United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES MEDICAL CENTER,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 19-1207
Issued: February 3, 2020

Case Submitted on the Record

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

JURISDICTION
On May 10, 2019 appellant, through counsel, filed a timely appeal from a March 15, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of the left lower extremity for schedule award purposes.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 25, 2015 appellant, then a 68-year-old health technician, filed a traumatic injury
claim (Form CA-1) alleging that on August 24, 2015 she sustained a left knee injury when a
confused patient pushed her and caused her to lose her balance while in the performance of duty.
In a report dated September 3, 2015, Dr. Ezequiel Suarez, an attending internist, diagnosed
a left knee sprain with osteoarthritis. He returned appellant to full-time, full-duty work on
September 14, 2015. In his report of that date, Dr. Suarez opined that her left knee condition had
returned to baseline and released her from treatment.
On October 9, 2015 OWCP accepted appellant’s claim for a sprain of the left knee.4
In a report dated July 27, 2017, Dr. Cachola diagnosed osteoarthritis of the left knee with
joint pain. She opined that the accepted August 24, 2015 left knee injury had resolved.
Dr. Cachola attributed appellant’s symptoms to a worsening of underlying left knee osteoarthritis
unrelated to her federal employment.
On June 20, 2018 appellant filed a claim for a schedule award (Form CA-7). In support of
her claim, she submitted a February 9, 2018 report from Dr. Cachola noting crepitus of the left
knee with hypertrophic changes to the medial and lateral joint lines. Dr. Cachola diagnosed
osteoarthritis of the left knee and left knee joint pain. She opined that appellant’s left knee pain
was due to osteoarthritis, and was not “work related or a recurrence” of disability. In April 10,
2018 report, Dr. Cachola found that appellant was at maximum medical improvement (MMI) on
September 14, 2015 the date Dr. Suarez released appellant from care.
In a development letter dated June 27, 2018, OWCP advised appellant of the deficiencies
in the claim and of the additional evidence needed to meet her burden of proof. It explained that
3

Docket No. 18-1533 (issued February 27, 2019).

4
On May 30, 2017 appellant filed a notice of recurrence (Form CA-2a) alleging that a series of left knee injections,
ending in December 2016, had failed to relieve her symptoms. By decision dated September 14, 2017, OWCP denied
her recurrence claim. Following a January 30, 2018 hearing before a representative of OWCP’s Branch of Hearings
and Review, appellant submitted a February 9, 2018 report from Dr. Kristine Enverga Cachola, specializing in
occupational medicine and physiatrist, attributing appellant’s left knee pain to osteoarthritis and age-related changes
which were “not work related or a recurrence” of disability. By decision dated March 5, 2018, an OWCP hearing
representative affirmed the prior decision. Appellant, through counsel, then appealed to the Board. By decision dated
February 27, 2019, the Board affirmed OWCP’s March 5, 2018 decision denying appellant’s claimed May 30, 2017
recurrence of disability.

2

Dr. Cachola attributed her condition to idiopathic osteoarthritis and not the accepted left knee
sprain. OWCP further advised appellant to submit medical evidence in support of her claim based
on the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).5 It afforded her 30 days to submit the necessary evidence.
By decision dated August 2, 2018, OWCP denied appellant’s schedule award claim based
on Dr. Cachola’s opinion.
On August 8, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review of the August 2, 2018 decision. The
hearing was held on January 10, 2019. At the hearing, counsel requested that OWCP refer
appellant for an impairment rating. Appellant submitted a September 6, 2017 report by
Dr. Cachola reiterating that appellant’s left knee pain was caused by osteoarthritis unrelated to her
federal employment.6
By decision dated March 15, 2019, an OWCP hearing representative affirmed the
August 2, 2018 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment method of
evaluation utilizing the World Health Organization’s International Classification of Functioning,
Disability and Health (ICF).11 Under the sixth edition, for lower extremity impairments the
evaluator identifies the impairment of the class of diagnosis (CDX) condition, which is then
5

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

6

Appellant also provided a duplicate copy of Dr. Cachola’s July 27, 2017 report previously of record.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a); see also Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a)(March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
11

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The ICF: A Contemporary Model of Disablement.

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adjusted by grade modifiers including grade modifier for functional history (GMFH), grade
modifier for physical examination (GMPE), and grade modifier for clinical studies (GMCS).12
The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13 The standards
for evaluation of permanent impairment of an extremity under the A.M.A., Guides are based on
all factors that prevent a limb from functioning normally, such as pain, sensory deficit, and loss of
strength.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of the left lower extremity for schedule award purposes.
In support of her claim for a schedule award, appellant provided reports dated September 6,
2017 and February 9 and April 10, 2018 from Dr. Cachola, who opined that appellant was at MMI
on September 14, 2015. Dr. Cachola attributed appellant’s left knee symptoms to osteoarthritis,
but negated causal relationship to the accepted August 24, 2015 left knee sprain. However,
osteoarthritis of the knee is not an accepted condition in this claim. It is the appellant’s burden of
proof to submit medical evidence to establish that the accepted condition resulted in permanent
impairment of the left knee.15 Therefore, Dr. Cachola’s opinion is insufficient to establish a
permanent impairment of a scheduled member for schedule award purposes.16
It is the claimant’s burden of proof to establish permanent impairment of the scheduled
member or function of the body as a result of an employment injury.17 OWCP procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred, describes the impairment insufficient detail so that it can be visualized on review, and
computes the percentage of impairment in accordance with the A.M.A., Guides.18 Thus, appellant
was required to submit a medical report establishing a ratable permanent impairment under the
A.M.A., Guides. She has not submitted a medical report upon which OWCP can properly review
her claim for a schedule award. As appellant has not submitted the necessary medical evidence
she has not met her burden of proof.19

12

Id. at 493-556.

13

Id. at 521.

14

C.H., Docket No. 17-1065 (issued December 14, 2017); E.B., Docket No. 10-0670 (issued October 5, 2010);
Robert V. Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).
15

G.S., Docket No. 17-0481 (issued July 25, 2018).

16

Id.

17

D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

18

Supra note 10 at Chapter 2.808.5 (March 2017).

19

Id.; see J.A., Docket No. 17-1846 (issued March 27, 2018).

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On appeal counsel contends that OWCP’s March 5, 2019 decision is contrary to fact and
law. As set forth above, appellant has not met her burden of proof to submit a relevant medical
report demonstrating permanent impairment of the left lower extremity for schedule award
purposes.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of the left lower extremity for schedule award purposes.
ORDER
IT IS HEREBY ORDERED THAT the March 15, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 20-0260
Issued: June 12, 2020

Case Submitted on the Record

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

JURISDICTION
On November 12, 2019 appellant filed a timely appeal from an August 9, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral ankle and
left foot conditions causally related to the accepted factors of her federal employment.

