United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, HILLDALE
STATION, Tampa, FL, Employer
__________________________________________

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

Docket No. 08-1075
Issued: December 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 27, 2008 appellant filed a timely appeal from an April 16, 2007 merit
decision of the Office of Workers’ Compensation Programs finding that he received an
overpayment of compensation and denying waiver of the overpayment. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $43,846.23 for the period April 20, 2002 to October 4, 2003 because he received dual
benefits from the Office and the Department of Veterans Affairs; and (2) whether he is entitled to
wavier of the overpayment.
FACTUAL HISTORY
On May 17, 2001 appellant, then a 53-year-old letter carrier, sustained extreme anxiety
and depression due to an altercation with his supervisor. He stopped work on May 21, 2001.

The Office accepted the claim for an anxiety and depressive reaction.
compensation for total disability beginning July 2, 2001.1

It paid appellant

Appellant received treatment following his employment injury from Dr. Walter E. Afield,
a Board-certified psychiatrist. On May 18, 2001 Dr. Afield diagnosed a severe depressive
reaction and anxiety reaction and opined that appellant was disabled from employment. On
June 19, 2001 he noted that appellant had post-traumatic stress disorder (PTSD). In a report
dated August 16, 2001, Dr. Bala K. Rao, a Board-certified psychiatrist and Office referral
physician, opined that appellant could return to work in his usual employment. The Office
determined that a conflict existed between Dr. Rao and Dr. Afield regarding the extent of
appellant’s disability and referred him to Dr. Krishan K. Batra, a Board-certified psychiatrist, for
resolution of the conflict. On January 7, 2002 Dr. Batra discussed appellant’s history of PTSD
following a gunshot wound in Vietnam. He diagnosed an adjustment disorder, possible bipolar
disorder and a history of PTSD.
On August 12, 2002 Dr. Gary K. Arthur, a Board-certified psychiatrist, discussed in
detail appellant’s experiences in Vietnam. He diagnosed PTSD due to his Vietnam experiences.
In a progress report dated August 21, 2002, Dr. Afield noted that appellant was “going into great
detail about his Vietnam experiences, which apparently have been exacerbated by his situation at
the [employing establishment].” He diagnosed overwhelming PTSD. In a letter to the Office of
the same date, Dr. Afield related that appellant had been shot twice in combat in Vietnam and
received two purple hearts. He diagnosed severe PTSD. Dr. Afield opined that appellant might
harm someone if he returned to the employing establishment. In a report dated October 23,
2002, Dr. Gillian Karatinos, a Board-certified psychiatrist, discussed appellant’s May 17, 2001
work injury. She noted that the Department of Veterans Affairs (DVA) had increased
appellant’s service-related disability to 50 percent and stated, “[Appellant] has flashbacks of
people dying in Vietnam as well as almost being blown up himself. He has alternate psychic
numbing and hyperarousal (panic) symptoms…. [Appellant] tries to avoid thinking of what
happened in Vietnam.” Dr. Karatinos diagnosed PTSD and recurrent major depressive disorder.
She attributed his PTSD to his Vietnam experiences and found that the May 17, 2001
employment injury “appears to be the triggering factor for the recurrence of the PTSD.”
Dr. Karatinos opined that he was 100 disabled due to service-related PTSD.
By decision dated December 2, 2002, the Office terminated appellant’s compensation
effective November 30, 2002 on the grounds that the weight of the medical evidence showed that
he had no further employment-related disability.
In a December 16, 2002 report, Dr. Arthur asserted that the May 17, 2001 work incident
aggravated appellant’s preexisting PTSD. In a January 13, 2003 supplemental report for the
DVA, he diagnosed pervasive symptoms of PTSD and opined that appellant remained disabled.

1

The Office accepted a May 17, 2001 altercation between appellant and his supervisor as a compensable
employment factor.

2

On April 21, 2003 an Office hearing representative, following a preliminary record
review, reversed the December 3, 2002 decision terminating appellant’s compensation. The
hearing representative noted that both Dr. Arthur and Dr. Karatinos opined that the May 17, 2001
work incident aggravated appellant’s preexisting PTSD. He instructed the Office to obtain a
second opinion examination regarding “whether the claimant does indeed suffer from [PTSD]
and if so, whether this condition was aggravated by the May 17, 2001 employment incident.”
On May 7, 2003 the Office referred appellant to Dr. Emmy Andri, a Board-certified
psychiatrist, for a second opinion examination. It requested that Dr. Andri address whether
appellant continued to experience anxiety and depression due to the May 17, 2001 work incident
and the extent of any disability. The Office further requested that he determine whether
appellant sustained an aggravation of preexisting PTSD due to the May 17, 2001 employment
incident and, if so, whether the aggravation was temporary or permanent. On June 4, 2003
Dr. Andri discussed the May 17, 2001 work incident and noted that appellant had PTSD “while
in [the] Vietnam War and has been on 100 [percent] disability.” She diagnosed a history of
PTSD, depression, anxiety and an adjustment disorder. Dr. Andri opined that appellant had “a
chronic pathology that will interfere with appropriate behavior in a working situation that
requires interpersonal dealings.” She found that his condition was permanent and “not due to the
one episode of May 17, 2001 although it affected him significantly.” Regarding the question of
whether appellant continued to experience anxiety and depression from his May 17, 2001 work
injury, Dr. Andri responded “yes” and indicated that his “already existing pathology was
activated.”
In an EN-1032 form dated June 17, 2003, appellant related that the DVA increased his
compensation for a preexisting condition of PTSD from 10 percent to 50 percent retroactive to
October 7, 2002. On March 17, 2003 the DVA increased his PTSD award to 100 percent on
March 17, 2003 retroactive to May 1, 2002. On May 5, 2003 the Office received a copy of a
March 17, 2003 DVA decision increasing appellant’s evaluation of PTSD to 100 percent
effective April 30, 2002. The DVA cited Dr. Afield’s treatment notes and October 16, 2002
report, the August 21, 2002 psychological evaluation by Dr. Arthur, the October 23, 2002
evaluation by Dr. Karatinos and September 5 and 8, 2002 and February 21, 2003 DVA
evaluations in concluding that he was severely disabled due to PTSD.
By letter dated September 12, 2003, the Office noted that appellant had received a 10
percent award for PTSD from the DVA prior to his employment injury. The DVA increased the
award to 100 percent on April 30, 2002. It informed him that he must elect between the DVA
benefits and his workers’ compensation benefits plus the 10 percent award for PTSD which the
DVA awarded prior to his work injury. On September 22, 2003 appellant declined to make an
election between benefits from the DVA and benefits from the Office. He asserted that his
PTSD was not related to his civilian employment.
On October 2, 2003 the Office suspended appellant’s wage-loss compensation effective
October 5, 2003. It noted that the Federal Employees’ Compensation Act2 prohibited a claimant
from receiving dual benefits for an employment injury. The Office notified him that the
2

