United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Bragg, NC, Employer
__________________________________________

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

Docket No. 15-761
Issued: June 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 18, 2015 appellant, through counsel, filed a timely appeal from a January 6,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant’s collapse at work and cardiac arrest on October 16, 2012
was in the performance of duty within the meaning of FECA.
On appeal counsel asserts that in its January 6, 2015 decision OWCP improperly
concluded that an expert opinion regarding appellant’s cardiac arrest was equivocal.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a March 21, 2014 decision, the Board
found that appellant had not sustained an injury in the performance of duty on October 16, 2012
and that she had not established a stress-related condition due to the accepted employment factor,
that her job duties as a dispatcher included interacting with the public in emergency and stress
situations.2
On November 18, 2014 appellant, through counsel, requested reconsideration and
submitted an undated correspondence report from Dr. Rommel, an attending Board-certified
internist.3 In that report he stated that he had been treating appellant since October 17, 2012
following her cardiac arrest at work. Dr. Rommel noted that after testing she was found to have
a prolonged QT and genetic testing demonstrated a mutation consistent with congenital long QT
syndrome. He advised that the mutation was associated with increased cardiac events, especially
with exercise and auditory stimulation. Dr. Rommel concluded that it was reasonable to assume
that appellant’s cardiac arrest was due to an undiagnosed genetic abnormality, and that “her
arrest could have come from an auditory stimulation while at work.” He advised that she
remained at increased risk for a cardiac event due to her genetic condition.
In a merit decision dated January 6, 2015, OWCP found Dr. Rommel’s opinion
speculative and denied modification of prior decisions.
LEGAL PRECEDENT
It is a general rule that where an injury arises in the course of employment, occurs within
the period of employment, at a place where the employee reasonably may be and takes place
while the employee is fulfilling her duties or is engaged in doing something incidental thereto,
the injury is compensable unless it is established to be within an exception to the general rule.
One of the exceptions to the general rule is an idiopathic fall.4
An injury resulting from an idiopathic fall -- where a personal, nonoccupational
pathology causes an employee to collapse and to suffer injury upon striking the immediate
supporting surface, and there is no intervention or contribution by any hazard or special
condition of employment -- is not within coverage of FECA. Such an injury does not arise out of
a risk connected with the employment and is, therefore, not compensable. However, the fact that
the cause of a particular fall cannot be ascertained or that the reason it occurred cannot be
2

Docket No. 13-1640 (issued March 21, 2014). On October 16, 2012 appellant, a public safety dispatcher, fell
while walking from the break room and went into cardiac arrest. She was resuscitated and transported to Womack
Army Medical Center where she was stabilized. On October 17, 2012 appellant was transferred to University of
North Carolina Health Care, where she was diagnosed with long QT syndrome. She was discharged on
October 25, 2012. Appellant was treated by Dr. John Rommel, a Board-certified internist. Dr. Rommel advised that
appellant’s genetic cardiac condition could be triggered by stress and being startled.
3

Appellant had also submitted medical evidence describing a left shoulder and left knee condition, not relevant to
the instant appeal.
4

Roger Williams, 52 ECAB 468 (2001).

2

explained, does not establish that it was due to an idiopathic condition. If the record does not
establish that the particular fall was due to an idiopathic condition, it must be considered as
merely an unexplained fall.5 To properly apply the idiopathic fall exception to the premises rule,
there must be two elements present: a fall resulting from a personal, nonoccupational pathology,
and no contribution from the employment.6 OWCP has the burden of proof to submit medical
evidence showing the existence of a personal, nonoccupational pathology if it chooses to make a
finding that a given fall is idiopathic in nature.
While the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should
be expressed in terms of a reasonable degree of medical certainty.7
ANALYSIS
In its March 21, 2014 decision, the Board found that appellant had failed to establish a
stress-related condition causally related to the accepted factor of employment.8 Because
appellant had not provided evidence regarding this issue with the November 18, 2014
reconsideration request, and because OWCP had not addressed it in the January 6, 2015 decision,
the matter is res judicata and not subject to further review by the Board absent further review by
OWCP.9 The remaining issues remain before the Board.
The Board finds that appellant failed to establish that her collapse on October 16, 2012 at
work were in the performance of duty within the meaning of FECA. In the report submitted on
reconsideration, Dr. Rommel found that appellant had genetic markers consistent with congenital
long QT syndrome and that this condition is associated with increased incidence of cardiac
events. He went on to surmise that appellant’s cardiac arrest was due to an undiagnosed genetic
abnormality and added that it was “reasonable that her arrest could have come from an auditory
stimulation at work.” This supposition is insufficient to meet her burden of proof. First,
Dr. Rommel couched his opinion in speculative terms, and the opinion of a physician supporting
causal relationship must not be speculative or equivocal. To be probative, an opinion should be
expressed in terms of a reasonable degree of medical certainty.10 Second, the record contains no
evidence that at the time of appellant’s cardiac arrest on October 16, 2012 she had been
subjected to any auditory stimulus. In fact, the witness statements indicate that she was walking
from the break room when she collapsed.11
5

M.M., Docket No. 08-1510 (issued November 25, 2008).

6

N.P., Docket No. 08-1202 (issued May 8, 2009).

7

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

8

Supra note 2.

9

David E. Newman, 48 ECAB 305 (1997); Hugo A. Mentink, 9 ECAB 628 (1958). A decision of the Board is
final upon the expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d).
10

Supra note 8.

11

Supra note 2.

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Dr. Rommel’s opinion lacks the probative value to establish that a work factor caused
appellant’s collapse and cardiac arrest on October 16, 2012. Moreover, there is no indication
that appellant struck anything while falling. Her fall on October 16, 2012 is idiopathic and
therefore noncompensable.
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 sustain an injury in the performance of duty on
October 16, 2012.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 4, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF AGRICULTURE,
FORRESTRY SERVICE, West Yellowstone, MT,
Employer
__________________________________________

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

Docket No. 09-2106
Issued: April 22, 2010

Case Submitted on the Record

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

JURISDICTION
On August 24, 2009 appellant filed a timely appeal from April 8 and June 2, 2009 merit
decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
left wrist and hand condition due to factors of his federal employment.
FACTUAL HISTORY
On May 5, 2008 appellant, then a 25-year-old forestry technician smokejumper, filed an
occupational disease claim alleging on April 24, 2008 he developed pain in his left wrist and
forearm after using a chainsaw for four consecutive days at work. In a letter dated May 23,
2008, the Office requested additional factual and medical evidence from appellant and allowed
30 days for a response.

