United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.N., Appellant
and
NATIONAL AERONAUTICS & SPACE
ADMINISTRATION, GLENN RESEARCH
CENTER, Cleveland, OH, Employer
__________________________________________

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

Docket No. 14-1805
Issued: December 8, 2014

Case Submitted on the Record

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

JURISDICTION
On August 12, 2014 appellant, through her attorney, filed a timely appeal of a May 28,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on September 13, 2012, as alleged.
FACTUAL HISTORY
On June 7, 2013 appellant, then a 48-year-old budget analyst, filed a traumatic injury
claim alleging that she sustained a left leg injury on September 13, 2012 in the performance of
duty. She stated that she participated in the Combined Federal Campaign (CFC) car show.
1

5 U.S.C. § 8101 et seq.

Appellant was on her way to sit in a chair on the grass outside of building 21 when she stepped
into a hole bruising and cutting her left leg. She stated that she tried to stop herself from falling
which jolted her whole body. The injury occurred at 11:25 a.m. Later that evening, appellant
experienced severe pain in her upper back and shoulders. On the reverse of the form, her
supervisor indicated that she was injured in the performance of duty. He did not indicate that
appellant stopped work.
Appellant submitted a narrative statement asserting that the employment incident
occurred on the day of the CFC car show and that she was a member of a car club invited to
participate. She and her husband were walking toward a group of people when her left leg
entered a grass covered pipe hole causing bleeding, burning, and bruising of her left leg.
Appellant’s leg went into the pipe up to her knee and her left shoe fell in the hole. She sought
treatment from the employing establishment medical clinic. Later that day, appellant developed
aching through her body including her back, wrists and legs. She submitted a witness statement
from her husband noting that she fell while walking in the grass into a four- to six-inch cleanout
pipe that was missing its cover. Appellant’s leg went down into the pipe and she was unable to
free herself. Her husband pulled her out.
The employing establishment completed an incident report and stated that on
September 13, 2012 at 11:25 a.m. appellant sustained an abrasion. It noted that she stepped into
an open sewer pipe with her left leg. Appellant visited the occupational medical services. Notes
from the employing establishment dated September 13, 2012 diagnosed two superficial abrasions
on her left lower leg. Appellant denied pain when palpated and demonstrated full strength and
full range of motion to the left leg, ankle, and feet. She walked without pain. The abrasions
were cleaned and bandaged.
Appellant provided additional notes from the employing establishment health clinic
describing her injury. A nurse practitioner indicated that appellant’s left leg entered a plastic
sewer pipe and caused abrasions and redness to her lower leg. She indicated that appellant could
perform her regular-duty work.
OWCP advised appellant that the case had originally been handled as a minor injury with
no lost wages. As the medical expenses had exceeded $1,500.00, it explained it was reopening
the claim for a determination on the merits. OWCP requested that appellant provide additional
factual and medical evidence on August 1, 2013. It specifically asked that she provide factual
evidence substantiating that she was in the performance of duty at the time her injury occurred
and medical evidence describing any and all resulting diagnosed conditions. OWCP further
asked that the employing establishment describe the relationship of appellant’s activities at the
time of her injury on September 13, 2012 to her employment.
Appellant submitted a narrative statement dated August 7, 2013 and stated that her
employment incident occurred during a CFC car show which she and her husband participated in
every year for the previous five years. She described her leg entering the pipe to her knee and
the resulting burning and bleeding. Appellant stated that later that day her whole body began to
ache including her back, neck, wrists, and legs. The pain progressed and she sought medical
treatment from her family practitioner and a chiropractor. Appellant stated that she was able to
work from home from March and did not miss any work.

2

Appellant submitted a note from a chiropractor who provided initials only, R.L., D.C.,2
dated August 27, 2013 diagnosing cervical disc lesion, and left cervical radiculitis. The
chiropractor indicated that the work injury of September 13, 2012 caused nerve root irritation to
appellant’s cervical spine. Appellant underwent a cervical magnetic resonance imaging (MRI)
scan on April 30, 2013 which demonstrated a left central disc herniation at C5-6. She otherwise
had a normal study.
Michael J. Patrick, Chief, Technical Capability and Integration Branch, responded on
behalf of the employing establishment to OWCP’s request for information on
September 4, 2013. He stated that, while appellant was not required to participate in the CFC car
show, all employees were encouraged to attend. Mr. Patrick noted that she was asked to
participate and she had agreed. He stated that appellant’s participation benefitted the employing
establishment and that all employees were permitted and encouraged to participate. The injury
occurred on premises during regular work hours and the employing establishment provided all
support as it was an employee-sponsored event held onsite with participation encouraged by
immediate supervisors and senior management.
By decision dated September 12, 2013, OWCP denied appellant’s claim on the grounds
that she had not submitted sufficient medical evidence to establish that a diagnosed condition
resulted from her accepted employment incident. It informed her that a chiropractor was not a
physician for the purposes of FECA without a diagnosis of subluxation of the spine as
demonstrated by x-ray.
Counsel requested an oral hearing from the Branch of Hearings and Review on
September 25, 2013. Appellant testified at the hearing on March 13, 2014. She stated that she
sought treatment from Dr. Ludrosky. Appellant described the employment incident and stated
that when her left leg dropped into the pipe her right side bent. She stated that she was working
with attorneys from the employing establishment and did not realize that she had to file a
separate claim under FECA.
Following the oral hearing, appellant submitted treatment notes from Dr. Sandra M.
Berglund, an osteopath, who first treated appellant on February 14, 2013 due to pain and
numbness in the left arm. Dr. Berglund stated that, in September 2012, appellant’s left foot fell
in a drain hole and she landed forward with her arms stretched out in front. Appellant was jolted
on her left side. Dr. Berglund diagnosed cervical radiculitis in the left arm. She completed a
note dated March 31, 2014 and stated that appellant fell in a hole at work in September 2012.
Dr. Berglund noted treating appellant from February 14 through October 7, 2013 and reported
appellant’s increasing neck and left arm problems. She stated that appellant felt that her neck
and left arm conditions were related to her fall at work.
Dr. Jonathan Salewski, an osteopath, examined appellant on October 25, 2013 due to
severe neck and left shoulder pain. He diagnosed cervical C5-6 disc herniation causing no
obvious nerve root impingement on the MRI scan consistent with her symptoms of left shoulder
and arm pain into her wrist. Appellant underwent a translaminar cervical epidural steroid
injection on November 5, 2013 due to C5-6 and C6-7 radiculopathy secondary to a herniated disc
with nerve root impingement.
2

