling at a lever on the chair to adjust its height,
but was unable to adjust the chair while sitting down. Appellant did not notice that her
headphone cord had wrapped on the chair leg and when she stood, her leg was caught and she
tripped and fell forward sustaining left shoulder and bilateral hand and foot injuries. She
indicated that she was working alone so she sat on the floor to see if someone would check on
her, but after 20 minutes she stood with the help of the chair and took pain medication.
Appellant then left for the day and reported the incident to her supervisor N.H. the following
workday, Monday, July 20, 2015. She related that she attended training for four hours daily the
following week, July 20 to 24, 2015, but was unable to write and take notes because she could
not grasp a pen or pencil and had limited ability to use a keyboard. Appellant also noted severe
foot pain made it difficult to walk and sit more than 45 minutes without cramping, and that she
also had shoulder pain. She advised that on July 27, 28, and 29, 2015 she did not have network
or telephone access so that she could not perform her work. Appellant asked the director of
operations to assist her in obtaining ergonomic equipment that was approved in February, under
File No. xxxxxx039,4 but had not been provided.
On September 29, 2016 appellant, through counsel, requested reconsideration.
Additional medical evidence submitted included an October 28, 2015 report in which
Dr. Lai advised that appellant was being seen with regard to a July 17, 2015 work injury for
persistent neck, back, and shoulder pain. Dr. Lai noted appellant’s report that on that day, while
trying to adjust her chair, she tripped on a telephone cord and fell forward, injuring both ankles,
left shoulder, and left knee, and having pain since. He indicated that when he saw appellant on
August 5, 2015 she did not mention this injury, but was now being seen for evaluation separately
from her previous injury. On examination Dr. Lai noted her difficulty ambulating with abnormal
gait, and tenderness in joints of upper and lower extremities. He found no muscle weakness,
effusion, or tenderness. Dr. Lai diagnosed accidental fall, ankle and shoulder sprains, knee pain,
and morbid obesity. He advised that appellant sustained an injury at work on July 17, 2015.
Dr. Lai recommended that appellant stay out of work. On November 2, 2015 he noted
appellant’s status, indicated that she remained disabled, and recommended that appellant see a
psychiatrist.5

4

Id.

5

OWCP also received diagnostic test results.

3

In a November 16, 2015 report, Dr. Kenneth Schiffman, a Board-certified orthopedic
surgeon, noted appellant’s complaints of left shoulder and bilateral hand pain resulting from a
July 2015 fall injury and a past medical history of diabetes. Examination of each hand was
normal. Left shoulder examination demonstrated tenderness in the clavicle and normal range of
motion. Following his review of x-ray studies, Dr. Schiffman diagnosed posterior left shoulder
pain with possible periscapular strain, and bilateral hand pain of unclear etiology. He continued
submitting reports noting appellant’s status.
Dr. Michael Pinzur, also a Board-certified orthopedist, saw appellant on
November 17, 2015. He noted a history of bilateral foot pain caused by a twisting injury at
work. On examination Dr. Pinzur noted reasonable ankle and hind foot motion bilaterally. He
advised that x-rays were unremarkable, that appellant had no employment-related foot injury,
and that she most likely had diabetic peripheral neuropathy.
On November 18, 2015 appellant saw Dr. Craig McAsey, Board-certified in orthopedic
surgery. Dr. McAsey recorded a history that appellant fell on her right knee at work on July 17,
2015 when her left foot became caught in a chair at work. He reported findings and diagnosed
right knee contusion and bilateral trochanteric bursitis. Dr. McAsey recommended physical
therapy and noted that appellant was pending left knee surgery. On February 15, 2016 he noted
appellant’s complaints and offered diagnoses.
In an April 20, 2016 report, Dr. Nikhil Verma, Board-certified in orthopedic surgery and
sports medicine, noted that appellant was doing well following right shoulder surgery. He did
not address the alleged July 17, 2015 work incident. Dr. Verma performed left shoulder
arthroscopic rotator cuff repair on May 16, 2016. On a September 4, 2016 report he noted
evaluating appellant on August 17, 2015 and advised that she had a past history of two
employment injuries, a slip and fall on November 20, 2014, and a fall at her desk on
July 17, 2015. Dr. Verma advised that a November 2014 injury caused appellant’s right shoulder
and left knee conditions.
On May 9, 20106 Dr. Asokumar Buvanendran, Board-certified in anesthesiology and
pain medicine, performed lumbar epidural injection. In a September 16, 2016 report
Dr. Buvanendran noted that appellant had a prior employment injury on November 20, 2014. He
related that on July 17, 2015 appellant was unsuccessful in trying to adjust her chair while
sitting, and stood to adjust her chair, catching her left foot on a cord, and fell forward causing
injury to her hands. Since that time appellant had problems with her neck, back, bilateral
shoulders, bilateral hips, bilateral ankles, right wrist, right elbow, and right knee, and had
reinjured her left knee and had an injury to her right knee. His diagnoses included accidental
fall, neck sprain, back strain, cervical facet syndrome, contusion of buttock, as well as anxiety
and work-related stress.
On December 5, 2016 N.H., appellant’s supervisor, submitted comments regarding
appellant’s July 17, 2015 claim. She advised that on Friday July 17, 2015 she had been in her
office from 7:43 a.m. to 3:46 p.m., and that appellant had been at work from 8:10 a.m. to 12:10
p.m. N.H. related that appellant did not report the incident until 1:23 p.m. on Monday, July 20,
2015 when she sent an e-mail reporting that she injured her left shoulder while trying to adjust
her chair. She noted that appellant did not report tripping on a cord and falling forward at that

4

time. N.H. indicated that appellant’s headset was wireless and the base had a six-foot power
cord directed toward the back wall of appellant’s desk. She related that the training appellant
attended the following week was with regard to her position as union steward and was unrelated
to her federal employment. N.H. attached a copy of appellant’s July 20, 2015 e-mail. In that
e-mail, appellant related that she gave a requested file to N.H. and, upon returning to her desk,
tried to adjust her chair back which got stuck, and when she tried to push it, she hurt her left
shoulder. She requested that N.H. complete an incident report and file a CA-1. N.H. also
submitted a photograph of appellant’s desk top.
In a February 7, 2015 decision, OWCP denied modification of its prior decision. It found
the July 17, 2015 incident did not occur as alleged and noted that appellant furnished inconsistent
statements about the events of July 17, 2015 which cast serious doubt of the validity of the claim.
LEGAL PRECEDENT
An employee seeking compensation under FECA6 has the burden of proof to establish the
essential elements of the claim by the weight of reliable, probative, and substantial evidence,7
including that he or she is an employee within the meaning of FECA and that the claim was filed
within the applicable time limitation,8 that an injury in the performance of duty as alleged, and
that the disability for work was causally related to the employment injury.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.10
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.11
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden of proof to establish the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged

6

Supra note 2.

7

J.P., 59 ECAB 178 (2007).

8

R.C., 59 ECAB 427 (2008).

9

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

10

T.H., 59 ECAB 388 (2008).