5 U.S.C. § 8101-8193.

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suspension of his benefits would continue until he made an election. By decision dated June 2,
2004, an Office hearing representative affirmed the October 2, 2003 suspension of
compensation. She found that the medical evidence established that appellant was receiving dual
benefits for the same injury.
On July 28, 2004 the Office notified appellant of its preliminary determination that he
received a $43,846.24 overpayment of compensation from May 30, 2002 through October 4,
2003 because he received benefits from both the Office and the DVA. It noted that on March 17,
2003 the DVA had increased his disability award due to PTSD from 10 percent to 100 percent
beginning April 30, 2002. The Office concluded that the $43,846.24 that appellant received
from the Office from May 30, 2002 through October 4, 2003 constituted an overpayment of
compensation as it was a dual benefit. It advised him of its preliminary determination that he
was not at fault in the creation of the overpayment. The Office requested that appellant complete
the enclosed overpayment recovery questionnaire and submit supporting financial documents.
Additionally, it notified him that, within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence or a prerecoupment hearing.
Appellant requested a prerecoupment hearing on August 8, 2004. He submitted
supporting financial documents. On March 30, 2005 appellant requested that the Office
reschedule the hearing. He again requested that the Office reschedule the hearing on
January 5, 2007. Appellant related that he did not receive 30 days’ advance notice. On
March 15, 2007 the Office informed him that it had changed his request for an oral hearing to a
request for a review of the written record. It requested current financial information supporting
waiver. By letter dated April 4, 2007, appellant indicated that he was unaware of the laws
regarding dual benefits when he received money from the Office and the DVA.3
By decision dated April 16, 2007, the Office hearing representative finalized the finding
that appellant received a $43,846.24 overpayment of compensation from May 30, 2002 through
October 4, 2003 because he received benefits from both the Office and the DVA. She found that
Dr. Andri opined in a report dated June 4, 2003 that appellant’s May 17, 2001 employment
injury permanently aggravated his PTSD. The hearing representative also noted that the DVA
cited the reports from Dr. Afield and Dr. Arthur in its March 17, 2003 award. She finalized the
finding that appellant was without fault in creating the overpayment. The hearing representative
denied waiver after determining that appellant failed to submit supporting financial documents
supporting waiver as requested by letter dated March 15, 2007. She found that appellant should
repay the overpayment by forwarding the entire amount to the Office.

3

On April 2, 2007 appellant requested a copy of the case record.

4

LEGAL PRECEDENT -- ISSUE 1
Section 8116(a) of the Federal Employees’ Compensation Act defines the limitations on
the right to receive compensation benefits. This section of the Act provides in pertinent part as
follows:
“(a) While an employee is receiving compensation under this subchapter … he may
not receive salary, pay or remuneration of any type from the United States except -(1) in return for service actually performed;
(2) pension for service in the Army, Navy or Air Force;
(3) other benefits administered by the [Veterans’ Administration] unless such
benefits are payable for the same injury or the same death.…”4
Section 8116(b) provides that in such cases an employee shall elect which benefits he shall
receive.5 The Act prevents payment of dual benefits in cases where the Office has found that the
injury was sustained in civilian federal service and the Veterans’ Administration has held that the
same injury was caused by military service.6
The Office’s procedure manual discusses when payment of benefits under the Act and
under statues administered by the DVA constitute forbidden dual payments of compensation,
noting that the prohibition against receiving such payments includes an increase in a veteran’s
service-connected disability award, where the increase is brought about by an injury sustained
while in civilian employment.7
Proceedings under the Act are not adversarial in nature nor are the Office a disinterested
arbiter.8 While the claimant has the responsibility to establish entitlement to compensation, it
shares responsibility in the development of the evidence. The Office has the obligation to see
that justice is done.9 Accordingly, once it undertakes to develop the medical evidence further, it
has the responsibility to do so in the proper manner.10

4

5 U.S.C. § 8116(a).

5

5 U.S.C. § 8116(b)

6

Richard A. Cerasale, 56 ECAB 461 (2005); Sinclair L. Taylor, 52 ECAB 227 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.8(b)(1), (2)
(February 1995).
8
9

Vanessa Young, 55 ECAB 575 (2004).
Richard E. Simpson, 55 ECAB 490 (2004).

10

Melvin James, 55 ECAB 406 (2004).

5

ANALYSIS -- ISSUE 1
The Office accepted appellant’s emotional condition claim for an anxiety reaction and a
depressive reaction. At the time of its acceptance, he received an award from the DVA for a 10
percent disability due to PTSD. The DVA increased appellant’s award for PTSD to 100 percent
effective April 30, 2002. The Office found that the increase in the award constituted a dual
benefit as it resulted from the accepted work injury. It determined that appellant received dual
benefits from the Office and the DVA from April 30, 2002 to October 4, 2003, the date it
suspended his compensation because he refused to make an election of benefits.
The Board finds that the case is not in posture for decision. The Act prohibits payments
from the Office and the DVA when the benefits are “payable for the same injury.”11 The Office
did not sufficiently resolve the issue of whether appellant’s benefits from the Office under the
Act and the increase in his benefits from the DVA resulted from the same injury. In a decision
dated April 21, 2003, a hearing representative instructed it to refer appellant for a second opinion
examination to determine whether he sustained an aggravation of PTSD due to the May 17, 2001
work incident. The Office referred appellant to Dr. Andri and requested that the physician
provide an opinion on whether appellant sustained an aggravation of preexisting PTSD due to the
May 17, 2001 employment incident and, if so, whether the aggravation was temporary or
permanent. In a report dated June 4, 2003, Dr. Andri noted that appellant had PTSD “while in
[the] Vietnam War and has been on 100 [percent] disability.” She reviewed the May 17, 2001
work incident and diagnosed a history of PTSD, depression, anxiety and an adjustment disorder.
Dr. Andri opined that appellant had “a chronic pathology that will interfere with appropriate
behavior in a working situation that requires interpersonal dealings.” She found that his
condition was permanent and “not due to the one episode of May 17, 2001 although it affected
him significantly.” Regarding the question of whether appellant continued to experience anxiety
and depression from his May 17, 2001 work injury, Dr. Andri responded “yes” and indicated that
appellant’s “already existing pathology was activated.” She did not adequately respond to the
question regarding whether appellant’s preexisting PTSD was aggravated or contributed to by
the May 17, 2001 work injury. Dr. Andri’s medical report is insufficient to show that the
increase in appellant’s DVA benefits resulted from the accepted civilian work injury. Further, it
does not appear from the record that the Office accepted that appellant sustained a work-related
aggravation of PTSD.12 It thus had insufficient basis to conclude that appellant’s compensation
benefits from the Office constituted a dual benefit and thus an overpayment of compensation.
CONCLUSION
The Board finds that the Office improperly determined that appellant received an
overpayment of compensation in the amount of $43,846.23 for the period April 20, 2002 to
October 4, 2003 due to his receipt of dual benefits.13
11

5 U.S.C. § 8116(a).

12

See Richard A. Cerasale, supra note 6.

