United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jacksonville, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1163
Issued: December 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 28, 2012 appellant, through her attorney, filed a timely appeal of a
November 15, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
determining her wage-earning capacity. 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.
ISSUE
The issue is whether appellant met her burden of proof to modify the September 30, 1997
loss of wage-earning capacity determination.
On appeal, counsel argued that appellant’s hours were reduced under the National
Reassessment Process (NRP) and that OWCP did not follow proper procedures.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 15, 1993 appellant, then a 37-year-old postal clerk, filed an occupational
disease claim alleging that she developed carpal tunnel syndrome due to her federal employment.
OWCP accepted her claim for right carpal tunnel syndrome on July 21, 1994. Appellant
underwent right carpal tunnel surgical release on December 13, 1994. On June 26, 1995 OWCP
accepted left carpal tunnel syndrome as due to her employment duties. In a decision dated
November 9, 1995, it granted appellant a schedule award for 10 percent impairment of the right
upper extremity.
The employing establishment offered appellant a permanent light-duty position on
November 28, 1995 as a modified clerk lifting 10 pounds. In a telephone memorandum dated
December 18, 1995, the employing establishment indicated that she was working reading
manuals all day. Appellant’s attending physician completed a report on March 11, 1996 and
stated that based on appellant’s functional capacity evaluation she could lift only 5 pounds and
could not perform the offered position which required lifting 10 pounds.
By decision dated June 27, 1996, OWCP reduced appellant’s compensation benefits to
zero on the grounds that she returned to work on November 28, 1995 as a clerk and that this
position fairly and reasonably represented her loss of wage-earning capacity.
Appellant requested an oral hearing before an OWCP hearing representative and testified
at the oral hearing on June 25, 1997. She stated that she never performed the duties of the
position offered on November 28, 1995. Appellant stated that she continued to read a postal
manual until August 1996 at which time OWCP informed her that the offered position was
suitable.
By decision dated September 30, 1997, the hearing representative found that the record
contained a telephone memorandum from the employing establishment indicating that appellant
was performing the offered position and was not required to lift more than five pounds. The
hearing representative found that appellant was performing one of the functions of the offered
position, writing up tags for containers, for eight hours a day and that her actual earnings writing
up tags for containers fairly and reasonably represented her loss of wage-earning capacity.
Appellant filed a claim for compensation on August 14, 2007 requesting compensation
for leave without pay from May 12 through June 24, 2007. On the reverse of the form, the
employing establishment indicated that she returned to work in a rehabilitation job offer. In a
letter dated August 23, 2007, OWCP requested additional factual and medical information from
appellant, who submitted a report dated October 5, 2007 from Dr. Richard D. Curtis, a Boardcertified surgeon, diagnosed fibromyalgia, cervical radiculopathy and bilateral hand pain.
Appellant filed a second claim for compensation requesting leave without pay
compensation from July 21 through September 30, 2007.
In a decision dated December 7, 2007, OWCP denied appellant’s claim for compensation
for the period May 12 through June 24, 2007. By decision dated July 11, 2008, it denied her

2

claim for compensation for the period from July 12 through September 30, 2007 on the grounds
that she had not submitted medical evidence supporting her disability for work.
In a report dated October 5, 2007, Dr. Curtis stated that appellant was totally disabled
from June 21 through 24, 2007 to decrease the severe pain that she was experiencing.
Appellant requested a review of the written record before an OWCP hearing
representative on December 22, 2008. By decision dated March 17, 2009, OWCP’s Branch of
Hearings and Review denied her request for an oral hearing on the grounds that it was not timely
filed.
On September 27, 2010 appellant filed a claim for compensation requesting wage-loss
compensation from September 23 through 26, 2010. On September 20, 2010 the employing
establishment offered her a rehabilitation modified position working 1.5 hours a day until she
was reassessed under NRP.
Appellant filed a notice of recurrence on September 29, 2010 alleging that on
September 23, 2010 she lost time from work due to NRP. On September 23, 2010 the employing
establishment provided her with a modified position working 1.5 hours a day.
On October 12, 2010 OWCP requested a current medical report from appellant to
determine if she was entitled to compensation benefits.
By decision dated November 19, 2010, appellant’s claim for compensation from
September 23 through November 5, 2010 on the grounds that she did not submit the requested
medical information. She requested an oral hearing on November 22, 2010. Appellant testified
at the oral hearing on April 12, 2011.
By decision dated June 28, 2011, an OWCP hearing representative denied appellant’s
request for modification of the wage-earning capacity determination on the basis that there was
no medical evidence to support that her current conditions were due to her accepted employment
injury as the most recent medical report was October 5, 2007.
Appellant requested reconsideration on October 5, 2011 and stated that she had ongoing
medical restrictions due to her accepted condition. In a report dated August 31, 2011, Dr. Alpa
Patel, a Board-certified family practitioner, stated that appellant continued to experience
residuals of her accepted bilateral carpal tunnel syndrome. He stated that her restrictions from
September 29, 2000 were still in effect and that her condition had not improved.
By decision dated November 15, 2011, OWCP reviewed the merits of appellant’s claim
and denied modification of the June 28, 2011 decision. It noted that a formal loss of wageearning capacity decision was in place and that the employing establishment withdrew her lightduty assignment. OWCP noted that appellant filed a recurrence of disability and claim for
compensation on September 23, 2010 due to NRP. It denied her claim on November 19, 2010
because the medical evidence did not support a worsening of her bilateral carpal tunnel
syndrome. OWCP found no evidence that the original loss of wage-earning capacity
determination was in error noting that the September 30, 1997 decision found that the modified
position was not make-shift as appellant was classified as a full-time parcel post distribution
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machine clerk. It further found that she had not established that her employment-related
condition had worsened.
LEGAL PRECEDENT
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
employment-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was in fact erroneous.2 The burden of proof is on the
party attempting to show the award should be modified.3
OWCP’s procedures direct that a wage-earning capacity determination based on actual
wages be made following 60 days of employment.4 The procedures provide for a retroactive
determination where an employee has worked for at least 60 days, the employment fairly and
reasonably represents the claimant’s wage-earning capacity and work stoppage did not occur due
to any change in the claimant’s injury-related condition.5
ANALYSIS
By decision dated June 27, 1996, OWCP reduced appellant’s compensation benefits on
the grounds that she had actual earnings as a modified clerk and had worked in the position since
November 28, 1995. OWCP’s hearing representative modified this decision on September 30,
1997 to reflect that she had not worked as a modified clerk since November 28, 1995, but had
performed one of the duties of the modified clerk position, writing up tags for over 60 days. He
found that appellant’s actual earnings writing up tags for containers fairly and reasonably
represented her wage-earning capacity.
Appellant filed claims requesting wage-loss compensation as her light-duty work was
limited to 1.5 hours a day beginning September 23, 2010 under NRP.
With respect to the withdrawal of appellant’s light-duty position on September 23, 2010,
OWCP’s FECA Bulletin No. 09-05 set forth the guidelines by which a claim for compensation
should be evaluated if an employee’s position is withdrawn pursuant to NRP.6 The Board finds
that this case is not in posture for decision as OWCP did not make findings pursuant to FECA
Bulletin No. 09-05 in this case.