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2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 9, 2019 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On September 20, 2018 appellant, then a 56-year-old general expeditor, filed an
occupational disease claim (Form CA-2) alleging that she injured both ankles and left foot due to
activities including repetitive walking from dock door to dock door on concrete 5 to 65 times
throughout the night, averaging 10,000 to 12,000 steps, and meeting drivers at their assigned door
and scanning their trailer, badge, and placards on each piece of equipment while in the performance
of duty. She indicated that she first became aware of her conditions on April 14, 2018 and their
relationship to her federal employment on May 6, 2018. On the reverse side of the claim form,
the employing establishment reported that appellant stopped work on May 16, 2018. It
controverted the claim.
In an undated narrative statement, appellant explained that she began working at the
employing establishment in a processing clerk position that required a significant amount of
walking and standing on hard concrete floors. She related that towards the end of her shift on
April 14, 2018 she realized pain in her left foot with each step. Over the weekend appellant selftreated with rest, ice, and medication. She continued to experience symptoms for which she sought
a medical evaluation. Appellant was diagnosed with a stress fracture of the fifth metatarsal, placed
in a walking boot, and placed off work.
In support of her claim, appellant submitted a June 28, 2018 medical report by
Dr. Karen M. Perl, a Board-certified physiatrist. Dr. Perl advised that appellant had a stress
fracture of the left foot metatarsal causally related to factors of her employment and that she should
remain off work until her fracture healed. She noted a stress foot fracture usually healed within
three to four months, but appellant’s fracture should heal within three to six months due to her age.
In a September 27, 2018 letter, the employing establishment controverted appellant’s claim
contending that she had not established the factual and medical components of her claim.
In a development letter dated October 5, 2018, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of medical evidence
needed, including a medical diagnosis and a comprehensive narrative report from a qualified
physician explaining how factors of her federal employment caused, contributed to, or aggravated
her medical condition. In a separate development letter of even date, OWCP requested that the
employing establishment provide additional information, including comments from a
knowledgeable supervisor and an explanation of appellant’s work activities. It afforded both
parties 30 days to respond.
OWCP subsequently received additional medical evidence. A September 7, 2017 left ankle
magnetic resonance imaging (MRI) scan report by Dr. Kalpana Ramakrishna, a Board-certified
diagnostic radiologist, provided an impression of mild tibiotalar arthropathy and joint effusion
and/or synovial thickening/hyperintensity, concerning for synovitis. Dr. Ramakrishna also
provided impressions of tenosynovitis of the peroneus longus and brevis tendons and tendinosis
of the peroneus longus; tenosynovitis of the tibialis posterior tendon and flexor digitorum longus
tendon and tendinosis of the tibialis posterior tendon; abnormal appearance of the plantar fascia
compatible planter fasciitis; and mild edema in the pre-Achilles fat, concerning for peritendinitis.

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In attending physician’s reports (Form CA-20) dated May 18 and July 27, 2018, Dr. Perl
noted a history that on April 14, 2018 appellant sustained an acute injury while performing
repetitive work at the employing establishment. She diagnosed left foot stress fracture of the fifth
metatarsal and checked a box marked “Yes” indicating that the diagnosed condition was caused or
aggravated by an employment activity. Dr. Perl concluded that appellant was totally disabled from
work during the period May 18 through October 1, 2018 secondary to her diagnosed condition.
In work tolerance limitations for return to work forms also dated May 18 and July 27, 2018,
Dr. Perl restated her left foot diagnosis and opinion that appellant was totally disabled from work.
In an October 24, 2018 letter, the employing establishment responded to OWCP’s
October 5, 2018 development letter. It contended that her claimed injury was caused by activities
outside her federal employment or could have been caused by degenerative changes due to aging.
The employing establishment described the duties of appellant’s general expeditor position and
submitted an official copy of the position description. It noted that she was not performing her
full work duties at the time her claimed injury occurred as she had been working in a modified
position and had previous periods of disability since 2007.
OWCP, by decision dated December 7, 2018, denied appellant’s occupational disease
claim finding that the evidence of record was insufficient to establish that the injury and/or events
occurred as alleged. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
Thereafter, OWCP continued to receive evidence. In reports dated December 17, 2018 and
progress notes dated January 14, 2018 and January 2, 2019, Dr. Rory L. Allen, an attending
osteopath specializing in family medicine, noted a history that on April 14, 2018 appellant
sustained an occupational injury as a result of performing her repetitive work duties of standing
on hard surfaces and walking for a prolonged duration, lifting, and carrying eight hours per day,
five days per week as a general expeditor. He discussed his examination findings and provided
assessments of right and left ankle and foot sprain and left foot stress fracture. Dr. Allen advised
that appellant was temporarily totally disabled from work from December 17, 2018 to March 31,
2019 due to limited mobility, weakness, and decreased strength. He noted that she was currently
wearing a walking boot and was a fall risk. In his December 17, 2018 report, Dr. Allen opined
that appellant sustained a work-related injury causally related to the described repetitive work
duties.
In an undated Form CA-20, Dr. Allen reiterated appellant’s history of injury on April 14,
2018 and his prior diagnoses of left ankle and foot sprain and left foot stress fracture. He checked
a box marked “Yes” indicating that the diagnosed conditions were caused or aggravated by the
described employment activity.
On January 21, 2019 appellant requested reconsideration of the December 7, 2018 decision
and submitted additional evidence. In a November 5, 2018 left foot MRI scan report,
Dr. Ashkahn E. Golshani, a diagnostic radiologist, provided impressions of diffuse bone marrow
edema in the lateral hallux sesarnoid which could relate to sesamoiditis or stress reaction and linear
low signal intensity line posteriorly again suspicious for nondisplaced fracture. He noted that the
MRI scan did not have the typical appearance of a bipartite hallux sesamoid and requested that it