Appellant submitted a note dated May 28, 2008 from Dr. Muskula P. Kumar, a Boardcertified internist, which noted appellant’s history of using a saw at work and developing pain in
his left wrist. Dr. Kumar stated that appellant’s left wrist x-ray was negative. He found normal
range of motion, no effusion, no erythema and a ganglion cyst over the dorsal wrist.
Appellant provided a factual history of his alleged employment injury on June 23, 2008
and stated that his assignment from April 21 through 24, 2008 was to use a chainsaw to reopen a
campground closed due to wind damage. He stated that he used both hands to control the 20pound saw for six to eight hours a day from April 21 through 24, 2008. Appellant stated that he
noticed increasing left wrist pain throughout this assignment.
By decision dated August 4, 2008, the Office denied appellant’s claim on the grounds
that he failed to submit necessary medical evidence.
Appellant requested an oral hearing on September 3, 2008.
In a report dated November 25, 2008, Dr. Blake Johnson, a Board-certified orthopedic
surgeon, noted appellant’s history of hurting his left wrist using a chainsaw at work. He noted
that appellant was left hand dominant and that appellant reported swelling over his left wrist.
Dr. Johnson found full range of motion of the left wrist, lunate tenderness with no appreciable
swelling and no definite ganglion cyst. He examined x-rays of appellant’s left wrist and found
an ulnar negative variant. Dr. Johnson diagnosed left wrist pain with possible Keinbock disease
or occult ganglion cyst. He requested a magnetic resonance imaging (MRI) scan of appellant’s
left wrist.
Appellant testified at his oral hearing on February 11, 2009 that he had not lost any time
from work. He requested compensation for his medical expenses. The hearing representative
allowed appellant 30 days to submit additional medical evidence.
By decision dated April 8, 2009, the hearing representative accepted as factual
appellant’s description of his employment duties, but found that appellant did not submit medical
evidence, which included a description of his employment duties, a definitive diagnosis, an
opinion on the causal connection between his duties and condition or medical reasoning
supporting this opinion. The hearing representative affirmed the Office’s August 4, 2008
decision.
Appellant requested reconsideration on May 12, 2009 and submitted a medical report.
Dr. Johnson completed a report on May 11, 2009, noted appellant’s job title and stated that on
October 10, 2008 appellant performed “repetitive flexion extension and extensive wrist usage
throughout the day.” He noted that appellant had pain with certain motions of his wrist and
recommended an MRI scan to determine if appellant had developed a ganglion cyst or early
stages of Keinbock disease exacerbated by extensive wrist usage. Dr. Johnson stated, “Based on
the fact that he has never had pain prior to this time and he definitely relates it to the use of the
chainsaw, I certainly feel that this is consistent with an on-the-job injury.” By decision dated

2

June 2, 2009, the Office denied modification of its prior decision finding that the medical
evidence was speculative.1
LEGAL PRECEDENT
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.2 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of a disease or condition for which
compensation is claimed; (2) a factual statement identifying the employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; and
(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The medical opinion 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.3
ANALYSIS
Appellant submitted factual statements attributing his left wrist condition to the use of a
chainsaw in his federal employment. However, the medical evidence submitted by appellant
does not provide a clear diagnosis of a left wrist condition. The May 28, 2008 report of
Dr. Kumar, a Board-certified internist, described his history of using a saw at work and
diagnosed a ganglion cyst over the dorsal wrist. Dr. Kumar, however, did not provide any
opinion as to whether this condition was related to appellant’s accepted employment activities.
The report is therefore not sufficient to establish appellant’s claim as the issue of causal relation
was not addressed.
Appellant also submitted reports from Dr. Johnson, a Board-certified orthopedic surgeon,
dated November 25, 2008 and May 11, 2009. Dr. Johnson listed appellant’s history of hurting
his left wrist using a chainsaw at work. On physical examination, he was not able to confirm the
diagnosis of a ganglion cyst. Dr. Johnson diagnosed left wrist pain with possible Keinbock
disease or occult ganglion cyst. He requested an MRI scan of appellant’s left wrist. Dr. Johnson
stated, “Based on the fact that he has never had pain prior to this time and he definitely relates it
to the use of the chainsaw, I certainly feel that this is consistent with an on-the-job injury.” He
provided a factual history and a general opinion that appellant’s condition was due to his
employment. Dr. Johnson suggested that appellant’s condition could be either a ganglion cyst or
Keinbock disease.4 He did not provide a firm diagnosis of appellant’s left wrist condition or a
1

The Board notes that, while the Office stated that it had denied appellant’s request for reconsideration, based on
the analysis in the Office’s June 2, 2009 decision, it has in fact performed a review of the merits of appellant’s
claim.
2

20 C.F.R. § 10.5(q).

3

Solomon Polen, 51 ECAB 341, 343-44 (2000).

4

The Board has held that medical opinions that are speculative or equivocal are of diminished probative value.
See Kathy A. Kelley, 55 ECAB 206 (2004).

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rationalized opinion explaining how appellant’s work duties would cause or contribute to his left
wrist symptoms. His report is not sufficient to meet appellant’s burden of proof and the Office
properly denied his claim.
CONCLUSION
The Board finds that appellant has not submitted sufficient medical evidence to establish
that his left wrist condition was caused or contributed to by his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 2 and April 8, 2009 are affirmed.
Issued: April 22, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS AIR STATION, CAMP LEJEUNE,
Cherry Point, NC, Employer
__________________________________________