13

In view of the Board’s disposition of the overpayment, the issue of the amount of overpayment and whether the
Office properly denied waiver is moot.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 16, 2007 is reversed.
Issued: December 8, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 07-1450
Issued: January 29, 2008

Case Submitted on the Record

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

JURISDICTION
On May 7, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 29, 2007 in which the hearing
representative affirmed the Office decision denying her claim for a recurrence of disability
commencing March 29, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue on appeal is whether appellant met her burden of proof to establish that she
sustained a recurrence of disability commencing March 29, 2006 causally related to her accepted
employment condition.
FACTUAL HISTORY
On September 27, 2004 appellant, then a 38-year-old flat sorting machine operator, filed
an occupational disease claim alleging that she developed fibromyalgia in the performance of
duty. She became aware of her condition on November 21, 2003. The Office accepted

appellant’s claim for aggravation of myalgia and myositis, aggravation of degeneration of
cervical intervertebral disc and aggravation of lumbar/lumbosacral intervertebral disc. Appellant
stopped work on July 23, 2004 and returned to a light-duty position on February 25, 2006.1
In support of her claim, appellant submitted reports from Dr. Kevin V. Hacksaw, a
Board-certified orthopedist, dated November 22, 2002 to March 23, 2003, who treated her for
fibromyalgia. Dr. Hacksaw opined that appellant’s work duties were aggravating her
fibromyalgia. Appellant was also treated by Dr. Charles J. Kistler, Jr., a Board-certified
orthopedist, who treated her on December 30, 2004 for a work injury which occurred on
October 22, 2003. Dr. Kistler opined that appellant’s repetitive work duties included lifting and
carrying trays and casing mail aggravated the diagnosed conditions of degenerative disc disease
of the cervical and lumbar spine. He further indicated that repetitive twisting, bending and
lifting caused appellant’s back and fibromyalgia conditions. On July 21, 2005 Dr. Kistler
diagnosed fibromyalgia of the cervical and lumbar region, herniated degenerative and bulging
disc in the cervical spine, degenerative disc disease in the lumbar spine and thoracic outlet
syndrome. Dr. Kistler indicated that appellant’s conditions had deteriorated while working at the
employing establishment and rendered her unable to return to her light-duty position since
July 23, 2004. A thoracic spine x-ray dated October 22, 2003, revealed no acute osseous
abnormality and degenerative disc disease at T12-L1. An electromyography (EMG) dated
July 9, 2004 revealed no abnormalities. A magnetic resonance imaging (MRI) scan of the
lumbar spine dated October 21, 2004 revealed degenerative disc disease at C5-6 and C6-7 with
generalized bulging contour at C5-6 and a left recess and foraminal herniated disc at C6-7.
Thereafter, in the course of developing the claim, the Office referred appellant to a
second opinion physician and also to an impartial medical examiner.2 On November 11, 2005
appellant filed a CA-7, claim for compensation for the period beginning July 23, 2004. In a
decision dated January 10, 2006, the Office denied her claim for total disability for the period
beginning July 23, 2004. On February 6, 2006 appellant requested an oral hearing before an
Office hearing representative.
On February 25, 2006 the employing establishment offered appellant a light-duty position
as a flat sorting machine clerk, eight hours per day with a tour of duty from 4:50 a.m. to 1:00
p.m. The physical requirements of the position included lifting under 10 pounds, sitting in a
straight back chair, office work as needed for a processing and distribution center position and
placing damaged letters or flats into tubs or trays. The duties included rewrapping damaged
letters and flats for four hours per day, ad hoc processing and distribution center position duties
for eight hours per day, relief in caller/service as needed for two hours per day and hand
stamping letters and verifying waste mail for two hours per day. Appellant accepted the
position.
1

Appellant filed an occupational disease claim for a lumbar sprain which she became aware of on July 31, 1998
and which the Office accepted for temporary aggravation of thoracolumbar strain, File No. 09-2012734. She filed a
claim for a traumatic injury on March 29, 2006 which is currently under development, File No. 09-2076015.
2

Appellant was referred to Dr. William R. Fitz, a Board-certified orthopedist and impartial medical examiner,
who indicated in a December 13, 2005 report that she could work in a light-duty position with no repetitive bending,
twisting or lifting activities, lifting would be limited to under 10 pounds, no overhead work and no work with arms
outstretched forward for prolong periods of time.

2

On May 27, 2006 appellant filed a CA-2a, recurrence of disability claim. She noted that
on March 29, 2006 she experienced an aggravation and worsening of her accepted conditions
when she returned to work in February 2006. Appellant noted that she performed repetitive
motions which aggravated her fibromyalgia, cervical degenerative disease, bulging and herniated
disc, lumbar degenerative disc disease and thoracic outlet syndrome. She indicated that at the
time of her recurrence she was working a limited-duty position and stopped work on
March 29, 2006. Appellant submitted an attending physician’s report from Dr. Kistler dated
April 20, 2006, who noted that she performed repetitive duties at work and presented with neck
and low back pain and headaches. Dr. Kistler diagnosed aggravation of myalgia and myositis
and aggravation of degenerative cervical and lumbar disc disease. He noted with a checkmark
“yes” that appellant’s condition was caused or aggravated by an employment activity and
indicated that she experienced a recurrence on March 29, 2006. Dr. Kistler advised that
appellant was totally disabled from March 29, to May 19, 2006 and partially disabled beginning
May 20, 2006. On May 20, 2006 he returned appellant to work four hours per day with a gradual
increase in hours. In a duty status report dated April 21, 2006, Dr. Kistler diagnosed aggravation
of myalgia and myositis and cervical and lumbar discs and advised that appellant was able to
return to work four hours per day on April 29, 2006 with restrictions. Also submitted was a
prescription note from Dr. Kistler dated April 28, 2006, which noted that appellant could return
to work on May 20, 2006 for four hours per day to be gradually increased up to eight hours per
day with restrictions.
By letter dated June 1, 2006, the Office advised appellant of the type of evidence needed
to establish her claim for a recurrence of disability on March 29, 2006 and particularly requested
that she submit a physician’s reasoned opinion addressing the relationship of her claimed
recurrent disability and the original work injury.
In a decision dated July 3, 2006, the hearing representative set aside the decision dated
January 10, 2006 which denied appellant’s claim for total disability for the period July 24, 2004
to February 24, 2006 and remanded the case for further development.
In a decision dated July 11, 2006, the Office denied appellant’s claim for a recurrence of
disability commencing March 29, 2006.
By letter dated July 14, 2006, appellant requested an oral hearing which was held on
January 9, 2007. She submitted a duty status report from Dr. Hacksaw dated March 28, 2003
and a certificate for light-duty work dated December 5, 2003 which noted that appellant could
work eight hours per day, five days a week subject to restrictions. In an undated statement
appellant provided additional information regarding a claim filed in May 1998 which was
accepted for a temporary aggravation of thoracolumbar sprain and strain, File No. 09-2012734.3
The employing establishment submitted a notice of removal for improper conduct dated
January 22, 2004, notice of 10-day suspension for unsatisfactory attendance dated May 6, 2004,
3

By letter dated September 6, 2006, the Office referred appellant’s case record to Dr. Pietro Seni, a Boardcertified orthopedist, for a supplemental second opinion report in accordance with the remand instructions from the
Office in its decision dated July 3, 2006. Dr. Seni opined that appellant did not develop a permanent aggravation to
substantiate her claimed period of disability from July 23, 2004 to February 25, 2006.

3

an extended absence letter dated September 22, 2005 and a notice of a 5-day suspension for
improper conduct. Also submitted was a letter from the employing establishment indicating that
appellant could not perform the flat sorter machine operator position and was accommodated for
nonwork-related conditions by being offered a position in the registry room.
In a decision dated December 5, 2006, the Office denied appellant’s claim for recurrent
disability for the period July 23, 2004 to February 24, 2006. Appellant requested an oral hearing
before an Office hearing representative.
In a decision dated March 29, 2007, the hearing representative affirmed the Office’s
decision dated July 11, 2006 which determined that appellant failed to establish that her claimed
recurrence of disability on or after March 29, 2006 was causally related to accepted employment
factors.
In a decision dated April 16, 2007, the hearing representative set aside the Office decision
dated December 5, 2006 and remanded the claim for further development. She noted that the
factual evidence required further development with respect to appellant’s work status and
physical requirements of appellant’s jobs for the period November 21, 2002 to July 23, 2004.
The hearing representative instructed the Office to prepare a revised statement of accepted facts
to be sent to Dr. Seni for a supplemental report addressing whether appellant became totally
disabled due to a worsening of her employment-related conditions beginning July 23, 2004 to
February 25, 2006.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.4
Causal relationship is a medical issue,5 and the medical evidence required to establish a
causal relationship is rationalized medical evidence. 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.6
4

Terry R. Hedman, 38 ECAB 222 (1986). See 20 C.F.R. § 10.5(x) for the definition of a recurrence of disability.

