United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CLEVELAND VETERANS ADMINISTRATION
MEDICAL CENTER, Brecksville, OH, Employer
__________________________________________

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

Docket No. 09-1563
Issued: February 26, 2010

Case Submitted on the Record

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

JURISDICTION
On June 4, 2009 appellant filed a timely appeal from August 13, 2008 and May 1, 2009
decisions of the Office of Workers’ Compensation Programs denying her claim for continuation
of pay. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant is entitled to continuation of pay for her October 21, 2005
employment injury.
FACTUAL HISTORY
On December 6, 2005 appellant, then a 49-year-old nurse, filed a traumatic injury claim
alleging that she fractured her left ankle on October 21, 2005 while she attempted to move a
patient from the floor onto a mattress. The employing establishment controverted appellant’s
claim for continuation of pay on the grounds that she failed to submit a CA-1 claim form (Report

of Traumatic Injury) within 30 days of the October 21, 2005 injury, as required. On July 20,
2006 the Office accepted her claim for a closed fracture of the left fibula and a left ankle sprain.
By decision dated August 13, 2008, the Office denied appellant’s claim for continuation
of pay on the grounds that she failed to submit a written claim within 30 days of her October 21,
2005 employment injury.
Appellant requested a hearing that was held on February 17, 2009. She testified that on
the day of the injury, October 21, 2005, she reported her injury to her supervisor and to the
medical officer on duty. Appellant was not asked to complete a form. She submitted a CA-1
claim form on December 6, 2005 when she returned to work. Her representative argued that
filing a CA-20 (Attending Physician’s Report) met the requirement for filing a notice of
traumatic injury on an approved form.1
On March 13, 2009 the employing establishment contended that a CA-20 form did not
meet the requirement for entitlement to continuation of pay. It noted that the CA-20 is
completed by a physician, not the employee, and there is no place provided on the form for the
employee to sign the form as a means of filing written notice of injury and a claim for
continuation of pay.
By decision dated May 1, 2009, an Office hearing representative affirmed the August 13,
2008 decision denying continuation of pay for appellant’s October 21, 2005 employment injury.
LEGAL PRECEDENT
Office regulations provide, in pertinent part, that to be eligible for continuation of pay, an
employee must: “(1) Have a ‘traumatic injury’ … which is job related and the cause of the
disability, and/or the cause of lost time due to the need for medical examination and treatment;
(2) File Form CA-1 within 30 days of the date of the injury …; and (3) Begin losing time from
work due to the traumatic injury within 45 days of the injury.”2 The Federal Employees’
Compensation Act authorizes continuation of pay for an employee who has filed a valid claim
for a traumatic injury.3
ANALYSIS
On December 6, 2005 appellant filed a claim for an October 21, 2005 traumatic injury.
Because she did not file a claim within 30 days, the time specified in sections 8118(a) and
8122(a)(2) of the Act,4 she is not entitled to continuation of pay.

1

The record contains a CA-20 dated November 17, 2005 from Dr. Robert J. Rosenstein, appellant’s attending
podiatrist, that was faxed to the employing establishment on November 22, 2005.
2

20 C.F.R. § 10.205(a)(1-3).

3

5 U.S.C. § 8118(a).

4

Id.; 5 U.S.C. § 8122(a)(2).

2

Section 8122 of the Act provides that original claims for compensation for disability or
death must be filed within 3 years after the injury or death unless the immediate supervisor had
actual knowledge of the injury or death within 30 days or written notice of death or injury, as
specified in section 8119, was given within 30 days. Actual knowledge and written notice of
injury under section 8119 thereby serve to satisfy the statutory period for filing an original claim
for compensation. The Office accepted the claim as timely and paid compensation.
Claims that are timely under section 8122 are not necessarily timely under section
8118(a). Section 8118(a) makes continuation of pay contingent on the filing of a written claim
within 30 days of the injury. When an injured employee makes no written claim for a period of
wage loss within 30 days, she is not entitled to continuation of pay, notwithstanding prompt
notice of injury. The record shows that appellant provided notice of injury to her supervisor on
October 21, 2005 but this oral notice is not determinative to whether she is entitled to
continuation of pay under section 8118(a).
Appellant argued that her supervisor did not ask her to complete a claim form on
October 21, 2005 and she submitted a CA-1 claim form on December 6, 2005 when she returned
to work. In the case of William E. Ostertag,5 the Board explained that the “exceptional
circumstances” provision of section 8122(d)(3), which may excuse the untimely filing of an
original claim for compensation under section 8122(a) and (b), is not applicable to section
8118(a) which concerns a claim for continuation of pay. Because the Act makes no provision for
an exception to the time limitation in section 8118(a), no exceptional or mitigating circumstance,
including error by the employing establishment, can entitle a claimant to continuation of pay
who has not filed a written claim within 30 days of the date of injury.6 Appellant contends that
the CA-20, attending physician’s report, submitted by her doctor on November 17, 2005 met the
requirement for filing a notice of traumatic injury on an approved form. However, a CA-20 form
is not accepted by the Office as one of the approved forms for filing written notice of a claim for
wage loss due to a traumatic injury.7 The CA-20 form is a medical document from an
employee’s physician and does not constitute a claim for compensation by the employee. It is
the claimant’s burden to provide written notice of injury and a CA-20 form is not completed or
signed by the claimant. Appellant did not submit written notice of injury on an approved form
until December 6, 2005, more than 30 days after the October 21, 2005 employment injury, when
she submitted a CA-1 form. Therefore, appellant is not entitled to continuation of pay.
CONCLUSION
The Board finds that appellant is not entitled to continuation of pay for her October 21,
2005 employment injury.

5

33 ECAB 1925 (1982).

6

Laura L. Harrison, 52 ECAB 515 (2002).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter
2.807.7 (March 2004) which lists the approved forms as CA-1, CA-2, CA-2a and CA-7, forms that contain “words
of claim.”

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 1, 2009 and August 13, 2008 are affirmed.
Issued: February 26, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
FORCES COMMAND, Lewis-McChord, WA,
Employer
__________________________________________

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

Docket No. 11-1920
Issued: March 26, 2012

Case Submitted on the Record

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

JURISDICTION
On August 17, 2011 appellant filed a timely appeal from a July 25, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) which denied her traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
February 1, 2008.
FACTUAL HISTORY
On January 20, 2010 appellant, then a 54-year-old protocol specialist, filed a traumatic
injury claim alleging that on February 1, 2008 she bruised her right thigh and strained her hip
1

5 U.S.C. § 8101 et seq.

after she slipped on ice in the parking lot. The employing establishment controverted the claim
finding insufficient evidence to support fact of injury.
In a letter dated December 9, 2010, OWCP advised appellant that no evidence was
submitted to support her claim. It requested that she submit additional factual evidence to
demonstrate that the event occurred as alleged and medical evidence to establish that she
sustained an injury as a result of the alleged incident.
In a November 12, 2010 Form CA-20, Dr. Deepshikha Bhasin, a Board-certified
internist, noted that appellant slipped on ice at work on February 1, 2008 and experienced pain in
her right hip. She diagnosed right hip pain now resolved and listed a diagnostic code of 719.46.
Dr. Bhasin stated that the fall and pain did not affect appellant’s work and indicated that her first
date of examination was on February 25, 2008.
In a decision dated January 14, 2011, OWCP denied appellant’s claim finding insufficient
evidence to establish fact of injury. It determined that the evidence submitted failed to establish
that the February 1, 2011 incident occurred as alleged and that appellant suffered a diagnosed
condition as a result of the alleged incident.
On February 10, 2011 appellant submitted a request for an oral hearing. In an attached
statement, she explained that as she walked to work from her vehicle in the building parking lot
she slipped on ice and felt both her feet come out from under her. Appellant stated that the
parking lot was iced over and that salt or sand had not been applied. She also reported that she
had returned to her physician who added a diagnostic code of 709-09 because the initial
diagnosis for right hip pain was not accepted. Appellant noted that a physician’s opinion as to
how the reported work incident caused or aggravated a medical condition was not available.
Appellant also provided a February 2, 2011 witness statement from G. Kent Troy, chief
of protocol, who noted that on February 1, 2008 he saw her slip and fall on the icy parking lot.
Appellant resubmitted the November 12, 2010 Form CA-20, which included a new
diagnostic code of 715.09.2
During the June 2, 2011 telephone hearing, appellant explained that on February 1, 2008
she slipped on ice and fell in the parking lot as she walked from her vehicle to her work building
shortly before 8:00 a.m. She believed that the giant bruise on her hip was related to the
February 1, 2008 incident or that it at least aggravated her previous hip arthritis. Appellant noted
that the bruise was evident to the eye and sore to the touch. She explained that the Form CA-20
was sent back to Dr. Bhasin to change because the diagnostic code for pain was not accepted as a
diagnosis. OWCP’s hearing representative stated that if a condition is going to be accepted the
physician had to write down more than just pain and also provide an opinion, supported by
medical rationale, explaining how the diagnosis was specifically related to the incident that
occurred. Appellant was advised to provide a statement from her physician clearly explaining

2

In the telephone hearing transcript, OWCP’s hearing representative noted that the ICD-9 code 715.09 was the
billable diagnosis code for general osteoarthritis.