2

K.S., Docket No. 08-2105 (issued February 11, 2009); George W. Coleman, 38 ECAB 782, 788 (1987).

3

Id.

4

Federal (FECA) Procedure Manual, Part -- 2 Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7c (October 2009).
5

Id. at Chapter 2.814.7e (October 2009).

6

See also H.S., Docket No. 11-734 (issued August 28, 2012); FECA Bulletin No. 09-05 (issued
August 18, 2009).

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If a formal loss of wage-earning capacity decision has been issued, the claims examiner
must develop the evidence to determine whether modification of that decision is appropriate. All
postal service cases where claims for compensation are received that involve loss of wageearning capacity ratings based on actual positions should be reviewed to confirm that the file
contains evidence that the rating was based on an actual bona fide position.7 This evidence may
include a job offer, an SF-50, a classified position, a form position description or other
documentary evidence of file.8 The present record does not contain a copy of the position that
appellant was actually performing at the time of the hearing representative’s September 30, 1997
decision. FECA Bulletin No. 09-05 advises that in an effort to proactively manage these types of
cases, OWCP may also undertake further nonmedical development. OWCP may request the
postal service to address in writing whether the position on which the wage-earning capacity
rating was based was a bona fide position at the time of the rating.9 It shall thereafter make new
findings as to whether appellant’s position as of September 30, 1997 was a makeshift position.
Pursuant to FECA Bulletin No. 09-05, OWCP should also review the file to determine
whether there is a current medical report regarding employment-related residuals. If there is no
current medical evidence then OWCP should request appellant to submit a narrative medical
report as to the nature and extent of employment-related residuals. The employing establishment
should also be requested to submit relevant medical evidence in its possession. Such requests are
essential where employees may not have been requested to provide recent medical evidence
because they have zero wage-earning capacity rating.10
The case will be remanded to OWCP to properly analyze the modification issue
presented in accord with FECA Bulletin No. 09-05. After such further development as OWCP
deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for a decision regarding modification of
the loss of wage-earning capacity determination and will remand the case to OWCP for further
development.

7

Id. at § I.A.1.

8

Id.

9

Id. at § I.A.3.

10

Id. at § I.A.2.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 15, 2011 is set aside and the case remanded for further development
consistent with this opinion of the Board.
Issued: December 13, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 17-0592
Issued: May 1, 2018

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 January 23, 2017 appellant filed a timely appeal from a December 16, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.3

1

Appellant filed a timely request for oral argument in this case. By order dated July 25, 2017, the Board, after
exercising its discretion, denied his request for oral argument as the issues could adequately be addressed based on a
review of the case record. Order Denying Request for Oral Argument, Docket No. 17-0592 (issued July 25, 2017).
2
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its December 16, 2016 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $603.77 for the period April 1 through 6, 2013; and (2) whether appellant was at fault
in the creation of the overpayment, thereby precluding waiver of recovery of the overpayment.
FACTUAL HISTORY
On August 25, 2011 appellant, then a 46-year-old shipwright, filed a traumatic injury claim
(Form CA-1) alleging that, on August 24, 2011, he stepped into a hole in the flight deck and injured
his right knee in the performance of duty. OWCP accepted the claim for a tear of the medial
meniscus, tear of the lateral meniscus, tear of anterior cruciate ligament and loose body in the right
knee. It subsequently expanded acceptance of the claim to include osteoarthritis right knee.
Appellant stopped work on February 28, 2012 to undergo OWCP-approved right knee
arthroscopy. OWCP paid him wage-loss compensation on the supplemental rolls commencing
February 2, 2012.
Effective September 1, 2012, OWCP paid appellant wage-loss compensation benefits
through its periodic compensation rolls every 28 days. In a September 25, 2012 letter, it outlined
appellant’s entitlement to compensation benefits and his responsibility to return to work. OWCP
notified appellant that he was to immediately inform OWCP upon his return to work to avoid an
overpayment of compensation. It also noted that, if he worked during any period covered by a
compensation payment, then he had to return the payment to OWCP.
By letter dated March 27, 2013, OWCP advised appellant that on December 22, 2010 the
Treasury Department issued a regulation that required all federal payments to be made
electronically. Since appellant received his compensation payments by paper check, OWCP
requested that he sign up to receive his payments by direct deposit by June 1, 2013.
Appellant returned to full-time modified work with restrictions on April 1, 2013.
However, wage-loss compensation was paid through May 4, 2013. The record reflects that
appellant was paid $603.77 for the period April 1 through 6, 2013 and $2,817.60 for the period
April 7 through May 4, 2013.
In a preliminary determination dated June 26, 2013, OWCP determined that appellant
received a $3,421.37 overpayment of compensation because he returned to full-time work on
April 1, 2013, but received compensation for total disability from April 1 through May 4, 2013. It
noted that appellant had received temporary total disability benefits in the amount of $5,635.20 for
the period March 10 through May 4, 2013, but was only entitled to receive temporary total
disability benefits for the period March 10 through 31, 2013 in the amount of $2,213.83. OWCP
calculated that for the period April 1 through May 4, 2013, appellant was overpaid $3,421.37
($5,635.20-$2,213.83). A fiscal worksheet indicated that appellant received a check dated April 6,
2013 for the period April 1 through 6, 2013 in the amount of $603.77. Appellant also received a
check dated May 4, 2013 for the period April 7 through May 4, 2013 in the amount of $2,817.60.
The overpayment amount was calculated as $3,421.37. OWCP further found that he was with
fault as he knew or should have known that he was not entitled to wage-loss compensation

2

following his return to work. It provided appellant with an overpayment recovery questionnaire
(Form OWCP-20) for his completion, along with appeal rights.
On July 18, 2013 appellant requested a hearing before an OWCP hearing representative.
He indicated that the overpayment occurred through no fault of his own and that he had returned
the check for the period April 7 through May 4, 2013 in the amount of $2,817.60. A telephonic
hearing was held January 14, 2014. During the hearing, appellant testified that he had returned the
check for $2,817.60, which an employing establishment representative confirmed. The hearing
representative then addressed the outstanding overpayment of $603.77 for the period April 1
through 6, 2013.
Appellant testified that he did not think he was overpaid the $603.77. He asserted that
OWCP should have deducted that amount from the check that was sent to him on April 6, 2013.
Appellant explained that he believed that he was entitled to the money because of “everything I’ve
had to go through for the last two and a half years putting up with this after getting hurt.” He also
stated that because of his injury, he could no longer do side work to earn money.
With regard to his finances, appellant testified that he earned $1,413.00 every two weeks.
Appellant’s expenses were: $1,100.00 for mortgage; $91.67 for property tax; $600.00 for food;
$250.00 for utilities; $850.00 for gas and car expenses; $30.00 for dog food. He indicated that,
while he was supposed to pay a rental fee of $700.00 per month, he only pays it when he can. The
hearing representative requested documentation of the expenses, noting that the amount claimed
for food was higher than the average.
By decision dated March 26, 2014, an OWCP hearing representative determined that
appellant received a $603.77 overpayment of compensation because he returned to full-time work
on April 1, 2013, but he was paid compensation for total disability through April 6, 2013.4 The
hearing representative further found that appellant was at fault in the creation of the overpayment
as he accepted a payment that he knew or should have known was incorrect. The hearing
representative found that, as appellant’s monthly income exceeded his expenses by $139.83, he
could make monthly repayments in the amount of $50.00 until the overpayment debt was fully
satisfied.
By decision dated December 16, 2016, OWCP finalized its determination that appellant
had received an overpayment of compensation in the amount of $603.77, as he had returned to
work on a full-time basis on April 1, 2013, but continued to receive compensation for total
disability through April 6, 2013. It found that he was at fault in the creation of the overpayment
as he had accepted a payment he knew or reasonably should have known was incorrect. OWCP
further found that the overpayment debt could be recovered in $50.00 per month repayments, as
ordered in the hearing representative’s decision.