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

Gary L. Fowler, 45 ECAB 365 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

4

ANALYSIS
The Office accepted appellant’s claim for aggravation of myalgia and myositis,
aggravation of degeneration of cervical intervertebral disc and aggravation of
lumbar/lumbosacral intervertebral disc. Appellant returned to a light-duty position on
February 25, 2006 as a flat sorting machine clerk. She stopped work on March 29, 2006 and
filed a claim for a recurrence of disability alleging that she performed repetitive motions which
aggravated the diagnosed fibromyalgia, cervical degenerative disease, bulging and herniated
disc, lumbar degenerative disc disease and thoracic outlet syndrome. In the instant case,
appellant has not submitted sufficient evidence to support a change in the nature and extent of
the injury-related condition or a change in the nature and extent of the light-duty requirements.
Appellant submitted a duty status report from Dr. Hacksaw dated March 28, 2003 and a
certificate for light-duty work dated December 5, 2003; however, this evidence is of no value in
establishing the claimed recurrence of disability as the reports and statement were previously
considered by the Office when it accepted appellant’s claim and adds nothing new with respect
to her claimed recurrent disability beginning March 29, 2006.
Appellant submitted an attending physician’s report from Dr. Kistler dated April 20,
2006, who noted that she performed repetitive duties at work and presented with neck and low
back pain and headaches. He diagnosed aggravation of myalgia and myositis and aggravation of
degenerative cervical and lumbar disc disease. Dr. Kistler noted with a checkmark “yes” that
appellant’s condition was caused or aggravated by an employment activity and that she
experienced a recurrence on March 29, 2006 and was totally disabled from March 29 to May 19,
2006 and partially disabled beginning May 20, 2006. However, the Board has held that an
opinion on causal relationship which consists only of a physician checking “yes” to a medical
form report question on whether the claimant’s condition was related to the history given is of
little probative value. Without any explanation or rationale for the conclusion reached, such
report is insufficient to establish causal relationship.7
Appellant also submitted a duty status report from Dr. Kistler dated April 21, 2006, who
diagnosed aggravation of myalgia and myositis and cervical and lumbar discs and advised that
she was able to return to work four hours per day on April 29, 2006 with restrictions. In a
prescription note dated April 28, 2006, Dr. Kistler indicated that appellant could return to work
on May 20, 2006 for four hours per day and gradually increase to eight hours per day with
restrictions. However, none of his reports most contemporaneous with the claimed recurrence
note a specific date of a recurrence of disability nor did he note a particular change in the nature
of appellant’s physical condition, arising from the employment injury which prevented her from

7

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

5

performing her light-duty position.8 The Board has found that vague and unrationalized medical
opinions on causal relationship have little probative value.9
Likewise, the Board finds that there is no credible evidence which substantiates that
appellant experienced a change in the nature and extent of the light-duty requirements or was
required to perform duties which exceeded her medical restrictions. The light-duty position
performed by appellant was in conformance with the medical restrictions set forth by the referee
physician and the record is void of evidence which would indicate that there was a change in the
nature and extent of the light-duty requirements or that she was required to perform duties which
exceeded her medical restrictions.
Appellant has not met her burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements which would prohibit her from performing the light-duty position she assumed
after she returned to work.10
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability on March 29, 2006.

8

See Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971) (where the Board
has consistently held that contemporaneous evidence is entitled to greater probative value than later evidence).
9

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
10

The Board notes that the Office decision dated April 16, 2007 is not before the Board in the present appeal.
The matter addressed in that decision is in an interlocutory posture as the Office has remanded the matter for further
development. See 20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the March 29, 2007 decision of the Office of
Worker’ Compensation Programs is affirmed.
Issued: January 29, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTIC BASE, Albany, GA,
Employer
__________________________________________

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

Docket No. 16-1456
Issued: January 10, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 1, 2016 appellant filed a timely appeal from a June 24, 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 established a recurrence of a medical condition beginning
December 6, 2012 causally related to his accepted employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as outlined
in the Board’s prior decisions are incorporated herein by reference. The facts relevant to this
appeal are set forth below.
On September 8, 2001 appellant, then a 46-year-old heavy mobile mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on August 6, 2001 he injured his left lower
back and leg in the performance of duty. OWCP accepted the claim, assigned File No.
xxxxxx248, for lumbar strain.3 Appellant’s attending physician released him to resume his usual
employment beginning April 29, 2002.
Appellant filed a recurrence of disability claim (Form CA-2a) beginning July 2004
causally related to his August 6, 2001 work injury. However, as he cited new work factors,
OWCP adjudicated the claim as a new injury, assigned File No. xxxxxx141.
In a decision dated December 30, 2009, the Board affirmed OWCP’s nonmerit decisions
dated June 19, August 20, and October 15, 2008 denying appellant’s request for a review of the
written record and a July 16, 2008 decision denying his request for reconsideration as untimely
filed and failed to demonstrate clear evidence of error.4
Appellant continued to request reviews of the written record, which OWCP denied in
decisions dated September 27, 2011, and June 11, July 26, and September 26, 2012, finding that
there was no final decision from which he could receive a review of the written record.
On August 8, 2012 appellant requested reconsideration of an August 19, 2002 schedule
award decision.5 By decision dated September 21, 2012, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
In a decision dated November 6, 2012, OWCP denied appellant’s request for continued
physical therapy due to his August 6, 2001 work injury.6 It noted that Dr. Jeffrey A. Fried, an
2

Docket No. 09-0321 (issued December 30, 2009).

3

In a decision dated August 19, 2002, OWCP denied appellant’s claim for a schedule award. On September 3,
2002 appellant requested a review of the written record. On January 23, 2003 an OWCP hearing representative
affirmed the August 19, 2002 decision.
4

Supra note 2. On May 13, 2008 appellant requested a review of the written record before an OWCP hearing
representative. By decision dated June 19, 2008, OWCP denied his request for a review of the written record, noting
that it had issued a decision based on a review of the written record on January 23, 2003 and thus he was not entitled
to a second review of the written record as a matter of right. On July 10, 2008 appellant requested reconsideration
of the January 23, 2003 decision. By decision dated July 16, 2008, OWCP denied his request for reconsideration as
it was untimely filed and failed to demonstrate clear evidence of error. Appellant again requested reviews of the
written record. On August 20 and October 15, 2008 OWCP denied these requests for a review of the written record.
5

By decisions dated August 19, 2002 and January 23, 2003, OWCP found that appellant had not established
permanent impairment due to his accepted condition of lumbar sprain.
6

By decision dated January 31, 2013, an OWCP hearing representative affirmed the November 6, 2012 decision
denying authorization for physical therapy.