At the oral hearing on March 13, 2014, appellant identified her treating chiropractor as Dr. R. Ludrosky.

3

By decision dated May 28, 2014, the hearing representative found that appellant had not
submitted medical opinion evidence sufficient to establish a causal relationship between her
diagnosed condition and her accepted employment injury. She found that the medical evidence
diagnosed cervical radiculopathy, but failed to provide a reasoned medical opinion explaining
how appellant’s condition was causally related to the fall that occurred in September 2012.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.8 A medical report is of limited probative value
on a given medical question if it is unsupported by medical rationale.9 Medical rationale
includes a physician’s detailed opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment activity. The
opinion of the physician must be based on a complete factual and medical background of the
claim, 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 specific
employment activity or factors identified by the claimant.10
3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

20 C.F.R. § 10.5(ee).

7

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

8

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

9

T.F., 58 ECAB 128 (2006).

10

A.D., 58 ECAB 149 (2006).

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ANALYSIS
Appellant filed a claim for traumatic injury on June 7, 2013 alleging that she sustained a
left leg injury on September 13, 2012 when she stepped in a hole. OWCP determined that the
claimed work incident occurred as alleged and that she was in the performance of duty at the
time the incident occurred. Therefore, the Board finds that the first component for fact of injury
is established. The medical evidence is not sufficient, however, to establish that the employment
incident on September 13, 2012 caused appellant’s diagnosed cervical radiculitis.
In support of her claim for a cervical condition resulting from her accepted employment
incident, appellant submitted a note dated August 27, 2013 from Dr. Ludrosky, a chiropractor,
diagnosing cervical disc lesion, and left cervical radiculitis. Dr. Ludrosky indicated that the
work injury of September 13, 2012 caused nerve root irritation to her cervical spine. Under
FECA, a chiropractor is a physician only to the extent that the reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.11 Dr. Ludrosky did not diagnose a subluxation of the spine and
did not provide x-rays demonstrating such a subluxation of the spine. Accordingly, the Board
finds that he does not qualify as a physician under FECA.
Appellant also submitted treatment notes from Dr. Berglund who first treated appellant
on February 14, 2013 due to pain and numbness in the left arm. Dr. Berglund described
appellant’s employment incident in September 2012 and diagnosed cervical radiculitis in the left
arm. On March 31, 2014 she stated that appellant felt that her neck and left arm conditions were
related to her fall at work. An award of compensation may not be based on surmise, conjecture
or speculation. Neither the fact that appellant’s claimed condition became apparent during a
period of employment, nor her belief that her condition was caused by her employment, is
sufficient to establish causal relationship.12 Dr. Berglund did not provide a medical opinion that
appellant’s September 2012 employment incident resulted in the diagnosed cervical condition.
Instead she repeated appellant’s opinion that this incident caused her cervical injury.
On October 25, 2013 Dr. Salewski examined appellant due to severe neck and left
shoulder pain. He did not provide any history of injury and did not offer any medical opinion
evidence regarding the cause of her diagnosed cervical C5-6 disc herniation. This note,
therefore, does not contain the necessary factual background and medical opinion to establish
that appellant’s diagnosed cervical condition resulted from her September 13, 2012 employment
incident.
Appellant sought treatment from the employing establishment medical clinic from a
nurse practitioner on September 13, 2012. The nurse practitioner indicated that appellant’s left
leg entered a plastic sewer pipe and caused abrasions and redness to her lower leg. Nurse
11

Section 8101(2) of FECA provide as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners with the scope of their practice as defined by
State law. The term physician includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to
exist and subject to regulation by the Secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988); P.R., Docket No.
14-1007 (issued August 13, 2014).
12

Walter D. Morehead, 31 ECAB 188 (1986).

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practitioners are not physicians under FECA and are not competent to render a medical
opinion.13
The Board finds that appellant has failed to establish a diagnosed condition as a result of
the accepted employment incident due to the lack of medical opinion evidence.
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 an injury as a result of her
September 13, 2012 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

13

G.G., 58 ECAB 389 (2007).

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

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

Docket No. 09-741
Issued: May 14, 2010

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 23, 2009 appellant filed a timely appeal from an October 7, 2008 merit
decision of the Office of Workers’ Compensation Programs terminating her compensation
benefits due to a fraud conviction, a November 14, 2008 decision finding forfeiture and a
December 10, 2008 decision finding an overpayment of compensation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective October 1, 2008 on the grounds that she was convicted of fraud; (2) whether
the Office properly found that she forfeited her right to further compensation after that date
retroactively from November 18, 2004 through September 27, 2008; (3) whether the Office
properly determined that appellant received an overpayment in the amount of $135,432.25 based
1

For Office decisions issued prior to November 19, 2008, a claimant has 90 days or up to one year to file an
appeal. An appeal of Office decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e).