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

Docket No. 18-1227
Issued: December 21, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 31, 2018 appellant filed a timely appeal from a January 22, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP) and a March 27, 2018 nonmerit
decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a back injury
in the performance of duty on September 19, 2017, as alleged; and (2) whether OWCP properly
denied his request for reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 25, 2017 appellant, then a 43-year-old firefighter/paramedic, filed a
traumatic injury claim (Form CA-1) alleging that on September 19, 2017 he sustained a herniated
disc while in the performance of duty. He asserted that he awoke on September 19, 2017 in the
dorm room of the fire station with a sore back. Appellant related, “I had performed mandatory
physical training the day before. I stood up out of bed and attempted a toe touch stretch. While
bending over to touch my toes I felt a pop in my back and felt a shooting nerve pain run down my
leg.” He related that he sought treatment at the emergency room and received a diagnosis of a
herniated disc. Appellant stopped work on September 19, 2017. The employing establishment
did not controvert the claim.
In an undated witness statement, S.V., a coworker, related that he saw appellant limping
the morning of September 19, 2017. Appellant told him that he had hurt his back after waking up
that morning.
Appellant was evaluated at the emergency department on September 20, 2017 for low back
pain.
In a September 26, 2017 report, Dr. Alan Schleier, an osteopath and Board-certified
physiatrist, obtained a history of appellant hearing a pop in his back and experiencing pain that
extended from appellant’s back into his right leg doing a physical training session at work.2 The
symptoms began when he performed an exercise that required forward flexion of the spine with
left rotation. Dr. Schleier diagnosed acute lumbar radiculopathy on the right side due to “an injury
at work involving mandatory physical training.”
In a September 29, 2017 statement, P.R., a coworker, advised that on the morning of
September 19, 2017 he found appellant lying on the ground. Appellant told him that he was
stretching to alleviate his back pain. P.R. asked appellant if the injury occurred as a result of the
physical training and appellant responded that he was “not sure.”
Dr. Schleier, in an October 18, 2017 progress report, advised that a magnetic resonance
imaging (MRI) scan study revealed an L4-5 disc protrusion impacting the L4 nerve root consistent
with appellant’s symptoms. He recommended pain management.
On October 18, 2017 Dr. Matthew J. Swiber, a Board-certified anesthesiologist, discussed
appellant’s history of pain in his back and right lower extremity after a September 19, 2017
employment injury. He indicated that the incident occurred during “high intensity physical
training. [Appellant] was performing a stretch, touching his toes. He felt a pop in his lower back.”
The pain increased that day into the following night and appellant sought treatment in the
emergency department. Dr. Swiber noted that an October 5, 2017 MRI scan study showed a disc
protrusion at L4-5 contacting the L4 nerve root.

2
On September 26, 2017 Dr. John R. Spellman, who specializes in sports medicine, advised that appellant could
resume work on that date with restrictions.

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OWCP, in a December 6, 2017 development letter, notified appellant that it had paid a
limited amount of medical expenses as his injury appeared minor and was uncontroverted. It
advised that it was now formally adjudicating his traumatic injury claim. OWCP requested that
appellant provide additional factual and medical evidence, including a detailed statement
explaining how the injury occurred and a reasoned medical report addressing the causal
relationship between any diagnosed condition and the identified work incident.
In a January 6, 2018 response, appellant related that he was on a 48-hour work shift when
he awoke in his dorm room with back pain. He noted that he often experienced back pain after
sleeping on the beds at work. On September 19, 2017 appellant was sore from high intensity
physical training. When he tried to stretch his back he felt something pop and experienced
shooting pain and the inability to move his right foot. Appellant returned home, but his pain
increased and he sought medical treatment.
By decision dated January 22, 2018, OWCP denied appellant’s traumatic injury claim. It
found that he had not established that the event occurred as alleged, noting that the medical
evidence indicated that his pain began while he was performing physical training.
On February 28, 2018 appellant requested reconsideration. He submitted a February 12,
2018 report from Dr. Schleier. Dr. Schleier indicated that he had treated appellant for lumbar
radiculopathy on the right side beginning September 26, 2017. The symptoms began when
appellant woke up in the morning after physical training the prior day. Dr. Schleier diagnosed L4
radiculopathy on the right. He related, “It is my opinion that [appellant’s] current condition is
directly related to the physical training he participated in on the job as part of his job requirements.
This is evidenced by the lack of similar prior symptoms and the chronological onset of symptoms
in relat[ion] to appellant’s physical training.”
By decision dated March 27, 2018, OWCP denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a). It found that he had not raised an argument or submitted relevant new
evidence sufficient to warrant reopening his case for further merit review. OWCP noted that
Dr. Schleier’s report did not address the relevant issue of whether he had factually established the
occurrence of the September 19, 2017 employment incident.
On appeal appellant notes that OWCP denied his claim because his history of injury varied
with that on the medical reports. He relates that his injury occurred when he tried to touch his toes
after getting up. Appellant asserts that his physicians found that his injury occurred after physical
training and notes that he has submitted a medical report clarifying the history of injury and
causation.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
3

Supra note 1.

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disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
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.6 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, as alleged, but the employee’s
statements must be consistent with surrounding facts and circumstances and his or her subsequent
course of action.8 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.9 Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statements
in determining whether a prima facie case has been established.10 However, an employee’s
statement regarding the occurrence of an employment incident is of great probative force and will
stand unless refuted by strong or persuasive evidence.11
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision. Appellant alleged that he
sustained a herniated disc when he tried to stretch out his back on the morning of
September 19, 2017. He indicated that his back hurt when he woke up and that he had undergone
intense physical training, which included forward flexion of the lumbar spine, at work the previous
day. Appellant was on 48-hour duty, staying in the dorm of the fire station, at the time of the
alleged incident. OWCP denied his claim as it found that he had not established that the
September 19, 2017 employment incident occurred, as alleged.

4

See E.B., Docket No. 17-0164 (issued June 14, 2018); Alvin V. Gadd, 57 ECAB 172 (2005).

5

See P.S., Docket No. 17-0939 (issued June 15, 2018); Ellen L. Noble, 55 ECAB 530 (2004).

6

See V.J., Docket No. 18-0452 (issued July 3, 2018); Bonnie A. Contreras, 57 ECAB 364 (2006).

7

Id.

8

See M.T., Docket No. 17-1934 (issued September 19, 2018).

9

See M.J., Docket No. 17-1810 (issued August 3, 2018).

10

See L.B., Docket No. 17-2023 (issued August 21, 2018).

11

See D.B., Docket No. 18-0537 (issued September 12, 2018).

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The Board finds that the evidence does not contain inconsistencies sufficient to cast serious
doubt on appellant’s version of the occurrence of the employment incident. Appellant has
consistently described the evidence as occurring when he tried to stretch out his sore back on the
morning of September 19, 2017, the day after vigorous physical training and while being on
48-hour duty. He bent over to try to touch his toes and felt a pop and shooting pain in his back.
As noted, an employee’s statement alleging 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 and persuasive
evidence.12 While the medical reports contain a history of appellant experiencing back pain while
performing physical training instead of after stretching the following morning, the Board finds
that, under the circumstances of this case, his allegations of sustaining back pain due to bending
to touch his toes have not been refuted by strong or persuasive evidence and there are no
inconsistencies sufficient to cast serious doubt on his version of the employment incident.13 The
employing establishment did not controvert the claim and he sought medical treatment on
September 20, 2017 the day after the alleged work incident.14
OWCP denied appellant’s claim as he had not established the occurrence of an employment
incident on September 19, 2017 and thus did not consider the medical evidence. The case will be
remanded for OWCP to evaluate the medical evidence and determine whether he sustained a
medical condition or disability due to the accepted September 19, 2017 employment incident.15
After such development as it deems necessary, it shall issue a de novo decision.16
CONCLUSION
The Board finds that the case is not in posture for decision.