2

what the injury was and whether her diagnosed condition was related to the February 1, 2008
incident.
In a February 29, 2008 medical chart note that was partially blacked out, Dr. Bhasin
stated that she examined appellant on February 25, 2008 for complaints of body aches.
Appellant related that she fell on ice about three weeks ago and experienced right hip pain. She
also complained of a bump on the right knee and some right knee discomfort. The examination
did not reveal any rashes or joint swellings and was negative for any pain in any specific joints.
Dr. Bhasin noted tenderness in the region of the right hip with movement of the right lower
extremity. She stated that appellant’s fall on the ice resulted in some right hip and knee pain and
advised that appellant undergo an x-ray examination. Appellant also resubmitted her
February 10, 2011 statement and the February 2, 2011 witness statement.
By decision dated July 25, 2011, OWCP’s hearing representative affirmed the
January 14, 2011 decision finding that the medical evidence was insufficient to establish that
appellant sustained any diagnosed condition as a result of the February 1, 2008 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence,4
including that she is an “employee” within the meaning of FECA5 and that she filed her claim
within the applicable time limitation.6 The employee must also establish that she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
she claims compensation is causally related to that employment injury.7
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical opinion evidence.8 Whether an employee sustained an
injury in the performance of duty requires the submission of rationalized medical opinion
evidence providing a diagnosis or opinion as to causal relationship.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the

3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercardo), 4 ECAB 357, 359 (1951).

6

R.C., 59 ECAB 42 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954).

7

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008).

8

D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

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specified employment factors or incident.10 The opinion of the physician must be based on a
complete factual and medical background of the employee, 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
employee.11
ANALYSIS
Appellant alleged that on February 1, 2008 she sustained a bruise on her hip when she
slipped on ice and fell down in the parking lot on her way to work. In a January 14, 2011
decision, OWCP denied her claim finding insufficient factual evidence to demonstrate that the
incident occurred as alleged and insufficient medical evidence establishing that the work event
caused any condition. In a July 25, 2011 decision, OWCP’s hearing representative accepted that
the February 1, 2008 incident occurred as alleged but found the medical evidence insufficient to
establish that she sustained any condition as a result of the accepted employment incident. The
Board finds that appellant failed to provide sufficient evidence demonstrating that she sustained
a bruised hip as a result of the February 1, 2008 employment incident.
Appellant submitted medical evidence from Dr. Bhasin. In a November 12, 2010 Form
CA-20, Dr. Bhasin noted that appellant fell on ice on the job on February 1, 2008 and was
initially examined on February 25, 2008 for right hip pain. She diagnosed right hip pain that has
now resolved and listed a diagnostic code of 719.46. Dr. Bhasin later included a diagnostic code
of 715.09. In a February 29, 2008 medical chart note, she stated that appellant’s fall on the ice
resulted in some right hip and knee pain. The Board has found, however, that pain is not a
compensable medical diagnosis.12 Dr. Bhasin also failed to provide any opinion on the cause of
appellant’s hip pain or explain how her hip pain resulted from the February 1, 2008 work event.
The Board has found that medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.13
Thus, Dr. Bhasin’s reports are insufficient to establish appellant’s claim.
On appeal, appellant contended that she sustained a bruise on her hip and pain as a result
of falling down at work. She explained that an x-ray examination could not display a bruise and
that a bruise and pain normally occurred when one falls down. Appellant, however, must submit
medical evidence establishing that she suffered from some physical or mental condition, more
than just pain.14 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical opinion evidence.15 As appellant has not
10

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

11

D.S., Docket No. 09-860 (issued November 2, 2009); B.B., 59 ECAB 234 (2007).

12

Robert Broome, 55 ECAB 339, 342 (2004).

13

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

14

The term injury as defined by FECA refers to some physical or mental condition caused by either trauma or by
continued or repeated exposure to, or contact with, certain factors, elements or conditions. 20 C.F.R. § 10.5(ee).
15

Mary J. Summers, supra note 8.

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submitted such rationalized medical opinion in this case, she did not meet her burden of proof to
establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on February 1, 2008.
ORDER
IT IS HEREBY ORDERED THAT the July 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.F., Appellant
and
U.S. POSTAL SERVICE, MINUET STATION,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 13-739
Issued: June 17, 2013

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 February 11, 2013 appellant filed a timely appeal of the December 28, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a right shoulder injury causally related to the
accepted factors of his federal employment.
On appeal, appellant contends that OWCP failed to consider his physician’s December 7,
2012 clinical notes prior to issuing its December 28, 2012 decision.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 20, 2010 appellant, then a 54-year-old letter carrier, filed an occupational
disease claim alleging that on March 28, 2010 he first became aware of his right shoulder injury.
He further alleged that on August 10, 2012 he first realized that his condition was caused by his
repetitive work duties which included casing mail, removing parcels and trays from a hamper,
reaching and placing mail in customers’ mailboxes and opening and closing a lift gate on his
postal vehicle.
In a July 31, 2012 medical report, Dr. Monica A. Zaucha, a Board-certified radiologist,
advised that a magnetic resonance imaging (MRI) scan of the right shoulder revealed full
thickness near a complete tear of the supraspinatus with approximately 2.5 centimeters of tendon
retraction, a full-thickness tear of the infraspinatus on a background of tendinopathy, mild
undersurface fraying of the subscapularis with no definite tear and contour irregularity with
increased signal in the superior and posterior labrum which may represent labral degeneration or
degenerative tearing.
In an October 11, 2012 letter, the employing establishment controverted the claim,
contending that there was no evidence to support that it was work related.
By letter dated October 17, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested that he submit factual and medical evidence,
including a rationalized medical opinion from an attending physician explaining whether and
how specific work factors caused his diagnosed condition. OWCP also requested that the
employing establishment submit any medical evidence regarding treatment appellant received at
its medical facility.
In an October 1, 2010 progress note, Dr. James E. Chapman, a Board-certified orthopedic
surgeon, obtained a history of appellant’s repetitive work duties at the employing establishment
which included casing mail, lifting a heavy van gate on the back of his vehicle and lifting
packages that weighed 15 to 20 pounds. He also provided a history of medical treatment for his
right shoulder condition. Dr. Chapman listed findings on physical examination and reviewed
x-ray and MRI scan results related to the right shoulder and left knee. He diagnosed a full
thickness rotator cuff tear of the right shoulder and chrondromalacia patella and an inferior tear
posterior horn medial meniscus of the right knee. Dr. Chapman recommended that appellant
undergo repeat arthroscopic evaluation with rotator cuff repair, possible biceps tenodesis,
subacromial decompression and excision distal clavicle.
An undated and unsigned notice contained the typed name of Dr. John B. Mason, a
Board-certified orthopedic surgeon, and indicated that appellant was scheduled to undergo
surgery on October 19, 2012.
In a December 7, 2012 report, Dr. Patrick M. Connor, a Board-certified orthopedic
surgeon, obtained a history of appellant’s right shoulder problems and medical treatment. He
noted his complaint of a vague pain in the posterior, superior aspect of the right shoulder which
worsened with repetitive overhead work activities. Dr. Connor listed findings on physical and
x-ray examination and reviewed the July 31, 2012 right shoulder MRI scan. He diagnosed right