on the forfeiture; and (4) whether the Office properly found that appellant was at fault in creating
the overpayment and that it was not subject to waiver.
FACTUAL HISTORY
This case has previously been before the Board. In an August 24, 1995 decision, the
Board found that appellant was not entitled to travel expenses or an attendant’s allowance for her
mother.2 The facts of the case as set out in the Board’s prior decision are incorporated herein by
reference.3
Based on her receipt of compensation for total disability, appellant was periodically
asked to complete Office EN1032 forms to report any earnings from employment or selfemployment. She completed forms on January 28, 2002, January 29, 2003, February 3, 2004,
January 18, 2005, February 6, 2006, February 15, 2007 and February 8, 2008. Appellant advised
the Office that she was not self-employed, employed by others or received any earnings during
the 15-month period preceding the date that she signed each form.
By letter dated March 25, 2008, the U.S. Department of Justice advised the Office of a
criminal action filed against appellant for Federal Program Fraud.
The United States District Court issued a criminal summons to appellant on February 25,
2008 and included a four-count indictment against her charging her with disability claim fraud,
mail fraud, wire fraud and theft of Federal Government money. The prosecutor charged that
beginning in January 2006 appellant knowingly made material false representations to the
employing establishment, her physicians and the Office that her medical condition severely
limited her ability to perform any significant physical activities by depositing in the mail
fraudulent Office 1032 forms without reporting any improvements in her medical condition to
the Office in violation of 18 U.S.C. § 1341. The indictment stated that appellant reported that
she was totally disabled and could not stand, sit or walk for prolonged periods of time or to bend
over to perform routine actions on a regular basis. The indictment found that in fact appellant
could stand or sit for prolonged periods while, “hunting, fishing, stacking and cutting firewood
and operating a tractor, and could bend from the waist to perform manual labor such as clearing
debris from fence lines, and lifting and hauling firewood, all of which would well qualify her for
employment at the [employing establishment].” Appellant also committed wire fraud by
receiving direct electronic deposits from the Office in violation of 18 U.S.C. § 1343 in the
amount of $68,726.00. On October 1, 2008 a jury entered guilty verdicts on all four counts of
the indictment and that the loss to the government exceeded $1,000.00.
By decision dated October 7, 2008, the Office terminated appellant’s compensation
benefits effective October 1, 2008 on the grounds that she was found guilty of fraud related to
2

Docket No. 94-344 (issued August 24, 1995).

3

The Office accepted appellant’s April 11, 1977 claim for a herniated disc at L5-S1 with surgery on
January 9, 1978. It subsequently accepted carpal tunnel syndrome, thoracic outlet syndrome and Grade 2
spondylolisthesis. Appellant was placed on the periodic rolls as of August 14, 1987. The Office accepted an
adjustment disorder on January 20, 1989 and appellant underwent additional spinal surgery on January 28, 1989.

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the application for or receipt of benefits under the Federal Employees’ Compensation Act. The
Office noted that, because of her conviction, appellant was not entitled to receive further benefits
under the Act.
On November 4, 2008 the Office informed appellant that it made a preliminary
determination that she received an overpayment of compensation in the amount of $135,432.25
because she was “found guilty of fraud against the Act and thus not entitled to disability benefits
from November 18, 2004 to September 27, 2008.” It found that she was at fault in the creation
of the overpayment because she “willfully and knowingly misrepresented information to the
Office regarding your work injury and physical disability.” The Office found that on January 18,
2005, February 2, 2006, February 15, 2007 and February 8, 2008 appellant signed EN1032 forms
indicating that she was totally disabled and had no earnings. Based on the criminal indictment, it
stated that appellant presented herself to her physician with false statements of residual
symptoms of her work injuries and that her physician relied on these statements in supporting her
claim for ongoing compensation benefits. The Office found that the overpayment began 15
months prior to February 18, 2006, the period identified by the court as when the intent to
defraud began and that appellant’s total gross compensation from November 18, 2004 to
September 27, 2008 was $135,432.25. It stated, “[s]ection 8148(a) provides that an individual
convicted of a federal or state statute relating to fraud in the application for or receipt, of any
benefit under the [Act] shall forfeit as of the date of such conviction any entitlement to any
benefit such individual would otherwise be entitled to under the Act of any injury occurring on
or before the date of the conviction. Such forfeiture shall be in addition to any action take under
section 8106 or 8129 for recovery of an overpayment.” The Office notified appellant as to her
appellate rights regarding the notice of overpayment.
In a November 14, 2008 decision, the Office found that appellant forfeited her benefits
under section 8148 of the Act. It found that she was not entitled to further medical and
compensation benefits subsequent to being found guilty of fraud related to her claim for
compensation. The Office also found that appellant had completed EN1032 forms and that the
guilty verdict established that she had falsely presented herself and her information to her
attending physician to effectuate a determination of total disability for all work. It concluded
that the date of the forfeiture would be retroactive to November 18, 2004.
In a December 10, 2008 decision, the Office found that appellant was at fault in the
creation of an overpayment in the amount of $135,432.25 from November 18, 2004 to
September 27, 2008, which was created when she was found guilty in federal court of knowingly
and willingly falsifying information for the purpose of obtaining compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8148 of Title 5 of the United States Code, states, in part:
“(a) Any individual convicted of a violation of section 1920 of Title 18 or any
other [f]ederal or [s]tate criminal statute relating to fraud in the application for or
a receipt of any benefit under [the Act], shall forfeit (as of the date of such
conviction) any entitlement to any benefit such individual would otherwise be
entitled to under [the Act] for any injury occurring on or before the date of such