12

See supra note 8.

13

See C.V., Docket No. 15-0615 (issued September 13, 2016).

14

The Board notes, however, that a medical report based on an inaccurate history of injury is of diminished
probative value. See D.W., Docket No. 18-0123 (issued October 4, 2018).
15

See supra note 11.

16
In light of the Board’s disposition of the merits of the case, the issue of whether OWCP properly denied
appellant’s request for reconsideration of the merits of his case under section 8128(a) is moot.

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ORDER
IT IS HEREBY ORDERED THAT the March 27 and January 22, 2018 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: December 21, 2018
Washington, DC

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

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

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

6


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

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

Docket No. 15-1357
Issued: October 23, 2015

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 June 1, 2015 appellant filed a timely appeal from a March 26, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on January 5, 2015.
FACTUAL HISTORY
On January 5, 2015 appellant, then a 64-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 5, 2015, he sustained a lower back injury when
bending down to pick up a letter. He stopped work on January 5, 2015.
1

5 U.S.C. § 8101 et seq.

In a January 5, 2015 state workers’ compensation form, Dr. John Dao, an osteopath
specializing in family medicine, reported that appellant was injured on the same date. He
diagnosed lumbago and checked a box to report that the condition was work related. Also
submitted was a January 5, 2015 authorization for examination and attending physician’s report
(Form CA-16). Dr. Dao provided work restrictions and a diagnosis of lumbago.
In a January 8, 2014 letter, the employing establishment confirmed that appellant
reported being injured while picking up a letter. However, it controverted the claim contending
that the injury was an aggravation of a nonwork-related preexisting lower back condition caused
by bowling.
On January 16, 2015 OWCP informed appellant that the evidence of record was
insufficient to support his claim. It advised that he provide a medical report containing a
physician’s opinion, supported by a medical explanation as to how work factors caused or
aggravated a diagnosed condition.
Appellant provided a January 5, 2015 medical report from Dr. Dao who noted that
appellant had a low back injury that day after bending. Dr. Dao noted appellant’s history of low
back problems from bowling two years earlier. A physical examination was performed revealing
lumbar tenderness. He diagnosed lumbago, provided work restrictions, and ordered diagnostic
imaging.
On January 14, 2015 Dr. Jose Pizarro, a Board-certified diagnostic radiologist and
neuroradiologist, administered a magnetic resonance imaging (MRI) scan of appellant’s lumbar
spine. He noted that appellant presented from a work injury on January 5, 2015. The MRI scan
revealed a chronic compression fracture at L1 and annular tears at L4-5 and L5-S1 with disc
bulging and mild spinal stenosis at both levels.
Dr. Dao saw appellant for a follow-up examination on January 19, 2015. He related that
appellant sustained a lower back injury from bending on January 5, 2015. Physical examination
revealed a nontender back. Dr. Dao diagnosed lumbago and provided work restrictions. On a
state workers’ compensation form dated January 19, 2015, he noted that appellant was injured on
January 5, 2015, diagnosed lumbago, and checked a box indicating that the condition was work
related. Dr. Dao advised that appellant should follow-up with an orthopedic surgeon.
A January 26, 2015 medical report establishes that appellant was seen by Dr. Greg
Munson, a Board-certified orthopedic surgeon. Dr. Munson related that appellant injured his
back at work on January 5, 2015. Specifically, he noted that the injury occurred when appellant
“bent over to pick up a ladder.” Dr. Munson also noted appellant’s 2012 lower back injury from
bowling. Examination revealed full and supple lumbar motion. Nerve root tension signs were
negative. Dr. Munson reviewed appellant’s MRI scan and opined that it showed degenerative
changes, but not an annular tear. He advised that appellant could work within restrictions. In a
January 26, 2015 duty status report, Dr. Munson provided work restrictions and a diagnosis of
lumbar strain. Appellant also provided evidence from a physical therapist.

2

Appellant provided a written statement dated January 29, 2015 reporting that he injured
his back on January 5, 2015. He further conveyed that he had experienced an “off-the-job back
injury in May of 2012 when I twisted my back by throwing a bowling ball.”
By decision dated February 23, 2015, OWCP denied appellant’s claim finding the
evidence of record insufficient to establish that the employment incident occurred as alleged. It
noted that Dr. Munson noted that appellant was injured while picking up a ladder, whereas he
attributed his claimed injury to reaching for a letter.
Appellant continued to submit evidence.
A February 10, 2015 addendum to
Dr. Munson’s January 26, 2015 medical report stated that January 26, 2015 x-rays revealed
distinct pedicles and distinct psoas shadows of the lumbar spine. Dr. Munson observed some
degree of osteopenia. Lateral lumber spine films showed some superior endplate indentation of
L1.
Dr. Munson acknowledged, in a February 25, 2015 report, a typographical error in his
January 26, 2015 report and confirmed that appellant was injured while picking up a letter. He
also maintained that appellant had degenerative process in his spine. Dr. Munson opined that
appellant suffered an “exacerbation of inflammation related to degenerative disc from his workrelated injury bending over to pick up a letter.” In a February 25, 2015 duty status report he
diagnosed lumbar strain and cleared appellant for full duty.
On March 9, 2015 appellant filed a request for reconsideration. In an accompanying
letter, he contended that reports completed by Dr. Munson provided a physician’s opinion on the
issue of causal relationship. Appellant also submitted an altered version of Dr. Munson’s
January 26, 2015 report, which indicated that appellant was injured while picking up a “letter,”
instead of “ladder.”
In a March 26, 2015 decision, OWCP reviewed the merits of appellant’s claim and found
that he established the factual component of fact of injury. However, it denied the claim finding
the medical evidence insufficient to demonstrate that his condition was causally related to the
January 5, 2015 employment incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA must establish the essential elements of
his or her claim by the weight of reliable, probative, and substantial evidence,2 including that he
or she is an “employee” within the meaning of FECA and that he or she filed his or her claim
within the applicable time limitation.3 The employee must also establish that he or she sustained
an injury in the performance of duty as alleged and that his or her disability for work, if any, was
causally related to the employment injury.4
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