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be correlated with radiographs. Dr. Golshani also provided an impression of mild great toe
metatarsophalangeal joint and hallux sesamoid osteoarthritis.
Dr. Ramakrishna, in a September 7, 2017 right ankle MRI scan report, provided
impressions of mild arthropathy in the tibtiotalar joint and evidence of a prior partial tear of the
anterior talofibular ligament.
OWCP received series of progress notes and reports dated January 14, February 8, and
March 6, 22, and 27, 2019 by Dr. Allen who restated his prior assessments of right and left ankle
and foot sprain and left foot stress fracture and opinion that appellant was temporarily totally
disabled from work from December 17, 2018 through March 31, 2019 due to limited mobility,
weakness, decreased strength. In the March 22 and 27, 2019 progress notes and March 22, 2019
report, he advised that she was temporarily totally disabled during the period March 22 through
June 22, 2018 due to her diagnosed conditions.
Dr. Allen, in a March 25, 2019 work status physician statement, requested that appellant
be excused from work from March 25 to June 7, 2019.
By decision dated March 28, 2019, OWCP modified its December 7, 2018 decision finding
that appellant had established that the alleged federal employment factors occurred as described.
However, the claim remained denied as appellant had not provided a rationalized medical opinion
explaining how her diagnosed bilateral foot and ankle conditions were caused or aggravated by
the accepted employment factors.
Thereafter, OWCP received an additional report dated April 10, 2019 by Dr. Allen who
noted appellant’s additional repetitive work duties which involved moving mail parcels from
“APX” machines, wire cages, and other postal equipment for six hours a day, five days per week
caused increased compression, torsional and forces to the bilateral ankle/foot which directly caused
her diagnosed bilateral ankle and foot conditions.
On May 20, 2019 appellant requested reconsideration of the March 28, 2019 decision.
Additional progress notes dated March 22, April 22, May 22, June 19, and July 19, 2019 by
Dr. Allen were received.
In a June 14, 2019 letter, the employing establishment responded to appellant’s May 20,
2019 request for reconsideration, again contending that she did not submit medical evidence
sufficient to establish employment-related foot conditions.
OWCP, by decision dated August 9, 2019, denied modification of its March 28, 2019
decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including 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
period of FECA,4 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral ankle
and left foot conditions causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted a series of reports and progress notes from her
attending physician, Dr. Allen. In an April 10, 2019 report, Dr. Allen opined that appellant was
temporarily totally disabled and that her diagnosed right and left ankle and foot sprain and left foot
3

Supra note 1.

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

9

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

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stress fracture resulted from her repetitive work duties of standing on hard surfaces and walking
for a prolonged duration, lifting, carrying, and moving mail parcels from “APX” machines, wire
cages, and other postal equipment. He reasoned that her work duties caused increased
compression, torsional and forces to the bilateral ankle/foot which directly caused her diagnosed
bilateral ankle and foot conditions. While Dr. Allen supported causal relationship, he did not
provide sufficient medical rationale explaining how appellant’s work duties caused her disabling
conditions. Without explaining how, physiologically, the specific movements involved in
appellant’s job caused, contributed to, or aggravated the specific diagnosed conditions, Dr. Allen’s
opinion is of limited probative value and insufficient to establish causal relationship.10 Thus, the
Board finds that his report is insufficient to meet appellant’s burden of proof.11
In a December 17, 2018 report, Dr. Allen again opined that appellant’s bilateral ankle and
foot conditions resulted from her repetitive work duties. The Board has held that a medical opinion
is of limited value if it is conclusory in nature.12 A medical opinion must explain how the
implicated employment factors physiologically caused, contributed to, or aggravated the specific
diagnosed conditions.13 While Dr. Allen supported causal relationship, he did not provide medical
rationale explaining the basis of his conclusory opinion regarding the causal relationship between
appellant’s bilateral ankle and foot conditions, disability from work, and the accepted factors of
her federal employment.14 As such, his report is insufficient to meet appellant’s burden of proof.
In an undated Form CA-20 report, Dr. Allen checked a box marked “Yes” indicating that
appellant’s bilateral ankle and foot conditions were caused or aggravated by the employment
activity. However, he did not offer medical rationale sufficient to explain how and why he believed
that the accepted employment factors resulted in or contributed to the diagnosed conditions. The
Board has held that a checkmark or affirmative notation in response to a form question on causal
relationship is insufficient, without medical rationale, to establish causal relationship.15 Without
explaining how the accepted repetitive movements involved in appellant’s employment duties
caused or contributed to her conditions, Dr. Allen’s opinion is of limited probative value.16
Therefore, the Board finds that his report is insufficient to meet appellant’s burden of proof.
Dr. Allen’s remaining reports and progress notes addressed appellant’s bilateral ankle and
foot conditions and resultant disability from work, but did not offer a medical opinion addressing
10

See D.J., Docket No. 18-0694 (issued March 16, 2020); K.G., Docket No. 18-1598 (issued January 7, 2020);
K.O., Docket No. 18-1422 (issued March 19, 2019).
11

Id.

12

D.S., Docket No. 19-1814 (issued April 1, 2020); C.M., Docket No. 19-0360 (issued February 25, 2020).

13

Id.

14

Id.

15

D.S., supra note 12; C.F., Docket No. 19-1748 (issued March 27, 2020); J.S., Docket No. 18-0657 (issued
February 26, 2020); Deborah L. Beatty, 54 ECAB 3234 (2003).
16

D.S., id. C.F., id.; A.P., Docket No. 19-0224 (issued July 11, 2019).

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whether the diagnosed conditions and any resultant disability were causally related to the accepted
employment factors. Medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.17 For these
reasons, the Board finds that Dr. Allen’s medical evidence is insufficient to establish appellant’s
claim.
Appellant was also treated by Dr. Perl. In Form CA-20 reports dated May 18 and July 27,
2018, Dr. Perl advised that appellant was totally disabled and checked a box marked “Yes”
indicating that her diagnosed left foot stress fracture of the fifth metatarsal was caused or
aggravated by the employment activity of repetitive work duties. As noted above, the Board has
held that a checkmark or affirmative notation in response to a form question on causal relationship
is insufficient, without medical rationale, to establish causal relationship.18 As Dr. Perl did not
explain with rationale how the accepted employment factors caused or aggravated the diagnosed
conditions, her opinion is of limited probative value.19 Her remaining June 28, 2018 report is also
insufficient to establish causal relationship. Dr. Perl did not offer an opinion addressing the cause
of the conditions diagnosed and any resultant disability.20 For these reasons, the Board finds that
her reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted September 7, 2017 MRI scan reports from Dr. Ramakrishna and
a November 5, 2018 MRI scan report from Dr. Golshani in support of her claim for bilateral ankle
and left foot conditions. The Board has held, however, that diagnostic studies standing alone lack
probative value as they do not address whether the accepted employment factors caused any of the
diagnosed conditions.21 These reports of Dr. Ramakrishna and Dr. Golshani are therefore also
insufficient to establish appellant’s claim.
The Board finds that the record lacks rationalized medical evidence establishing causal
relationship between appellant’s bilateral foot and ankle conditions and the accepted factors of her
federal employment. Thus, appellant has not met 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.

17

S.K., Docket No. 18-1414; A.P., Docket No. 18-1690 (issued December 12, 2019); L.B., Docket No. 18-0533
(issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
18

Supra note 15.