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conviction. Such forfeiture shall be in addition to any action the Secretary may
take under section 8106 or 8129.”
Section 10.17 of the implementing federal regulations provide, as follows:
“When a beneficiary either pleads guilty to or is found guilty on either [f]ederal or
[s]tate criminal charges of defrauding the Federal Government in connection with
a claim for benefits, the beneficiary’s entitlement to any further compensation
benefits will terminate effective the date either the guilty plea is accepted or a
verdict of guilty is returned after trial.”4
Public Law 103-112, 107 Stat. 1089, enacted on October 21, 1993, prohibits individuals
who have been convicted of fraud related to their claims from receiving further benefits paid
under the Act. Subsequently, Public Law 103-333, enacted on September 30, 1994, added
section 8148, which provides for (a) the termination of benefits payable to beneficiaries who
have been convicted of defrauding the program and (b) the suspension of benefits payable to
beneficiaries imprisoned as a result of a felony conviction.5
Office procedures require that, to support termination or suspension of benefits under
section 8148, the case record must contain a copy of the indictment or information; a copy of the
plea agreement, if any; a copy of the document containing a guilty verdict; and/or a copy of the
court’s docket sheet. Further, this evidence must establish: (1) the individual was convicted;
and (2) the conviction is related to the claim for or receipt of benefits under the Act.6 The
effective date of termination in fraud cases under section 8148(a) is the date of conviction, which
is the date of the verdict or in cases of a plea agreement, the date the claimant made the plea in
open court (not the date of sentencing or when the court papers were signed).7 Due to the nature
of the termination involving fraud, no pretermination notice is required before issuing a final
decision.8
ANALYSIS -- ISSUE 1
The Board finds that the Office properly terminated appellant’s compensation benefits on
the grounds that she was convicted in federal court on four counts, including mail fraud, wire
fraud and theft of Federal Government money related to her receipt of benefits under the Act.
Under section 8148(a), a claimant who is convicted of fraud in obtaining compensation
benefits under 18 U.S.C. § 1920 or any other statute relating to fraud in the application for or
receipt of any benefit under the Act, will have his or her compensation terminated. Such a
4

20 C.F.R. § 10.17.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.144.12(a) (March 1997); see
5 U.S.C. § 8148. See also Joan Ross, 57 ECAB 694 (2006); Terry A. Keister, 56 ECAB 559 (2005).
6

Federal (FECA) Procedure Manual, supra note 5.

7

Id. at Chapter 2.1400.12(e)(1).

8

Jorge E. Sotomayor, 52 ECAB 105 (2000); see also id. at Chapter 2.1400.12(f)(2).

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claimant is thereafter permanently barred from receiving any compensation under the Act. The
guilty verdict returned by the jury on October 1, 2008 found appellant guilty of two counts of
wire fraud, one count of mail fraud and one count of theft of Federal Government money as it
related to her benefits under the Act. The jury verdict is sufficient evidence for the Office to
terminate appellant’s compensation benefits under section 8148(a) effective that date. The
Board will affirm the termination of appellant’s compensation benefits based on her conviction
for fraud under section 8148.
LEGAL PRECEDENT -- ISSUE 2
Section 8106(b) of the Act provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the time the Secretary specifies.... An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required.”9
The Office’s regulations state that if an employee knowingly omits or understates any
earnings or work activity in making a report, he or she shall forfeit the right to compensation
with respect to any period for which the report was required.10 An employee, however, can only
be subjected to the forfeiture provision of 5 U.S.C. § 8106 if she “knowingly” failed to report
employment or earnings. It is not enough to merely establish that there were unreported
earnings. The Board has recognized that forfeiture is a penalty and, as a penalty provision, it
must be narrowly construed.11 The term “knowingly” is defined in the Office’s regulations as
“with knowledge, consciously, willfully or intentionally.”12
Earnings from employment or self-employment means gross earnings or wages before
any deductions and includes the value of subsistence, quarters, reimbursed expenses and any
other goods or services received in kind as remuneration. It also means a reasonable estimate of
the cost to have someone else perform the duties of an individual who accepts no remuneration.
Neither lack of profits, nor the characterization of the duties as a hobby, removes an

9

5 U.S.C. § 8106(b).

10

20 C.F.R. § 10.529.

11

Anthony A. Nobile, 44 ECAB 268, 271-72 (1992).

12

20 C.F.R. § 10.5(n).

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unremunerated individual’s responsibility to report the estimated cost to have someone else
perform his duties.13
The test of what constitutes reportable earnings is not whether the claimant received a
salary but what it would have cost to have someone else to do the work. Where a claimant takes
an active role in the operation of a business, the claimant is obligated to report as earnings the
amount that would have been paid to a person doing such work.14
ANALYSIS -- ISSUE 2
In the November 18, 2008 decision finding forfeiture of benefits, the Office relied on
appellant’s conviction for fraud to forfeit further medical and wage-loss compensation under the
Act. As noted, section 8148 clearly provides that such forfeiture is effective as of the date of
conviction, in this case October 1, 2008 when the jury returned guilty verdicts on the four-count
indictment. Because of her conviction, the Office properly found that appellant was not entitled
to receive further benefits under the Act. It noted that her compensation benefits had previously
been terminated in the October 7, 2008 decision. The Office properly determined that appellant
forfeited her entitlement to further benefits under the Act as of October 1, 2008.
The Office’s November 18, 2008 decision also found that the period of the forfeiture
would be retroactive to November 18, 2004, 15 months prior to the January 18, 2006 EN1032
form completed by appellant. In so doing, the Office relied on the EN1032 forms completed by
appellant to find that she fraudulently answered questions pertaining to her receipt of
compensation benefits that resulted in her criminal prosecution. The EN1032 form requires the
employee to answer all questions pertaining to employment for which she received a salary,
wages, income or sales commissions or payment of any kind or self-employment or involvement
in business enterprises for which she provided services.15 It is readily apparent that forfeiture
under section 8106(b)(2) is premised on the knowing omission or understatement of any part of
the employee’s earnings.
In R.W.,16 the employee pled guilty in federal court on August 29, 2004 in violation of
18 U.S.C. § 1920 for making false statements to obtain compensation benefits. The Office
subsequently terminated his compensation benefits and issued an overpayment, finding that he
received compensation to which he was not entitled from July 14, 2002 through
December 27, 2003. It found that the employee’s guilt constituted acknowledgement of false
statements which he knew or should have known to be incorrect. In this case, the Board reversed
the Office’s decision. It noted that the Office’s decision appeared to find forfeiture under section
8106(b)(2) but had relied solely on the District Court’s finding that the employee violated the
13

Id. at § 10.5(g),

14

J.S., 58 ECAB 515 (2007); Anthony A. Nobile, supra note 11 at 271 (the claimant worked at a liquor store
owned by his family but contended that he received no salary for his work).
15

The kinds of services which a recipient must report includes activities such as carpentry, mechanical work,
painting, contracting, child care and odd jobs.
16

Docket No. 07-902 (issued June 9, 2008).