11

R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

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injury, and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.12
ANALYSIS
The Board finds that the evidence of record does not establish that the claimed July 15,
2015 incident occurred as alleged.13 In an e-mail dated Monday, July 20, 2015, appellant related
that the prior Friday, July 17, 2015 she handed a requested file to N.H. and, upon returning to her
desk, tried to adjust her chair back. The chair got stuck, and when she tried to push it she injured
her left shoulder. Appellant requested that N.H. complete an incident report and file a Form CA1. On her July 31, 2015 traumatic injury claim form, she alleged that at 10:00 a.m. on Friday,
July 17, 2015 she injured her left shoulder, hands, and feet while adjusting her chair. Appellant
made no mention of her leg getting caught in a cord.
N.H., appellant’s supervisor, signed the CA-1 on August 3, 2016. She indicated that the
incident did not occur at 10:00 a.m. on July 17, 2015, as alleged, because appellant left a file for
her at 11:56 a.m. that day and left work for the day at 12:10. N.H. reported that appellant
notified her by the July 20, 2015 e-mail that her left shoulder hurt, but did not mention her hands
and feet.
In her October 2, 2015 statement, appellant indicated that after she gave the file to N.H.,
she returned to her desk when the incident happened. She alleged that the injury occurred as she
was sitting in her chair facing her laptop monitor, pulling at a lever on the chair to adjust its
height, but was unable to adjust the chair sitting down. Appellant indicated that she did not
notice that her headphone cord had wrapped on the chair leg and when she stood, her leg was
caught and she tripped and fell forward sustaining left shoulder and bilateral hand and foot
injuries. She did not attempt to explain the discrepancy between this statement and her initial
statement on the CA-1 which did not mention her leg getting tangled in a cord or falling forward.
Appellant saw Dr. Lai on August 5, 2015. At that time she did not mention a July 17,
2015 employment injury. It was not until October 28, 2015 that Dr. Lai recorded a history that
on July 17, 2015 appellant hurt both ankles, her left shoulder, and her left knee while trying to
adjust her chair. Dr. Lai noted that she tripped on a telephone cord, fell forward, and had
bilateral ankle, left shoulder, and left knee pain since. He further acknowledged that appellant
did not mention this injury in a visit to him on August 5, 2015. On September 4, 2016
Dr. Verma indicated that appellant fell at her desk on July 17, 2015 and that a November 2014
injury caused right shoulder and left knee conditions. On September 16, 2016 Dr. Buvanendran
related that, on July 17, 2015, appellant stood to adjust her chair and caught her left foot on a
cord. Other treating physicians did not report any version of the claimed July 17, 2015 incident

12

Betty J. Smith, 54 ECAB 174 (2002).

13

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

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before November 2015. Consequently, the most contemporaneous medical report, Dr. Lai’s
August 5, 2015 report, did not mention the claimed July 17, 2015 incident.14
Appellant’s supervisor, N.H., noted on December 5, 2016 that, even though she was in
her office until 3:46 p.m. on Friday, July 17, 2015, appellant did not report a claimed injury until
Monday, July 20, 2015. N.H. also indicated that the injury could not have occurred at 10:00 a.m.
as claimed because appellant brought her a file at 11:23 a.m., and that, as described above,
appellant first reported a left shoulder injury while adjusting her chair. She also did not initially
indicate that she tripped on a cord and fell forward or that she had other injuries.
The Board finds that there are inconsistencies in the evidence so as to cast doubt upon the
validity of appellant’s claim that she sustained multiple injuries in the performance of duty on
July 17, 2015. As described above, appellant’s accounts of the claimed incident are inconsistent.
Moreover, the histories related to appellant’s physicians are also inconsistent. Lastly, Dr. Lai
noted that appellant did not report any July 17, 2015 injury when he examined her on
August 5, 2015. For these reasons, the Board finds that the evidence of record does not establish
that appellant sustained an injury in the performance of duty on July 17, 2015 as alleged.15
Thus, the Board finds that appellant has not met her burden of proof to establish fact of
injury. As appellant did not establish an incident as alleged, the Board need not discuss the
probative value of the medical evidence submitted.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish an
employment-related injury in the performance of duty on July 17, 2015.

14

See S.S., 59 ECAB 315 (2008) (the Board has held that contemporaneous evidence is entitled to greater
probative value than later evidence).
15

R.T., supra note 11.

16

Paul Foster, 56 ECAB 208 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the February 7, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 8, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Los Angeles, CA, Employer
__________________________________________

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

Docket Nos. 11-1183 &
11-1204
Issued: February 8, 2012

Case Submitted on the Record

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

JURISDICTION
On April 19, 2011 appellant filed a timely appeal from a December 13, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) under File No. xxxxxx072 finding an
overpayment of compensation for the period March 18, 2007 to October 13, 2009 in the amount
of $183,404.45, for which he was at fault due to forfeiture and affirming the termination of his
compensation due to the forfeiture. This was docketed as appeal No. 11-1183. On April 20,
2011 appellant filed a timely appeal from a February 24, 2011 OWCP decision under File No.
xxxxxx247 affirming a forfeiture determination for the period October 11, 2005 to March 17,
2007 and finding a $113,313.08 overpayment of compensation for which he was at fault. This
was docketed as appeal No. 11-1204. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claims.

1

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant forfeited his right
to compensation for the period October 11, 2005 to October 13, 2009 as he knowingly failed to
report his employment activities; (2) whether OWCP properly determined that appellant received
a $296,717.53 overpayment of compensation for the period October 11, 2005 to October 13,
2009 based on his forfeiture of compensation; (3) whether OWCP properly found that appellant
was at fault in creating the $296,717.53 overpayment, such that it was not subject to waiver; and
(4) whether OWCP properly terminated appellant’s compensation effective April 20, 2010 as he
was convicted of compensation fraud.
On appeal, appellant asserts that he was not convicted of compensation fraud under 5
U.S.C. § 8148, that OWCP’s overpayment proceedings violated the double jeopardy clause of
the Constitution of the United States, that OWCP does not have the right to collect overpaid
compensation and that it miscalculated the period and amount of the forfeiture.
FACTUAL HISTORY
This is appellant’s second appeal before the Board in this case under File No. xxxxxx072.
By decision and order issued February 15, 2011,2 the Board affirmed a February 19, 2010
OWCP decision finding that the selected position of contract administrator properly represented
his wage-earning capacity as of February 26, 2009.3 The law and facts of the case as set forth in
the prior decision and order are incorporated by reference.
Under File No. xxxxxx072, OWCP accepted that on August 22, 2005 appellant, then a
34-year-old assistant chief counsel, sustained herniated L4-5 and L5-S1 discs with consequential
erectile dysfunction in a traumatic fall. Under File No. xxxxxx247, it accepted lumbar and
cervical strains, a lumbar strain and aggravation of a displaced lumbar disc sustained in a
traumatic incident on January 17, 2007. Appellant stopped work on January 17, 2007 and did
not return. The two referenced claim files have been combined by OWCP.
By decision dated January 17, 2007 under File No. xxxxxx247, OWCP granted appellant
a schedule award for six percent permanent impairment of each lower extremity. The period of
the award ran from October 30, 2006 to March 16, 2007. Appellant received compensation for
temporary total disability beginning March 4, 2007.4

2

Docket No. 10-1066 (issued February 15, 2011).

3

On February 26, 2009 in File No. xxxxxx072, OWCP reduced appellant’s wage-loss compensation effective that
day under sections 8106 and 8115 of FECA, based on his ability to earn $1,646.00 a week in the selected position of
contract administrator. After a request for a review of the written record and a reconsideration request, OWCP
affirmed the February 26, 2009 decision on July 13, 2009 and February 19, 2010.
4

In a January 17, 2008 decision, in File No. xxxxxx247, OWCP finalized as modified a June 22, 2007
preliminary overpayment finding that appellant received a $3,064.72 overpayment from March 4 to 17, 2007 as he
simultaneously received a schedule award under File No. xxxxxx247 and total disability compensation under File
No. xxxxxx072. This matter is not before the Board on the present appeal.