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

4

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

3

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
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
The record evidence supports that appellant, on January 5, 2015, bent down to pick up a
letter. However, the Board finds the medical evidence insufficient to establish that the January 5,
2015 employment incident caused or aggravated his lower back condition.7
In a January 26, 2015 medical report, Dr. Munson related that appellant injured his back
at work while picking up a letter on January 5, 2015. He attributed appellant’s lower back
condition to small high-intensity zones. The Board notes that there is no indication that
Dr. Munson specifically ascribed appellant’s condition to the January 5, 2015 work incident.
Rather, he merely conveyed the history of injury as reported by appellant. Dr. Munson’s opinion
regarding causal relationship, that appears to be primarily based on appellant’s representations
rather than on objective medical findings, is of limited probative value.8 In his February 25,
2015 report, he noted that appellant, on January 5, 2015, had an exacerbation of inflammation
related to his work-related injury bending over and picking up a letter. Although Dr. Munson
supported causal relationship, he failed to explain the pathophysiological process by which
bending over would have caused or aggravated appellant’s lower back condition. In this case,
the need for a rationalized medical opinion is particularly important given appellant’s prior
history of lower back problems. Other reports from Dr. Munson are of limited probative value as
5

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

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

The Board notes that the employing establishment issued a Form CA-16 authorization for medical treatment.
Where an employing establishment properly executes a Form CA-16 which authorizes medical treatment as a result
of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation, which
does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the action
taken on the claim. See Tracey P. Spillane, 54 ECAB 608 (2003); 20 C.F.R. §§ 10.300; 10.304.
8

See C.G., Docket No. 14-1430 (issued November 7, 2014).

4

they do not specifically address whether the January 5, 2015 work incident caused or contributed
to a diagnosed condition. Accordingly, the Board finds that Dr. Munson’s reports are
insufficient to establish appellant’s claim.
Appellant also submitted various medical reports and state workers’ compensation forms
completed by Dr. Dao. In his workers’ compensation forms, Dr. Dao diagnosed lumbago and
checked a box “yes” to indicate that appellant’s condition was work related. The Board has held,
however, that an opinion on causal relationship which consists only of a physician checking a
box without further rationale is of little probative value.9 Dr. Dao failed to provide any
explanation for his opinion. Without explanation, his reports are insufficient to establish causal
relationship.10 In his January 5 and 19, 2015 medical reports, Dr. Dao opined that appellant’s
lower back condition was due to bending on January 5, 2015. However, he did not explain, with
medical rationale, how bending actually caused or aggravated appellant’s injury.11
The January 14, 2015 diagnostic report is insufficient to establish the claim as it did not
provide a physician’s opinion on the cause of appellant’s conditions. Medical evidence that does
not provide any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.12 Physical therapy records submitted by appellant are
also insufficient to establish the claim as they do not constitute competent medical evidence.13
On appeal, appellant contends that Dr. Munson’s medical reports are sufficient to
establish his claim. As noted above, the record medical evidence does not contain adequate
medical rationale explaining how the January 5, 2015 incident actually caused or aggravated his
back condition. Accordingly, the Board finds that appellant failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury in the performance of duty.

9

See Calvin E. King, Jr., 51 ECAB 394 (2000); Frederick E. Howard, Jr., 41 ECAB 843 (1990).

10

Id.

11

See W.G., Docket No. 15-0573 (issued May 18, 2015).

12

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

13

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2). See
David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical
therapists are not competent to render a medical opinion under FECA).

5

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2015
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.A., Appellant
and
U.S. POSTAL SERVICE, SYLMAR POST
OFFICE, Sylmar, CA, Employer
__________________________________________

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

Docket No. 15-1384
Issued: September 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 8, 2015 appellant filed a timely appeal of an April 3, 2015 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a traumatic injury in the performance of duty on February 7, 2015.

1
2

5 U.S.C. § 8101 et seq.

On appeal to the Board appellant submitted new evidence. As OWCP did not consider this evidence in reaching
its final decision, the Board may not consider it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 9, 2015 appellant, then a 52-year-old window distribution clerk, filed a
traumatic injury claim alleging that on February 7, 2015 she fractured her right shoulder. She
stated that, as she was taking the mail to route 19, she stepped on a platform to set the mail down
and fell to the floor, injuring her shoulder, nose, and knee. Appellant stated that she lost her
footing and slipped off the platform. She submitted two witness statements in support of her
claim noting that on February 7, 2015 she was lying on the floor in pain. Appellant also
submitted a return to work note from Facey Medical Group dated February 7, 2015 which was
illegible, including the signature.
In a letter dated February 26, 2015, OWCP requested additional factual and medical
evidence in support of appellant’s traumatic injury claim. It allowed her 30 days to respond.
Appellant submitted an additional note from Facey Medical Group dated March 2015
which indicated that she could not return to work for one more week. The remainder of the note,
including the signature, is illegible.
By decision dated April 3, 2015, OWCP denied appellant’s claim finding that she failed
to submit the necessary medical opinion evidence to establish an injury in the performance of her
job duties on February 7, 2015.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

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

6

20 C.F.R. § 10.5(ee).

2

incident at the time, place, and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained a traumatic injury due to her employment on February 7, 2015.
Appellant submitted a factual statement and witness statements that she fell to the floor
from a platform on February 7, 2015 while moving mail at work. She alleged that she fractured
her shoulder as the result of this incident. However, appellant has not provided a physician’s
opinion on what if any medical condition resulted from the employment-related fall. She
submitted two return to work notes from Facey Medical Group which did not include a legible
diagnosis, legible signature, or other information regarding her claim. The Board has held that a
medical report may not be considered as probative medical evidence if there is no indication that
the person completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2).9
Reports lacking proper identification do not constitute probative medical evidence.10 As the
record does not contain medical evidence which provides a diagnosed condition and opines that
the condition resulted from the February 7, 2015 employment incident, the Board finds that
appellant has not met her burden of proof to establish that she sustained an injury in the
performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on February 7, 2015.

7

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

8

J.Z., 58 ECAB 529 (2007).

9

V.R., Docket No. 14-1695 (issued January 9, 2015).