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criminal statute. The Board noted that the Office should have based its finding of forfeiture on a
determination of whether the employee failed to report earnings on Office forms as required.
In the present appeal, the Office now relies on the EN1032 forms submitted by appellant
to find forfeiture of her benefits from November 18, 2004 to September 27, 2008. The
November 14, 2008 forfeiture decision stated:
“The information presented in the U.S. District Court showed that the claimant
falsely presented herself and information to the attending physician to effectuate
determination for total disability for all work. On October 1, 2008 a jury found
her guilty of misrepresenting information with intent to fraud the government and
to obtain benefits to which she was not entitled.”
***
“The evidence of record shows a conviction of intent to fraud the government
thereby forfeiting entitlement to medical and compensation benefits under the
FECA program. The court records show that the intent to fraud began on
February 19, 2006. The signed Form CA-1032 on February 6, 2006 providing
information for the 15 months prior to the signature date is taken [as] the first date
of intent to misrepresent information and commit fraud of government benefits.
The forfeiture of all compensation then would be retroactive to November 18,
2004 (15 months prior to January 18, 2006).”
The decision reflects that the Office forfeited appellant’s compensation for the period
commencing November 18, 2004 based on the District Court’s finding that she engaged in fraud
related to her receipt of compensation benefits and misrepresentation of information provided her
physician. Her receipt of compensation for wage loss from November 18, 2004 through
September 27, 2008 was found fraudulent in light of her conviction and in representing that she
remained totally disabled to the government and her physicians. While the record supports that
appellant committed fraud, section 8106(b) of the Act requires that the fraud must be in terms of
her earnings or work activities, not simply in misreporting or misrepresenting her physical
condition. The decision of the Office provides no further legal basis for its decision which the
Board can evaluate.
It is well established that forfeiture under section 8106(b) is a penalty and, as a penalty
provision, will be narrowly construed by the Board.17 The indictment brought against appellant
states that she was capable of extensive physical activities including hunting, fishing, stacking
and cutting firewood and operating a tractor, cleaning debris from a fence line and lifting and
hauling firewood. The Office, however, did not further develop the evidence to determine
whether any of these activities pertained to self-employment activities or services that would
subject appellant to the forfeiture penalty of section 8106(b) were it established that she
knowingly omitted them from the forms she was required to submit. Section 8106 is not a
general penalty provision for fraud. When invoking section 8106(b), the Office must establish
that a recipient of benefits under the Act knowingly failed to report employment earnings or
17

See Charles E. Nance, 54 ECAB 447 (2003).

7

activities, as required. It did not address any evidence that appellant performed the activities
noted in the indictment in the furtherance of any employment, self-employment or related
services.
While the Board has defined work activities and earnings broadly to include receipt of
other advantages such as free travel, lodging or food, pursuant to the Act,18 the Board has
consistently held that the Office must establish work activities or earnings before proceeding
with the forfeiture penalty. The evidence in this case does not establish that appellant received
any earnings during the period November 18, 2004 through September 27, 2008 or that the
activities in which she was engaged were in furtherance of any self-employment. With no
evidence of work activities in the furtherance of employment or self-employment, the receipt of
earnings or other remuneration, the record provided no basis for invoking the penalty provision
of 5 U.S.C. § 8106(b)(2) commencing November 18, 2004.
The Board finds that the Office improperly determined that appellant forfeited her right
to compensation from November 18, 2004 through September 27, 2008. The Office found that
appellant forfeited past earnings in the amount of $135,432.25, but there is no evidence of record
that she had earnings from employment or self-employment activities during that period. It did
not properly invoke the penalty provision under 5 U.S.C. § 8106(b)(2) to find forfeiture
retroactive to November 18, 2004. That portion of the forfeiture decision and the overpayment
based on the retroactive application of the forfeiture provision in this case will be reversed.19
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective October 1, 2008 the date she was convicted of fraud. The Board further finds that the
Office met its burden of proof to forfeit appellant’s further compensation benefits after that date.
However, in the retroactive application of section 8106(b) to find forfeiture and an overpayment
from November 18, 2004 to September 27, 2008, the Office did not meet its burden of proof.

18

Christine P. Burgess, 50 ECAB 444 (1999). In Burgess, the Board found that the records established that the
employee received reimbursed expenses and other advantages as part of wages or remuneration in the form of free
travel, lodging, food and transportation costs as a result of performing the duties of an escort for a travel service.
Based on these reimbursed expenses and payments in kind, the Board found that appellant had earnings as defined
under section 8106(c) which she was required to report to the Office.
19

Supra note 9.