19

Supra note 16.

20

Supra note 17.

21
A.M., Docket No. 19-1138 (issued February 18, 2020); R.Z., Docket No. 19-0408 (issued June 26, 2019); J.S.,
Docket No. 17-1039 (issued October 6, 2017).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral ankle
and left foot conditions causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS STOKES 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. 10-1371
Issued: February 8, 2011

Case Submitted on the Record

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

JURISDICTION
On April 20, 2010 appellant filed an appeal from a March 29, 2010 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.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability for the period March 4 through 9, 2009
FACTUAL HISTORY
On September 17, 2008 appellant, then a 46-year-old pharmacy technician, filed a
traumatic injury claim, alleging that she injured her right index finger when it got caught in a
medication cart. In reports dated November 6 to December 16, 2008, Dr. Devra B. Becker, a
Board-certified plastic surgeon, noted the history of injury and provided examination findings.

On December 16, 2008 she noted appellant’s complaint that she felt the finger was getting worse
with continued swelling and limitation of range of motion of the finger and complained of a
funny sensation. Dr. Becker recommended referral to a neurologist regarding possible complex
regional pain syndrome. On April 8, 2009 appellant filed a recurrence claim, alleging that the
recurrence occurred on March 3, 2009. She stated that she had been on limited duty since the
September 16, 2008 injury and the injured finger was still swollen and had not healed.
Donald R. Sambrook, an employing establishment injury compensation specialist, advised that
appellant had restrictions of no pulling or grasping with the right index finger since the
September 2008 injury. Appellant returned to work on March 10, 2009.
A March 3, 2009 emergency room report indicated that appellant was seen for a painful,
swollen right hand.1 Physical examination demonstrated tenderness of the right index finger
metacarpophalangeal joint. Sensory and motor examinations were normal. A right hand x-ray
demonstrated soft tissue swelling. A contusion was diagnosed and a dorsal splint was applied to
the finger. Appellant was discharged home. A return to work form requested that she be
excused from work for two days due to finger injury.2 On March 5, 2009 Dr. Becker advised
that appellant could return to work with appropriate right hand restrictions on March 9, 2009.
On April 16, 2009 the Office accepted that appellant sustained a contusion to the right
index finger on September 16, 2008 and advised her to submit additional medical evidence
documenting additional conditions due to the employment injury. By letter dated April 20, 2009,
it advised appellant of the type of evidence needed to support her recurrence claim for the period
March 4 to 10, 2009.
In a March 5, 2009 report, Dr. Becker advised that she had last seen appellant on
December 16, 2008 and noted that on examination she continued to have pain, swelling and
limitation of motion of the right index finger with new swelling in the dorsum of her hand
between the index and middle fingers. She recommended physical therapy and referral to a
neurologist. In reports dated April 2 and May 28, 2009, Dr. Becker noted mild swelling and
limited range of motion and reported that a right hand magnetic resonance imaging scan on
May 7, 2009 demonstrated an unencapsulated lipoma between the second and third metacarpal
heads. By letter dated June 2, 2009, she described appellant’s treatment and stated that
appellant’s job duties included opening and closing drawers, counting pills, lifting items,
manipulating pill bottles, using lockboxes for medications and using a computer. Dr. Becker
advised that appellant could perform the duties while undergoing management for her symptoms
with a minimal risk of causing further injury to her index finger.
By decision dated July 10, 2009, the Office denied appellant’s claim for disability
compensation for the period March 4 through 9, 2009 on the grounds that the medical evidence
did not support a disability from work. On December 20, 2009 appellant, through her attorney,
requested reconsideration and submitted a November 4, 2009 emergency room report indicating
a complaint of right hand pain that occurred when appellant strained her hand while lifting at
home. Examination demonstrated tenderness and swelling of the hand with normal sensory and
1

The signatures on the report are illegible.

2

The signatures on the form are illegible.

2

motor examinations. A right hand x-ray was negative and a hand contusion was diagnosed. In a
December 7, 2009 report, Dr. Joseph Zayat, Board-certified in internal medicine and neurology,
advised that, when he first evaluated appellant in July 2009, she had residual inability to flex the
second and third digits of the right hand with decreased sensation in the distal distribution of the
median nerve, demonstrating a right median nerve injury.3
By decision dated March 29, 2010, the Office reviewed the merits of appellant’s claim
for disability for the period March 4 through 9, 2009 and denied modification of the July 10,
2009 decision.
LEGAL PRECEDENT
Section 10.5(x) of the Office’s regulations provide that a recurrence of disability means
an inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.4 This term also means
an inability to work when a light-duty assignment made specifically to accommodate an
employee’s physical limitations due to his or her work-related injury or illness is withdrawn
(except when such withdrawal occurs for reasons of misconduct, nonperformance of job duties
or a reduction-in-force), or when the physical requirements of such an assignment are altered so
that they exceed his or her established physical limitations.5
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.6
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of disability for the period March 3 through 9, 2009 due to the accepted
right index finger contusion because she did not establish that the nature and extent of her injuryrelated condition changed on March 3, 2009 so as to prevent her from continuing to perform her
modified duties. Furthermore, appellant did not establish that the nature and extent of her injury-

3

Appellant also submitted evidence regarding an employment-related back injury, adjudicated separately by the
Office under file number xxxxxx781.
4

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

5

Id.

6

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

3

related conditions or her modified duties changed on March 3, 2009 so as to prevent her from
continuing to perform her limited-duty assignment.7
The medical evidence relevant to the claimed period of disability includes an emergency
room report dated March 3, 2009 noting that appellant was seen for a painful, swollen right hand.
A contusion was diagnosed and a splint applied. A return to work form requested that appellant
be excused from work for two days due to a finger injury. As the signatures on both reports are
illegible, they would not constitute competent medical evidence.8 Moreover, the emergency
room report did not discuss appellant’s work capabilities and the excuse from work form
contained no explanation as to why appellant could not perform her restricted work duties. On
March 5, 2009 Dr. Becker advised that appellant continued to have pain, swelling and limitation
of motion and advised that she could return to work with appropriate right hand restrictions on
March 9, 2009. However, she did not acknowledge that appellant had been working in a
modified position with restrictions of no pulling or grasping with the right index finger or
provide a rationalized explanation as to why appellant could not perform the modified work.
The Board has held that a partially disabled claimant who returns to a light-duty job has
the burden of proving that he or she cannot perform the light duty, if a recurrence of total
disability is claimed.9 The issue of whether an employee has disability from performing a
modified position is primarily a medical question and must be resolved by probative medical
evidence.10 A claimant’s burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the condition is causally related to the employment injury and supports that conclusion with
sound medical rationale. Where no such rationale is present, the medical evidence is of
diminished probative value.11 The record in this case does not contain a medical report
providing a reasoned medical opinion that appellant’s claimed recurrence of disability for the
period March 3 through 9, 2009 was caused by the accepted right index finger contusion.12
CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of
disability for the period March 4 through 9, 2009.