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shoulder full-thickness rotator cuff tear primarily involving the supraspinatus and leading edge of
the infraspinatus with Type 2 acromial morphology. Dr. Connor recommended right shoulder
arthroscopic subacromial decompression with rotator cuff repair.
In a December 27, 2012 statement, appellant again attributed his claimed condition to his
repetitive work duties which included lifting flat tubs from the floor to a case ledge, placing flats
from a tub to a case ledge, overhead and right to left reaching to case flats and letter mail and
reaching down and back to retrieve mail and packages from his mailbag. He performed these
duties eight to nine hours a day, five days a week. Appellant stated that, while on active duty in
the United States Marine Corps in February 1998 he underwent arthroscopic subacromial
decompression to repair a rotator cuff tear and an open distal clavicle resection to remove a small
piece of bone from the end of his collarbone.
In a December 28, 2012 decision, OWCP denied appellant’s occupational disease claim.
It found that the medical evidence was insufficient to establish that he sustained a medical
condition causally related to the established work duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable 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 employee.5 Neither the fact that appellant’s
2

Id. at §§ 8101-8193.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

5

I. J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 4 at 351-52.

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condition became apparent during a period of employment nor, his belief that the condition was
caused by his employment is sufficient to establish a causal relationship.6
ANALYSIS
OWCP accepted that appellant performed the work duties of a letter carrier, as alleged.
The Board finds, however, that the medical evidence submitted is insufficient to establish that his
right shoulder condition was caused or aggravated by his work-related duties.
Dr. Chapman’s progress note and Dr. Connor’s report referenced the established work
duties and diagnosed several right shoulder conditions. However, neither physician provided an
opinion addressing the causal relationship between the diagnosed conditions and the accepted
employment duties. The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition, is of limited probative value on the issue of
causal relationship.7 The Board finds, therefore, that the reports of Drs. Chapman and Connor
are insufficient to establish appellant’s claim.
Similarly, Dr. Zaucha’s diagnostic test results regarding appellant’s right shoulder
conditions are insufficient to establish his claim. This evidence does not contain any opinion
addressing the cause of the diagnosed shoulder conditions.8
The undated and unsigned notice which contained the typed name of Dr. Mason has no
probative value in establishing that appellant sustained a right shoulder condition causally related
to the established work duties. It is well established that medical evidence lacking proper
identification is of no probative medical value.9
The Board finds that there is no rationalized medical evidence of record to establish that
appellant sustained a right shoulder condition causally related to the accepted employment
factors. Appellant did not meet his burden of proof.
On appeal, appellant contended that OWCP failed to consider Dr. Connor’s December 7,
2012 clinical notes prior to issuing its December 28, 2012 decision. A review of the record
reveals that this evidence was in the case record at the time of OWCP’s decision denying his
occupational disease claim. There is no evidence that it failed to properly review the case record.
As stated, Dr. Connor’s report is of diminished probative value because he failed to provide an
opinion on the causal relationship between appellant’s diagnosed right shoulder conditions and
the established work duties. Accordingly, appellant has not submitted sufficient medical
evidence to establish that he sustained a right shoulder injury causally related to the accepted
employment factors.
6

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

7

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

8

Id.

9

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB
572 (1988).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a right shoulder
injury causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2013
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Los Angeles, CA, Employer )
__________________________________________ )
N.M., Appellant

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

Docket No. 15-1460
Issued: October 27, 2015

Case Submitted on the Record

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

JURISDICTION
On June 29, 2015 appellant filed a timely appeal from a June 2, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
$816.81 overpayment of compensation for the period July 17 to 26, 2014; and (2) whether the
overpayment is subject to waiver of recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on December 12, 2013 appellant, then a 31-year-old transportation
security officer, sustained a complete right rotator cuff tear, right shoulder sprain, and right
acromioclavicular sprain while handling a heavy bag. On April 4, 2014 he underwent an
arthroscopic rotator cuff repair, bursectomy, and acromioplasty. OWCP authorized the
procedure.
Appellant received compensation for temporary total disability from April 3 to
June 28, 2014.2 He returned to full-time work on July 17, 2014 with no loss of wages.
On July 21, 2014 OWCP noted that the upcoming July 2014 compensation payment
would create an overpayment of compensation from July 17 to 26, 2014, as appellant would be
paid total disability compensation after he returned to work. It calculated that, based on a daily
net compensation rate of 81.681, he would be paid a total of $816.81 in compensation for the 10day period.
OWCP issued an electronic compensation payment on July 26, 2014 in the amount of
$2,287.07, covering the period June 29 to July 26, 2014.
By notice dated August 6, 2014, OWCP advised appellant of its preliminary
determination that an overpayment of compensation in the amount of $816.81 was created in his
case for the period July 17 to 26, 2014, as he received compensation for total disability after he
returned to work with no loss of wages. It found him without fault in creation of the
overpayment, as he was not aware and could not reasonably have been expected “to know that
OWCP had paid compensation incorrectly.” OWCP afforded appellant 30 days to request a
prerecoupment hearing, provide financial information, and submit additional evidence or
argument.
In an August 12, 2014 letter, appellant requested waiver of recovery of the overpayment,
contending that OWCP found him without fault, and that repayment would cause financial
hardship. He completed an overpayment recovery questionnaire (Form OWCP-20) noting that
he resided with his wife and two minor children. Appellant listed $2,200.00 in monthly
household income, $455.00 in bank accounts, $200.00 for rent or mortgage, $600.00 for food,
$400.00 for clothing, $800.00 for utilities, and $600.00 for unspecified miscellaneous expenses.
He did not indicate whether he wanted to pursue a review of the written record, telephone
conference, or a prerecoupment hearing.
In an August 15, 2014 letter, OWCP noted that appellant did not indicate whether he
desired a telephone conference, review of the written record, or prerecoupment hearing. By
notice dated January 21, 2015, it advised him that it had scheduled a telephonic hearing for
March 9, 2015 at 2:00 p.m. Eastern time. OWCP provided a call-in number and passcode to
participate in the hearing. As appellant did not telephone at the appointed time, it proceeded
with a review of the written record.
2

On April 29, 2014 appellant elected to receive FECA benefits by direct deposit effective that day. OWCP
placed his case on the periodic rolls effective June 1, 2014.

2

By decision dated June 2, 2015, OWCP finalized the August 6, 2014 preliminary notice,
finding an $816.81 overpayment of compensation for the period July 17 to 26, 2014. It found
that appellant was not at fault in the creation of the overpayment, but that the overpayment was
not subject to waiver as his income exceeded his monthly expenses by $200.00.3 OWCP
accepted his accounting of $2,200.00 in monthly household income. It also accepted appellant’s
stated expenses of $200.00 for rent or mortgage, $800.00 for utilities, $600.00 for food, and
$400.00 for clothing, for a total of $2,000.00. OWCP disallowed his listing of $600.00 in
“other” expenses as he did not submit any description or documentation of these costs. It
calculated that as appellant’s monthly discretionary income exceeded $50.00 limit for disposable
income, collection of the overpayment would not defeat the purpose of FECA or be against
equity and good conscience. OWCP directed recovery of the overpayment by ordering him to
submit payments of $50.00 a month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.4
Disability means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.5 Compensation for wage
loss due to disability is available only for periods during which a work-related medical condition
prevents the employee from earning the wages earned before the work-related injury.6
ANALYSIS -- ISSUE 1
Appellant received FECA wage-loss compensation from April 3 to June 28, 2014 due to
an accepted right rotator cuff tear and surgical repair. He returned to work on July 17, 2014, but
continued to receive total disability compensation through July 26, 2014. OWCP calculated that
for the 10-day period from July 17 to 26, 2014, appellant received an $816.81 overpayment of
compensation, based on a daily compensation rate of 81.681 multiplied by 10.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received an overpayment of compensation in the amount of $816.81 for the period
July 17 to 26, 2014.
3

In the June 2, 2015 decision, OWCP misstated the amount of appellant’s monthly disposable income. On page
3 of the decision, it totaled his monthly expenses at $1,800.00 and not $2,000.00. OWCP then subtracted $1,800.00
from appellant’s monthly income of $2,200.00 to equal $400.00. This is incorrect. OWCP accepted $2,000.00 in
ordinary and necessary living expenses, leaving discretionary income of $200.00 a month. The Board finds,
however, that this is harmless error, as the $200.00 amount also exceeds the $50.00 monthly limit for disposable
income.
4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f).