2

attending Board-certified orthopedic surgeon, failed to adequately explain how the condition of
spondylolisthesis was due to his lumbar sprain.
On November 16, 2012 OWCP referred appellant to Dr. Douglas P. Hein, a Boardcertified orthopedic surgeon, for a second opinion examination to determine whether he had a
need for medical benefits causally related to his August 6, 2001 employment injury.
In a report dated December 5, 2012, Dr. Hein discussed appellant’s work injury and the
results of diagnostic studies. He advised that the accepted condition of lumbar strain resulting
from the 2001 work injury had entirely resolved. Dr. Hein opined that appellant had
degenerative changes at L4-5 and L5-S1 that predated his injury and that the spondylolisthesis at
L4-5 was “a normal progression of that disease.”
In a decision dated February 13, 2013, OWCP terminated appellant’s medical benefits
and any future wage-loss compensation effective that date. It found that the opinion of Dr. Hein
represented the weight of the medical evidence and established that he had no residuals of his
August 6, 2001 work injury.
In a report dated January 16, 2013, received by OWCP on May 20, 2013, Dr. Fried
advised that appellant’s low back strain from his August 6, 2001 employment injury had “not
resolved and he has instability of the back resulting in spondylolisthesis at L5-S1.”7 He
indicated that appellant might require a spinal fusion.
On April 15, 2013 appellant requested both a review of the written record and
reconsideration. In a decision dated May 10, 2013, OWCP denied his request for a review of the
written record as it had not been requested within 30 days of the February 13, 2013 decision. By
decision dated August 9, 2013, OWCP denied modification of its February 13, 2013 termination
decision. It found that appellant had failed to submit medical evidence sufficient to overcome
the opinion of Dr. Hein that he had no residuals of his accepted lumbar strain.
A magnetic resonance imaging (MRI) scan dated September 17, 2013 revealed
anterolisthesis of L4 over L5 as a result of advanced facet arthrosis and mild-to-moderate
bilateral neural foraminal stenosis at L2 through L5.8
Appellant appealed to the Board. In a decision dated December 11, 2013, the Board
affirmed the May 10, 2013 decision denying his request for a review of the written record and
the August 9, 2013 decision which denied modification of the termination of benefits.9 The
Board found that Dr. Hein’s opinion constituted the weight of the evidence and demonstrated
that appellant did not require further medical treatment. The Board considered Dr. Fried’s
7

In a report dated July 17, 2013, Dr. Fried opined that appellant had 28 percent whole person permanent
impairment as a result of cervical radiculitis.
8

On July 17, 2013 Dr. Fried diagnosed cervical disc displacement, acquired spondylolisthesis, right carpal tunnel
syndrome, right contracture of the little finger, bursitis of the left elbow, and right shoulder joint pain. He advised
that appellant had 23 percent whole person permanent impairment due to cervical radiculitis.
9

Docket No. 13-1953 (issued December 11, 2013).

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January 16, 2013 opinion that his lumbar sprain had not resolved but found that it was
unsupported by medical rationale.
On December 7, 2013 appellant filed a recurrence claim (Form CA-2a) alleging that he
experienced the need for further medical treatment beginning December 6, 2012 causally related
to his August 6, 2001 employment injury.
In a response dated March 21, 2014, OWCP informed appellant that it would not take
action on his claim of recurrence of a medical condition as it had previously terminated his
compensation and medical benefits.10
In a report dated December 15, 2014, Dr. John D. Marshall, who specializes in family
medicine, evaluated appellant for pain in his arms and neck. He diagnosed cervical disc
displacement, spondylolisthesis, and a left rotator cuff tear.
Dr. Fried, in a report dated March 19, 2015, reviewed appellant’s history of an August 6,
2001 injury and noted that he injured his rotator cuff. He related:
“In addition, [appellant] had no symptomatic back condition prior to his injury.
He has had continued back and leg pain and was found to have spondylolisthesis
and it is my opinion that he had previous quiescent back condition, which was
aggravated by the accident and has not returned to its baseline state. Therefore, I
believe the spondylolisthesis should be considered a work-related condition.”
On May 22, 2015 appellant requested reconsideration. By decision dated June 25, 2015,
OWCP denied his request for reconsideration as it was untimely filed and failed to demonstrate
clear evidence of error. It noted that its last merit decision was issued December 11, 2013 and
appellant’s request for reconsideration was not received until May 22, 2015.
By decision dated November 5, 2015, the Board affirmed OWCP’s June 25, 2015
decision.11 The Board discussed appellant’s contention that OWCP should issue a decision
regarding his recurrence claim, but indicated that it had no jurisdiction over this issue. The
Board found that the underlying issue was whether OWCP properly terminated his entitlement to
medical benefits as he had no further residuals of his lumbar strain.
In correspondence dated January 13, 2016, OWCP discussed appellant’s December 7,
2013 notice of a recurrence of a medical condition and advised him that he needed to submit
supporting factual and medical evidence, including a report from his attending physician
addressing the relationship between any current condition and his accepted work injury.
Appellant, in a statement dated January 11, 2016, asserted that Dr. Hein performed a brief
examination and did not consider all of the medical evidence. He described his history of
10

Appellant appealed the March 21, 2014 correspondence to the Board. On November 12, 2014 the Board
dismissed the appeal after finding that the March 21, 2014 letter was informational in nature rather than a final
adverse decision.10 The Board thus found that there was no final decision over which it had jurisdiction.
11

Docket No. 15-1571 (issued November 5, 2015).

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multiple work injuries and advised that he currently received disability benefits from the Social
Security Administration.
In a January 27, 2016 report, Dr. Fried indicated that on October 6, 2001 appellant
injured his back pulling a wheel off a trailer. He advised that a lumbar spine MRI study obtained
after his injury showed spondylosis, but that his condition “had progressed and the last MRI scan
done on March 6, 2009 showed L4-5 spondylolisthesis grade 1 with disc bulge. Appellant also
has had progression of his condition in his back since the accident and his accident occurred as
an aggravation of his preexisting spondylosis and now has resulted in spondylolisthesis at L4-5.”
By decision dated June 24, 2016, OWCP found that appellant had not established a
recurrence of disability. It determined that Dr. Fried’s January 27, 2016 report was not
rationalized and failed to explain why appellant’s current condition was related to the August 6,
2001 employment injury.
LEGAL PRECEDENT
Appellant has the burden of proof to establish that he sustained a recurrence of a medical
condition causally related to his accepted employment injury.12 To meet his burden, he must
furnish medical evidence from a physician who, on the basis of a complete and accurate factual
and medical history, concludes that the condition is causally related to the employment injury
and supports that conclusion with sound medical reasoning.13 Where no such rationale is
present, the medical evidence is of diminished probative value.14
OWCP’s procedures define a recurrence of medical condition as follows:
“This term is defined as the documented need for further medical treatment after
release from treatment of the accepted condition when there is no work stoppage.
Continued treatment for the original condition is not considered a renewed need
for medical care, nor is examination without treatment.”15
ANALYSIS
OWCP accepted that appellant sustained lumbar strain as a result of an August 6, 2001
employment injury. It terminated his medical benefits effective February 13, 2013. The Board
affirmed OWCP’s termination of appellant’s medical benefits in a decision dated
December 11, 2013. The Board found that the opinion of Dr. Hein, the second opinion
examiner, represented the weight of the evidence and established that appellant had no residuals
of his accepted condition requiring medical treatment. The Board also found that the January 16,

12

See V.P., Docket No. 16-0614 (issued May 18, 2016).