7

Id.

8

K.W., 59 ECAB 271 (2007).

9

See William M. Bailey, 51 ECAB 197 (1999).

10

Cecelia M. Corley, 56 ECAB 662 (2005).

11

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

12

Cecelia M. Corley, supra note 10. The Board notes that the Office has not rendered a final decision on whether
appellant’s claim should be expanded to include additional right hand conditions.

4

ORDER
IT IS HEREBY ORDERED THAT the March 29, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: February 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________

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

Docket No. 09-1315
Issued: January 26, 2010

Case Submitted on the Record

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

JURISDICTION
On April 22, 2009 appellant, through his attorney, filed a timely appeal of the June 23,
2008 and March 25, 2009 merit decisions of the Office of Workers’ Compensation Programs
finding that he did not sustain an injury while in the performance of duty. 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 established that he sustained a back injury while in the
performance of duty.
FACTUAL HISTORY
On August 1, 2007 appellant, then a 46-year-old letter carrier, filed an occupational
disease claim alleging that on November 11, 2004 he first became aware of his degenerative
spine disease and spondylothesis. On March 8, 2007 he first realized that these conditions were
caused by his federal employment. Appellant’s work required driving, standing, bending,
twisting, walking, lifting up to 70 pounds, pushing equipment and loading and unloading

vehicles. On the reverse of the claim form, the employing establishment indicated that his last
exposure to conditions alleged to have caused his injuries was on December 3, 2006. In an
August 1, 2007 narrative statement, appellant related that on November 11, 2004 he experienced
extreme pain in his back and legs. He fell down three times on that date. Appellant stated that
Dr. John S. Thalgott, an attending Board-certified orthopedic surgeon, found him permanently
and totally disabled.
In an August 16, 2007 medical report, Dr. Thalgott noted appellant’s back and leg pain
and his work duties as a letter carrier for 19 years. Appellant advised him that his work duties
precipitated and aggravated his current complaints and rendered him totally disabled for work.
In an October 12, 2007 letter, the Office notified appellant that the evidence submitted
was insufficient to establish his claim. It requested additional factual and medical evidence.
In reports dated March 8 and 13, 2007, Dr. Thalgott advised that appellant had a
degenerative lumbar spine, spondylothesis and radiculopathy. Appellant also experienced
numbness and tingling into his lower extremities. Dr. Thalgott stated that appellant’s conditions
commenced approximately two years prior. He opined that appellant was permanently and
totally disabled from performing his letter carrier duties due to severe and chronic low back pain.
Diagnostic test reports, dated December 13, 2006 to September 6, 2007, were obtained by
Dr. Saul Ruben and Dr. Aanshu A. Shah, Board-certified radiologists, and David L. Ginsburg, a
Board-certified neurologist. The studies noted that appellant sustained Grade 1 anterior
spondylolisthesis at L5-S1 secondary to bilateral spondylolysis, disc protrusions at L5-S1, L4-5,
L3-4, L1-2 and an extruded disc at T11-12. Appellant also sustained bilateral L5 radiculopathies
and chronic denervation with evidence of active and chronic denervation. He had normal
thoracic kyphosis with multilevel thoracic spondylosis, prominent disc protrusion/extrusion and
minimal annular bulging at T6-7 and T7-8.
In a January 5, 2007 report, Dr. Michael Fishell, a Board-certified anesthesiologist,
advised that appellant sustained lumbar vertebral degeneration, disc protrusions, radiculopathy
and spondylolisthesis at L5. His conditions commenced in September 2006. Dr. Fishell opined
that appellant was unable to work due to his back and leg pain. In a report dated January 16,
2007, he diagnosed lumbar discogenic disruption with radiculopathy. On January16, 2007
Dr. Fishell advised that appellant experienced approximately a 20 to 30 percent reduction in his
usual left lower extremity discomfort following a selective nerve root block that was performed
on that date. In a February 6, 2007 report, he advised that appellant continued to experience
thoracic and lumbar spondylosis with elements of facet arthropathy, disc degeneration and
spondylolisthesis. Dr. Fishell had possible compression fractures. Appellant was treated with a
transforaminal steroid epidural injection. In a February 6, 2007 treatment note, Dr. Fishell
advised that appellant was an unlikely candidate for further aggressive physical work requiring
use of his vertebral column. He stated that such activity would likely be disastrous for appellant
resulting in disability sooner rather than later.
An October 10, 2007 report noted appellant’s pain level and ability to fall asleep easier
after taking pain medication. Unsigned reports addressed his back treatment from July 17 to
September 13, 2007.

2

By decision dated November 29, 2007, the Office denied appellant’s claim, finding the
medical evidence insufficient to establish that he sustained a back condition causally related to
his work-related duties.
By letter dated December 20, 2007, appellant, through counsel, requested a telephonic
hearing before an Office hearing representative.
In a June 23, 2008 decision, an Office hearing representative affirmed the November 29,
2007 decision, finding the medical evidence insufficient to establish that appellant sustained a
back condition causally related to the accepted work duties.
In a December 21, 2008 letter, appellant, through counsel, requested reconsideration of
the June 23, 2008 decision.
In a July 17, 2008 report, Dr. William S. Muir, a Board-certified orthopedic surgeon,
advised that appellant was disabled for work due to chronic low back pain. Appellant had disc
protrusions at multiple levels and symptomatic spondylolisthesis at L5-S1. Dr. Muir stated that
appellant’s chronic low back pain was related to chronic stress that was placed on his back due to
working as a mail carrier for many years. He stated that lifting of heavy trays of mail above
chest height from a delivery vehicle put significant stress on appellant’s low back. Dr. Muir
further stated that loading additional heavy trays of packages, bundles and advertisements into
the back of the vehicle involved pushing, pulling and bending often with the outreached body
which also put an extreme amount of stress on appellant’s lower back area. He opined that
appellant’s complaints, physical examination findings and magnetic resonance imaging (MRI)
scans all supported a causal relationship between his employment as a mailman and his present
low back disability.
By decision dated March 25, 2009, the Office denied modification of the June 23, 2008
decision. Appellant failed to submit sufficient rationalized medical evidence to establish that he
sustained a back condition causally related to the his employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.3
1