4
The hearing representative noted that, following the hearing, appellant had submitted a copy of the check dated
May 4, 2013 with the word “VOID” written across it. OWCP received the check on August 13, 2014.

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LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.6 OWCP’s regulations state in pertinent part: Compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.7 A
claimant is not entitled to receive temporary total disability and actual earnings for the same
period.8 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation.9
ANALYSIS -- ISSUE 1
OWCP placed appellant on the periodic compensation rolls as of September 1, 2012.
Appellant continued to receive compensation for total disability every 28 days, through
May 4, 2013. The record indicates, however, that he had returned to full-time, modified work on
April 1, 2013. Appellant does not contest and the record reflects that he returned to full-time,
modified work on that date. A claimant is not entitled to receive compensation for total disability
during a period in which he or she had actual earnings.10 Therefore, the Board finds that an
overpayment of compensation was created in this case.
The amount of the overpayment was originally calculated to be $3,421.37 for the period
April 1 through May 4, 2013. However, appellant returned a check in the amount of $2,817.60 for
the period April 7 through May 4, 2013. Thus, the overpayment amount was properly reduced to
$603.77 for the period April 1 through 6, 2013. This represented the net compensation appellant
was paid for the six calendar days from April 1 to 6, 2013. No contrary evidence was submitted.
The Board accordingly finds that OWCP properly found that an overpayment of compensation in
the amount of $603.77 was created during the period April 1 through 6, 2013.

5

5 U.S.C. § 8102.

6

Id. at § 8116(a).

7

20 C.F.R. § 10.500.

8

L.S., 59 ECAB 350, 352-53 (2008).

9

B.H., Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).
10

See M.S., Docket No. 16-0289 (issued April 21, 2016); D.B., Docket No. 15-0258 (issued February 1, 2016).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA11 provides that, where an overpayment of compensation has been
made because of an error or fact of law, adjustment shall be made by decreasing later payments to
which an individual is entitled. The only exception to this requirement is a situation which meets
the tests set forth as follows in section 8129(b): Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of [FECA] or would be against equity and
good conscience.12 Accordingly, no waiver of an overpayment is possible if the claimant is with
fault in helping to create the overpayment.
In determining whether an individual is with fault, section 10.433(a) of OWCP’s
regulations13 provides in relevant part:
“An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to furnish information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known was
incorrect.”14
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.15
Even if an overpayment resulted from negligence by OWCP, this does not excuse the
employee from accepting payment, which the employee knew or should have been expected to
know she was not entitled.16

11

5 U.S.C. § 8129(a).

12

Id. at § 8129(b).

13

20 C.F.R. § 10.433(a).

14

Id.

15

Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006); Y.Z., Docket No. 15-1704 (issued February 4, 2016).

16

Diana L. Booth, 52 ECAB 370 (2001).

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ANALYSIS -- ISSUE 2
OWCP applied the third standard, as set forth above, in determining that appellant was at
fault in creating the overpayment. In order for it to establish that appellant was at fault in the
creation of the overpayment of compensation, OWCP must establish that, at the time appellant
received the compensation check in question, he knew or should have known that the payment was
incorrect.17
Each recipient of compensation benefits is responsible for taking all reasonable measures
to ensure that payments he or she receives are proper18 and the recipient must show good faith and
exercise a high degree of care in reporting events that may affect entitlement to or the amount of
benefits.19 In the September 25, 2012 acceptance letter, OWCP clearly advised appellant that he
was to immediately inform it upon his return to work to avoid an overpayment of compensation
and that, if he worked during any period covered by a compensation payment, he had to return the
payment to OWCP.
Thus, appellant should have known that he could not receive wage-loss compensation after
his return to work.20 Although the employing establishment or OWCP may have been notified of
appellant’s pending return to work, appellant did not return the compensation check he received.
The Board has explained that when a claimant returns to work and subsequently receives
a compensation check in the mail covering a period of employment, knows or should know that
he is not entitled to such compensation, but decides nonetheless to cash or deposit the check, the
cashing or depositing of the check has established the acceptance necessary to establish fault.21
Therefore the Board concludes that appellant should have known that, at the time he
returned to work on April 1, 2013, he was not entitled to continue to receive compensation and
had an obligation to return payments he knew or should have known were incorrect.22 Under
section 10.433(a) of OWCP’s regulations, appellant is at fault. As he was at fault in the creation
of the overpayment, appellant is not eligible for waiver of recovery of the overpayment of
compensation.23
With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA. As appellant was no longer receiving wage-loss compensation when he
17

Linda E. Padilla, 45 ECAB 768, 772 (1994).

18

C.V., Docket No. 16-0986 (issued September 1, 2016); Y.Z., supra note 15.

19

Id.

20

Id.

21

See William F. Salmonson, 54 ECAB 152 (2002).

22

Supra note 18.

23

Id.

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returned to work, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act.24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$603.77 for the period April 1 through 6, 2013 because he continued to receive compensation after
his return to work. The Board further finds that appellant was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the December 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2018
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

24

Cheryl Thomas, 55 ECAB 610 (2004).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2038
Issued: April 5, 2007

Case Submitted on the Record

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

JURISDICTION
On September 5, 2006 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated June 19, 2006 denying modification of a decision
dated July 12, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this decision.
ISSUE
The issue is whether appellant sustained a recurrence of disability on September 1, 2004
causally related to her September 10, 2001 employment injury.
FACTUAL HISTORY
On September 11, 2001 appellant, then a 24-year-old carrier, filed a traumatic injury
claim alleging that she sustained an injury to the lower back when she was moving a tray. She
stopped work on September 11, 2001 and returned to full duty on October 7, 2001. The Office
received a report of the magnetic resonance imaging (MRI) scan on October 3, 2001 from