13

See Ronald A. Eldridge, 53 ECAB 218 (2001).

14

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013).

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2013 report from Dr. Fried was not rationalized and was thus insufficient to show that he needed
additional medical treatment for his lumbar sprain.
Appellant, on December 7, 2016, filed a claim for a recurrence of a medical condition
beginning December 6, 2012 due to his August 6, 2001 work injury. In its June 24, 2016
decision, OWCP found that appellant had not established a recurrence of disability. The issue,
however, is whether appellant met his burden of proof to show that he required additional
medical treatment due to his accepted August 6, 2001 employment injury after February 13,
2013, the date OWCP terminated his medical benefits.
The Board finds that appellant has not met his burden of proof to establish a recurrence of
a medical condition beginning February 13, 2013. On December 15, 2014 Dr. Marshall noted
that appellant complained of bilateral neck and arm pain. He diagnosed cervical disc
displacement, spondylolisthesis, and a left rotator cuff tear. Dr. Marshall, however, did not
address causation and thus his opinion is of little probative value. Medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of diminished probative
value on the issue of causal relationship.16
On March 19, 2015 Dr. Fried discussed appellant’s history of an August 6, 2001 injury.
He advised that he had no back symptoms before his injury but now had back and leg pain with
spondylolisthesis. Dr. Fried opined that the work injury aggravated a preexisting condition and
that the aggravation had not resolved. He noted that the spondylolisthesis “should be considered
a work-related condition.” A medical opinion that a condition is causally related to an
employment injury because the employee was asymptomatic before the injury but symptomatic
after it is insufficient, without supporting rationale, to establish causal relationship.17
Additionally, OWCP did not accept spondylolisthesis as causally related to the August 6, 2001
work injury. Where appellant claims that a condition not accepted or approved by OWCP
resulted from his employment injury, he bears the burden of proof to establish that the condition
is causally related to the employment injury through the submission of rationalized medical
evidence.18 Dr. Fried did not provide adequate rationale for his opinion that the work injury
aggravated a preexisting condition and thus his report is of little probative value.19
Dr. Fried, in a January 27, 2016 report, discussed appellant’s history of an injury to his
back on August 6, 2001. He related that MRI studies showed progression of spondylolisthesis
from after the 2001 injury until 2009. Dr. Fried opined that the work injury aggravated
preexisting spondylolisthesis that had progressed to spondylolisthesis at L4-5. He did not,
however, explain why the progression of spondylolisthesis on MRI study resulted from the injury
rather than age or other causes. A physician must provide an opinion on whether the
employment incident described caused or contributed to the claimant’s diagnosed medical
condition and support that opinion with medical reasoning to demonstrate that the conclusion
16

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

17

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

18

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

19

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

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reached is sound, logical, and rational.20 The Board finds that Dr. Fried failed to provide a
supported medical opinion.
As discussed, appellant has the burden of proof to submit reasoned medical evidence
supporting his claim that he requires further medical treatment as a result of his accepted
employment injury.21 He failed to provide such evidence and thus did not 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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of a medical condition
beginning December 6, 2012 causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 10, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
20

See John W. Montoya, 54 ECAB 306 (2003).

21

See supra note 12.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 12-29
Issued: March 14, 2013

Case Submitted on the Record

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

JURISDICTION
On October 8, 2011 appellant filed a timely appeal from a June 23, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) which denied modification of a
wage-earning capacity determination. 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 OWCP properly denied modification of the August 23, 2005 wageearning capacity determination.
FACTUAL HISTORY
On February 16, 2001 appellant, then a 37-year-old letter carrier, filed an occupational
disease claim alleging that she suffered from continuous swelling, numbness and pain in her
1

5 U.S.C. § 8101 et seq.

hands as a result of casing and delivering mail at work. OWCP accepted appellant’s claim for
bilateral carpal tunnel syndrome. Appellant returned to full-time limited duty in March 2002.
On January 18, 2005 she underwent right carpal tunnel release surgery. Appellant remained off
work and received disability compensation.
In a March 24, 2005 report, Dr. Michael Jablon, a Board-certified orthopedic surgeon,
authorized appellant to return to limited duty beginning April 4, 2005. He stated that when she
returned to work on April 4, 2005 her work restrictions would include no lifting over 10 pounds,
no carrying over 10 pounds, no repetitive motions and a 5-minute break after every 20 minutes
of typing. In an attached duty status form, Dr. Jablon stated in greater detail appellant’s
restrictions as no lifting or carrying over 10 pounds, no climbing or kneeling and no pushing or
pulling a cart. Appellant was also limited to walking and simple grasping no more than six to
eight hours a day, driving a vehicle no more than four hours a day, keyboarding for only three
hours a day with a 5-minute break every 20 minutes and sitting and bending no more than one to
two hours a day. In a May 26, 2005 report, Dr. Jablon stated that appellant’s current restrictions
were permanent.
On March 31, 2005 appellant accepted a job offer as a modified letter carrier effective
April 4, 2005. The duties included preparing address management systems (AMS), electronic
unencoded address resolution services (EUARS), and Red Books (walking routes), editing post
office complaints, processing electronic fleet reports, answering telephones and preparing mail
volume reports. These duties were to be performed within the physical restrictions of no lifting
or carrying over 10 pounds, no repetitive motion and a 5-minute break after 20 minutes of
typing.
On July 12, 2005 appellant accepted a rehabilitation job offer as a rehabilitation carrier
effective July 23, 2005. Her clerical duties included answering telephone calls, taking messages,
filing postal forms and paperwork, assisting customers at caller windows and inputting and
retrieving data on the computer. These duties were described as sedentary work and required
simple grasping, intermittent fine manipulation, lifting less than one pound and computer work
that allowed for 5-minute breaks every 20 minutes. Appellant’s carrier duties included collecting
keys from carriers, having them sign for any mail that was not delivered, removing expired
change of address cards and reviewing carrier edit sheets. These duties were also sedentary work
with no prolonged standing, no lifting more than 10 pounds, simple grasping, intermittent fine
manipulation and intermittent grasping.
By letter dated July 8, 2005, appellant was offered another position entitled “Rehab
Carrier” which was effective July 23, 2005. Her medical restrictions were unchanged.
Appellant’s job duties were specified in detail and included tasks not specified in the modified
carrier position. It appears that her salary as a modified carrier was lower than her salary in the
rehabilitation job. Appellant indicated her acceptance of the “Rehab Carrier” position by signing
a Postal Service Rehabilitation Job Offer form on July 12, 2005.
By decision dated August 23, 2005, OWCP found that appellant’s modified letter carrier
position offered on March 31, 2005 and effective April 4, 2005 fairly and reasonably represented
her wage-earning capacity. The decision stated that, since she had demonstrated the ability to
perform her duties for two months, the modified letter carrier position fairly and reasonably