6

Id. at § 10.500(a). J.B., Docket No. 15-1043 (issued August 6, 2015).

3

The Board finds that OWCP properly determined the fact and the amount of
overpayment. The Board notes that on appeal appellant does not contest the fact or amount of
the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
because of an error of fact of law, adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.7 The only exception to this requirement that an
overpayment must be recovered is set forth 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.
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience, pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations8 provide that recovery of an overpayment
will defeat the purpose of FECA if recovery would cause hardship to a currently or formerly
entitled beneficiary such that: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income, including compensation benefits, to meet current
ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed the
resource base of $4,800.00 for an individual.9 An individual is deemed to need substantially all
of his or her current income to meet current ordinary and necessary living expenses if monthly
income does not exceed monthly expenses by more than $50.00. In other words, the amount of
monthly funds available for debt repayment is the difference between current income and
adjusted living expenses (i.e., ordinary and necessary living expenses plus $50.00).10
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his position for the worse.11 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.12 The individual who received
7

Id. at § 8129(a).

8

Id. at § 10.436.

9

Id. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (October 2004).
10

Id.

11

Id. at § 10.437(b).

12

Federal (FECA) Procedure Manual, supra note 9, Chapter 6.200.6.b(3) (October 2004). C.P., Docket No. 14975 (issued September 11, 2014).

4

the overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. This
information will also be used to determine the repayment schedule, if necessary.13
The Board has held that an employee who received payments from OWCP in the form of
a direct deposit may not be at fault the first time incorrect funds are deposited into his or her
account, as the acceptance of the resulting overpayment lacks the requisite knowledge.14
ANALYSIS -- ISSUE 2
OWCP found that appellant was without fault in creating the overpayment of
compensation and considered whether he was entitled to waiver of recovery. Waiver is only
possible if recovery would defeat the purpose of FECA or would be against equity and good
conscience. In order to establish that repayment of the overpayment would defeat the purpose of
FECA, appellant must show that he requires substantially all of his income to meet current
ordinary and necessary living expenses and that his assets do not exceed the established limit as
determined by OWCP’s procedures.15
OWCP analyzed the financial information appellant submitted. It allowed $2,000.00 of
ordinary and necessary living expenses, including $200.00 for rent or mortgage, $800.00 for
utilities, $600.00 for food, and $400.00 for clothing. OWCP determined that appellant’s monthly
household income of $2,200.00 exceeded his expenses by $200.00 a month. This exceeded the
$50.00 allowance specified in OWCP’s implementing regulations, demonstrating that he did not
need substantially all of his income for ordinary and necessary living expenses.16 As appellant’s
income exceeded his allowable expenses by more than the amount specified, he has not
established that recovery would defeat the purpose of FECA.
Additionally, the evidence does not demonstrate that repayment of the overpayment
would be against equity and good conscience. Appellant submitted no argument that he relied
upon the incorrect payments to his detriment or that he would experience severe financial
hardship attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery
of the overpayment.
The Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery
from continuing compensation under FECA.17 As appellant was not in receipt of continuing
compensation benefits at the time the final decision was entered in this matter, the Board lacks
jurisdiction to review recovery of the overpayment.
13

20 C.F.R. § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

14

W.P., 59 ECAB 514 (2008); S.C., Docket No. 14-1730 (issued April 13, 2015).

15

20 C.F.R. § 10.436.

16

Id.

17

See Judith A. Carido, 55 ECAB 348 (2004).

5

On appeal, appellant argues that OWCP did not contact him regarding a telephonic
hearing, and that he was on active military duty on the date of the hearing. The Board notes that
the August 15, 2014 informational letter and January 21, 2015 notice of hearing were mailed to
him at his address of record. Appellant also contends that he is unable to repay the overpaid
compensation due to financial hardship. As found, OWCP properly denied waiver of recovery of
the overpayment. The Board lacks jurisdiction to review recovery of the overpayment in this
case.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an $816.81
overpayment of compensation for the period July 17 to 26, 2014. The Board further finds that he
is not entitled to waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 2, 2015 is affirmed.
Issued: October 27, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, COMMISSARY,
LACKLAND AIR FORCE BASE,
San Antonio, TX, Employer
__________________________________________

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Appearances:
Michael Moore, for the appellant
Office of Solicitor, for the Director

Docket No. 07-943
Issued: August 20, 2007

Case Submitted on the Record

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

JURISDICTION
On February 21, 2007 appellant, through his representative, filed a timely appeal of a
January 8, 2007 decision of the Office of Workers’ Compensation Programs denying his
traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained a lumbar injury in the
performance of duty.
FACTUAL HISTORY
On September 30, 2005 appellant, then a 51-year-old store worker, filed a traumatic
injury claim (Form CA-1) asserting that, on September 29, 2005, he sustained a low back strain
while pushing a cart. He did not stop work.

On October 5, 2005 Dr. Cassandra Ramos, an attending chiropractor, ordered four lumbar
x-rays. In an October 8, 2005 report, she opined that lumbar x-rays showed “subluxation of
L1 [to] L5 all in right rotation, right rotation restriction.” Dr. Ramos submitted chart notes
through December 7, 2005 noting improving lumbar pain.
In a November 9, 2005 letter, the Office advised appellant of the additional medical and
factual evidence needed to establish his claim. The Office explained that, under the Federal
Employees’ Compensation Act, chiropractors were considered physicians only if they diagnosed
a spinal subluxation by x-ray.
In a November 29, 2005 report, Dr. Ramos opined that x-rays demonstrated a mild
decrease of lumbar lordosis, paraspinal muscle spasm, a narrowed disc space at L5-S1 and a
“right rotation restriction … from the first to the fifth lumbar vertebrae.”1
By decision dated December 14, 2005, the Office denied appellant’s claim on the
grounds that fact of injury was not established. The Office accepted that the September 29, 2005
work incident occurred at the time, place and in the manner alleged. The Office found that
appellant did not establish that the accepted incident caused an injury as Dr. Ramos was not a
physician under the Act because she did not provide objective medical evidence of a spinal
subluxation.
In a January 13, 2006 letter, appellant requested a hearing, held November 14, 2006. At
the hearing, he asserted that Dr. Ramos diagnosed spinal subluxations.
Appellant submitted additional evidence. In an October 6, 2005 report, Dr. Ramos noted
work restrictions. In a December 14, 2005 report, she opined that appellant’s back pain was
improving. In a January 2, 2006 letter, Dr. Ramos stated that appellant had a mild loss of
lordotic curvature, paraspinal muscle spasms, a narrowed disc space at L5-S1 and a right rotation
restriction from L1 to L5. She defined a subluxation as “a motion segment in which alignment,
movement, integrity and/or physiologic function are altered, although contact between joint
surfaces remains intact. Dr. Ramos asserted that appellant had multiple lumbar subluxations.2
By decision dated and finalized January 8, 2007, the Office hearing representative
affirmed the Office’s December 14, 2005 decision, finding that appellant did not establish that he
sustained a lumbar injury as alleged. The hearing representative found that Dr. Ramos did not
provide medical rationale explaining how and why the September 29, 2005 work incident would
cause an injury. The hearing representative noted that Dr. Ramos provided insufficient evidence
to substantiate her diagnosis of spinal subluxations.

1

Appellant also submitted a September 30, 2005 report from Susan McCallow, a nurse practitioner. However,
nurses are not physicians as defined under the Act and their reports do not constitute medical evidence. Roy L.
Humphrey, 57 ECAB ___ (Docket No. 05-1928, issued November 23, 2005).
2

In a November 3, 2006 memorandum, the Office noted that appellant submitted x-rays on November 7, 2005
that could not be scanned into the Office’s electronic case imaging system.