Dr. Richard Pinto, Board-certified in diagnostic radiology, which diagnosed disc herniation at
L5-S1. Appellant’s claim was accepted for lumbosacral sprain on November 29, 2002.
By letter dated May 9, 2003, Dr. Robert P. Mayson, Board-certified in obstetrics and
gynecology, placed appellant on light duty due to pregnancy. In a June 4, 2003 letter, he
informed the Office that appellant was admitted to the hospital from May 30 until June 1, 2003
and advised to stay at home from June 4 through 18, 2003. In a June 23, 2003 letter, Dr. Safrir
Neuwirth, Board-certified in obstetrics and gynecology, informed the Office that appellant would
not be returning to work during her pregnancy due to complications.
On April 6, 2004 appellant filed a Form CA-2a, claim for recurrence of disability,
alleging that on April 1, 2004 she suffered a relapse of her lower back condition and stopped
work. She returned to work on May 15, 2004 but has been off work for intermittent periods
since that time.
In an April 16, 2004 letter, the employer controverted appellant’s claim for recurrence.
The Office received a report of the MRI scan on April 7, 2004 from Dr. Myron Levitt,
Board-certified in diagnostic radiology, who diagnosed disc herniation at L5-S1. The Office
received an unsigned note dated April 15, 2004 excusing appellant from work from April 15
through May 14, 2004 due to “LS-spine [lumbosacral] and sciatica.”
In an August 18, 2004 letter, the Office requested further information from appellant,
specifically the information listed in the recurrence development check list.
Appellant submitted additional information consisting of two claims for compensation
and two attending physician’s reports. The first claim for compensation dated August 11, 2004
was for the time period April 6 through May 14, 2004. In an August 23, 2004 physician’s report,
Dr. Jeffrey Charen, Board-certified in orthopedic surgery, diagnosed low back pain and sciatica
and opined that appellant was totally disabled from April 15 through May 13, 2004 and referred
appellant to Dr. Francisco Del Valle, Board-certified in physical medicine and rehabilitation.
The second claim for compensation also dated August 11, 2004 was June 21 through
August 6, 2004. In an August 18, 2004 physician’s report related to a May 20, 2004 visit,
Dr. Del Valle diagnosed lumbar radiculopathy and opined that appellant was totally disabled
from May 20, 2004 until the present. The Office also received an undated letter from appellant
describing her condition and what she was doing when the symptoms returned.
The Office received additional information from Dr. Del Valle consisting of the results of
electrodiagnostic testing on May 27, 2004, an operative report for lumbar epidural steroidal
injection on June 30, 2004 in which he diagnosed lumbar radiculopathy and an excuse slip dated
June 18, 2004 for the period June 18 through 28, 2004.
In a September 3, 2004 letter, the employer continued to controvert appellant’s claim.
In a September 29, 2004 work disposition form, Dr. Del Valle recommended light duty
when appellant returned to work on October 4, 2004 due to lumbar radiculopathy.

2

In a December 3, 2004 letter, the employer requested an impartial medical examination
be done to find out if appellant could return to full duty. There is no record that an impartial
medical examination was done.
In a June 6, 2005 letter, Dr. Del Valle gave a summary of each of appellant’s office visits.
By July 12, 2005 decision, the Office denied appellant’s claim due to the absence of a
medical opinion demonstrating how the claimed recurrence was related to the original workrelated injury.
By April 3, 2006 letter, appellant, through her representative, requested reconsideration
of the Office’s July 12, 2005 decision. Accompanying the reconsideration request was a letter
dated March 27, 2006 from Dr. Del Valle discussing her work history, medical history, course of
medical treatments and the results of the most recent medical examination. In the letter
Dr. Del Valle diagnosed a disc herniation and opined that this condition was causally related to
appellant’s employment injury. He also opined that appellant’s pregnancy was not the direct
cause of the herniated disc.
By June 19, 2006 decision, the Office denied modification of the prior decision.
LEGAL PRECEDENT
A claimant seeking compensation under the Federal Employees’ Compensation Act1 has
the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence.2 In this case, appellant has the burden of establishing that
she sustained a recurrence of a medical condition3 on April 6, 2004 causally related to her
September 10, 2001 employment injury. This burden includes the necessity of furnishing
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 rationale.4
Section 10.5(x) of the Office’s regulations provides, in pertinent part:
“Recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which

1

5 U.S.C. §§ 8101-8193

2

Edward W. Spohr, 54 ECAB 806 (2003).

3

Recurrence of medical condition means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a “need for further medical treatment after release from
treatment,” nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2002).
4

Ronald A. Eldridge, 53 ECAB 278 (2001).

3

had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.”5
Therefore, the Board has held that, in order to establish a claim for a recurrence of
disability, appellant must establish that she suffered a spontaneous material change in the
employment-related condition without an intervening injury.6
In order to establish that appellant’s claimed recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between appellant’s present
condition and the accepted injury must support the physician’s conclusion of a causal
relationship.7
ANALYSIS
On November 29, 2001 the Office accepted that appellant sustained a lumbar strain on
September 10, 2001. On October 25, 2001 appellant was released to return to work with
physical restrictions. On November 21, 2001 she returned to unrestricted full duty.
On May 9, 2003 appellant was placed on light duty due to pregnancy. Starting around
May 30, 2003 she took a medical leave of absence due to her pregnancy and returned to work on
April 2, 2004. Appellant claims a recurrence of her accepted injury on April 4, 2004.
The Board notes, as set forth above, that the record contains extensive medical evidence
indicating that there is a causal relationship between appellant’s employment duties and her
lower back condition. Specifically, in his March 27, 2006 letter, Dr. Del Valle stated that
appellant’s pain was from a disc herniation which was work related and documented by an MRI
scan in 2001. Dr. Del Valle also stated that appellant’s pregnancy was not the direct cause of a
herniated disc. In the same letter, he diagnosed a disc herniation and opined that this condition
was causally related to her employment injury.
The Board finds that the report from Dr. Del Valle regarding the causal relationship
between appellant’s herniated disc and her employment duties are unrefuted and sufficient to
require further development of the case record by the Office.8 Proceedings under the Act are not
adversarial in nature, nor is the Office a disinterested arbiter. While the claimant has the burden
to establish entitlement to compensation, the Office shares responsibility in the development of
the evidence to see that justice is done.9 Additionally, the Board notes that in this case the record
contains no medical opinion contrary to appellant’s position. The Board will remand the case for
further development of the medical evidence.
5

20 C.F.R. § 10.5(x).

6

Carlos A. Marrero, 50 ECAB 117 (1998).

7

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

8

See Felix Flescha, 52 ECAB 268 (2001); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB
820 (1978).
9

Claudio Vazquez, 52 ECAB 496 (2001).