8

ORDER
IT IS HEREBY ORDERED THAT October 7, 2008 decision of the Office of Workers’
Compensation Programs terminating appellant’s benefits is affirmed. The November 14, 2008
decision is affirmed finding that appellant forfeited her entitlement to compensation under the
Act as of October 1, 2008. The November 14 and December 10, 2008 decisions are reversed as
to the finding of retroactive forfeiture.
Issued: May 14, 2010
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fayetteville, NC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1588
Issued: May 7, 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 5, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decisions dated March 3, 2009, November 3 and July 11,
2008 denying his reconsideration requests on the grounds that they were not timely filed and
failed to establish clear evidence of error. Because more than one year has elapsed from the last
merit decision dated August 17, 1993 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his requests were untimely filed and failed to
show clear evidence of error.
FACTUAL HISTORY
On September 18, 1987 appellant, then a 42-year-old letter carrier, was attacked by a dog
while working. The Office accepted the conditions of lacerations to the left elbow, lacerations to

the right leg and a lumbar strain. Appellant returned to limited-duty work. On October 7, 1987
Dr. Louis P. Clark, Jr., a Board-certified orthopedic surgeon, released appellant to regular duty
after noting there was good spinal range of motion and no tenderness over the sacroiliac joints or
the lumbar spine.
On February 19, 1993 appellant claimed a recurrence of disability beginning
September 6, 1988 asserting that his back condition was causally related to the September 18,
1987 work injury. The record reflects on September 5, 1988 that appellant was at home and had
severe low back pain when bending to retrieve a rake from under the edge of the house. On
September 13, 1988 he underwent back surgery for a herniated disc.
In an August 17, 1993 decision, the Office denied the recurrence claim on the basis that
the medical evidence failed to establish that his disability was due to the accepted work injury.1
In a June 26, 2008 letter, appellant’s attorney requested reconsideration of the Office’s
August 17, 1993 decision.
He argued that the nonwork-related intervening event of
September 5, 1988 was not the cause of appellant’s herniated disc and surgery. Rather, the
accepted work injury caused the need for surgery. Counsel submitted multiple medical reports
on file at the time of the Office’s August 17, 1993 decision. He also submitted appellant’s
April 9, 2008 statement regarding the September 5, 1988 incident at home, medical reports from
Dr. Michael M. Haglund, a Board-certified neurological surgeon, and an April 24, 2007 report
from Dr. Christopher T. Aul, a Board-certified family practitioner.
On September 27, 1999 Dr. Haglund noted first seeing appellant on January 7, 1997 for
complaints from two injuries, one in 1985, where he fell down a hill while at work and another in
1987, where he was attacked by a dog at work. He opined that appellant’s back injury was due
to the two work-related accidents. Dr. Haglund stated that appellant had back pain after the
March 21, 1985 accident and had several visits for back pain and acute lumbar strain thereafter.2
In a November 1, 2000 operative report, he, diagnosed L5-S1 recurrent disc herniation, lumbar
spinal stenosis and lumbar disc degeneration. In a July 9, 2001 report, Dr. Haglund reviewed
appellant’s back history and prior September 27, 1999 note. He stated that appellant’s back was
injured on March 21, 1985 and since that time he experienced continuing back pain. Appellant
had L5-S1 surgery as there was degenerative disc disease because of the March 1985 work
injury. Dr. Haglund stated that the September 1987 work injury led to the final deterioration of
appellant’s back condition and required L5 decompression and fusion in November 2000. He
opined it was more likely than not that appellant’s November 2000 surgery was related to the
previous injuries and surgery. In a January 2, 2007 report, Dr. Haglund reiterated that the
deterioration of appellant’s back condition and resultant surgeries were causally related to his
work-related accidents.

1

On January 9, 2008 appellant claimed a recurrence beginning September 6, 1988 due to his September 18, 1987
injury. In an April 3, 2008 letter, the Office advised appellant that no decision would be issued regarding the
January 9, 2008 recurrence claim since the August 17, 1993 decision denied his recurrence claim.
2

Dr. Haglund further opined that appellant’s neck injury and subsequent C3-7 cervical laminectomy for severe
cervical stenosis, which was present in 1989, was exacerbated by his work accidents.

2

Dr. Aul reviewed appellant’s medical records and the treatment notes of Dr. Haglund.
Based on the findings on examination and a review of magnetic resonance imaging (MRI) scan
reports, appellant had progressive degenerative disease of the cervical and lumbar spine that
worsened after his surgeries. Dr. Aul opined that appellant’s cervical and lumbar conditions and
resultant surgeries were secondary to the traumatic work-related injuries of 1985 and 1987.
By decision dated July 11, 2008, the Office denied appellant’s request for reconsideration
on the grounds it was untimely and failed to establish clear evidence of error.
On August 29 and October 9, 2008 appellant’s attorney requested reconsideration. He
submitted treatment records dated April 28 to August 13, 1988 from Dr. C. Cooley, appellant’s
family physician, to show that he had symptoms of low back pain and was diagnosed with
chronic low back pain syndrome prior to September 1988. Counsel argued that this evidence,
which was not previously reviewed by the Office, corroborated appellant’s statement that his
back pain did not suddenly reappear in September 1988, when he sustained the nonwork-related
injury while at home. He contended that appellant had ongoing back pain between the work
incident of September 1987 and the September 1988 nonwork incident and that nothing new or
strenuous had occurred in 1988 as the damage to appellant’s back had occurred in
September 1987. The treatment notes indicated that appellant’s symptoms of low back pain
were diagnosed with chronic low back pain syndrome prior to the claimed recurrence of
September 6, 1988.
By decision dated November 3, 2008, the Office denied appellant’s reconsideration
request as untimely and failing to establish clear evidence of error.
On February 16, 2009 appellant’s attorney requested reconsideration and submitted a
January 30, 2009 report from Dr. Aul. He opined that the trauma that occurred on September 18,
1987 caused injury to appellant’s lumbar area which resulted in the September 1988 surgery.
Dr. Aul stated that there was no separate injury that occurred while at home in September 1988;
rather appellant had a bulging disc with stenosis which had ruptured. He advised that
sequestration, the process of when a disc breaks or ruptures, happened in September 1988 when
appellant bent to pick up an object at home. Dr. Aul noted that the act of bending alone would
not have caused the disc to rupture. He explained that x-rays supported that the trauma to
appellant’s back occurred when he fought off the dog. The subsequent bending in
September 1988 caused the already damaged disc to rupture. Dr. Aul opined that appellant’s
x-rays in September 1987 were not reported correctly and, had they been, appellant should not
have been allowed to return to his regular work duties as it increased the overall risk of a
herniated disc. Although his findings showed that the disc had herniated while at home on
September 5, 1988, Dr. Aul opined it was a clear recurrence of his work injury of
September 18, 1987.
By decision dated March 3, 2009, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely filed and failed to demonstrate clear evidence
of error.