2

LEGAL PRECEDENT
An employee seeking benefits under the Act3 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 the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.6
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.7
Section 8101(2) of the Act provides that medical opinion, in general, can only be given
by a qualified physician.8 This section defines a physician as surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by stated law. Section 8101(3) of the Act, which defines services and
supplies, limits reimbursable chiropractic services to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject
to regulation by the Secretary.9 The Office’s regulations at section 10.5(bb) define “subluxation”
as “an incomplete dislocation, off-centering, misalignment, fixation or abnormal spacing of the
vertebrae which must be demonstrable on any x-ray film to an individual trained in the reading
of x-rays.”10
ANALYSIS
Appellant claimed that he sustained a traumatic lumbar injury on September 29, 2005
while pushing a cart. The Office accepted that this incident occurred at the time, place and in the
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001).

7

Deborah L. Beatty, 54 ECAB 340 (2003).

8

5 U.S.C. § 8101(2). See also Mary A. Ceglia, 55 ECAB 626 (2004).

9

5 U.S.C. § 8101(3), 20 C.F.R. § 10.311(a). See Thomas W. Stevens, 50 ECAB 288 (1999); George E. Williams,
44 ECAB 530 (1993).
10

20 C.F.R. § 10.5(bb).

3

manner alleged. However, the Office denied the claim on the grounds that appellant did not
submit medical evidence establishing the claimed causal relationship. The Office found that
Dr. Ramos, an attending chiropractor, did not provide sufficient medical rationale explaining
how and why the accepted September 29, 2005 incident would cause the diagnosed lumbar
subluxations.
The Board finds that Dr. Ramos is a physician under the Act for the purposes of this case
as she diagnosed a spinal subluxation by x-ray. In October 8 and November 29, 2005 x-ray
reports, Dr. Ramos diagnosed right rotation subluxations from L1 to L5. She explained why the
objective radiologic findings of vertebral misalignments constituted lumbar subluxations. The
Board finds that Dr. Ramos’ opinion is sufficient to establish the diagnosis of spinal subluxations
and constitutes competent medical evidence.11
The Board finds, however, that appellant submitted insufficient rationalized medical
evidence to establish causal relationship. Dr. Ramos did not explain how and why the accepted
incident of pushing a cart would cause the claimed lumbar injury. She did not set forth the
pathophysiologic mechanism whereby pushing a cart on September 29, 2005 would cause the
diagnosed lumbar subluxations. Dr. Ramos’ opinion is of insufficient probative value to
establish causal relationship in this case.12
The Board finds that appellant submitted insufficient rationalized medical evidence to
establish the causal relationship asserted. Therefore, the Office’s decision dated and finalized
January 8, 2007 denying appellant’s claim is proper under the law and facts of this case.
CONCLUSION
The Board finds that appellant has not established that he sustained a lumbar injury in the
performance of duty.

11

See George E. Williams, supra note 9.

12

Deborah L. Beatty, supra note 7.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated and finalized January 8, 2007 is affirmed.
Issued: August 20, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF DEFENSE, SHARPE
DEPOT, Stockton, CA, Employer
__________________________________________

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

Docket No. 10-1738
Issued: March 2, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 18, 2010 appellant, through his attorney, filed a timely appeal of a March 8,
2010 merit decision of the Office of Workers’ Compensation Programs denying his claim for
additional compensation benefits. Pursuant to 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 his burden of proof to modify the Office’s August 30,
1994 wage-earning capacity determination.
FACTUAL HISTORY
On July 25, 1990 appellant, then a 32-year-old woodworker, filed a traumatic injury
claim alleging that he injured his back lifting a box and placing it inside a carton in the
performance of duty. The Office initially accepted his claim for lumbar strain. Appellant filed a
recurrence of disability on July 9, 1991 alleging that he required back surgery. The Office

accepted a herniated disc at L5-S1 and entered him on the periodic rolls. On August 18, 1991
appellant underwent a left hemilaminectomy and disc excision at L5-S1.
Appellant returned to light-duty work four hours a day on August 21, 1992. He stopped
work on March 18, 1993 alleging an emotional condition.1
By decision dated January 12, 1994, the Office granted appellant a schedule award for
eight percent impairment of his left lower extremity.
Appellant participated in vocational rehabilitation services. By decision dated August 30,
1994, the Office reduced his compensation benefits based his actual earnings as a woodworker
for four hours a day effective August 21, 1992. It found that this position fairly and reasonably
represented his wage-earning capacity.
Dr. Leonard E. Forrest, a physician Board-certified in physical medicine and
rehabilitation, examined appellant on February 21, 2005 and noted that his back symptoms had
not changed.2 Appellant reported increased leg symptoms including weakness and loss of
control. Dr. Forrest reexamined him on February 7, 2007 and noted complaints of pain in the
low back and down both legs as well as loss of control of the right leg. He recommended
additional diagnostic studies. A magnetic resonance imaging (MRI) scan of March 1, 2007
revealed mild to moderate disc bulging at L5-S1 resulting in right-sided foraminal stenosis as
well as degenerative disc disease at L3-4 and L4-5 with disc protrusions at both levels and nerve
root impingement. Nerve conductions studies on March 12, 2007 demonstrated evidence of
chronic radiculopathy involving the left lower extremity. Dr. Forrest examined appellant on
March 12, 2007 and recommended medication. On March 21, 2007 he found that appellant was
totally disabled and did not anticipate any improvement. Dr. Forrest examined him on April 4,
2007 and recommended physical therapy. Appellant returned to work in private employment in
July 2007 working 37.5 hours a week.
Dr. Forrest examined appellant on June 18, 2008 and noted that appellant was terminated
from his employment. He recommended additional testing. On June 23, 2008 appellant
underwent electrodiagnostic testing which demonstrated a disc bulge at L3-4, L4-5 and L5-S1
with foraminal narrowing. Dr. Forrest reviewed this report and found that appellant had
compression involving the right L5 nerve root and left L3 nerve compromise. He recommended
injections. On September 17, 2008 Dr. Forrest noted that appellant underwent the first injection,
but symptoms had recurred in his pelvis, left hip and groin. He stated that appellant’s pain
seemed to be worse and recommended additional studies. On September 24, 2008 appellant
underwent an MRI scan which demonstrated a left-sided chondroid lesion in his hip. Dr. Forrest
examined him on November 25, 2008 and noted his complaints of left foot pain and burning. He
opined that appellant was not going to be able to do any meaningful, gainful employment.
Appellant filed a recurrence of disability on December 4, 2008. He stated that he stopped
private sector work January 31, 2008 and that this was not a recurrence claim, but a worsening of
1

Appellant has additional claim numbers xxxxxx776 and xxxxxx474.

2

Dr. Forrest noted that he last examined appellant in August 2003.

2

his accepted employment injury. Appellant developed left side pain due to nerve damage which
was permanent. In a letter received by the Office on December 15, 2008, he stated that his back
condition had progressively worsened and that he had no ability to earn income. Appellant
requested compensation for total disability.
In a letter dated February 6, 2009, the Office requested additional factual and medical
evidence in support of appellant’s claim. On February 13, 2009 appellant replied that he was
claiming disability as of November 25, 2008. He alleged that, following his surgery, scar tissue
developed and damaged the nerves in his spine resulting in loss of sensation to his left lower
extremity. In a report dated January 28, 2009, Dr. Mark D. Netherton, a Board-certified
anesthesiologist, noted appellant’s July 1990 history of injury and listed his report of pain. He
found radiation of pain in the L5-S1 nerve distribution into the left foot. Dr. Netherton
diagnosed postlumbar laminectomy syndrome and lumbar plexus disorder.
Dr. Forrest completed a report on February 24, 2009 and opined that appellant’s current
condition was related to his July 25, 1990 employment injury. He stated that appellant had no
new injuries only “some general worsening of the condition.”
By decision dated March 26, 2009, the Office denied appellant’s claim for recurrence of
disability on January 31, 2008. It also denied modification of the August 30, 1994 wage-earning
capacity decision. The Office found that the medical evidence did not provide an adequate
factual background to establish a material change in the nature and extent of appellant’s injuryrelated condition.
Dr. Forrest completed a form report on March 24, 2009 and reiterated that appellant was
totally disabled.
Appellant requested a telephonic hearing on April 17, 2009. At the August 14, 2009
hearing, he described radiating pain that descended from his hip to his foot. On August 24, 2009
Dr. Forrest recommended new electrodiagnostic studies. Appellant underwent an MRI scan on
September 1, 2009 which demonstrated disc space narrowing at L3-4 and stenosis and
compression of the left third and fourth nerve roots. At L4-5 disc level he had disc protrusion
with annular tearing and stenosis. The L5-S1 level demonstrated diffuse shallow protrusion of
the disc material and potential compression of the S1 nerve root. In reports dated September 17,
2009, Dr. Forrest found that appellant’s electrodiagnostic studies were consistent with acute and
chronic radiculopathy. He stated that the acute findings represented a change from the 2007
study and possible L3 and L4 radiculopathies. Dr. Forrest advised that the new MRI scan
demonstrated worsening on the left side including disc protrusion and spondylosis change. He
recommended surgery for the findings at L3-4.
On October 15, 2009 Dr. Forrest stated that appellant had not experienced any new
injuries to his low back since 1990. He compared appellant’s MRI scans to find that his spinal
condition was worsening. Dr. Forrest stated, “It is my opinion that the degenerative conditions
as exhibited at L3-S1 are causally related to the original incident of July 25, 1990. It is not
unusual for a surgical patient such as [appellant] to develop spinal disc problems adjacent to the
surgical site and as such would be considered a natural progression of the original injury.” He