5 U.S.C. §§ 8101-8193.

2

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

3

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

3

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4 Neither the fact that appellant’s 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.5
ANALYSIS
The Board finds that the case is not in posture for decision as to whether appellant
sustained a back condition while in the performance of duty. Appellant attributed his back
conditions to performing his work duties as a letter carrier. The Office accepted that his duties as
a letter carrier included driving, standing, bending, twisting, walking, lifting up to 70 pounds,
pushing equipment and loading and unloading a vehicle while performing his work duties. It
denied appellant’s claim for a back injury on the grounds that causal relationship was not
established. The Board finds, however, that he submitted medical evidence which generally
supports that he sustained due to the established work-related duties and has thus established a
prima facie case.
Dr. Muir’s July 17, 2008 report advised that appellant was disabled for work due to
chronic low back pain. He stated that appellant sustained disc protrusions at multiple levels and
symptomatic spondylolisthesis at L5-S1. Dr. Muir further stated that appellant’s chronic low
back pain was related to chronic stress that was placed on his back due to working as a mail
carrier for many years. He explained that lifting heavy trays of mail above chest height from a
delivery vehicle put significant stress on appellant’s low back. Dr. Muir also explained that
loading additional heavy trays of packages, bundles and advertisements into the back of the
vehicle involved pushing, pulling and bending often with the outreached body which also put an
extreme amount of stress on appellant’s lower back area. He opined that appellant’s complaints,
physical examination findings and MRI scans all supported a causal relationship between his
employment as a mailman and his present low back disability. Although the Office found that
Dr. Muir’s opinion was not based on any examination findings or a review of appellant’s medical
4

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

5

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

4

background, the Board notes that he opined that appellant’s lumbar conditions were caused by
the established work-related duties.
Although Dr. Muir’s opinion is not sufficiently rationalized to carry appellant’s burden of
proof in establishing his claim, it stands uncontroverted in the record and is sufficient to require
further development of the case by the Office.6 Proceedings under the Act are not adversary in
nature nor is the Office a disinterested arbiter. While appellant has the burden to establish
entitlement to compensation, the Office shares responsibility in the development of the evidence.
The Office has the obligation to see that justice is done.7 In view of the noted medical evidence,
it should have referred the matter to an appropriate medical specialist to determine whether
appellant may have developed a lumbar condition as a result of the established employment
duties.
Therefore, the Board finds that the case will be remanded to the Office for preparation of
a statement of accepted facts concerning appellant’s working conditions and referral of the
matter to an appropriate medical specialist, consistent with Office procedures, to determine
whether he may have developed a lumbar condition as a result of performing his employment
duties. Following this, and any other further development as deemed necessary, the Office shall
issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant
sustained a back injury while in the performance of duty.

6

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

7

Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB
852 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2009 and June 23, 2008 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further development in accordance with this decision of the Board.
Issued: January 26, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 11-1025
Issued: December 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 22, 2011 appellant filed a timely appeal from a February 24, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) that found that he received
an overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,234.10 because he received wages from the employing establishment based on
administrative leave while receiving wage-loss benefits for the period November 8 to 20, 2010;
(2) whether OWCP properly denied waiver of the overpayment; and (3) whether OWCP properly
required repayment of the overpayment by deducting $398.71 each period from appellant’s
continuing compensation payments.

1

5 U.S.C. §§ 8101-8193.

On appeal appellant asserts that he did not receive a payment from OWCP for the
covered period.
FACTUAL HISTORY
On April 13, 2003 appellant, then a 26-year-old mail handler, sustained lumbosacral and
left knee strains while pushing a heavy skid of mail. He returned to limited duty on May 12,
2003 and eventually assumed full work duties. Appellant sustained a second low back injury on
May 8, 2008 accepted for lumbar sprain, after which he resumed full work duties. On
January 15, 2010 he sustained a third low back injury, accepted for lumbar sprain and herniated
lumbar discs at L3-4 and L4-5. Appellant has not worked since that date.2 He filed CA-7 claims
for compensation. On April 13, 2010 appellant submitted a direct deposit form. He received
wage-loss compensation beginning March 4, 2010, and was placed on the periodic compensation
rolls effective September 26, 2010. On October 21, 2010 appellant’s payment by direct deposit
was keyed for the period October 24 through November 20, 2010.
On November 12, 2010 appellant filed a notice of recurrence, stating that his disability
occurred on November 11, 2010 because the employing establishment had no work available
under the National Reassessment Process (NRP). The claim form indicated that his pay stopped
on December 8, 2010. OWCP accepted that appellant sustained a recurrence of disability on
November 8, 2010. On December 2, 2010 appellant called OWCP to state that he would begin
filing CA-7 claims for compensation effective December 9, 2010 and was told he had been
placed on the periodic compensation rolls. The telephone memorandum noted that appellant
received payment for the dates October 24 to November 20, 2010 and the employing
establishment paid him administrative leave and would pay him from November 21 to
December 8, 2010. An OWCP claims examiner called the employing establishment and verified
that appellant was in receipt of wages and was told that he was being paid administrative leave
for the period November 8 to December 7, 2010 because he had veteran status and no work was
available under the NRP.
By letter dated January 19, 2011, OWCP issued a preliminary determination that
appellant received an overpayment in compensation in the amount of $1,234.10 for the period
November 8 to December 7, 2010 because he received wage-loss compensation during a period
in which he also received administrative leave wages from his employer. It found him not at
fault in the creation of the overpayment. Appellant was provided an overpayment action request
form and an overpayment questionnaire. Computer printouts and an overpayment worksheet
indicated that he was paid wage-loss compensation of $2,658.06 for the period October 24
through November 20, 2010, when he should have received compensation of $1,423.96 for the
period October 24 through November 7, 2010 only, yielding an overpayment of compensation of
$1,234.10. Appellant did not respond to the preliminary overpayment letter.
By decision dated February 24, 2011, OWCP finalized the preliminary overpayment
decision, finding that appellant received an overpayment in compensation in the amount of
$1,234.10. While appellant was not at fault, he was not entitled to waiver of the overpayment
because he failed to provide the requested information. He was informed that repayments of
2

The 2003 claim was adjudicated under OWCP file number xxxxxx501, the 2008 injury under file number
xxxxxx165, and the 2010 injury under file number xxxxxx634. The claims were doubled on June 28, 2010.