2

In a Form EN1032 dated June 16, 2006 under File No. xxxxxx072, appellant stated that,
from June 7, 1998 to August 22, 2005, he worked as a prosecutor at the employing establishment
earning $2,088.50 a week or $108,602.00 a year. He answered “no” to Question 2: “Were you
self-employed or involved in any business enterprise in the past 15 months?” Under File
No. xxxxxx072, in a Form EN1032 dated June 8, 2007, appellant stated that he worked from
October 2006 through January 17, 2007 as a prosecutor at the employing establishment, with
gross earnings of $2,001.00 a week and actual earnings of $1,349.00 a week. He indicated that
he had no other employment activities or related income. The EN1032 forms advised appellant
that a false or evasive answer to any question or the omission of an answer may be grounds for
forfeiting compensation and that a fraudulent answer may result in criminal prosecution.
A November 2007 grand jury indictment against appellant filed in the United States
District Court for the Central District of California lists four counts of making false statement to
obtain federal employees’ compensation, in violation of 18 U.S.C. § 1920. Appellant was
alleged to have failed to report income in excess of $1,000.00 from an alleged criminal enterprise
begun in 2003, in which he accepted bribes in exchange for filing false immigration and
employment documents.
On June 27, 2008 appellant was arrested and incarcerated due to the charges listed in the
grand jury indictment. He was released to home detention on July 18, 2008 and remanded to
custody on August 18, 2008.
In Forms EN1032 completed on June 7, 2008 and September 7 and October 13, 2009
under File No. xxxxxx072, appellant listed that he had no employment, self-employment or
earnings from employment activities during the 15-month period prior to completing the forms.5
OWCP calculated that from October 11, 2005 to October 13, 2009, appellant received a
total of $296,717.53 in temporary total disability compensation: $113,313.08 from October 11,
2005 to March 17, 2007 under File No. xxxxxx247 and $183,552.37 from March 18, 2007 to
October 13, 2009.
On April 20, 2010 appellant appeared in United States District Court for the Central
District of California and was found guilty on four counts of making false statements to obtain
FECA benefits under 18 U.S.C. § 1920, a felony offense.6 The jury verdict was filed with the
court on April 20, 2010.7
By decision dated May 14, 2010 under File Nos. xxxxxx072 and xxxxxx247, OWCP
terminated appellant’s compensation benefits effective April 20, 2010 based on his April 20,
2010 conviction for making a false statement to obtain benefits under FECA. It found that he
5

Appellant’s benefits were suspended temporarily on September 28, 2009 as he failed to timely submit a Form
EN1032 as requested. Benefits were reinstated retroactively to September 28, 2009.
6

Title 18 of the United States Code is entitled “Crimes and Criminal Procedure.” 18 U.S.C. § 1920 appears in
Chapter 93 of Title 18, entitled “Public Officers and Employees.”
7

Appellant was also convicted of multiple counts of conspiracy, bribery, obstruction of justice, money laundering
and criminal forfeiture.

3

was found guilty of violating 18 U.S.C. § 1920 by knowingly and willingly falsifying and
concealing material facts pursuant to an application for and receipt of FECA benefits. OWCP
further found that appellant failed to disclose employment activity and earnings from the
criminal enterprise on EN1032 forms dated June 8, 2007, June 7, 2008, September 27 and
October 13, 2009.
By decision dated June 30, 2010 under File No. xxxxxx072, OWCP found that appellant
forfeited his right to compensation for the period March 18, 2007 to October 13, 2009 as he
knowingly failed to report work activities on EN1032 forms dated June 8, 2007, June 7, 2008,
September 27 and October 13, 2009. By decision dated July 1, 2010 under File No.
xxxxxxx247, it found that he forfeited his right to compensation for the period October 11, 2005
to March 17, 2007, as he knowingly failed to report his employment activities.
By notices dated July 1, 2010, OWCP advised appellant of its preliminary determination
that he was overpaid $113,313.08 under File No. xxxxxx247 and $183.552. 37 under File No.
xxxxxx072, as his compensation was forfeit from October 11, 2005 to October 13, 2009 because
he knowingly failed to report employment activities and earnings from his criminal enterprise. It
found that, on EN1032 forms dated June 16, 2006, June 8, 2007, June 7, 2008, September 27 and
October 13, 2009, he knowingly failed to report his illegal work activities and the income
received therefore. OWCP found that appellant was at fault in creating the overpayments
because he did not provide information that he knew or should have known to be material.
In July 7, 2010 letters, appellant requested an oral hearing regarding the forfeiture
determination and a prerecoupment hearing regarding the overpayment determination. He later
agreed to a review of the written record on both issues as he could not attend the scheduled
hearings due to his incarceration.8 Appellant submitted a brief asserting that there was no
overpayment of compensation as he had not been convicted of compensation fraud. He
contended that OWCP’s proceedings violated the double jeopardy clause of the Constitution of
the United States. Appellant submitted an overpayment recovery questionnaire. He asserted that
his sole asset was $198.00 in cash. Appellant did not list any expenses.
The employing establishment submitted an October 25, 2010 brief explaining that
appellant’s April 20, 2010 conviction on four counts of violating 18 U.S.C. § 1920 met FECA
definition of compensation fraud under 5 U.S.C. § 8148.
By decision dated and finalized December 13, 2010, an OWCP hearing representative
affirmed OWCP’s May 14 and June 30, 2010 decisions and affirmed as modified the July 1,
2010 decision. The hearing representative found that OWCP miscalculated appellant’s
compensation for the period March 18, 2007 to July 5, 2008. The hearing representative noted
that from March 18, 2007 to March 15, 2008, appellant was issued 13 payments of $6,415.89,
8

On August 13, 2010 OWCP advised appellant that a video hearing would be held on October 18, 2010. In an
August 23, 2010 letter, appellant advised OWCP that he could not attend the scheduled hearing as he was
incarcerated. He asserted that he had not been convicted of fraud and requested a continuance. In a September 28,
2010 letter, OWCP advised appellant that he could request a review of the written record or a telephonic hearing.
Appellant responded by October 4, 2010 letter that he desired a review of the written record. On November 15,
2010 OWCP advised him that video hearings scheduled for December 3, 2010 would not be held as he could not
participate due to his incarceration.