4

CONCLUSION
Appellant has established a prima facie case with respect to the claimed recurrence of her
lower back condition sufficient to require further medical development by the Office. On
remand the Office should prepare a statement of accepted facts and refer appellant, along with
her medical records for a second opinion examination. Following such further development as
may be necessary the Office shall issue an appropriate final decision on this issue.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 12, 2005 be set aside and the case be remanded for further
proceedings consistent with this decision of the Board.
Issued: April 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE ARMY,
NONCOMMISSIONED OFFICER ACADEMY
DINING FACILITY, Baumholder, Germany,
Employer
__________________________________________

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

Docket No. 17-1045
Issued: April 20, 2018

Case Submitted on the Record

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

JURISDICTION
On April 12, 2017 appellant filed a timely appeal from a March 23, 2017 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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective March 24, 2017 as she had no further residuals or disability
causally related to her January 11, 1993 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 13, 1993 appellant, then a 35-year-old cook, filed a traumatic injury claim
(Form CA-1) alleging that on January 11, 1993 she injured her back, arm, neck, and hand after she
fell on a mat. OWCP accepted the claim for a left hand contusion, displacement of a cervical
intervertebral disc without myelopathy at C6-7, intervertebral disc disorder with myelopathy at
C6-7, and cervical spondylosis without myelopathy at C5-6 and C6-7. On August 5, 1993
appellant underwent an anterior cervical discectomy and fusion at C6-7 and on October 3, 1996
she underwent surgery to remove cervical hardware. OWCP paid her compensation for total
disability beginning 1993.2
The employing establishment, on September 25, 2015, submitted her position description
for the job of cook signed by her supervisor. The duties included sitting not more than one hour
per day, walking no more than seven hours per day, lifting no more than 40 pounds, bending not
more than one hour per day, kneeling and twisting no more than one hour per day, and standing
not more than seven hours per day. The position also required reaching over the shoulder with
both arms.
On September 20, 2016 OWCP referred appellant to Dr. Douglas P. Hein, a Boardcertified orthopedic surgeon, for a second opinion examination.3 In a report dated October 5, 2016,
Dr. Hein reviewed her history of injury and resultant surgeries. On examination he found a loss
of cervical motion and “significant left shoulder dysfunction which has no direct relationship to
the described injuries.” Dr. Hein diagnosed cervical disc protrusion treated with surgery at C6-7
and multilevel cervical spondylitis without radiculopathy causally related to appellant’s accepted
employment injury. He determined that the accepted conditions had not resolved, but that her
residuals “would not prevent [appellant] from returning to her date[-]of[-]injury position as a
cook.” Dr. Hein opined that appellant could perform sedentary to light work. He advised that the
majority of her restrictions related to her left shoulder condition and precluded “above shoulder
lifting activities and heavy lifting activities with [appellant’s] left upper extremity.” In an
accompanying October 5, 2016 work restriction evaluation (OWCP-5c), Dr. Hein listed the
accepted conditions as a cervical disc with myelopathy and cervical spondylosis surgically treated.
He found that appellant could perform sedentary and light work with restrictions on pushing,
pulling, and lifting up to 20 pounds and no reaching over the shoulder with the left upper extremity.
On January 10, 2017 OWCP requested that appellant submit updated medical evidence
addressing her current employment-related diagnoses and the extent of any disability.

2

OWCP accepted that appellant sustained a left hand contusion due to the same January 11, 1993 employment
incident under file number xxxxxx031. OWCP combined file number xxxxxx031 into file number xxxxxx187.
3

On May 19, 2014 Dr. Raymond Derry Crosby, an osteopath and OWCP referral physician, recommended a
functional capacity evaluation to determine appellant’s work restrictions. After reviewing a functional capacity
evaluation, he found, in a July 29, 2014 report, that she could return to her usual employment with restrictions of
lifting 20 to 50 pounds occasionally, 10 to 25 pounds frequently, and up to 10 pounds constantly. Dr. Crosby further
found that appellant could lift no more than 20 pounds above chest level and could reach over her shoulders no more
than four hours.

2

OWCP, on February 8, 2017, advised appellant of its proposed termination of her wageloss compensation. It afforded her 30 days to respond to the proposed termination of her
compensation.
By decision dated March 23, 2017, OWCP terminated appellant’s wage-loss compensation
benefits, effective March 24, 2017. It found that the weight of the evidence, as represented by the
opinion of Dr. Hein, established that she had no further residuals or disability causally related to
her accepted employment injury.
On appeal appellant contends that she remains disabled from work.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits. It may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.4 OWCP’s
burden of proof in terminating compensation includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5
ANALYSIS
OWCP accepted that appellant sustained a left hand contusion, displacement of a cervical
intervertebral disc without myelopathy at C6-7, intervertebral disc disorder with myelopathy at
C6-7, and cervical spondylosis without myelopathy at C5-6 and C6-7 due to a January 11, 1993
employment injury. It authorized an anterior cervical discectomy and fusion at C6-7 on August 5,
1993 and the removal of cervical hardware on October 3, 1996. OWCP paid appellant
compensation for total disability from 1993 onward.
In his second opinion report of October 5, 2016, Dr. Hein diagnosed cervical disc
protrusion and cervical spondylitis due to the accepted employment injury and left shoulder
dysfunction unrelated to the January 11, 1993 work injury. He opined that appellant continued to
have residuals of her injury, but advised that her restrictions would not prevent her from resuming
her job as a cook. Dr. Hein attributed the majority of her restrictions to her nonemployment-related
left shoulder condition, which he found prevented her from lifting above the shoulder or heavy
lifting on the left side. In his answers to OWCP’s questions, he opined that appellant could perform
sedentary to light work. In a work restriction evaluation (Form OWCP-5c), Dr. Hein determined
that she could push, pull, and lift up to 20 pounds and perform no reaching over the shoulder on
the left side.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation benefits as the report from Dr. Hein is insufficient to show that she could
resume her usual work as a cook. Dr. Hein found that she could perform sedentary to light work
and specifically limited her lifting up to 20 pounds. The physical requirements of appellant’s date4

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

Gewin C. Hawkins, 52 ECAB 242 (2001).

3

of-injury position as a cook, however, included lifting of up to 40 pounds.6 As Dr. Hein found that
she could not perform the lifting requirements for her date-of-injury position, his opinion is
insufficient to establish that she had no further employment-related disability.7 While he attributed
appellant’s disability in part to a nonwork-related left shoulder condition, the Board notes that it
is not necessary to prove a significant contribution of factors of employment for the purpose of
establishing causal relationship.8 If a work factor contributed in any way to her condition, the
condition is compensable.9 Consequently, the Board finds that OWCP failed to meet its burden of
proof to terminate her wage-loss compensation.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation benefits effective March 24, 2017 as she had no further residuals or
disability causally related to her January 11, 1993 employment injury.

6
The Department of Labor’s Dictionary of Occupational Titles defines sedentary work as lifting up to 10 pounds
and light work as lifting up to 20 pounds occasionally or 10 pounds frequently. Medium work necessitates lifting 20
to 50 pounds occasionally or 10 to 25 pounds frequently.
7

See Charles Alford, Docket No. 95-0665 (issued April 17, 1997).

8

See B.B., Docket No. 16-0734 (issued October 19, 2016).

9

See A.A., Docket No. 15-0937 (issued August 17, 2015).