2

$398.71 would be deducted from his continuing compensation for three compensation periods,
and $39.06 for a fourth.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.4 Section 10.500 of OWCP’s regulations provide that “compensation for
wage loss due to disability is available only for any periods during which an employee’s workrelated medical condition prevents him or her from earning the wages earned before the workrelated injury.”5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,234.10 for the period November 8 to 20, 2010. The record supports that he received wages
based on administrative leave for the period November 8 to December 7, 2010. Appellant
received wage-loss compensation based on a periodic rolls payment up to November 20, 2010.
As noted, both FECA and implementing regulations of OWCP provide that a claimant may not
receive wage-loss compensation concurrently with federal wages.6 Computer printouts indicate
that appellant received FECA monetary compensation of $1,234.10 for the period November 8 to
20, 2010, thus creating an overpayment of compensation in that amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”7 Section 10.438 of OWCP regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
on an overpayment would defeat the purpose of FECA or be against equity and good

3

5 U.S.C. § 8102(a).

4

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

5

20 C.F.R. § 10.500 (2010).

6

5 U.S.C. § 8116(s); Id. at § 10.500 (2010).

7

Id. at § 8129.

3

conscience.8 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.9
ANALYSIS -- ISSUE 2
OWCP found appellant without fault in the creation of the overpayment; waiver must be
considered and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.10 Appellant,
however, had the responsibility to provide financial information to OWCP but failed to do so.11
In its preliminary determination dated January 19, 2011, OWCP clearly notified appellant
of the importance of providing the requested financial information and that it would deny waiver
if he failed to furnish the requested financial information within 30 days. Appellant did not
submit a completed overpayment questionnaire or otherwise submit financial information
supporting his income and expenses at any time. As a result, OWCP did not have the necessary
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA or if recovery would be against equity and good conscience. Consequently, as appellant
did not submit the financial information required under section 10.438 of OWCP regulations,
which was necessary to determine his eligibility for waiver, OWCP properly denied waiver of
recovery of the overpayment in compensation in the amount of $1,234.10.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP regulations provide that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or her attention is called to
the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.12

8

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. Id. at § 10.437.
9

20 C.F.R. § 10.438.

10

Id.

11

Id. at § 10.438.

12

Id. at § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

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ANALYSIS -- ISSUE 3
Although OWCP provided an overpayment recovery questionnaire with the January 19,
2011 preliminary finding, appellant did not submit a completed questionnaire or other financial
information that OWCP requested prior to the final February 24, 2011 overpayment decision.
The overpaid individual is responsible for providing information about income, expenses and
assets as specified by OWCP.13 When an individual fails to provide requested financial
information, OWCP should follow minimum collection guidelines designed to collect the debt
promptly and in full.14 As appellant did not submit any financial information to OWCP as
requested, the Board finds that there is no evidence in the record to show that OWCP erred in
directing recovery at a rate of $398.71 from his continuing compensation for three compensation
periods, and $39.06 for a fourth.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,234.10 that OWCP properly denied waiver of the overpayment, and that OWCP properly
required repayment from appellant’s continuing compensation payments.

13

20 C.F.R. § 10.438.

14

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Chapter 6.200.4(c)(2) (September 1994).

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ORDER
IT IS HEREBY ORDERED THAT the February 24, 2011 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: December 1, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.N., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 16-1327
Issued: December 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 14, 2016 appellant filed a timely appeal from an April 26, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease claim causally related to factors of his employment.
FACTUAL HISTORY
On November 6, 2013 appellant, then a 66-year-old sandblaster, filed an occupational
disease claim (Form CA-2) alleging that factors of his employment caused a hand, wrist, knee,
and left shoulder condition. He alleged that he first became aware of his condition on June 6,
2001 and its relation to his federal employment on September 18, 2013. Appellant attributed his
condition to wear and tear from sandblasting for 29 years, which included holding parts at 45 to
90 degree angles and derubbering parts. He retired on May 30, 2014.
In a September 18, 2013 report, Dr. Praxton Longwell, a Board-certified neurologist,
advised that appellant complained of bilateral arm and hand pain for the past 12 years that was
worse on the left with nocturnal exacerbation. Examination revealed normal muscle tone,
positive Tinel’s on percussion of the median nerves at both wrists, and median nerve
hypoesthesia over both upper extremities. Dr. Longwell explained that an electromyogram
(EMG) and nerve conduction velocity (NCV) study revealed significant bilateral carpal tunnel
syndrome, more severe on the left. He indicated that appellant would likely benefit from
surgical decompression, if he did not improve with conservative treatment.
In a November 27, 2013 diagnostic report, Dr. Jennifer Turner, a Board-certified
diagnostic radiologist, advised that a right hand x-ray revealed mild degenerative changes
primarily affecting the thumb and atherosclerotic vascular disease.
In a November 27, 2013 Texas Workers’ Compensation Work Status Report, Dr. James
Rose, a family medicine practitioner, advised that appellant injured both hands on
September 18, 2013. He noted that appellant was able to return to work that day without
restrictions. In an unsigned November 27, 2013 report, appellant was diagnosed with bilateral
carpal tunnel syndrome. The report described the injury as work related and noted that he
worked as a sandblaster for the past 29 years.
In a December 19, 2013 report, Dr. Robert Williams, a Board-certified orthopedic
surgeon, advised that appellant was referred by Dr. Rose. He noted that appellant reported a
long history of carpal tunnel syndrome and repetitive trauma while working at the employing
establishment. Dr. Williams advised that bilateral wrist x-rays were unremarkable and noted that
appellant elected to undergo an open carpal tunnel release surgery. He indicated that a
September 18, 2013 EMG and NCV study revealed bilateral carpal tunnel syndrome worse on
the left.
By letter dated January 15, 2014, the employing establishment controverted appellant’s
claim. It argued that medical evidence was insufficient to establish his claim as there was no
physician’s opinion as to how the employment activities caused or contributed to the diagnosed
condition.