3

provided work restrictions of change at will between sitting, standing, walking, no lifting from
the floor, no carrying more than 20 pounds and occasional reaching overhead.
By decision dated November 13, 2009, an Office hearing representative noted that
appellant returned to light-duty work and continued to work in the light-duty position. The
Office then issued a retroactive wage-earning capacity determination based on this position in
1994. The Office hearing representative found that the medical evidence was not sufficiently
rationalized to establish that appellant had sustained a material change in the nature and extent of
the injury-related condition.
Dr. Steven C. Poletti, a Board-certified orthopedic surgeon, completed a report on
November 4, 2009 and noted appellant’s history of injury. He reviewed the diagnostic studies
and diagnosed instability with radiculopathy secondary to disc disruption L5-S1 and L3-4.
Appellant, through his attorney, requested reconsideration on January 8, 2010 based on
Dr. Forrest’s October 15, 2009 report.
By decision dated March 8, 2010, the Office denied modification of its prior decisions. It
reviewed the additional medical evidence and found it insufficient to support a causal
relationship between appellant’s current lumbar condition and his accepted employment injury.
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.3 The burden of proof is on the
party attempting to show the award should be modified.4
Section 8115(a) of the Federal Employees’ Compensation Act provides that the wageearning capacity of an employee is determined by his actual earnings if his actual earnings fairly
and reasonably represent his wage-earning capacity.5 The Board has stated, generally, wages
actually earned are the best measure of a wage-earning capacity and in the absence of evidence
showing that they do not fairly and reasonably represent the injured employee’s wage-earning
capacity, must be accepted as such measure.6 However, wage-earning capacity may not be based
on an odd-lot or make-shift position designed for an employee’s particular needs or a position

3

K.S. 60 ECAB ___ (Docket No. 08-2105, February 11, 2009); George W. Coleman, 38 ECAB 782, 788 (1987).

4

Id.

5

5 U.S.C. § 8115(a).

6

K.S., supra note 3; Floyd A. Gervais, 40 ECAB 1045, 1048 (1989). Disability is defined in the implementing
regulations as the incapacity, because of an employment-related injury to earn the wages the employee was
receiving at the time of the injury. 20 C.F.R. § 10.5(f). Once it is determined that the actual wages of a given
position represent an employee’s wage-earning capacity, the Office applies the principles enunciated in Albert C.
Shadrick, 5 ECAB 376 (1953) in order to calculate the adjustment in the employee’s compensation.

4

that is seasonal in an area where year-round employment is available.7 Wage-earning capacity
may only be based on a temporary or part-time position if the position held by the employee at
the time of injury was a temporary or part-time position.8
Office procedures direct that a wage-earning capacity determination based on actual
wages be made following 60 days of employment.9 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.10
ANALYSIS
On appeal, appellant’s attorney alleged that the Office did not properly weigh the new
medical evidence and that Dr. Forrest’s reports were sufficiently detailed, based on a proper
factual background and well rationalized to establish a change in the nature and extent of
appellant’s injury-related condition.
Appellant has not alleged that the original wage-earning capacity determination was
erroneous or that he was vocationally rehabilitated. Instead his argument is that he has
experienced a material change in the nature and extent of his injury-related condition warranting
modification of the August 30, 1994 wage-earning capacity determination. In support of his
claim, appellant submitted reports from his attending physician, Dr. Forrest, dated February 24
and October 15, 2009 opining that appellant’s current condition was related to his accepted 1990
employment injury. Dr. Forrest found general worsening of appellant’s back and opined that the
changes he found on MRI scans were related to appellant’s 1990 employment injury. He stated,
“It is not unusual for a surgical patient such as [appellant] to develop spinal disc problems
adjacent to the surgical site and as such would be considered a natural progression of the original
injury.” This statement is the only medical reasoning offered by Dr. Forrest in support of his
opinion that appellant’s current condition is employment related rather than due to degenerative
changes or private sector employment. While the medical opinion of a physician supporting
causal relationship does not have to reduce the etiology of a disease or condition to an absolute
certainty, neither can such opinion be speculative or equivocal.11 Dr. Forrest’s statement
regarding the etiology of appellant’s current back condition is speculative. He states that it is not
unusual for a surgical patient to develop additional spinal problems, but did not offer a clear
statement of why he believed this to be the case in appellant’s situation. Dr. Forrest did not
provide any discussion of any other explanation for appellant’s condition and did not explain

7

James D. Champlain, 44 ECAB 438, 440-41(1993); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7a(1) (July 1997).
8

Id. at Chapter 2.814.7a(1), (3) (July 1997).

9

Id. at Chapter 2.814.7c (December 1993).

10

Id. at Chapter 2.814.7e (December 1993).

11

Samuel Senkow, 50 ECAB 370 (1999).

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why he felt that a surgery 20 years in the past would result in changes to appellant’s spine which
he found did not occur until after 2005.
For the previously listed reasons, the Board finds that Dr. Forrest’s reports are not
sufficient to meet appellant’s burden of proof and the Office properly denied modification of its
1994 wage-earning capacity determination.
CONCLUSION
The Board finds that appellant has not met his burden of proof to modify the 1994 wageearning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2010 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: March 2, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, 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
__________________________________________
C.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Las Vegas, NV, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-981
Issued: August 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 18, 2013 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated February 14, 2013.
Appellant, then a 42-year-old health technician, filed a traumatic injury claim alleging
that on April 4, 2005 she sustained a low back strain when she picked up a pro paq off of the
counter and turned to put it on the shelf behind her. OWCP accepted the claim for a lumbar
strain. Appellant stopped work and received wage-loss compensation from May 20 to
July 7, 2005. She returned to work without restrictions. The record reveals that appellant
continued to receive medical treatment for her back sprain, including epidural injections, and
received intermittent wage-loss compensation.
On August 23, 2010 appellant filed a recurrence claim alleging that she sustained a
recurrence of the April 4, 2005 injury. She stopped work on August 17, 2010. On May 25, 2011
OWCP updated appellant’s claim to accept disc bulge and protrusion at the L5-S1 and lumbar
radiculitis. Appellant received disability compensation for the period August 17, 2010 to June 4,
2011 and was placed on the periodic rolls. She continued to receive medical treatment and
receive compensation for intermittent periods of disability.