3

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretion to determine whether it will review an award for or against compensation:
The Secretary of Labor may review an award for or against payment of compensation at
anytime on his own motion or on application. The Secretary, in accordance with the facts found
on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.3
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a)
provides that the Office will not review a decision unless the application for review is filed
within one year of the date of that decision.4
However, the Office will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation, if the claimant’s application for review shows clear evidence of error
on the part of the Office in its most recent merit decision. To establish clear evidence of error, a
claimant must submit evidence relevant to the issue that was decided by the Office. The
evidence must be positive, precise and explicit and must be manifested on its face that the Office
committed an error.5
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office’s decision.6
Evidence that does not raise a substantial question concerning the correctness of the
Office’s decision is insufficient to establish clear evidence of error.7 It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion.8 This entails a
limited review by the Office of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of the Office.9 The Board makes an independent

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

5

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

6

Annie L. Billingsley, supra note 4.

7

Jimmy L. Day, 48 ECAB 652 (1997).

8

Id.

9

Id.

4

determination as to whether a claimant has submitted clear evidence of error on the part of the
Office.10
ANALYSIS
The Office issued a merit decision in appellant’s claim on August 17, 1993. Appellant
requested reconsideration on June 26, August 29 and October 9, 2008 and February 16, 2009.
Each reconsideration request was more than one year after the Office’s August 17, 1993
decision. Thus, the requests were untimely. Appellant must therefore demonstrate clear
evidence of error on the part of the Office in the August 17, 1993 decision.
The Board finds that the evidence submitted by appellant does not establish clear
evidence of error as it does not raise a substantial question as to the correctness of the Office’s
1993 decision denying his claim.
In support of appellant’s June 26, 2008 reconsideration request, he submitted medical
reports from Dr. Haglund and Dr. Aul. Both physicians opined that appellant’s cervical and
lumbar conditions and need for surgery were secondary to the traumatic work-related injuries in
1985 and 1987. However, neither physician mentioned the September 5, 1988 incident at home,
which resulted in a herniated disc requiring surgery, or provided an opinion explaining why the
herniated disc and resultant surgery were the result of the September 18, 1987 work injury.
Furthermore, the physicians fail to explain why the September 5, 1988 nonwork-related injury
was merely a triggering event, as appellant’s attorney argued, and not the cause of the herniated
disc and resultant surgery. Thus neither the medical reports submitted nor the attorney’s
argument is sufficient to establish clear evidence of error as it does not raise a substantial
question as to the correctness of the Office’s August 17, 1993 decision denying appellant’s
recurrence claim on the grounds that causal relationship was not established.
In the second reconsideration request, appellant submitted medical notes from Dr. Cooley
which showed he had symptoms of low back pain and was diagnosed with chronic low back pain
syndrome prior to September 1988. This evidence is insufficient to establish clear evidence of
error as Dr. Cooley’s reports predate the alleged recurrence of September 6, 1988 and fail to
address the critical issue of causal relationship. Thus, his reports and the attorney’s argument
that the damage to appellant’s back had been done in 1987 as he had an ongoing problem with
back pain from the September 1987 work incident do not raise a substantial question as to the
correctness of the Office’s August 17, 1993 decision.
In his most recent reconsideration request, appellant submitted Dr. Aul’s January 30,
2009 report. Dr. Aul opined that, while appellant’s disc had herniated at home on September 5,
1988, it was a recurrence of the September 18, 1987 work injury and explained that the act of
bending on September 5, 1988 would not cause appellant’s disc to rupture. He asserted that
x-rays in September 1987 were not reported correctly and supported that appellant’s disc was
already damaged and that the act of bending on September 5, 1988 caused the already damaged
disc to rupture. While Dr. Aul’s opinion contains some reasoning and is supportive of
appellant’s claim, the Board notes that clear evidence of error is intended to represent a difficult
10

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

5

standard. Evidence such as a detailed, well-rationalized medical report which, if submitted
before the denial was issued, would have created a conflict in medical opinion requiring further
development is not clear evidence of error and would not require reopening the case.11 The
Board finds that Dr. Aul’s report is not the type of positive, precise and explicit evidence which
manifests on its face that the Office committed an error.12 Thus, the Office properly determined
appellant’s untimely reconsideration request did not demonstrate clear evidence of error in its
March 3, 2009 decision.
On appeal, appellant’s representative argues that the newly submitted medical evidence
was sufficient to establish that appellant sustained a recurrence of his work injury on
September 5, 1988 and not a separate nonwork-related event. As discussed, however, when an
application for review of a merit decision is not timely filed, the Office will consider the
application only if it demonstrates clear evidence of error. To establish clear evidence of error,
the evidence submitted must be positive, precise and explicit and must manifest on its face that
the Office committed an error.13 The evidence appellant submitted on reconsideration fails to
meet this standard.
CONCLUSION
The Board finds that the Office properly determined that appellant’s untimely request for
reconsideration did not demonstrate clear evidence of error in its July 11 and November 3, 2008
and March 3, 2009 decisions.

11

See Joseph R. Santos, 57 ECAB 554 (2006); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(c) (January 2004).
12

See D.D., 58 ECAB 206 (2006).