2

By letter dated January 30, 2014, OWCP advised appellant of the type of evidence
needed to establish his claim and afforded him 30 days to submit responsive evidence.
In a February 22, 2014 narrative statement, appellant advised that he worked as a
sandblaster for 29 years. He noted that he experienced hand and wrist pain mainly on the left for
years and advised that he used a wrist support since 1998. Appellant also noted that he was
having problems with his left knee and shoulder. He also submitted evidence related to an
October 16, 2000 work-related left shoulder injury where he hit his left shoulder on a door while
entering the building.
By decision dated July 17, 2014, OWCP denied appellant’s claim. It found that medical
evidence of record was insufficient to establish that the diagnosed condition was causally related
to factors of his employment.
On July 22, 2014 appellant, through counsel, requested an oral telephone hearing.
On November 26, 2014 Dr. Sergio Solorzano, a family medicine practitioner, completed
a form entitled Rationalized Medical Opinion Form to establish Causal Relationship. He noted
that appellant hurt his shoulder in 1998 and the pain went to his arms and hands, which worsened
as the years passed. Dr. Solorzano diagnosed carpal tunnel syndrome and noted that appellant
complained of tingling and numbness in the hands and wrist. The bottom of the page read: “In
my medical opinion, the facts of injury are the direct and proximate cause of the diagnosis that I
cited above. This is based on reasonable medical probability. There may be other causes for this
medical problem, but one of the causes is clearly the activities of work described [by appellant]
and described above”.
On February 11, 2015 an oral telephone hearing took place. Appellant described his
work duties which included blasting parts in a booth. He explained that he had to hold the
nozzle with his right hand and the part with his left hand at either a 45- or 90-degree angle
depending on the part.
By decision dated March 17, 2015, an OWCP hearing representative set aside the
July 17, 2014 decision and remanded the case for OWCP to refer appellant to a second opinion
physician. The hearing representative found that Dr. Solorzano’s report was sufficient to warrant
further development of the record.
On May 26, 2015 OWCP referred appellant, together with the medical record and a
statement of accepted facts, to Dr. Walter Del Gallo, a Board-certified orthopedic surgeon, for an
opinion on whether appellant’s diagnosed conditions were causally related to factors of his
employment. In a June 11, 2015 report, Dr. Del Gallo advised that appellant was employed as a
sandblaster for 29 years and detailed his treatment history. He noted that appellant complained
of left hand numbness and tingling and shoulder soreness despite overall improvement following
a 2001 surgery. On examination Dr. Del Gallo noted full bilateral shoulder range of motion,
mild-to-moderate thenar atrophy of both thumbs, positive Tinel’s and Phalen’s test worse on the
left, negative Tinel’s test at the ulnar nerve at both elbows, no left knee effusion, full left knee
range of motion, and mild left knee tenderness of the medial and lateral joint lines. He opined
that appellant’s carpal tunnel syndrome was not caused or aggravated by factors of his federal

3

employment. Dr. Del Gallo quoted the sixth edition of the American Medical Association,
Guides to Evaluation of Disease and Injury Causation (hereinafter A.M.A., Guides),3 which in
part stated that “carpal tunnel syndrome has an indistinct multi factorial etiology; often a single
cause cannot be identified. [Dr. Del Gallo] indicated that the publication noted that there was
inconsistent evidence regarding whether work factors caused carpal tunnel syndrome and very
strong evidence that age was a contributing factor. He concluded based on this evidence that
there was no data to support that appellant’s carpal tunnel syndrome was secondary to his work.
[Dr. Del Gallo] opined that appellant’s carpal tunnel syndrome was age related as his condition
worsened as he aged. He also concluded that appellant’s left shoulder and knee conditions were
not work related as there were scant medical records related to these conditions.
In a July 1, 2015 decision, OWCP denied appellant’s claim because the medical evidence
of record was insufficient to establish that his diagnosed conditions were causally related to work
factors.
By letter dated July 8, 2015, appellant, through counsel, requested an oral telephone
hearing.
Appellant provided medical reports documenting his treatment since 2001. In a
November 2, 2001 report, Dr. Robert Lewis, a Board-certified orthopedic surgeon, advised that
appellant injured his left shoulder two years prior at work when he tried to catch a large
transmission that was tipping over. He noted that appellant reinjured his shoulder on October 16,
2000 when a door hit his left shoulder. January 6 and May 23, 2001 and January 14 and May 1,
2002 disability status reports from Dr. Lewis diagnosed left shoulder impingement syndrome and
restricted appellant’s lifting to 20 pounds with no overhead use of the left arm. In a
September 23, 2003 report, Dr. Lewis advised that appellant had a work-related left shoulder
condition, which required surgery in January 2001. He noted that appellant was able to return to
work, but still experienced residual symptoms. Several physical therapy reports were submitted.
On February 10, 2016 an oral telephone hearing took place. Counsel argued that there
was a medical conflict and asserted that Dr. Del Gallo had his mind set that carpal tunnel
syndrome could never be work related. He also argued that 95 percent of Dr. Del Gallo’s
opinion on causal relationship was quoted from the A.M.A., Guides publication.
By decision dated April 26, 2016, an OWCP hearing representative affirmed the July 1,
2015 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to

3

A.M.A., Guides (2nd ed. 2013).

4

the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.7
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested, and the medical rationale expressed in
support of the physician’s opinion.8
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP referred appellant for a second opinion examination with Dr. Del Gallo. In his
May 26, 2015 report, Dr. Del Gallo opined that appellant’s carpal tunnel syndrome was not
caused or aggravated by factors of his federal employment. He quoted the second edition of the
A.M.A., Guides, which in part specified that “carpal tunnel syndrome has an indistinct multi
factorial etiology; often a single cause cannot be identified.” Dr. Del Gallo indicated that the
publication noted that there was inconsistent evidence regarding whether work factors caused
carpal tunnel syndrome and very strong evidence that age was a contributing factor. He
concluded based on this that there was no data to support that appellant’s carpal tunnel syndrome
was secondary to his work. Dr. Del Gallo opined that appellant’s carpal tunnel syndrome was
age related as his condition worsened as he got older. He also concluded that appellant’s left
shoulder and knee conditions were not work related as there was scant medical evidence
regarding these conditions. OWCP determined that Dr. Del Gallo’s report represented the
weight of the medical evidence.
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.J., 59 ECAB 408 (2008); supra note 5.

8

James Mack, 43 ECAB 321 (1991).

5

Although Dr. Del Gallo noted that the A.M.A., Guides publication specifies that there is
insufficient evidence to support that certain work factors cause carpal tunnel syndrome, the
Board has held that newspaper clippings, medical texts, and excerpts from publications are of no
evidentiary value in establishing the causal relationship between a claimed condition and an
employee’s federal employment. Such materials are of general application and are not
determinative as to whether the specific condition claimed is related to the particular
employment factors alleged by the employee.9 The Board finds that Dr. Del Gallo’s medical
opinion is not sufficiently rationalized. Dr. Del Gallo explained that there was no evidence to
support that appellant’s carpal tunnel syndrome was secondary to his work and opined that it was
age related because it worsened as he aged. However, he failed to discuss appellant’s specific
work duties and simply relied on the general principle found in a publication.
As Dr. Del Gallo’s opinion is not sufficiently rationalized, appellant must be referred to
another Board-certified specialist. It is well established that proceedings under FECA are not
adversarial in nature and, while the claimant has the burden to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence.10 Once OWCP
undertakes development of the medical evidence, it has the responsibility to do so in a proper
manner.11
CONCLUSION
The Board finds that this case is not in posture for decision.

9

William C. Bush, 40 ECAB 1064, 1075 (1989).

10

Richard E. Simpson, 55 ECAB 490 (2004).

11

Melvin James, 55 ECAB 406 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the April 26, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: December 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7