On December 7, 2012 appellant informed OWCP via telephone that her neck now hurt
and she wanted to know if her neck could be accepted along with her back condition. On
December 26, 2012 she filed a claim for compensation for December 19, 2012. In an attached
time analysis form, appellant indicated that she was claiming eight hours of compensation for
medical reasons.
Appellant submitted various reports by Dr. George M. Elkanich, a Board-certified
orthopedic surgeon, dated August 9, September 6, November 1 and 29, and December 6, 2012.
Dr. Elkanich stated that appellant’s lumbar pain had significantly improved and noted that her
main problem at this time was bilateral neck pain. Upon examination, he observed tenderness on
palpation of the trapezius, scalene and paracervical muscles and decreased range of motion.
Cervical spine pain was noted by bilateral motion, flexion, extension and rotation. Examination
of appellant’s back revealed no swelling, indurations or erythema. Straight leg raise test was
negative. Dr. Elkanich diagnosed lower back pain, herniated cervical disc, cervical and lumbar
spondylosis, cervical and lumbar stenosis and cervicalgia.
On January 14, 2013 OWCP advised appellant that the evidence was insufficient to
establish that appellant received medical treatment on December 19, 2012 as a result of her
accepted back condition and requested additional evidence to establish her claim.
Appellant subsequently submitted a February 7, 2013 report from Dr. Elkanich, who
stated that he had treated appellant for many years of cervical neck and lower back
symptomatology and noted that he was asked to write a report addressing how the diagnosed
condition was causally related to the April 4, 2005 injury. Dr. Elkanich reported that he treated
appellant shortly after her initial industrial injury and during that time she complained of cervical
neck and lower back symptomatology. He explained that there were periods of time when he did
not discuss her cervical spine in the treatment records because the focus on the treatment was her
lower back. Dr. Elkanich concluded that appellant’s cervical symptomatology and complaints
were causally related to the industrial injury of April 4, 2005.
By decision dated February 14, 2013, OWCP denied the claim for compensation finding
that the medical evidence was insufficient to establish that she was disabled from work on
December 19, 2012 as a result of her accepted back condition.
The Board has held that OWCP must review all evidence submitted by a claimant and
received by it prior to the issuance of a final decision, including evidence received on the date of
the decision.1 Since Board decisions are final as to the subject matter appealed,2 it is crucial that
all of the evidence relevant to that subject matter which was properly submitted to OWCP prior
to the time of issuance of its final decision be addressed by OWCP.3 In its February 14, 2013
decision, OWCP did not consider Dr. Elkanich’s February 7, 2013 report, which was received on
February 14, 2013. It only noted Dr. Elkanich’s January 3, 2013 report and stated that he did not
1

Linda Johnson, 45 ECAB 439 (1994).

2

20 C.F.R. § 501.6(c).

3

William A. Couch, 41 ECAB 548 (1990).

2

provide an opinion as to the relationship of the April 4, 2005 injury and appellant’s current
complaints. In Dr. Elkanich’s February 7, 2013 report, however, he does provide an opinion on
causal relationship, which OWCP does not address. As OWCP failed to address all the relevant
evidence of record at the time it issued its February 14, 2013 decision, the case is remanded for a
proper review of the evidence and issuance of an appropriate final decision.4
IT IS HEREBY ORDERED THAT the February 14, 2013 decision of the Office of
Workers’ Compensation Programs is set aside, and the case record is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: August 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4

See A.B., Docket No. 12-1907 (issued May 13, 2013).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
OFFICE OF PERSONNEL MANAGEMENT,
FEDERAL INVESTIGATIVE SERVICES
DIVISION, Virginia Beach, VA, Employer
__________________________________________

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

Docket No. 10-772
Issued: January 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 27, 2010 appellant filed a timely appeal from the December 23, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a consequential injury to his right hand in
the performance of duty on March 3, 2009; and (2) whether appellant sustained a recurrence of
disability on March 3, 2009 causally related to his accepted January 29, 2009 neck and low back
injuries.
FACTUAL HISTORY
On January 29, 2009 appellant, a 50-year-old special agent, injured his neck and lower
back when he slipped on a patch of ice. He filed a claim for benefits, which the Office accepted
for neck sprain and lumbar sprain.

In a report dated March 5, 2009, Dr. Ramakrishna Kosuri, a specialist in physical medicine
and rehabilitation, stated that appellant fell at home on March 3, 2009 when both of his legs gave
out due to severe low back pain. The fall caused a laceration injury to appellant’s right hand,
which required three to four sutures. Dr. Kosuri related that appellant had complaints of sharp,
burning and throbbing pain in the low back area which he rated as 7 to 8 on a scale of 1 to 10. The
pain radiated to both lower extremities, greater on the left side, in addition to numbness in both
lower extremities. Dr. Kosuri stated that appellant had increased pain with prolonged sitting,
standing and walking and bending and experienced sleep disturbance due to pain. Appellant
underwent a magnetic resonance imaging (MRI) scan of the lumbar spine on February 27, 2009,
which showed minimal posterior disc bulges at the L3-4 and L4-5 levels, with no significant neural
foraminal stenosis or central bony canal stenosis.
Dr. Kosuri diagnosed right and left lumbosacral radiculitis, greater on the left than the right,
lumbosacral spine strain/sprain, lumbar disc disease, left sacroiliac joint dysfunction and
myofascial pain syndrome of the right and left pyriformis muscles. He instructed appellant to stay
off work and recommended that he undergo a course of physical therapy. Dr. Kosuri stated that he
would consider further diagnostic studies and spinal injections depending on appellant’s response.
In a March 5, 2009 treatment note, he indicated that the claimant would be off work until
April 6, 2009.
On March 16, 2009 appellant filed a Form CA-2a claim for benefits, alleging a
recurrence of disability on March 3, 2009, which was causally related to his accepted January 29,
2009 employment injury. He related that he had been at home ever since the work injury and
sustained a recurrence when both of his legs gave out (due to his work-related back pain) and he
fell down some steps, causing injury to his right hand. Appellant also submitted a Form CA-7 on
March 16, 2009, which noted that he received continuation of pay from January 30 to
March 15, 2009.
In a report dated March 23, 2009, Dr. Paul C. Marinelli, Board-certified in radiology,
advised that a cervical MRI scan showed cervical radiculopathy, numbness extending into the left
side of the neck and arm, mild disc bulging, uncovertebral joint hypertrophy on the right and rightsided mild foraminal stenosis at the C5-6 level. The study also demonstrated minimal disc bulging
and minimal right-sided uncovertebral hypertrophy resulting in minimal foraminal narrowing at
C6-7. Dr. Marinelli concluded that appellant had mild disc bulging and foraminal narrowing at
C5-6 and C6-7 with no disc protrusion, central canal stenosis or spinal cord abnormality.
In an April 6, 2009 report, Dr. Kosuri reiterated his previous conclusions and diagnoses.
Given the fact that appellant showed no improvement in his low back or lower extremity pain
despite six physical therapy sessions, he would refer appellant for further diagnostic studies to
check for bilateral lumbosacral radiculopathy. In an April 6, 2009 treatment note, Dr. Kosuri kept
appellant off work.
In an April 29, 2009 letter to the employing establishment, appellant resigned from his job.
He contended that he was no longer able to perform his usual job due to his work-related injuries.
Appellant asserted that the March 3, 2009 fall at home and resulting injuries were directly related
to the January 29, 2009 employment injury.

2

In an April 30, 2009 report, Dr. Kosuri stated that appellant complained of low back pain
radiating down to his lower extremities. Appellant had resigned from work the previous day due to
his low back pain. Dr. Kosuri advised that appellant’s back pain was aggravated with prolonged
sitting, standing, walking and driving. Appellant underwent a lumbar MRI scan on February 27,
2009 which showed minimal disc space narrowing and posterior disc bulging at L3-4 and L4-5
levels with no central canal or foraminal stenosis. Dr. Kosuri stated that his neurological
examination of the lower extremities was unchanged from the previous examination and that
results of nerve conduction studies and electromyelogram were within normal limits. He referred
appellant for chiropractic treatment.
Appellant underwent an MRI scan of his right hand on June 8, 2009 which demonstrated
synovial thickening at the second metacarpal phalangeal joint as well as small subchondral cysts or
erosions in the distal third metacarpal that may indicate early changes of a developing
inflammatory arthropathy and there was also a minimal degree of tenosynovitis along the dorsum
of the extensor tendons of the second digit.
In a decision dated June 22, 2009, the Office denied that appellant sustained a
consequential injury on March 3, 2009, finding that the medical evidence failed to establish that his
right hand injury of March 3, 2009 was consequential to the January 29, 2009 work accident. It
also denied compensation for a recurrence of disability due to his accepted January 29, 2009
employment injury. The Office found that appellant failed to submit medical evidence sufficient
to establish that the claimed condition or disability as of May 3, 2009 was caused or aggravated
by his accepted neck and back conditions.
By letter dated June 29, 2009, appellant’s attorney requested an oral hearing, which was
held on October 6, 2009.
In a June 9, 2009 report, Dr. Adam McCrea, a chiropractor, stated that appellant reported
complaints of constant, sharp, bilateral lower back pain which radiated down the left buttock area
into the posterior thigh and calf. It consisted of a “tingling” and “burning” sensation, with
weakness and numbness in the anterior thigh on the left. Dr. McCrea reviewed the February 27,
2009 lumbar MRI scan and diagnosed paresthesias, lumbosacral neuritis, low back discopathy
without myelopathy, lumbar segmental disorder, sacral dysfunction and myalgia and myositis. He
submitted progress reports dated June 15 to 22, 2009.
By letter dated July 21, 2009, the Office informed appellant that chiropractic services were
not payable because there was no diagnosis of subluxation from x-rays.
Dr. McRae submitted additional progress reports dated June 24 to August 3, 2009.
In a June 8, 2009 report, Dr. Gary M. Sherman, a specialist in orthopedic surgery, stated
that appellant experienced pain and discomfort in his right hand. He advised that the June 8,
2009 MRI scan showed significant synovial thickening at the second metacar-pophalangeal joint
as well as a small subchondral cyst or erosions in the distal third metacarpal. Dr. Sherman
opined that appellant’s primary problem was occurring in the collateral ligament off the
metacarpal head of the index finger, which could be related to a tear and would explain why he
had experienced substantial pain in the area.