10

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the April 3, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
G.R., Appellant
and
DEPARTMENT OF TRANSPORATION,
FEDERAL AVIATION ADMINISTRATION,
Long Beach, CA, Employer
__________________________________________

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

Docket No. 16-0928
Issued: February 14, 2017

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 1, 2016 appellant filed a timely appeal from a February 19, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty causally related to accepted factors of his federal employment.
FACTUAL HISTORY
On December 22, 2015 appellant, then a 53-year-old air traffic control specialist, filed an
occupational disease claim (Form CA-2) alleging that he sustained a lumbar muscle spasm and
1

5 U.S.C. § 8101 et seq.

lower back pain in the performance of duty. He noted that he had to climb 194 steps to access
his work area as the work elevator had been out of service since November 10, 2015. Appellant
noted that his pain began the first week of December and was “escalating.” He indicated that he
first became aware of his condition on December 17, 2015. Appellant stopped work on
December 18, 2015. The employing establishment noted that prior to submitting his claim
appellant was prescheduled for annual leave from December 18, 2015 through January 24, 2016.
It noted that appellant first sought treatment from a chiropractor, but had not had any x-rays
taken. The employing establishment also indicated that appellant had been apprised of the
limitations with regard to chiropractic treatment.
By letter dated December 29, 2015, OWCP informed appellant of the evidence needed to
support his claim and requested that he submit such evidence within 30 days. It specifically
requested that he provide an opinion of a physician, supported by a medical reasoning, as to how
his work activities caused or aggravated his claimed condition. OWCP explained that medical
evidence must be submitted by a qualified physician. It advised that under FECA, a “physician”
includes chiropractors only if there is a diagnosed spinal subluxation as demonstrated by x-ray to
exist.
OWCP received a doctor’s first report of injury or illness dated December 22, 2015 from
Dr. Randal C. Roberts, a chiropractor. Dr. Roberts advised that appellant last worked on
December 17, 2015. He also checked a box marked “yes” in response to whether he had
previously treated appellant. Dr. Roberts indicated that the exposure occurred due to “repetitive
climbing and descending 194 stairs 3 to 5 times per workday.” He determined that appellant’s
subjective complaints included low back pain and muscle spasm. Dr. Roberts provided objective
findings which included: spasms on the left lumbar spine; antalgic posture and gait; lumbar
ranges of flexion 15 out of 60 degrees; extension 10 out of 25 degrees and bilateral “pos kemps.”
He noted that x-ray and laboratory results included two view lumbar subluxation of L3-4, L4-5,
and L5-S1. However, a copy of the x-ray diagnostic results was not included with Dr. Roberts’
report. Dr. Roberts checked the box marked “yes” in response to whether the findings and
diagnosis were consistent with appellant’s account of the injury or illness and the diagnosed
subluxation of the lumbar spine L3 on L4, L4 on L5 and L5 on S1. He recommended further
chiropractic treatment and advised that appellant could not perform his regular work as he could
not climb stairs. Dr. Roberts advised a return to regular duty on January 25, 2016.
In a January 25, 2016 return to work order, Dr. Roberts indicated that appellant could
perform regular duty.
By decision dated February 19, 2016, OWCP denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish that the claimed medical condition was
causally related to the accepted work-related events. OWCP found that the chiropractor
diagnosed subluxation, but he failed to support his findings with copies of the diagnostic test
results. It further found that the chiropractor failed to provide a medical opinion as to how the
injury was causally related to his federal employment duties.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.2 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between 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.4
Under section 8101(2) of FECA, the term physician includes chiropractors only to the
extent that their reimbursable services are limited to treatment consisting of manual manipulation
of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation
by the Secretary.5 Implementing regulations indicate that the diagnosis of spinal subluxation
must appear in the chiropractor’s report, and a chiropractor may interpret his or her x-rays to the
same extent as any other physician.6 To be given any weight, the medical report must state that

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

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

4

Id.

5

5 U.S.C. § 8102(2); see D.S., Docket No. 09-860 (issued November 2, 2009).

6

20 C.F.R. § 10.311(b)(c).

3

x-rays support the finding of spinal subluxation. OWCP will not necessarily require submittal of
the x-ray, or a report of the x-ray, but the report must be available for submittal on request.7
ANALYSIS
Appellant alleged that he developed a lumbar condition due to climbing 194 steps to
access his work area on a daily basis since an elevator outage commencing on November 10,
2015, until he stopped work on December 18, 2015. OWCP accepted, and the evidence
supports, that appellant had to climb 194 steps to access his work area due to the elevator outage.
However, the Board finds that appellant submitted insufficient medical evidence to establish that
his condition was caused or aggravated by these activities or any other specific factors of his
federal employment.
Appellant submitted a December 22, 2015 report from Dr. Roberts, a chiropractor.
Dr. Roberts noted that x-ray and laboratory results included two view lumbar subluxation of
L3-4, L4-5, and L5-S1. The December 22, 2015 report therefore constitutes competent medical
evidence pursuant to FECA.8 Although OWCP found that the report was not from a physician
because Dr. Roberts did not submit the x-ray film or an x-ray report, and support his findings
with copies of the diagnostics, this was incorrect. OWCP regulations provide that a chiropractor
may interpret his own x-rays to the same extent as any other physician and do not require that an
x-ray film or x-ray report be submitted. Instead, the regulations provide that the x-ray or a report
of the x-ray be made available for submittal upon request.9 The record before the Board does not
indicate whether OWCP ever requested an x-ray or x-ray film report from Dr. Roberts.
Although Dr. Roberts’ December 22, 2015 report is competent medical evidence, it is
insufficiently rationalized to establish a causal relationship between appellant’s diagnosed
subluxations of the lumbar spine at L3-4, L4-5 and L5-S1 and his employment duties. While
he noted that the exposure occurred due to “repetitive climbing and descending 194 stairs 3
to 5 times per workday” he failed to explain how this activity caused or contributed to
appellant’s diagnosed subluxations. The Board notes that he checked a box marked “yes” in
response to whether the findings and diagnosis were consistent with appellant’s account of
the injury or illness. However, the checking of a box marked “yes” in a form report, without
additional explanation or rationale, is insufficient to establish causal relationship.10 As
Dr. Roberts has not fully explained the processes by which appellant’s work as an air traffic
control specialist would have caused or aggravated the diagnosed conditions, and therefore
his December 22, 2015 report is insufficient to establish appellant’s claim. The Board finds
that appellant has failed to establish that his subluxation of the lumbar spine at L3-4, L4-5,
and L5-S1 were causally related to factors of his federal employment.

7

Id. at § 10.311(c).

8

See Linda L. Mendenhall, 41 ECAB 532 (1990).

9

Supra note 7.

10

Calvin E. King, 51 ECAB 394 (2000); Linda Thompson, 51 ECAB 694 (2000).