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represented her wage-earning capacity. Because appellant’s earnings as a modified letter carrier
equaled or exceeded the current earnings of her date-of-injury position, OWCP reduced her
compensation to zero.
Almost five years later, on July 15, 2010 the employing establishment offered appellant a
position as a modified city carrier effective July 16, 2010. The duties included express mail scan
and distribution for one and a half hours and delivery of daily assigned routes for six and a half
hours. The physical activities required to perform these duties included standing, walking,
lifting, carrying, writing and scanning for one and a half hours and driving, standing, lifting,
carrying, bending and twisting for six and a half hours. Appellant accepted the position, but
indicated that she was accepting under protest and was not in agreement. In a July 22, 2010 duty
status report, Dr. Jablon restricted her to no lifting or carrying over 10 pounds, no casing,
pushing or pulling a cart for four to six hours per day, keyboarding for three hours per day and
driving a vehicle for six and one half hours per day.
On September 29, 2010 appellant filed a claim for recurrence of disability beginning on
September 25, 2010. She stated that after her initial injury she was on limited duty for 10 years,
but when she started to deliver mail again she experienced numbness, swelling and pain in her
right hand. Appellant reported that she had been in a modified position, but now she was
carrying a full route, which caused aggravation to her hands. She stopped work on
September 25, 2010 and did not return.
On November 24, 2010 OWCP advised appellant that her recurrence of disability claim
was actually a request to modify her August 23, 2005 loss of wage-earning capacity decision and
advised her of the evidence needed to support her claim. In a December 12, 2010 letter,
appellant requested modification of the prior wage-earning capacity determination alleging that
the initial determination was erroneous.
In a decision dated January 13, 2011, OWCP denied appellant’s claim for wage-loss
compensation finding that she failed to establish a basis for modifying the August 23, 2005
wage-earning capacity determination. Accordingly, it also rejected the claimed wage-loss
compensation on and after September 23, 2010.
On February 8, 2011 OWCP received appellant’s request for a review of the written
record. Appellant related that she underwent surgery for right carpal tunnel syndrome and
returned to light duty in 2005 for a job that was tailored just for her. By decision dated June 23,
2011, an OWCP hearing representative found that appellant had not established a basis for
modifying OWCP’s August 23, 2005 wage-earning capacity determination. Accordingly, the
hearing representative affirmed the January 13, 2011 decision.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn

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wages.2 Actual wages earned are generally the best measure of wage-earning capacity.3 In the
absence of evidence showing that actual earnings do not fairly and reasonably represent the
injured employee’s wage-earning capacity, such earnings must be accepted as representative of
the individual’s wage-earning capacity.4 A determination regarding whether actual earnings
fairly and reasonably represent wage-earning capacity should be made only after an employee
has worked in a given position for more than 60 days.5
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.6 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.7
ANALYSIS
The Board finds that the August 23, 2005 wage-earning capacity determination was
erroneous.
Appellant underwent right carpal tunnel release surgery on January 18, 2005 and
remained off work. In a March 24, 2005 report, Dr. Jablon authorized her to return to full-time
limited duty beginning April 4, 2005 with restrictions of no repetitive motions, no lifting or
carrying over 10 pounds, no climbing, kneeling and pushing or pulling a cart and keyboarding
for three hours. Appellant was also instructed to take a 5-minute break after 20 minutes of
continuous typing. On March 31, 2005 she accepted a job offer as a modified letter carrier
effective April 4, 2005. On July 8, 2005 the employing establishment offered appellant a
permanent rehabilitation job assignment as a rehabilitation carrier effective July 23, 2005. On
August 31, 2005 OWCP issued its LWEC determination on August 31, 2005 finding that
appellant’s employment as a modified letter carrier, which was effective April 4, 2005, fairly and
reasonably represented her wage-earning capacity.
The Board finds that the LWEC determination was erroneous because it was based on the
April 4, 2005 modified letter carrier position, even though appellant accepted a position as a
rehabilitation carrier in July 2005. The rehabilitation carrier position was different than the
position accepted in March 2005 and was appellant’s position at the time OWCP issued its
August 31, 2005 LWEC determination. Although appellant’s duties were similar, the July 2005
rehabilitation carrier position included additional duties such as filing postal forms and
2

5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

3

Hayden C. Ross, 55 ECAB 455, 460 (2004).

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (October 2009).
6

Sharon C. Clement, 55 ECAB 552 (2004).

7

Tamra McCauley, 51 ECAB 375, 377 (2000).

4

paperwork, assisting customers at caller windows, inputting and retrieving data on the computer,
collecting keys from carriers, removing expired change of address cards and reviewing carrier
edit sheets. Unless circumstances dictate the issuance of a retroactive LWEC determination,8
OWCP cannot issue an LWEC determination based on a position the employee did not hold
when the LWEC issued.9 As noted, when determining wage-earning capacity, OWCP must not
only consider actual earnings but must also evaluate the suitability of the work currently being
performed.10 In this case, OWCP’s August 31, 2005 LWEC determination focused only on
appellant’s April 2005 position as a modified letter carrier effective April 4, 2005 and not on her
current job duties in the July 2005 rehabilitation carrier position. Even if the August 31, 2005
LWEC determination had been based on appellant’s then-current rehabilitation carrier duties, the
determination would be erroneous because appellant had not performed those duties for 60 days
before OWCP issued its August 31, 2005 LWEC decision.11
Because appellant was not in the modified letter carrier position at the time OWCP issued
an LWEC based upon that position, the LWEC is erroneous. Because she had not occupied the
rehabilitation carrier position for 60 days before OWCP issued the LWEC, the LWEC is
inapplicable to that position. Accordingly, appellant has established a basis for modifying the
LWEC determination.
CONCLUSION
Appellant established a basis for modifying OWCP’s August 31, 2005 wage-earning
capacity determination.

8

See Juan A. DeJesus, 54 ECAB 721, 722-23 (2003).

9

C.H., Docket No. 11-1711 (issued February 15, 2012).

10

See supra notes 7 and 8.

11

Supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the June 23, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 14, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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

Docket No. 14-598
Issued: August 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 16, 2014 appellant filed a timely appeal from a September 6, 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.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed
chronic osteoarthritis, a right knee lateral meniscus tear or a left knee medial collateral ligament
strain in the performance of duty.
FACTUAL HISTORY
On June 8, 2013 appellant, then a 55-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained injuries as a result of his federal
1

5 U.S.C. § 8101 et seq.

employment duties. He first became aware of his condition on February 1, 2005 and of its
relationship to his employment on June 3, 2013.
By letter dated June 14, 2013, the employing establishment controverted the claim.
By letter dated June 18, 2013, OWCP informed appellant that the evidence of record was
insufficient to support his claim because no evidence had been received. Appellant was advised
of the medical and factual evidence needed and asked to respond to the provided questions
within 30 days. OWCP also requested that the employing establishment provide information
regarding his employment duties.
In a July 5, 2013 narrative statement, appellant stated that he developed chronic
osteoarthritis, a right knee lateral meniscus tear and a left knee medial collateral ligament (MCL)
strain as a result of his federal employment duties. He reported that he was a letter carrier in
Anchorage, Alaska from 1997 to 2007 and was transferred to Colorado Springs, Colorado in
2007 where he currently worked. Appellant stated that his letter carrier duties included lifting
35 to 70 pounds, walking six to seven hours a day in adverse conditions and prolonged standing,
stooping, bending and twisting. He stated that he engaged in these activities for 8 to 12 hours a
day, five to six days a week. Appellant noted that he had been a letter carrier for the last
16 years and did not have any injuries prior to working for the employing establishment. He
further noted that his duties as a letter carrier in both Anchorage and Colorado Springs required
him to walk for six to seven hours a day, five to six days a week. Appellant stated that his knee
pain had progressively worsened as a result of his federal employment duties.
In medical reports dated October 23, 2004 to November 7, 2005, Dr. Ken R. Moll,
Board-certified in family medicine, reported that appellant was a postal service employee who
complained of right knee pain, especially with prolonged standing and when stepping out of his
mail truck. He diagnosed subacute arthritis.
In a January 26, 2006 operative report, Dr. Richard McEvoy, a Board-certified orthopedic
surgeon, reported that appellant suffered a torn lateral meniscus of the right knee and underwent
a partial lateral meniscectomy and removal of loose body lateral suprapatellar pouch.
In medical reports dated June 20 and July 8, 2013, Dr. Thomas Johnson, an osteopathic
physician, reported that appellant was evaluated for complaints of knee pain which left him
unable to walk. A June 7, 2013 magnetic resonance imaging (MRI) scan of the left knee
revealed moderate osteoarthritis and MCL strain with a ruptured popliteal cyst behind the knee.
Dr. Johnson noted that appellant was a postman who walked six to seven hours daily for the last
17 years. Appellant reported that he was hurt at work when he stumbled while walking and
heard his knee pop. Dr. Johnson stated that appellant tripped while delivering mail on a walking
route and suffered a knee sprain. He further stated that he believed that appellant’s osteoarthritis
was preexisting but the MCL strain was a new injury.
By decision dated September 6, 2013, OWCP denied appellant’s claim finding that the
evidence failed to establish that the occupational exposure occurred as alleged.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.6 The opinion of the physician 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. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.7