4

totaling $83,406.57. For the period March 16 to July 5, 2008, appellant received four payments
of $6,692.00, totaling $26,768.00. The hearing representative determined that from March 18,
2007 to July 5, 2008, appellant received $111,606.87 in compensation, not $111,754.79 as
previously calculated, a difference of $147.92. This modified the total amount of the
overpayment from $183,552.37 to $183,404.45.
By decision dated February 24, 2011, an OWCP hearing representative finalized the
July 1, 2010 notice, finding an $113,313.08 overpayment of compensation for the period
October 11, 2005 to March 17, 2007. The hearing representative further found that appellant
was at fault in creation of the overpayment as he forfeited his compensation by committing
compensation fraud, as he failed to report earnings from his criminal enterprise on EN1032
forms dated June 16, 2006 under File No. xxxxxx247 and June 8, 2007 under File
No. xxxxxx072. Therefore, the overpayment was not subject to waiver.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides that an employee who “fails to make an affidavit or
report when required or knowingly omits or understates any part of his earnings, forfeits his right
to compensation with respect to any period for which the affidavit or report was required.”9
The Board has held that it is not enough merely to establish that there was unreported
employment or earnings. Appellant can only be subjected to the forfeiture provision of 5 U.S.C.
§ 8106(b) if he or she “knowingly” failed to report employment or earnings.10 The term
“knowingly” as defined in OWCP’s implementing regulations, means with knowledge,
consciously, willfully or intentionally.11 The Board has found that OWCP can meet this burden
of proof in several ways, including by appellant’s own admission to OWCP that he failed to
report employment or earnings which he knew he should report or by establishing that he has
pled guilty to violating applicable federal statutes by falsely completing the affidavits in the
EN1032 form.12
ANALYSIS -- ISSUE 1
The evidence of record establishes that appellant “knowingly” concealed his earnings and
employment activities from OWCP. The record reflects that, on April 20, 2010, appellant was
convicted in U.S. District Court on four felony counts of making a false statement to obtain
FECA benefits in violation of 18 U.S.C. § 1920, as he failed to report earnings and activities
related to a criminal enterprise he operated beginning in 2003, in which he received bribes from
immigrants in exchange for filing false immigration and employment documents.

9

5 U.S.C. § 8106(b).

10

Harold F. Franklin, 57 ECAB 387 (2006).

11

20 C.F.R. § 10.5(n).

12

Harold F. Franklin, supra note 10.

5

The Board finds that appellant’s conviction in U.S. District Court constitutes persuasive
evidence that he knowingly omitted his earnings and activities when he completed the affidavit
on EN1032 forms June 16, 2006, June 8, 2007, June 7, 2008, September 7 and October 13, 2009
and that the provisions of 5 U.S.C. § 8106(b)(2) therefore apply to the periods covered by the
affidavits. The Board therefore finds that he has forfeited his compensation benefits received
during the period October 11, 2005 to October 13, 2009.
LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of OWCP’s implementing regulations provide as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, [OWCP] shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C.
[§] 8129 [recovery of overpayments] and other relevant statues.”13
ANALYSIS -- ISSUE 2
As noted above, OWCP regulations provide that OWCP may declare an overpayment of
compensation for the period of a given forfeiture of compensation. If a claimant has any
earnings during a period covered by a Form EN1032 which he knowingly fails to report, he is
not entitled to any compensation for any portion of the period covered by the report, even though
he or she may not have had earnings during a portion of that period.14 OWCP paid appellant
compensation in the amount of $296,717.53 for the period October 11, 2005 to
October 13, 2009: $113,313.08 for the period October 11, 2005 to March 17, 2007 and
$183,404.45 for the period March 18, 2007 to October 13, 2009. It properly found that appellant
forfeited his entitlement to compensation during this time because he failed to report
employment activities and earnings related to his criminal enterprise on EN1032 forms.
Therefore, there exists an overpayment of compensation in the amount of $296,717.53.
On appeal, appellant asserts that he was not convicted of compensation fraud under 5
U.S.C. § 1848. As stated, he was convicted of four counts of compensation fraud. Appellant
also contends that OWCP miscalculated the amount and period of the forfeiture. The Board
finds that OWCP’s mathematical and calendrical calculations are correct.

13

20 C.F.R. § 10.529. See also Harold F. Franklin, supra note 10.

14

Robert Ringo, 53 ECAB 258 (2001).

6

LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.15 The only exception to this requirement is a
situation, which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”16 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.
In determining whether an individual is “without fault,” section 10.433(a) of OWCP’s
federal regulations provide, in relevant part:
“A recipient who has done any of the following will be found at fault with respect
to creating an overpayment -(1) Made an incorrect statement as to a material fact, which he or she
knew or should have known to be incorrect; or
(2) Failed to provide information, which he or she knew or should have
known to be material; or
(3) Accepted a payment, which he or she knew or should have known to
be incorrect. (This provision applies only to the overpaid individual.)”17
ANALYSIS -- ISSUE 3
In this case, the Board finds that appellant was at fault under the second standard as he
failed to provide information, which he knew or should have known to be material. As explained
above, appellant was found to have knowingly omitted his earnings when he completed the
EN1032 forms in question. Under the standards for finding fault in the creation of an
overpayment, a claimant is at fault if he failed to provide information that he knew or should
have known was material or made an incorrect statement as to a material fact that he knew or
should have known was incorrect. The discussion of the evidence on forfeiture establishes that
appellant made incorrect statements as to a material fact that he knew or should have known was
incorrect. Appellant signed the EN1032 forms which required him to report earnings and
activities advised him in explicit language that he might be subject to criminal penalties if he
made a false statement or misrepresentation to obtain compensation. By signing the form, is
deemed to have acknowledged his duty to fill out the form properly, including the duty to
accurately report any employment or self-employment activities and income.18 The Board finds
15

5 U.S.C. § 8129(a).

16

Id. at § 8129(b).

17

20 C.F.R. § 10.320(b).

18

See P.M., Docket No. 07-2169 (issued March 3, 2009).

7

appellant’s failure to state his earnings and employment activities is an incorrect statement as to
a material fact that he knew or should have known was incorrect. Therefore, appellant is at fault
in creation of the $296,717.53 overpayment, such that it was not subject to waiver.
On appeal, appellant contends that OWCP’s overpayment proceedings violated the
double jeopardy clause of the Constitution of the United States. However, the Board does not
have jurisdiction to review Constitutional matters.19 Appellant also asserts that OWCP has no
right to collect overpaid compensation. As stated, section 10.529 of OWCP’s implementing
regulations authorize recovery of compensation paid during a period of forfeiture.20
LEGAL PRECEDENT -- ISSUE 4
Section 8148 of Title 5 of the United States Code, states, in part:
“(a) Any individual convicted of a violation of section 1920 of Title 18 or any
other Federal or State criminal statute relating to fraud in the application for or a
receipt of any benefit under [FECA], shall forfeit (as of the date of such
conviction) any entitlement to any benefit such individual would otherwise be
entitled to under [FECA] for any injury occurring on or before the date of such
conviction. Such forfeiture shall be in addition to any action the Secretary may
take under section 8106 or 8129.”
Section 10.17 of the implementing federal regulations provide, as follows:
“When a beneficiary either pleads guilty to or is found guilty on either Federal or
State criminal charges of defrauding the Federal Government in connection with a
claim for benefits, the beneficiary’s entitlement to any further compensation
benefits will terminate effective the date either the guilty plea is accepted or a
verdict of guilty is returned after trial….”21
Public Law 103-112, 107 Stat. 1089, enacted on October 21, 1993, prohibits individuals
who have been convicted of fraud related to their claims from receiving further benefits paid
under FECA. Subsequently, Public Law 103-333, enacted on September 30, 1994, added section
8148, which provides for: (a) the termination of benefits payable to beneficiaries who have been
convicted of defrauding the program; and (b) the suspension of benefits payable to beneficiaries
imprisoned as a result of a felony conviction.22

19

See Vittorio Pittelli, 49 ECAB 181 (1997) (finding that as an administrative body the Board does not have
jurisdiction to review a constitutional claim).
20

The Board does not have jurisdiction over manner of recovery as OWCP’s decisions did address recovery of
the overpayments. See 20 C.F.R. § 501.2(c). In any event, the Board’s jurisdiction is limited to those cases where
OWCP seeks recovery from continuing compensation benefits under FECA. D.R., 59 ECAB 148 (2007).
21

20 C.F.R. § 10.17.

22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12(a) (March 1977). See
5 U.S.C. § 8148. See also Terry A. Keister, 56 ECAB 559 (2005).