4

The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.11
Neither the fact that the condition became apparent during a period of employment, nor the belief
that the condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.12
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated a medical condition involving his back, appellant has not met his burden of
proof to establish a medical condition causally related to factors of his federal employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in
the performance of duty causally related to accepted factors of his federal employment.

11

See Joe T. Williams, 44 ECAB 518, 521 (1993).

12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the February 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 14, 2017
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE COMMISSARY SERVICE,
San Angelo, TX, Employer
__________________________________________

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

Docket No. 13-589
Issued: July 9, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 18, 2013 appellant filed a timely appeal from a July 24, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) that found an overpayment of
compensation. 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 case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $7,166.96 because he concurrently received Social Security Act (SSA) benefits for the
period March 22, 2008 to June 2, 2012 while receiving FECA benefits; (2) whether OWCP
properly denied waiver of the overpayment; and (3) whether OWCP properly required repayment
of the overpayment by deducting $70.00 every 28 days from appellant’s continuing
compensation.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case was previously before the Board. By decision dated August 24, 2001, the
Board affirmed OWCP’s December 21, 1999 decision finding that appellant’s part-time cashier
position fairly and reasonably represented his wage-earning capacity.2
On March 22, 2008 appellant turned 65 years of age and began receiving social security
retirement benefits. The record includes OWCP-1032 forms signed by appellant on March 14,
2009 covering the period 15 months prior indicating that he was not receiving SSA benefits or
payments.
On OWCP-1032 forms signed February 23, 2010, February 24, 2011 and
February 20, 2012, appellant stated that he started receiving benefits from SSA when he turned
65.
In March 2010, OWCP developed the issue of whether appellant was receiving dual
benefits from FECA and SSA. On April 12, 2012 SSA provided information regarding receipt
of appellant’s SSA benefits with and without federal retirement (FERS) benefits from
December 2007 through December 2011.
In a June 14, 2012 FERS offset calculation worksheet, OWCP calculated the amount of
overpayment for the period March 22 through November 30, 2008. It took the appropriate FERS
offset amount for the affected period and divided it by 28 days and then multiplied it by the daily
amount of $4.256 by the number of days in that period. For the period March 22 through
November 30, 2008, the 28-day FERS offset amount of $119.17 was divided by 28 (119.17/28 =
4.256), then the daily amount, $4.256, was multiplied by the number of days in that period, 254
(4.256 x 254 = 1081.04) for an overpayment amount of $1,081.04 for that period. The same
formula was applied for the periods December 1, 2008 through November 30, 2009,
December 1, 2009 through November 30, 2010, December 1, 2010 through November 30, 2011
and December 1, 2011 through June 2, 2012 for an overpayment amount of $1,636.48,
$1,636.48, $1,636.48 and $1,176.48, respectively. The total overpayment for the period
March 22, 2008 through June 2, 2012 equaled $7,166.96.
On June 22, 2012 OWCP issued a preliminary finding that a $7,166.96 overpayment of
compensation had been created. It found that the overpayment occurred because that portion of
appellant’s SSA benefits received from March 22, 2008 through June 2, 2012 based on credits
earned by an employee covered under FERS was a prohibited dual benefit. OWCP found
appellant without fault. It requested that appellant complete an overpayment recovery
questionnaire and provide additional financial information as well as select any appeal rights.
Appellant did not respond.

2

Docket No. 00-1451 (issued August 24, 2001). The record reflects that on August 10 and November 20, 1989
appellant, then a 46-year-old meat cutter, filed a claim attributing his back and asthma conditions to factors of his
employment. He alleged that on November 11, 1988 stocking and unwrapping cases of meat and the cold
temperatures in the freezer caused his back and asthma conditions. Appellant stopped working on July 29, 1989 and
did not return. OWCP accepted the conditions of extrinsic asthma and sprain of the lumbosacral joint and paid
appropriate benefits. It eventually retained appellant on its periodic compensation rolls.

2

By decision dated July 24, 2012, OWCP finalized the overpayment decision and
determined that appellant had received an overpayment in the amount of $7,166.98 for the period
March 22, 2008 to June 2, 2012 as he received a prohibited dual benefit of compensation. It
found that he was without fault in the creation of the overpayment but that it was not subject to
waiver as he did not respond to the June 22, 2012 preliminary determination or complete an
overpayment questionnaire. The recovery rate of the overpayment was set at a rate of $70.00
each compensation period.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee receives SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits to his or her federal service.4
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.5 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
OWCP will then deduct the hypothetical benefit from the actual benefit to determine the amount
of benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of compensation payable.6
ANALYSIS -- ISSUE 1
Appellant received FECA wage-loss compensation and received SSA benefits from
March 22, 2008 to June 2, 2012. The portion of the SSA benefits he earned as a federal
employee as part of his FERS retirement package, and the receipt of benefits under FECA and
federal retirement benefits concurrently is a prohibited dual benefit.7 The SSA notified OWCP
3

5 U.S.C. § 8102(a).

4

Id. at 8116(d). See G.B., Docket No. 11-1568 (issued February 15, 2012); see also Janet K. George (Angelos
George), 54 ECAB 201 (2002).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995);
Chapter 2.1000.1.11(b) (February 1995); see also R.C., Docket No. 09-2131 (issued April 2, 2010).
6

FECA Bulletin No. 97-9 (issued February 3, 1997).

7

Id.

3

of the applicable SSA rates for appellant and their effective dates. Based on these rates, OWCP
determined the prohibited dual benefit appellant received from March 22, 2008 to June 2, 2012,
created an overpayment of compensation in the amount of $7,166.96.
On appeal, appellant argues that his due process rights were violated as the overpayment
went back five years to 2008 and he was at the first step of the overpayment process. The fact
that it may have taken OWCP sometime to discover that appellant was in receipt of a prohibited
dual benefit does not preclude OWCP from recovering all or part of the overpayment. Appellant
was properly notified of the issue at hand and given an opportunity to respond to the preliminary
determination of overpaid benefits. He also submitted evidence on appeal. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered
its final decision.8
The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period March 22, 2008 to June 2, 2012. OWCP properly determined that he received dual
benefits totaling $7,166.96 for this period, thus creating an overpayment in compensation in that
amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.9 Waiver of an overpayment is not permitted unless the claimant is without
fault in creating the overpayment.10
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom OWCP seeks recovery needs substantially all of his or her current income (including
compensation benefits) to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed a specified amount as determined by OWCP from data
furnished by the Bureau of Labor Statistics. A higher amount is specified for a beneficiary with
one or more dependents.11 Recovery of an overpayment is considered to be against equity and
good conscience when any individual who received an overpayment would experience severe
financial hardship in attempting to repay the debt.12 Recovery of an overpayment is also
considered to be against equity and good conscience when any individual, in reliance on such

8

20 C.F.R. § 501.2(c)(1).

9

5 U.S.C. § 8129.

10

Steven R. Cofrancesco, 57 ECAB 662 (2006).