4

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 20, 2018
Washington, DC

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

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

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

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

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

Docket No. 16-0849
Issued: March 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 21, 2016 appellant, through counsel, 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 Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to rescind acceptance of appellant’s
claim for left knee chondromalacia patellae.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference. The facts relevant to the instant
appeal are set forth below.
On August 15, 2008 appellant, then a 51-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 18, 2008 she sprained her right leg and left knee
when she fell down icy stairs. She stopped work on March 24, 2008. The employing
establishment controverted the claim, noting that appellant had not notified her supervisor about
the injury for almost five months.
In an April 9, 2008 work status report, Dr. Susan M. Sarran, a Board-certified family
practitioner, found that appellant was unable to work from March 31 to April 10, 2008 but could
return to work on April 11, 2008 with restrictions. In April 10 and May 17, 2008 treatment
notes, Dr. Kevin Moore, a chiropractor, related that appellant experienced right leg and lower
back symptoms and recommended work restrictions.4
On September 11, 2008 Dr. Samuel S. Park, a Board-certified orthopedic surgeon,
diagnosed knee osteoarthritis and found that appellant could resume her usual employment
beginning September 15, 2008.
Appellant, in a September 26, 2008 statement, advised that she slipped descending steps
while delivering mail on March 18, 2008 and landed on her back and her right side. She
informed her supervisor of the incident when she returned to her work location but did not file a
claim because she thought she would recover. In a September 19, 2008 eyewitness statement,
F.E., a resident, asserted that she saw appellant fall down icy steps on or around March 19, 2008.
By decision dated October 2, 2008, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish a diagnosed condition causally related to the
accepted March 18, 2008 employment incident.
On April 21, 2010 appellant, through counsel, requested reconsideration.
On April 27, 2009 OWCP received a January 19, 2008 report from Dr. Chadwick C.
Prodromos, a Board-certified orthopedic surgeon.
Dr. Prodromos diagnosed left knee
chondromalacia and noted that appellant had full motion with no effusion.
In May 17 and June 9, 2008 form reports, Dr. Moore diagnosed sacroiliac and iliotibial
band injuries resulting from a fall down stairs. He indicated that the symptoms first occurred on
March 24, 2008. In July 25 and October 24, 2008 reports, Dr. Moore related that appellant fell
in February or March 2008 injuring the right sacroiliac joint and iliotibial band injuries and

3

Docket No. 11-1232 (issued January 9, 2012).

4

Dr. Moore continued to submit reports finding work restrictions from April 28 to September 25, 2008.

2

experiencing left knee pain. The knee condition worsened when appellant attempted to walk on
her delivery route. Dr. Moore diagnosed left patellar tendinitis, joint derangement, and effusion.
On September 29, 2008 Dr. Prodromos indicated that he was examining appellant at the
request of Dr. Moore. He diagnosed severe chondromalacia patellae. Dr. Prodromos provided a
history of left knee pain that increased gradually, especially with climbing. In an August 17,
2009 report, he related that appellant injured her left knee lifting a heavy package at work. On
examination, Dr. Prodromos observed effusion and patellofemoral crepitus and diagnosed severe
left knee chondromalacia. He noted that appellant believed that she could “get by at work.”
Dr. Prodromos, on February 15, 2010, discussed appellant’s complaints of left anterior
and medial knee pain. On examination he found left medial joint line tenderness, effusion,
patellofemoral crepitus, and a positive patellar compression test. Dr. Prodromos diagnosed left
knee pain secondary to patellofemoral and medial compartment arthrosis. On March 25, 2010 he
performed a lateral release and chondroplasty of the left knee.
In an August 11, 2010 report, Dr. Prodromos related:
“[Appellant] had an injury that resulted in a full[-]thickness articular cartilage
defect of her knee. While she had definite wear and tear of her knee, this injury
represented a more severe injury to an area that had some wear in which articular
cartilage was damaged such that a divot of articular cartilage resulted in bone
being exposed.”
On April 1, 2011 OWCP denied modification of its October 2, 2008 decision. It found
that the reports from Dr. Prodromos were insufficient to establish that the diagnosed condition
was causally related to the March 18, 2008 work incident.
In a report dated June 13, 2011, Dr. Prodromos clarified, “[Appellant] first experienced
left knee pain following a fall that occurred on March 18, 2008. She was delivering mail on her
route and slipped on stairs on ice and fell onto her left knee and she suffered a painful injury.”
He noted that appellant took off work but did not improve. Dr. Prodromos found that her “left
knee pain began from this work-related injury.”
Appellant appealed to the Board. By decision dated January 9, 2012, the Board affirmed
the April 1, 2011 decision.5 The Board found that appellant had not submitted rationalized
medical evidence demonstrating that she sustained an injury due to the March 18, 2008 work
incident.
On January 30, 2012 appellant, through counsel, requested reconsideration.
On May 15, 2012 OWCP vacated its October 2, 2008 and April 1, 2011 decisions and
accepted appellant’s claim for left knee chondromalacia patellae.

5

Supra note 3.

3

On June 18, 2012 appellant filed a claim for compensation (Form CA-7) for intermittent
periods of disability from April 14, 2008 to May 28, 2012. In a July 17, 2012 response, OWCP
requested that she submit medical evidence from a physician supporting disability for the period
claimed.
In a July 23, 2012 treatment note, Dr. Prodromos opined that appellant sustained an
injury on March 18, 2008 when “she fell down 25 steps and she fell on her right side and left
knee.” She obtained treatment from another physician in April 2008 before receiving treatment
with his clinic. On examination, Dr. Prodromos found tenderness at the medial joint line and
opined that appellant was disabled.
On August 23, 2012 OWCP received a copy of a purported January 19, 2008 report from
Dr. Prodromos. The date January 19, 2008 was redacted and the date January 19, 2009 inserted
over the redacted date.
By decision dated September 27, 2012, OWCP denied appellant’s claim for
compensation from April 14, 2008 to May 28, 2012. On October 2, 2012 counsel requested a
telephone hearing before an OWCP hearing representative.
Following a preliminary review, on December 12, 2012 an OWCP hearing representative
vacated the September 27, 2012 decision. She noted that Dr. Prodromos had treated appellant
for a knee condition in January 2008 and had not mentioned a work injury until July 2011. The
hearing representative indicated that the most current medical report of record, obtained by
Dr. Sarran obtained three weeks after the March 18, 2008 incident, did provide a history of an
injury on that date. She remanded the case for OWCP to request that Dr. Prodromos address
why he did not mention the work injury before July 2011 and why he found three years later that
it caused her condition.
By letter dated December 18, 2012, OWCP asked that Dr. Prodromos explain why he had
not discussed appellant’s work injury until July 2011, whether he had treated her before the work
incident, and why he found more than three years later that it had caused chondromalacia patella
of the left knee.
In a response dated January 11, 2013, Dr. Prodromos related:
“I saw [appellant] for the first time on September 29, 2008 for an injury that
occurred at work. She fell down stairs while at work. [Appellant] was employed
as a letter carrier. She injured her left knee at that time. [Appellant] had no prior
history of left knee injury or pain.
“I wish to make it clear that although [appellant] sustained her work injury on
March 18, 2008, I did not see her until September 29, 2008. It was my oversight
in dictation to not have included in the note from her initial visit that this injury
occurred at work.”
Dr. Prodromos asked OWCP to contact him if it had further questions about
appellant’s history.