8

OWCP procedures require that, to support termination or suspension of benefits under
section 8148, the case record must contain: a copy of the indictment or information; a copy of
the plea agreement, if any; a copy of the document containing a guilty verdict; and/or a copy of
the court’s docket sheet. Further, this evidence must establish: (1) the individual was convicted;
and (2) the conviction is related to the claim for or receipt of benefits under FECA.23 The
effective date of termination in fraud cases under section 8148(a) is the date of conviction, which
is the date of the verdict or in cases of a plea agreement, the date the claimant made the plea in
open court (not the date of sentencing or when the court papers were signed).24 Due to the nature
of a termination involving fraud, no pretermination notice is required before issuing a final
decision.25
ANALYSIS -- ISSUE 4
The Board finds that OWCP properly terminated appellant’s compensation benefits on
the grounds that he was convicted of four federal felony counts of making unlawful statements to
obtain FECA compensation under 18 U.S.C. § 1920.
Under section 8148(a), a claimant who is convicted of fraud in obtaining compensation
benefits under 18 U.S.C. § 1920 or any other statute relating to fraud in the application for or a
receipt of any benefit under FECA, will have his compensation terminated. Such a claimant is
thereafter permanently barred from receiving any compensation under FECA. The fact of
overpayment is established by the conviction on April 20, 2010 in which appellant was convicted
of four counts of making false statements to obtain FECA compensation. Under the terms of the
statute, he forfeited his entitlement to compensation benefits following the April 20, 2010
conviction. For this reason, OWCP properly terminated appellant’s compensation benefits under
section 8148(a).
CONCLUSION
The Board finds that OWCP properly determined that appellant forfeited his right to
compensation for the period October 11, 2005 to October 13, 2009, as he knowingly failed to
report his employment activities. The Board further finds that OWCP properly determined that
he received a $296,717.53 overpayment of compensation for the period October 11, 2005 to
October 13, 2009 based on his forfeiture of compensation. The Board further finds that OWCP
properly found appellant at fault in creating the $296,717.53 overpayment, such that it was not
subject to waiver. The Board further finds that OWCP properly terminated his compensation
effective April 20, 2010 as he was convicted of compensation fraud.

23

Federal (FECA) Procedure Manual, supra note 22, Chapter 2.1400.12(d) (March 1977).

24

Id. at Chapter 2.1400.12(e)(1).

25

Jorge E. Sotomayor, 52 ECAB 105 (2000); see also id. at Chapter 2.1400.12(f)(2).

9

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 24, 2011 and December 13, 2010 are affirmed.
Issued: February 8, 2012
Washington, DC

Richard J. Daschbach, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-0394
Issued: February 25, 2021

Case Submitted on the Record

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

On January 11, 2021 appellant filed an appeal from a December 3, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0394.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP 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 December 3, 2019 decision was May 31, 2020. As appellant
did not file an appeal with the Board until January 11, 2021, more than 180 days after the
December 3, 2019 OWCP decision, the Board finds that the appeal docketed as No. 21-0394 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0394 is dismissed.
Issued: February 25, 2021
Washington, DC

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

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

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

3

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
1
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-1550
Issued: May 5, 2017

Case Submitted on the Record

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

JURISDICTION
On July 27, 2016 appellant, through counsel, filed a timely appeal from an April 22, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish permanent
impairment to a scheduled member, warranting a schedule award.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 42-year-old mail handler, filed an occupational disease claim (Form CA-2)
on June 2, 2006, alleging that she developed a sciatica/lumbar nerve condition causally related to
factors of her federal employment. OWCP accepted the claim for lumbar strain and lumbar
radiculopathy.
The Board notes that the instant claim was administratively combined with two other
claims: a May 3, 2009 injury assigned File No. xxxxxx785, which OWCP accepted for lumbar
sprain, lumbosacral joint/ligament sprain and lumbosacral neuritis and/or radiculitis; and a
June 20, 2007 injury assigned File No. xxxxxx421 which OWCP accepted for lumbar sprain.
On May 1, 2012 appellant underwent a magnetic resonance imaging (MRI) scan, the
results of which showed stenotic changes at the L4-5 level, with evidence of disc protrusion at
that level; L5-S1 moderate central and left posterolateral disc osteophyte bulge with moderate
mass effect on the left lateral recess and the S1 nerve root; L3-4 left lateral recess stenosis,
possibly affecting the L4 nerve root; and moderate left neural foraminal stenosis; possibly
affecting the L3 nerve.
On July 25, 2012 appellant filed a claim for a schedule award (Form CA-7) based on a
partial loss of use of her right and left lower extremities.
By decision dated January 25, 2013, OWCP denied appellant’s claim for a schedule
award finding that she had not established permanent impairment causally related to her accepted
lumbar conditions.
By letter dated January 31, 2013, appellant, through counsel, requested an oral hearing
before OWCP’s Branch of Hearings and Review, which was held on May 16, 2013.
In a June 14, 2013 report, Dr. Martin Fritzhand, a Board-certified urologist, advised that
appellant had well documented L4 and S1 radiculopathies. He noted on examination that she
walked with a limp gait and had some difficulty forward bending. Dr. Fritzhand further noted
that she had nerve root damage shown by a diminished right Achilles tendon reflex, atrophy
involving the right leg, and reduced muscle strength in both lower extremities. He advised that
he utilized Table 16-11, page 535 of the American Medical Association, Guides to the
Evaluation of Impairment (6th ed. 2009) (A.M.A., Guides), to find an impairment of severity
level 1, for a mild motor deficit for each lower extremity. Dr. Fritzhand also relied on Proposed
Table 2 of the July/August 2009 The Guides Newsletter, finding that appellant had documented
involvement of both the L4 and S1 nerve roots, class 1 impairments. He found that appellant had
a grade modifier for Functional History (GMFH) of 1 according to Table 16-6,3 and a grade 2
modifier for Clinical Studies (GMCS) at Table 16-8.4 Applying the net adjustment formula of
(GMFH-CDX) + (GMCS-CDX), or (2-1) + (1-1) resulted in a net modifier of +1, raising the
3

Table 16-6, page 516 of the sixth edition of the A.M.A., Guides is titled “Functional History
Adjustment: Lower Extremities.”
4

Table 16-8, page 519 of the sixth edition of the A.M.A., Guides is titled “Clinical Studies Adjustment: Lower
Extremities.”