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, supra note 2.

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

James Mack, 43 ECAB 321 (1991).

3

ANALYSIS
The Board finds that appellant failed to establish that he developed chronic osteoarthritis,
right knee lateral meniscus tear and left knee MCL strain in the performance of duty as a city
letter carrier.
In order to prevail, appellant must establish all of the elements of his claim. He must
prove his employment, the time, place and manner of injury, a resulting personal injury and that
his injury arose in the performance of duty. Appellant alleged that he developed chronic
osteoarthritis, right knee lateral meniscus tear and left knee MCL strain as a result of his federal
employment duties as a city letter carrier.
Appellant has not provided sufficient detail to establish that an occupational exposure
occurred as alleged.8 On his CA-2 form, he stated that he had no prior medical issues until he
started working for the postal service and his duties as a letter carrier aggravated his condition.
Appellant failed to describe the circumstances of his alleged injury and the duties he was
performing which caused his injury. His July 5, 2013 narrative statement alleged that he
developed chronic osteoarthritis, a right knee lateral meniscus tear and left MCL strain as a result
of his federal employment duties. Appellant reported that he was a letter carrier in Anchorage,
Alaska from 1997 to 2007 and was transferred to Colorado Springs, Colorado in 2007 where he
currently worked. He stated that his letter carrier duties included lifting 35 to 70 pounds,
walking six to seven hours a day in adverse conditions and prolonged standing, stooping,
bending and twisting. Appellant stated that he engaged in these activities for 8 to 12 hours a day,
five to six days a week. He noted that he had been a letter carrier for the last 16 years and did
not have any injuries prior to working for the employing establishment. Appellant further noted
that his duties as a letter carrier in both Anchorage and Colorado Springs required him to walk
for six to seven hours a day, five to six days a week. As he filed a CA-2 form, he has alleged
that his conditions were caused by cumulative trauma produced by his work environment over a
period longer than a single workday or shift.9 The Board finds that appellant’s description of his
job duties is generalized and vague in nature. Appellant failed to provide an adequate detailed
description of his specific employment duties, at his various work locations, which he believed
caused or aggravated his condition to establish that an occupational exposure occurred as
alleged.
The medical evidence of record further fails to substantiate appellant’s claim. Dr. Moll’s
October 23, 2004 to November 7, 2005 reports noted appellant’s complaints of right knee pain,
especially with prolonged standing and stepping out of his mail truck. While he diagnosed
subacute arthritis of the right knee, he failed to adequately describe appellant’s employment
duties or state any opinion regarding the cause of his condition relative to his employment.
Dr. McEvoy’s January 26, 2006 operative report also failed to discuss appellant’s employment
duties or state an opinion on the cause of injury. The only medical reports pertaining to
appellant’s right knee condition date back more than seven years and fail to adequately describe

8

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

9

20 C.F.R. § 10.5(q).

4

his employment duties or cause of injury. The reports are of limited probative value and
insufficient to establish his claim.10
Dr. Johnson’s reports dated June 20 and July 8, 2013 are also insufficient to establish that
an occupational exposure occurred as alleged. While he noted that appellant was a postman who
walked six to seven hours daily, he also reported that appellant tripped while delivering mail on a
walking route and suffered a knee sprain. This implicates a traumatic injury on an unspecified
date. Dr. Johnson failed to provide a detailed medical history or adequately describe appellant’s
employment duties, as alleged by appellant in his occupational disease claim. Moreover, it
appears that Dr. Johnson is attributing appellant’s left knee MCL strain to a traumatic injury
resulting from a single occurrence within a single workday rather than an injury produced by his
work environment over a period longer than a single workday as alleged by him in this claim.11
This description of injury is not consistent with the description previously submitted in this
claim. Dr. Johnson also attributed appellant’s osteoarthritis to a preexisting condition and failed
to provide any opinion that the condition was aggravated by his employment duties. His medical
reports fail to establish that appellant’s conditions are a result of a work-related occupational
exposure.12
As previously mentioned, the record before the Board does not contain detailed
information regarding what work activities appellant was performing which he alleged caused or
aggravated his condition. As appellant has alleged an occupational disease, he must factually
establish the regularly assigned work duties he attributes to the cause of his condition.
Moreover, though he has established a firm medical diagnosis, he must submit rationalized
medical evidence from a physician which describes his employment duties and provides an
explanation on how these duties caused his injury.13 As the factual and medical evidence of
record have provided varying accounts of injury and the employing establishment controverted
the claim, the record lacks sufficient evidence establishing the factual element of appellant’s
claim, namely, that a claimed occupational exposure caused him medical injury or disease.14
On appeal, appellant argues that his right knee meniscus tear and osteoarthritis had
worsened as a result of his employment duties. He further stated that on June 3, 2013 he
stumbled while delivering mail and heard his knee pop. Appellant sought medical treatment and
an MRI scan revealed osteoarthritis and left knee MCL strain. In this instance, he has filed an
occupational disease claim and must adequately describe the federal employment duties which
he alleges caused him injury.15 If appellant is alleging that his injury was produced by a specific
10

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

A traumatic injury means a condition of the body caused by a specific event or incident or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
12

Id.

13

Supra note 10.

14

B.S., Docket No. 13-405 (issued July 18, 2013).

15

Supra note 10.

5

incident having occurred on June 3, 2013, he should pursue his claim by filing a traumatic injury
claim (Form CA-1) and submitting rationalized medical evidence from a physician which
describes how the alleged traumatic incident caused his injury. It is his burden to specify the
nature of his claim. The record does not indicate that appellant ever advised the employing
establishment or OWCP of any specific traumatic incident.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.16 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.17 Appellant failed to provide evidence to prove the fact of injury, its time, place and
manner and that the injury was causally related to his federal employment. Because he did not
submit sufficient evidence demonstrating the alleged occupational exposure actually occurred as
alleged, OWCP properly denied his claim.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
developed chronic osteoarthritis, right knee lateral meniscus tear and left knee MCL strain in the
performance of duty as a city letter carrier.

16

Daniel O. Vasquez, 57 ECAB 559 (2006).

17

D.D., 57 ECAB 734 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the September 6, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7