4

By decision dated April 3, 2013, OWCP denied appellant’s claim for compensation from
April 14, 2008 to May 28, 2012. It noted that Dr. Prodromos had treated appellant on
January 19, 2008 for left chondromalacia patella two months before the March 18, 2008 work
incident. OWCP further found that Dr. Prodromos failed to adequately explain why he had not
addressed causation for three years.
On April 9, 2013 counsel requested a telephone hearing. At the telephone hearing, held
on August 13, 2013, appellant related that Dr. Prodromos had not evaluated her prior to
March 18, 2008 and that the report predating her injury was a typographical error. She
maintained that she did not receive any treatment for a knee condition prior to March 2008.
In a decision dated October 30, 2013, OWCP’s hearing representative set aside the
April 3, 2013 decision. She found that OWCP had not properly considered Dr. Prodromos’
January 9, 2008 treatment note or why there was no other contemporaneous evidence supporting
a work injury in March 2008. The hearing representative remanded the case for OWCP to
review all evidence to determine if appellant had sustained a work injury to her left knee on
March 18, 2008 prior to adjudicating her request for wage-loss compensation.
By decision dated March 3, 2014, OWCP denied appellant’s claim for disability
compensation as the medical evidence of record failed to establish that she was unable to work
due to her accepted March 18, 2008 employment injury.6
Counsel on March 21, 2014 requested a telephone hearing. Following a preliminary
review on September 11, 2014, OWCP’s hearing representative vacated the March 3, 2014
decision. She found that OWCP had failed to address whether appellant sustained a medical
condition due to the March 18, 2008 incident but instead again addressed disability.
On March 20, 2015 OWCP issued a notice of proposed rescission advising appellant that
it proposed to terminate her medical benefits as the medical evidence failed to establish a work
injury causally related to the accepted employment incident.
Counsel on April 6, 2015 asserted that OWCP proposed terminating medical benefits
rather than rescinding acceptance of the claim and argued that it had not met its burden of proof
to rescind.
By decision dated April 29, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective April 29, 2015. It found that Dr. Prodromos failed to address his
treatment of her for chondromalacia on January 19, 2008, two months before her injury. OWCP
further found that his January 11, 2013 report finding that she had no prior history of a left knee
condition conflicted with his January 19, 2008 report diagnosing left chondromalacia patella
prior to the work incident. It additionally noted that Dr. Prodromos failed to discuss why there
was no contemporaneous medical evidence reflecting a history of a knee injury from a fall at
work. OWCP concluded that the weight of the evidence established that appellant’s condition
was not related to the accepted employment incident and rescinded acceptance of her claim.

6

Appellant submitted a December 23, 2013 impairment evaluation.

5

On May 6, 2015 appellant, through counsel, requested a telephone hearing. At the
telephone hearing, held on December 9, 2015, she again related that she did not see
Dr. Prodromos on January 19, 2008 and that the report contained a typographical error.
In a decision dated February 19, 2016, OWCP’s hearing representative affirmed the
April 29, 2015 decision. He found that the evidence of record indicated that Dr. Prodromos had
evaluated appellant before the claimed injury for left knee chondromalacia and that consequently
Dr. Prodromos’ January 11, 2013 report finding no history of a left knee condition was of
diminished probative value. The hearing representative also noted that the physician did not
include a history of the work injury until June 13, 2011. He concluded that appellant failed to
meet her burden of proof to establish her claim due to her delay in filing the claim, the delay in
her physicians providing an accurate history of injury, and the conflicting medical evidence.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his or her own motion or application.7 The
Board has upheld OWCP’s authority to set aside or modify a prior decision and issue a new
decision under section 8128 of FECA.8 The power to annul an award, however, is not an
arbitrary one and an award for compensation can only be set aside in the manner provided by the
compensation statute.9
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud.10 It is well
established that, once OWCP accepts the claim, it has the burden of justifying the termination or
modification of compensation benefits.11 Its burden of justifying termination or modification of
compensation holds true where it later decides that it has erroneously accepted a claim of
compensation. In establishing that its prior acceptance was erroneous, OWCP is required to
provide a clear explanation of its rationale for rescission.12
ANALYSIS
On May 15, 2012 OWCP accepted that appellant sustained left knee chondromalacia
patella due to a fall down icy stairs on March 18, 2008. In a decision dated April 29, 2015, it
terminated her wage-loss compensation and authorization for medical benefits after finding that
7

5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007).

8

John W. Graves, 52 ECAB 160 (2000).

9

See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002).

10

L.C., 58 ECAB 493 (2007).

11

Andrew Wolfgang-Masters, 56 ECAB 411 (2005).

12

See Amelia S. Jefferson, 57 ECAB 183 (2005); Delphia Y. Jackson, 55 ECAB 373 (2004).

6

the evidence of record failed to establish a diagnosed condition due to the accepted work injury.
OWCP rescinded acceptance of the claim.
OWCP bears the burden of proof to rescind acceptance.13 In establishing that the prior
acceptance was erroneous, it must provide a clear explanation of the rationale for rescission.14
The Board finds, however, that it did not provide a clear rationale for its rescission.
OWCP based the rescission of acceptance of appellant’s claim for left knee
chondromalacia patellae on its finding that the medical evidence did not provide a history of her
March 18, 2008 fall at work until June 13, 2011. There is medical evidence, however,
containing a history of the March 2008 fall at work prior to June 13, 2011. In form reports dated
May 17 and June 9, 2008, Dr. Moore provided a history of appellant falling down stairs in
March 2008 and diagnosed sacroiliac and iliotibial band injuries.15 On July 25 and October 24,
2008 Dr. Moore advised that appellant fell in either February or March 2008 and injured her left
knee and right sacroiliac joint and iliotibial band. He diagnosed left patellar tendinitis, joint
derangement, and effusion. OWCP’s finding, therefore, that the medical evidence did not
contain a history of the March 2008 fall at work until June 13, 2011 is flawed.
OWCP further provided as rationale for its rescission that Dr. Prodromos treated
appellant for left knee chondromalacia in January 2008, two months before her work injury.
The record contains a report dated January 19, 2008 from Dr. Prodromos diagnosing left knee
chondromalacia. Subsequently, however, Dr. Prodromos submitted the same report clarifying
that the date of January 19, 2008 should have been January 19, 2009. On January 11, 2013 he
specified that he first treated appellant on September 29, 2008. Consequently, OWCP’s finding
that Dr. Prodromos evaluated her for left knee chondromalacia prior to her work injury is not
supported by the record.
The Board finds that OWCP did not offer a clear explanation of its rationale for
rescission.16 The reasons provided by OWCP for its rescission are not supported by the
evidence. Therefore, OWCP failed to meet its burden of proof to rescind acceptance of the
claim.17
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to rescind acceptance of
appellant’s claim for left knee chondromalacia patellae.
13

See D.H., Docket No. 13-1885 (issued May 12, 2014).

14

Id.; see also S.R., Docket No. 14-1313 (issued January 22, 2015).

15

Dr. Moore specified the date of injury as March 24, 2008.

16

Supra note 13 (finding that OWCP did not meet its burden of proof to rescind acceptance when it based its
rescission on a conclusory report from an OWCP medical adviser).
17

See R.B., Docket No. 12-0455 (issued February 25, 2013) (finding that OWCP had not met its burden of proof
to rescind acceptance of an emotional condition when it was based on an investigative report that was of insufficient
probative value).