2

default CDX from C to D, equaling seven percent permanent impairment of the left and right
upper extremities, secondary to the L4 impairment rating, in addition to four percent permanent
impairment of each lower extremity, secondary to the S1 impairment for each lower extremity.
Dr. Fritzhand concluded, based on the Combined Values Chart that appellant had 11 percent
lower extremity permanent impairment.
By decision dated August 1, 2013, OWCP’s hearing representative set aside the
January 25, 2013 decision, finding that Dr. Fritzhand’s June 14, 2013 report constituted
sufficient evidence to warrant further development of the medical evidence. She remanded to
the district office for referral of appellant’s medical records, to an OWCP medical adviser to
determine whether appellant had any impairment from her accepted lumbar conditions.
In a report dated August 24, 2013, Dr. Morley Slutsky, Board-certified in occupational
medicine and an OWCP medical adviser, found that the medical evidence appellant submitted
did not provide a basis for a ratable impairment under FECA. He reviewed appellant’s lumbar
MRI scans of May 17, 2011 and April 30, 2010 and noted that the report of her recent
electromyelogram (EMG) testing, which was reported to be positive for chronic bilateral
radiculopathy, was unavailable for review. Dr. Slutsky advised that the majority of physicians of
record either found no motor deficits in appellant’s lower extremities or reported motor strength
deficits that were nonspecific or limited by pain. OWCP’s medical adviser further opined that
the majority of physicians of record found that she had no specific lower extremity sensory loss
and normal lower extremity reflexes.
With regard to Dr. Fritzhand’s finding of motor loss in appellant’s bilateral L4 and S1
distributions, Dr. Slutsky advised that such a finding was inconsistent with her diagnostic test
results and the examination findings of the other physicians of record. He concluded that, based
on the medical evidence of record, and on appellant’s normal lower extremity strength and
sensation, there was no basis for a rating of lower extremity impairment under the
July/August 2009 The Guides Newsletter.
By decision dated October 3, 2013, OWCP denied appellant’s claim for a schedule
award, finding that she had not established permanent impairment causally related to her
accepted lumbar radiculopathy condition.
By letter dated October 7, 2013, appellant, through counsel, requested an oral hearing
before a representative of OWCP’s Branch of Hearings and Review, which was held on
March 12, 2014.
A May 22, 2013 report indicated that appellant underwent EMG and nerve conduction
velocity (NCV) testing. The tests showed findings that were consistent with chronic bilateral L5
and S1 radiculopathy; reinnervation changes were more severe on the left L5 muscles; and no
nerve entrapment was demonstrated.
By decision dated April 30, 2014, OWCP’s hearing representative set aside the
October 3, 2013 decision, finding that Dr. Slutsky’s August 24, 2013 report did not merit the
weight of the medical evidence of record, as he did not consider the findings set forth in
appellant’s May 1, 2012 lumbar MRI scan or her May 22, 2013 EMG/NCV test. He remanded

3

to the district office for referral of appellant’s medical records, including Dr. Fritzhand’s
June 14, 2013 report, to an OWCP medical adviser to consider these diagnostic tests and
determine whether she had any impairment from her accepted lumbar conditions, and whether
the medical evidence of record was sufficient to demonstrate appellant’s entitlement to a
schedule award.
In a May 23, 2014 report, Dr. Slutsky noted that he reviewed the May 1, 2012 lumbar
MRI scan and the bilateral lower extremity EMG/NCV testing and concluded that these
diagnostic tests did not provide any basis for finding ratable impairment under the
July/August 2009 The Guides Newsletter. He advised that, although the changes shown by the
diagnostic MRI scans and the May 22, 2013 EMG/NCV test showed lumbar nerve root
involvement, these findings did not translate into physical deficits (sensory/motor/reflex) in the
lower extremities. OWCP’s medical adviser reiterated that the majority of the physicians of
record, including Dr. Fritzhand, found no sensory loss in either lower extremity related to the
lumbar spine nerve roots and no lower extremity motor deficits or reflex abnormalities related to
the lumbar spine nerve roots. Accordingly, based on these clinical findings, which, he opined,
were the key factors used to rate lower extremity deficits related to spinal nerve roots under the
July/August 2009 The Guides Newsletter, Dr. Slutsky found no basis for a lower extremity
impairment rating.
By decision dated June 5, 2014, OWCP denied appellant’s claim for a schedule award,
finding that she had not established permanent impairment causally related to her accepted
lumbar radiculopathy condition.
By letter dated June 11, 2014, appellant, through counsel, requested an oral hearing
before a representative of OWCP’s Branch of Hearings and Review.
By decision dated December 15, 2014, an OWCP hearing representative set aside
OWCP’s June 5, 2014 decision. He noted that, while Dr. Slutsky found no basis for lower
extremity impairment because Dr. Fritzhand’s examination findings were inconsistent with those
made by prior physicians of record, he did not examine her and made no findings based on his
own examination. The hearing representative, therefore, found that Dr. Slutsky’s opinion
regarding permanent impairment was insufficient to represent the weight of medical opinion. He
remanded the case and instructed the district office to refer appellant to a second opinion
physician for an impairment evaluation, to determine whether she had permanent impairment
causally related to her accepted lumbar conditions in accordance with the July/August 2009 The
Guides Newsletter.
In order to determine whether appellant had sustained any ratable permanent impairment
from his accepted conditions, OWCP referred appellant to Dr. Norman Mindrebo, Boardcertified in orthopedic surgery, for a second opinion examination and impairment evaluation. In
a February 19, 2015 report, Dr. Mindrebo found that appellant had no ratable permanent
impairment causally related to her accepted lumbar radiculopathy condition. He advised on
examination that there was no palpable paravertebral muscle spasm of the lumbar spine and no
buttock spasm. Dr. Mindrebo noted that the straight leg raise examination was negative in both
legs and that there were no motor deficits to strength testing of the hips, knees, or ankles
including her feet and great toes. He advised that appellant had preexisting cervical and lumbar

4

spondylosis with severe facet joint arthropathy and associated degenerative disc disease, and
opined that there was no specific injury date to explain the disc bulge on the left side at L5-S1, a
finding which was often associated with degenerative disc changes and lumbar spondylosis as a
natural progression of her disease. Dr. Mindrebo concluded that her work-related injuries were
temporary exacerbations of her underlying degenerative disc disease, which had obviously
progressed, based on the MRI scan studies which were basically serial in nature from 2007 until
2012.
Dr. Mindrebo concurred with Dr. Slutsky’s opinion that because appellant had no motor
deficits, deep tendon reflex deficits, and no sensory deficits to the lower extremities, she did
meet the criteria for a permanent impairment secondary to her underlying degenerative lumbar
spondylosis. He advised that, as she had severe lumbar spondylosis at multiple levels which
appeared degenerative in nature, she had a preexisting, worsening condition which was
temporarily exacerbated, but had long since resolved. As a result Dr. Mindrebo opined that
while her underlying disease process had progressed, her objective, diagnostic findings were not
related to her employment.
In a May 21, 2015 report, Dr. Daniel D. Zimmerman, a specialist in internal medicine and
an OWCP medical adviser, concurred with Dr. Mindrebo’s findings and conclusions and found
that appellant had no ratable permanent impairment of either lower extremity due to a lumbar
spine condition, pursuant to the July/August 2009 The Guides Newsletter.
By decision dated June 19, 2015, OWCP denied appellant’s claim for a schedule award,
finding that she had not established any permanent impairment causally related to her accepted
lumbar radiculopathy condition.
By letter dated June 30, 2015, counsel requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
By decision dated April 22, 2016, an OWCP hearing representative affirmed the June 19,
2015 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA5 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. It, however, does
not specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has

5

5 U.S.C. § 8107

5

concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment for the Class
of Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on Functional
History, Physical Examination (GMPE), and Clinical Studies.9 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
Neither FECA nor its regulations provide for a schedule award for impairment to the
back or to the body as a whole.10 Furthermore, the back is specifically excluded from the
definition of organ under FECA.11 The sixth edition of the A.M.A., Guides does not provide a
separate mechanism for rating spinal nerve injuries as impairments of the extremities.
Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, The
Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth
edition methodology. For peripheral nerve impairments to the upper or lower extremities
resulting from spinal injuries, OWCP procedures indicate that July/August 2009 The Guides
Newsletter is to be applied.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.13
ANALYSIS
OWCP accepted that appellant sustained the conditions of lumbar strain and lumbar
radiculopathy. On July 25, 2012 appellant claimed a schedule award for impairment of the
extremities originating in the spine. She provided a June 14, 2013 report from Dr. Fritzhand,
who rated 11 percent bilateral lower extremity permanent impairment under the A.M.A., Guides
6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

A.M.A., Guides at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement” (6th ed. 2009).
9

Id. at 494-531 (6th ed. 2009).