3

In a report dated July 1, 2009, Dr. Kosuri stated that he saw little improvement in
appellant’s low back pain that radiated into the lower extremities despite having undergone
extensive chiropractic treatment. In reports dated July 21 and 27, 2009, he reiterated his findings.
In a July 29, 2009 report, Dr. Sherman stated that appellant believed the reason he injured
his right hand on March 3, 2009 was that his back gave out. Appellant fell down steps, jamming
his right hand in between the index and middle finger knuckle areas; i.e., the metacarpophalangeal
joints. Dr. Sherman stated that he would reexamine appellant in six to eight weeks.
In an August 5, 2009 report, Dr. Kosuri opined that appellant’s March 3, 2009 fall at home,
when his legs gave out due to his back condition, was related to the January 29, 2009 employment
injury. He stated that his opinion was based on a reasonable degree of medical probability. In a
September 8, 2009 report, Dr. Kosuri recommended that appellant receive an epidural injection.
By decision dated December 23, 2009, an Office hearing representative affirmed the
June 22, 2009 Office decision.
LEGAL PRECEDENT -- ISSUE 1
While the initial employment injury must arise out of and in the course of claimant’s
federal employment, later nonindustrial injuries may also be compensable.1 If a member weakened
by an employment injury contributes to a later fall or other injury, the subsequent injury will be
compensable as a consequential injury, if the further medical complication flows from the
compensable injury, so long as it is clear that the real operative factor is the progression of the
compensable injury, with an exertion that would not be unreasonable in the circumstances.2
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.3 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a cervical and lumbar sprain at work on
January 29, 2009. Appellant alleged that his fall at home on March 3, 2009 was due to his
accepted lumbar sprain. The Board finds that appellant has not submitted sufficient medical
evidence to establish that his fall at home on March 3, 2009 was a consequence of his January 29,
2009 accepted lumbar sprain.

1

See S.M., 58 ECAB 166 (2006).

2

S.A., Docket No. 09-2339 (issued July 22, 2010); see also Larson, The Law of Workers’ Compensation § 10.01
at p. 10-2 (2004).
3

J.M., 58 ECAB 303 (2007).

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Appellant submitted evidence from Drs. Kosuri and Sherman addressing his lumbar
condition. On March 5, 2009 Dr. Kosuri reported that appellant fell at home on March 3, 2009
when both of his legs gave out due to severe low back pain. He stated that the fall caused a
laceration injury to appellant’s right hand which required three to four sutures. Dr. Kosuri did
explain, however, how appellant’s accepted lumbar sprain caused his legs to give out on
March 3, 2009. He did not relate the status of appellant’s accepted low back sprain as of
March 3, 2009. Rather, Dr. Kosuri noted that an MRI scan of appellant’s lumbar spine on
February 27, 2009 showed minimal posterior disc bulges at the L3-4 and L4-5 levels, with no
significant neural foraminal stenosis or central bony canal stenosis. This MRI scan taken days
before the March 3, 2009 fall was essentially a normal examination; but as far as it revealed
minimal disc bulging at L3-5, the Board notes that disc bulging is not an accepted condition from
the January 29, 2009 injury. There is insufficient rational addressing how the accepted sprain
produced a fall at home a month later.
Dr. Kosuri reiterated his conclusion that appellant’s March 3, 2009 fall at home was due to
the January 29, 2009 employment injury. The Board notes that he merely offered a conclusion, not
rationalized medical opinion explaining how appellant’s accepted lumbar sprain produced his fall
on March 3, 2009.
In a July 29, 2009 report, Dr. Sherman asserted that appellant’s March 3, 2009 injury
occurred when he fell down steps, jamming his right hand at the metacarpophalangeal joints. He
noted appellant’s belief that he fell because of his work-related back injury; however, he never
addressed why appellant’s back sprain would have caused the fall of March 3, 2009.
Although the physicians of record noted appellant’s complaints of back pain, they did not
adequately address how the accepted sprain of the lumbar spine caused him to fall on
March 3, 2009. The medical reports of record do not explain how medically appellant’s
accepted lumbar sprain would have caused appellant’s legs to give out on the stairs, resulting in
the fall on March 3, 2008. The opinions of Drs. Kosuri and Sherman on causal relationship are
of limited probative value in that they did not provide adequate medical rationale in support of
their conclusions.4 They did not describe appellant’s March 3, 2003 incident in any detail and
explain how the incident occurred as a consequence of the January 29, 2009 work injury.
The Board also finds that the reports from Dr. McCrae do not constitute medical
evidence. As a chiropractor, he did not diagnose subluxation as shown by x-ray.5
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant did not provide a medical opinion which explains the
medical process through which his fall on March 3, 2009 occurred as a consequence of his
January 29, 2009 lumbar sprain. Accordingly, appellant did not establish that his March 3, 2009
hand injury was a consequence of the accepted lumbar sprain.
4

William C. Thomas, 45 ECAB 591 (1994).

5

5 U.S.C. § 8101(2). The term physician includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.

5

LEGAL PRECEDENT -- ISSUE 2
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury.
ANALYSIS -- ISSUE 2
The Board finds that appellant failed to submit sufficient medical opinion to substantiate
a spontaneous recurrence of disability as of March 3, 2009 due to the accepted cervical and
lumbar sprains. The Board notes that appellant had not yet returned to work following the
January 29, 2009 injury.
Appellant submitted numerous reports from Dr. Kosuri who noted that appellant had
severe burning and throbbing pain in the low back area which radiated to both lower extremities,
greater on the left side, in addition to numbness in both lower extremities. Dr. Kosuri advised
appellant to remain off work. However, he did not provide a medical explanation as to whether
appellant’s condition on and after March 3, 2009 was a spontaneous change in the accepted lumbar
condition, causing further disability. Dr. Kosuri obtained additional diagnostic studies and
diagnosed several conditions not accepted as employment related including degenerative lumbar
disease and radiculopathy. He submitted progress reports regarding appellant’s condition from
March to September 2009, noted MRI scan results and provided diagnoses of appellant’s
conditions but did not specifically explain how appellant sustained a spontaneous worsening of
his accepted lumbar or cervical sprain, on March 3, 2009.
None of the other medical reports submitted by appellant provided an explanation in
support of his claim that he sustained a spontaneous worsening of his condition, causing further
disability as of March 3, 2009.
The Board therefore affirms the December 23, 2009 Office decision affirming the
June 22, 2009 Office decision denying compensation based on a recurrence of his work-related
disability.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained a
consequential injury to his right hand in the performance of duty on March 3, 2009. The Board
finds that appellant has not met his burden to establish that he was entitled to compensation for a
recurrence of disability as of March 3, 2009 causally related to his accepted neck and low back
conditions.
6

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

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ORDER
IT IS HEREBY ORDERED THAT the December 23, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: January 13, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7