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ORDER
IT IS HEREBY ORDERED THAT the February 19, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 6, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, U.S. PENITENTIARY CANAAN,
Waymart, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1792
Issued: December 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 11, 2014 appellant, through his attorney, filed a timely appeal from a
July 2, 2014 schedule award 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 sustained permanent impairment to his right ankle,
warranting a schedule award.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with respect to appellant’s claim for leave
In a March 4, 2011 decision, the Board affirmed OWCP’s
buyback compensation.2
December 17, 2013 decision which found that he had not established entitlement to leave
buyback. Appellant had requested 240 hours of disability from January 23 to April 2, 2006, a
period of disability related to his two right ankle surgeries, due to his accepted
September 26, 2005 employment-related injury. The facts of the case, as set forth in the prior
decision, are incorporated by reference. The relevant facts are set forth below.
OWCP accepted that on September 26, 2005 appellant, then a 31-year-old correctional
officer, sustained a right ankle sprain/strain while in the performance of duty. On
February 2, 2006 he underwent right ankle arthroscopic surgery with percutaneous distraction
and application of a Taylor spatial frame to the right foot and leg to treat his right ankle traumatic
arthritis. On March 9, 2006 appellant underwent removal of an external fixation device from his
right lower extremity. Neither surgery was authorized by OWCP. On September 20, 2006 and
August 31, 2009 two OWCP medical advisers opined that appellant’s ankle surgeries should not
be authorized as the medical evidence did not establish that his preexisting right ankle
osteoarthritis condition was aggravated, accelerated or exacerbated by the September 26, 2005
employment injury.
On April 7, 2011 and August 6, 2013 appellant filed claims for a schedule award. In an
August 2, 2013 medical report, Dr. Elaine A. O’Donnell, a podiatrist, noted appellant’s
February 2 and March 2006 right ankle surgeries. She advised that he continued to suffer acute
and chronic episodes of his post-traumatic arthritic right ankle. Dr. O’Donnell opined that
appellant’s post-traumatic ankle pain was chronic and that it would come and go according to his
activity and the weather.
By letter dated September 3, 2013, OWCP requested that appellant submit a medical
report from his physician addressing the extent of any permanent impairment in accordance with
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). Appellant was afforded 30 days to submit the requested
evidence. He did not respond.
In an October 10, 2013 decision, OWCP denied appellant’s claim, finding that he had not
submitted the requested medical evidence to establish his entitlement to a schedule award.
By letter dated October 14, 2013, appellant, through his attorney, requested a telephone
hearing with an OWCP hearing representative.
Medical reports and diagnostic test results dated January 21 to October 16, 2006 from
Dr. O’Donnell, Dr. Guido A. LaPorta, a podiatrist, Dr. Jamie S. Stallman, a Board-certified
radiologist, Dr. David Sabbar, Board-certified in nuclear medicine, and Dr. David F. Piro, a
Board-certified surgeon, addressed appellant’s right ankle conditions which included post-

2

Docket No. 10-1196 (issued March 4, 2011).

2

traumatic arthritis of the right ankle secondary to trauma and osteoarthritis of the right ankle for
which he underwent surgery.
An unsigned report dated September 12, 2013 noted appellant’s complaints of daily and
constant right foot and ankle pain, stiffness, swelling, numbness, and tingling. Appellant had
restrictions related to his activities of daily living. The report provided findings on physical
examination and stated that he had post-traumatic strain, sprain, tibiotalar osteoarthritis, and talar
osteochondritis dissecans of the right ankle. Appellant also had chronic instability and
degenerative joint disease of the right ankle. He was status post the February 2 and
March 9, 2006 right ankle surgeries. The report stated that the September 26, 2005 work-related
injury was the competent producing factor for his subjective and objective findings. Appellant
had two percent permanent impairment of the right lower extremity for his right ankle arthritis
under Table 16-2 of the A.M.A., Guides. The report concluded that he reached maximum
medical improvement on the day of his examination.
In a July 2, 2014 decision, an OWCP hearing representative affirmed the
October 10, 2013 decision. He found that appellant failed to submit probative medical evidence
in support of his schedule award claim as the September 12, 2013 report was not signed by a
physician. The hearing representative further found that, even if the report were signed by a
physician, this report and the reports from Dr. O’Donnell did not provide a rationalized medical
opinion on how appellant’s right ankle arthritis was causally related to the accepted
September 26, 2005 work injury.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.5 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides7 as the appropriate edition for all awards
issued after that date.8

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Ausbon N. Johnson, 50 ECAB 304 (1999).

6

Supra note 4; Mark A. Holloway, 55 ECAB 321, 325 (2004).

7

A.M.A., Guides (6th ed. 2009).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).

3

The sixth edition requires identifying the impairment class for the Class of Diagnosis
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).9 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove such relationship.11
ANALYSIS
OWCP accepted that appellant sustained right ankle sprain and strain while in the
performance of duty. Appellant claimed a schedule award due to his accepted conditions.
OWCP denied his claim for a schedule award. The Board finds that appellant has not met his
burden of proof to establish permanent impairment to his right lower extremity due to his
accepted conditions.12
An unsigned report dated September 12, 2013 that found appellant had two percent
impairment of the right lower extremity under Table 16-2 of the sixth edition of the A.M.A.,
Guides is insufficient to establish his claim. A report that is unsigned or bears an illegible
signature and lacks proper identification cannot be considered probative medical evidence.13
The remaining reports from Dr. O’Donnell, Dr. LaPorta, Dr. Stallman, Dr. Sabbar and
Dr. Piro addressed appellant’s right ankle conditions which included post-traumatic arthritis of
the right ankle secondary to trauma and osteoarthritis of the right ankle for which he underwent
surgery.
OWCP has not accepted that either condition is causally related to the
September 26, 2013 work injuries. It did not authorize appellant’s two right ankle surgeries. It
is his burden to establish that these conditions were causally related to the accepted
September 26, 2005 employment injuries.14 None of the above-noted physicians provided any
medical rationale explaining how the diagnosed right ankle conditions were caused by the
accepted injuries.15 Moreover, they did not provide an opinion as to whether appellant had
reached maximum medical improvement with regard to his accepted right ankle conditions and
as to whether he had any lower extremity impairment causally related to the accepted condition.
9

A.M.A., Guides 494-531.

10

Id. at 521.

11

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
12

An employee seeking a schedule award has the burden of proof to establish permanent impairment. See
Denise D. Cason, 48 ECAB 530 (1997).
13

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

14

See cases cited, supra note 11.

15

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

4

For the stated reasons, the Board finds that the reports of Dr. O’Donnell, Dr. LaPorta,
Dr. Stallman, Dr. Sabbar and Dr. Piro are of diminished probative value and insufficient to
establish appellant’s entitlement to a schedule award.
The Board finds that appellant has not shown that he is entitled to schedule award
compensation for his right ankle and thus he has not met his burden of proof.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. As
explained above there is no probative medical evidence of record establishing that appellant
sustained permanent impairment to the right ankle resulting from his accepted conditions.
Consequently, appellant has not established entitlement to a schedule award.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant failed to establish that he has any permanent impairment
of the right lower extremity, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 5, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5