10

See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

11

See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010). The
Guides Newsletter is included as Exhibit 4.
13

Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) (February 2013).

6

and the July/August 2009 The Guides Newsletter, finding that she had mild motor deficit for
each lower extremity based on documented involvement of both the L4 and S1 nerve roots.
OWCP obtained a second opinion from Dr. Mindrebo, who found in his February 19, 2015
report that appellant had no ratable permanent impairment causally related to her accepted
lumbar radiculopathy condition. Dr. Mindrebo based this opinion on the fact that she had no
motor deficits, deep tendon reflex deficits, and no sensory deficits to the lower extremities. He
opined that she had severe, degenerative lumbar spondylosis at multiple levels, but that this was
a preexisting, worsening condition which was temporarily exacerbated, and which had long since
resolved. Dr. Mindrebo therefore opined that, while her underlying disease process had
progressed, the objective, diagnostic findings shown by MRI scan and EMG/NCV test were
unrelated to her employment. An OWCP medical adviser concurred with Dr. Mindrebo’s rating
and methodology.
The Board finds that OWCP properly accorded Dr. Mindrebo’s impairment rating the
weight of the medical evidence. Dr. Mindrebo’s opinion was based on a statement of accepted
facts and the complete medical record. He provided a detailed impairment rating, utilizing the
appropriate portions of the A.M.A., Guides and The Guides Newsletter. Dr. Mindrebo described
how objective clinical and electrodiagnostic findings did not provide the basis for a ratable
impairment attributable to appellant’s lumbar radiculopathy condition. OWCP properly found
that appellant had no ratable permanent impairment attributable to his accepted lumbar
radiculopathy condition and therefore was not entitled to a schedule award under the A.M.A.,
Guides. Therefore, OWCP’s April 22, 2016 decision was proper under the law and facts of this
case.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment to a scheduled member of her body causally related to her accepted lumbar
radiculopathy condition, thereby entitling her to a schedule award under 5 U.S.C. § 8107.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 22, 2016 is affirmed.
Issued: May 5, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, CINCINNATICORRYVILLE STATION, Cincinnati, OH,
Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0703
Issued: November 19, 2021

Case Submitted on the Record

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

On April 1, 2021 appellant, through counsel, sought an appeal from a purported
January 25, 2021 final adverse decision of the Office of Workers’ Compensation Programs
(OWCP). The Clerk of the Appellate Boards assigned Docket No. 21-0703.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed the appeal.3 Counsel indicated that the appeal was filed with regard to a January 25,
1

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

5 U.S.C. § 8101 et seq.; id. at §§ 501.2(c) and 501.3(a).

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
3

2021 OWCP decision. However, the January 25, 2021 OWCP decision was not a final adverse
decision, rather, it was a preliminary overpayment determination. Section 501.2 (c)(2) of the
Board’s Rules of Procedure provides: “There will be no appeal with respect to any interlocutory
matter decided (or not decided) by OWCP during the pendency of a case. ”4 Consequently, the
case record as transmitted to the Board does not contain a final adverse decision of OWCP issued
within 180 days from the date of docketing of the current appeal. 5 As there is no final adverse
decision issued by OWCP over which the Board may properly exercise jurisdiction, the Board
concludes that the appeal docketed as No. 21-0703 must be dismissed.6 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0703 is dismissed.
Issued: November 19, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4

Id. at § 501.2(c)(2).

5

Id. The Board notes that an appeal from OWCP decisions dated April 6, 2021 and May 7, 2021 will proceed
under Docket No. 21-0954.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
6

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________
Appearances:
Margaret Marshall, for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0338
Issued: June 29, 2021

Case Submitted on the Record

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

On January 12, 2021 appellant, through counsel, filed a timely appeal from an August 28,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as No. 21-0338.
On May 14, 2020 appellant, then a 62-year-old electrician, filed an occupational disease
claim (Form CA-2) alleging that he sustained increased hearing loss due to factors of his federal
employment. OWCP assigned the claim OWCP File No. xxxxxx885.2

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
OWCP previously accepted a January 1, 2012 occupational disease claim for bilateral hearing loss and tinnitus
under OWCP File No. xxxxxx268.

OWCP received an undated statement wherein appellant detailed his prior federal and
nonfederal employment. Appellant indicated that he had previously filed a schedule award claim
in 2014 for which he had received a schedule award for 22 percent binaural hearing loss.
Appellant submitted an audiogram dated March 4, 2020.
In a development letter dated May 21, 2020, OWCP advised appellant that additional
factual and medical evidence was necessary to establish his claim. Specifically, it stated that there
was no diagnosis of any condition resulting from employment, nor a physician’s opinion as to how
appellant’s employment activities caused or contributed to his diagnosed condition. OWCP
requested that appellant submit copies of all audiograms taken while employed with the employing
establishment. It afforded appellant 30 days to submit the necessary evidence.
In a letter dated June 25, 2020, counsel stated that reproduction and digitalization services
were suspended until further notice due to the COVID-19 pandemic, and thus, appellant’s
audiogram records could not be obtained.
In a letter dated July 7, 2020, OWCP granted appellant an additional 30 days to submit the
requested medical evidence.
In letters dated July 22 and August 14, 2020, counsel stated that the audiogram records
were still not able to be retrieved.
By decision dated August 28, 2020, OWCP denied appellant’s occupational disease claim
in File No. xxxxxx885 as appellant had not submitted medical evidence containing a diagnosis
causally related to the accepted employment factors. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between case files.3 For example,
if a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.4 In the present claim, appellant
alleged hearing loss. OWCP had previously accepted his claim for bilateral hearing loss under
OWCP File No. xxxxxx268. However, evidence pertaining to that file is not part of the case record
presented before the Board. For a full and fair adjudication, the case must be remanded to OWCP
to administratively combine the current case record, OWCP File No. xxxxxx885, with OWCP File
No. xxxxxx268, so it can consider all relevant claim files and accompanying evidence in
adjudicating appellant’s current occupational disease claim. The Board will remand the case to

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000); T.D., Docket No. 20-1119 (issued January 29, 2021); R.R., Docket No. 19-0368 (issued
November 26, 2019).
4

Id.; M.B., Docket No. 20-1175 (issued December 31, 2020); L.M., Docket No. 19-1490 (issued January 29, 2020).