11

20 C.F.R. § 10.436.

12

Id. at § 10.437(a).

4

payments or on notice that such payments would be made, gives up a valuable right or changes
his or her position for the worse.13
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.14
ANALYSIS -- ISSUE 2
OWCP found that appellant was without fault in the creation of the overpayment, but
denied waiver. It notified him that compensation for wage loss should have been adjusted on
March 22, 2008 when he started receiving SSA benefits and asked him to submit financial
information to support waiver in a June 22, 2012 letter. The Board notes, however, that
appellant failed to submit such information, despite having 30 days to do so.
Section 10.438 of OWCP’s regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. Failure to submit the requested information within 30 days of the request
shall result in the denial of waiver and no further request for waiver shall be considered until the
requested information is furnished.15
OWCP determined that appellant was without fault in the creation of the overpayment.
The fact that he was without fault does not preclude OWCP from recovering all or part of the
overpayment. Appellant did not submit a response to OWCP’s preliminary determination or
submit an overpayment recovery questionnaire. Therefore OWCP acted properly in refusing his
request for waiver of recovery of the overpayment under the implementing federal regulations.
Absent the submission of such information, it was precluded from evaluating his eligibility for
waiver of the overpayment. The Board finds that OWCP did not abuse its discretion by issuing
its July 24, 2012 final decision denying waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information will be used to
determine the repayment schedule, if necessary.16

13

Id. at § 10.437(b).

14

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

15

Id. at § 10.438(b).

16

See J.D., Docket No. 10-640 (issued December 17, 2010); Otha J. Brown, 56 ECAB 228 (2004); Karen K.
Dixon, 56 ECAB 145 (2004).

5

OWCP’s implementing regulations provide that, if an overpayment of compensation has
been made to an individual entitled to further payments and no refund is made, OWCP shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.17
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly directed recovery of the overpayment at the rate of
$70.00 from each continuing compensation payment.
Regarding the recovery of $7,166.96 from appellant’s continuing compensation, the
Board notes that he did not provide any financial information which would assist OWCP in
determining the amount to deduct from future compensation payments in order to recoup the
overpayment. OWCP set the rate of recovery as $70.00 from each continuing compensation
payment until the benefit was paid in full. The Board finds that this was reasonable in the
absence of any financial documentation proving otherwise.18
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $7,166.96. OWCP properly denied waiver and required recovery of the overpayment by
deducting $70.00 every 28 days from his continuing compensation payments.

17

20 C.F.R. § 10.441(a).

18

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the July 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

Docket Nos. 21-0405 &
21-1184
Issued: December 9, 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 28, 2021 appellant filed a timely appeal from an October 30, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx382. The Clerk of the Appellate Boards docketed the appeal as No. 21-0405.
On January 28, 2021 appellant also filed a timely appeal from October 30 and
November 17, 2020 merit decisions of OWCP under OWCP File No. xxxxxx814. The Clerk of
the Appellate Boards docketed the appeal as No. 21-1184.
Under OWCP File No. xxxxxx382, on January 12, 2016 appellant, then a 45-year-old rural
carrier associate, filed a traumatic injury claim (Form CA-1) alleging that on that date she sprained
her ankle when she stepped into a dip where a driveway met the curb and twisted her ankle while
in the performance of duty. She stopped work on that date. OWCP accepted her claim for left
ankle sprain. It authorized wage-loss compensation on the supplemental rolls beginning
February 27, 2016.
Under OWCP File No. xxxxxx814, on January 12, 2018 appellant, then a 47-year-old rural
carrier associate, filed a traumatic injury claim (Form CA-1) alleging that on January 11, 2018 she

strained her neck and shoulder attempting to lift a heavy parcel while in the performance of duty. 1
She stopped work on January 11, 2018 and did not return. OWCP accepted this claim for cervical
muscle spasm. It authorized wage-loss compensation on the supplemental rolls beginning
February 26, 2018. On May 21, 2018 OWCP expanded the acceptance of appellant’s January 11,
2018 employment injury to included cervical disc displacement C5-6, C6-7, and C2-3.
On June 21, 2018 under OWCP File No. xxxxxx382, appellant filed a recurrence claim
(Form CA-2a) alleging that beginning on June 1, 2018 she lost time from work due to a recurrence
of disability due to her accepted January 12, 2016 employment injury of left ankle sprain. In an
August 23, 2018 letter, OWCP addressed appellant’s request for expansion of her claim under
OWCP File No. xxxxxx382 to include a new ankle injury. It noted that she had a separate claim
for a left ankle injury under OWCP File No. xxxxxx356, and a resulting consequential left ankle
injury under OWCP File No. xxxxxx814.2
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 OWCP File No. xxxxx382,
appellant alleged a recurrent left ankle injury. She also had a claim for consequential left ankle
injury under OWCP File No. xxxxxx814. For a full and fair adjudication, the cases must be
remanded to OWCP to administratively combine OWCP File Nos. xxxxxx382 and xxxxxx814, so
that it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s
left ankle claims. Following this and other such further development as deemed n ecessary, OWCP
shall issue de novo decisions. Accordingly,

1

OWCP previously accepted that appellant sustained left shoulder strain, neck sprain, and aggravation of cervical
disc degenerative disease C6-7 due to a February 8, 2011 employment-related incident, shoveling snow to free her
work vehicle under OWCP File No. xxxxxx807. OWCP administratively combined the current claim, OWCP File
No. xxxxxx814, with File No. xxxxxx807 designated as the master file.
2

The Board notes that OWCP informed appellant that no further action would be taken under OWCP File No.
xxxxxx356. OWCP File No. xxxxxx356 has been administratively closed.
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

IT IS HEREBY ORDERED THAT the October 30, 2020 decision of the Office of
Workers’ Compensation Programs under OWCP File No. xxxxx382 and the October 30 and
November 17, 2020 merit decisions of OWCP under OWCP File No. xxxxxx814 are set aside and
the cases are remanded for further proceedings consistent with this order of the Board.
Issued: December 9, 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