2

OWCP. Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the August 28, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: June 29, 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
__________________________________________
J.W., Appellant
and
DEPARTMENT OF AGRICULTURE, OFFICE
OF CIVIL RIGHTS, Washington, DC, Employer
__________________________________________

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

Docket No. 14-246
Issued: April 11, 2014

Case Submitted on the Record

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

JURISDICTION
On November 4, 2013 appellant filed a timely appeal from an October 23, 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.2
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability on October 24, 2010 of the accepted November 13, 2003 lumbar sprain.
1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant filed a request for a hearing with OWCP’s Branch of Hearings and Review
simultaneous with his appeal with the Board. OWCP cannot exercise simultaneous jurisdiction with the Board over
the same issue in the same case. Following the docketing of an appeal with the Board, OWCP does not retain
jurisdiction to render a further decision regarding a case on appeal until after the Board relinquishes its jurisdiction.
Any decision rendered by OWCP while the Board has jurisdiction on the same issue is null and void. Jacqueline S.
Harris, 54 ECAB 139 (2002).

FACTUAL HISTORY
On November 13, 2003 appellant, then a 53-year-old complaints examiner investigator,
sustained an employment-related lumbar sprain when his office chair collapsed.
A
November 17, 2003 x-ray of the lumbar spine demonstrated mild degenerative changes. Medical
history indicated that appellant had previous lumbar spine surgery in 1991. On March 23, 2004
Dr. Richard B. Reff, an attending Board-certified orthopedic surgeon, indicated that he reviewed
a March 10, 2004 magnetic resonance imaging (MRI) scan study that demonstrated no
significant spondylolisthesis and lumbar spondylosis and a disc bulge at L3-4 and bulges at L4-5
and L5-S1 with no absolute herniation. Appellant continued to receive medical care including
pain management through July 21, 2004 when Dr. Reff reported that appellant had continued low
back pain and additionally had radiating neck pain and limitation of right shoulder motion.
Dr. Reff recommended physical therapy. The record does not indicate that appellant received
wage-loss compensation during this period.
On May 11, 2012 appellant filed a recurrence claim, stating that he was dressing for work
and his back went out on approximately October 24, 2010. He stated that he first received
medical treatment for the claimed recurrence on November 20, 2011.
By letter dated July 18, 2012, OWCP informed appellant of the type of evidence needed
to support the claimed recurrence. It noted that the last medical evidence of record was dated
July 21, 2004 and advised appellant to provide all medical records for the employment injury
from that date to the present with a narrative opinion from his physician that addressed the
relationship between his current medical condition and the November 13, 2003 employment
injury.
In a questionnaire dated August 21, 2012, appellant described the November 2003 injury.
He indicated that he left federal employment on May 31, 2005 and returned on September 13,
2010 as a reemployed annuitant, and that while away from federal employment he continued to
experience back pain and visited the doctor but mostly self-medicated with over-the-counter
medication until November 20, 2011. Appellant stated that, upon returning to work, he had to
ride the Metro train system, which placed enormous strain and continuous impact on his back
and lumbar region. He maintained that the constant motion going to and from work aggravated
the November 13, 2003 employment injury, causing constant pain and back spasms. Appellant
stated that his back went out approximately 10 times, culminating in the October 2010 incident
when his back went out while he was preparing for work.3 He also indicated that sitting in his
work chair caused pain and that he had requested an ergonomic chair, which had not been
provided. Appellant indicated that he had received medical care for the recurrent back pain
beginning on June 17, 2011.

3

In the August 21, 2012 questionnaire, appellant indicated that before leaving federal service in 2005 he was
treated by a Dr. Slappey in Rockville, Maryland. The record before the Board contains no medical reports from
Dr. Slappey. The medical reports dated from November 17, 2003 to July 21, 2004 are from Dr. William E. Smith,
Jr. in Pensacola, Florida, Dr. Reff whose office is in Bethesda, Maryland, and Dr. Lester Zuckerman, who has an
office in Rockville, Maryland. Appellant also submitted a handwritten questionnaire that is essentially illegible.

2

A July 1, 2011 MRI scan study of the lumbar spine demonstrated previous surgery at the
L4-5 level and degenerative disc disease at multiple levels. In a March 2, 2012 report,
Dr. Corey A. Wallach, a Board-certified orthopedic surgeon, noted a history of chronic radiating
low back pain for three months, aggravated by standing and walking for long periods and that
this made appellant miss work. He advised that appellant walked with an antalgic gait. No
weakness or sensory deficits were noted on physical examination. Dr. Wallach diagnosed
lumbago and degenerative disc disease. On March 21, 2012 he reviewed an MRI scan study,
indicating that it showed significant stenosis at L3-4 and L4-5. On May 10, 2012 appellant had
an epidural steroid injection. In a May 21, 2012 report, Dr. Wallach noted appellant’s report that
the injection did not provide relief and that he was frustrated with his chronic throbbing pain. He
indicated that appellant had limited lumbar flexion and extension and a positive straight leg
raising test bilaterally. Dr. Wallach diagnosed lumbar spinal stenosis and requested that
appellant be allowed to work from home five days a week. Appellant also submitted a sick leave
audit from pay period 19 in 2010 through pay period 16 in 2012.
By decision dated October 23, 2013, OWCP denied the recurrence claim on the grounds
that the evidence of record was insufficient to establish that he sustained a worsening of the
accepted condition.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.”4 An individual person who claims a recurrence of disability due to an
accepted employment-related injury has the burden of establishing by the weight of the substantial,
reliable, and probative evidence that the disability for which he or she claims compensation is
causally related to the accepted injury. This burden of proof requires that an employee furnish
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disabling condition is causally related to the employment injury
and supports that conclusion with sound medical reasoning.5 Where no such rationale is present,
medical evidence is of diminished probative value.6
ANALYSIS
OWCP accepted that on November 13, 2003 appellant sustained an employment-related
lumbar sprain. On May 11, 2012 appellant filed a recurrence claim, indicating that he sustained
a recurrence of disability on approximately October 24, 2010 when his back went out. The
Board finds that he has not submitted sufficient evidence to support the recurrence claim.

4

20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007).

5

S.S, 59 ECAB 315 (2008).

6

See Ronald C. Hand, 49 ECAB 113 (1997).

3

Medical evidence of bridging symptoms must demonstrate that the claimed recurrence is
causally related to the accepted injury.7 While appellant maintained that he continued to have
back symptoms between 2004, the date of the last medical report, and 2010, when he claimed a
recurrence of disability, he submitted no medical evidence to support this assertion. In support
of his recurrence claim, he submitted a July 1, 2011 MRI scan study of the lumbar spine that
demonstrated degenerative disc disease at multiple levels. The report, however, contains no
opinion as to the cause of the diagnosed condition and 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 causal relationship.8 In reports dated March 2 to May 21, 2012, Dr. Wallach provided
physical examination findings and diagnosed lumbago and degenerative disc disease. However,
he did not explain how appellant’s current condition was related to the accepted November 13,
2003 employment injury. In fact, he did not mention the prior employment injury at all. Thus,
his reports are of little probative value.9
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury.10 Appellant did not submit sufficient evidence to show that the claimed
recurrence and disability were causally related to the November 2003 employment injury.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of disability causally related to the accepted November 13, 2003
employment injury.

7

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

8

Willie M. Miller, 53 ECAB 697 (2002).

9

P.H., Docket No. 13-955 (issued November 25, 2013).

10

Ronald C. Hand, supra note 5.

11

Id.

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ORDER
IT IS HEREBY ORDERED THAT the October 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5