13

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the March 3, 2009 and November 3 and July 11,
2008 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 7, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HILL AIR FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 10-837
Issued: February 1, 2011

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 February 3, 2010 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ August 20 and December 8, 2009 merit decisions finding two percent
impairment of each upper extremity. 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 has more than two percent impairment of each upper
extremity, for which he received schedule awards.
FACTUAL HISTORY
On June 5, 2007 appellant, then a 39-year-old electrical equipment repairer, filed an
occupational disease claim alleging that on July 1, 2006 he sustained tenosynovitis in both wrists
and hands as a result of repetitive motion while working with small tools. The Office accepted
his claim for bilateral tenosynovitis of the hands and wrists and bilateral carpal tunnel syndrome.
On January 28, 2008 appellant underwent right carpal tunnel release with tenosynovectomy and

epineurolysis.
On February 15, 2008 he underwent left carpal tunnel release with
tenosynovectomy and epineurolysis.
On June 19, 2008 appellant filed a claim for a schedule award. In a June 3, 2008 medical
report, Dr. William F. Brandt, an attending Board-certified physiatrist, reviewed a history of
appellant’s employment-related injuries, medical treatment and family and social background.
He noted continuing bilateral wrist symptoms. Dr. Brandt listed essentially normal findings on
physical examination with a minimally tender scar over the volar surface of the carpal tunnel, left
greater than right, and positive Tinel’s signs. He provided range of motion findings for both
wrists. The right wrist had 55 degrees of extension, 60 degrees of flexion, 40 degrees of ulnar
deviation and 15 degrees of radial deviation. The left wrist had 70 degrees of extension, 55
degrees of flexion, 40 degrees of ulnar deviation and 15 degrees of radial deviation. On
neurological examination, Dr. Brandt noted intact motor strength and sensation, and normal twopoint discrimination. He advised that appellant had bilateral carpal tunnel syndrome with
minimal residuals, left greater than right and was status post carpal tunnel release. Utilizing the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), Dr. Brandt rated two percent impairment of each upper extremity.
Regarding the right wrist, he found one percent impairment each for loss of extension and radial
deviation under Figure 16-28 and Figure 16-31 on pages 467 and 469, respectively, of the
A.M.A., Guides, resulting in two percent impairment. Regarding the left wrist, Dr. Brandt
utilized the same figures to find that the loss of extension and radial deviation each constituted
one percent impairment, resulting in two percent impairment. He determined that appellant had
Grade 5 sensory and motor muscle deficit which constituted zero percent impairment under
Table 16-10 and Table 16-11 on pages 482 and 484, respectively, of the A.M.A., Guides.
On August 15, 2008 Dr. Morley Slutsky, an Office medical adviser, reviewed appellant’s
medical records, including Dr. Brandt’s June 3, 2008 report. He determined that appellant
reached maximum medical improvement on June 3, 2008. Dr. Slutsky agreed with Dr. Brandt’s
rating of two percent impairment to each upper extremity.
By decision dated August 20, 2008, the Office granted appellant schedule awards for two
percent impairment of each upper extremity.
On September 8, 2008 appellant requested a telephonic hearing with an Office hearing
representative. A November 5, 2007 report from Frank Romney, a physical therapist, found that
appellant had diminished grip strength and sensation in both hands although there were no
positive test results on neurological examination.
In a March 12, 2009 decision, an Office hearing representative affirmed the August 20,
2008 decision, finding that appellant had no more than two percent impairment of each upper
extremity.
By letter dated June 15, 2009, appellant requested reconsideration. He submitted medical
reports dated June 4, 2007 to May 12, 2009 from the employing establishment’s health unit
which addressed the treatment of his work-related conditions, physical restrictions and diagnostic
test results. In reports dated April 28 and December 7, 2008, Dr. Allisyn Okawa, a Boardcertified plastic surgeon, listed her findings on physical examination and found that appellant had

2

employment-related carpal tunnel syndrome and tenosynovitis. She stated that he was doing
well following carpal tunnel release, but he still had symptoms related to his employment-related
conditions that were permanent in nature. Dr. Okawa further stated that appellant had cervical
radiculopathy, but she was unable to determine whether the diagnosed condition was work
related.
In an August 20, 2009 decision, the Office denied modification of the August 20, 2008
and March 12, 2009 decisions, finding that appellant had no more than two percent impairment
of each upper extremity.
On November 2, 2009 appellant requested reconsideration. In a September 16, 2009
report, Sam DeLong, a hand therapist, found that appellant continued to suffer from loss of range
of motion, grip and pinch strength, pain, scar thickness and tenderness, and minimal sensation
related to his bilateral wrists. He showed minimal signs of his employment-related condition.
Mr. DeLong stated that although appellant had made progress with his recovery following his
bilateral carpal tunnel surgery, he had a functional score of 77.9 percent which represented a 22.1
percent functional deficit.
In a December 8, 2009 decision, the Office denied modification of the August 20, 2009
decision. The medical evidence submitted was found to be insufficient to establish that appellant
had more than two percent impairment of each upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.3 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.4

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

20 C.F.R. § 10.404.

3

5 U.S.C. § 8107(c)(19).

4

Supra note 2.

3

The fifth edition of the A.M.A., Guides, regarding carpal tunnel syndrome, provides:
“If, after optimal recovery time following surgical decompression, an individual
continues to complain of pain, paresthesias and/or difficulties in performing
certain activities, three possible scenarios can be present -1. Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described earlier.
2. Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal [electromyogram] testing of the thenar
muscles: a residual [carpal tunnel syndrome] is still present and an
impairment rating not to exceed five percent of the upper extremity may
be justified.
3. Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”5
The Board has found that, in accordance with the fifth edition of the A.M.A., Guides,
impairment arising from carpal tunnel syndrome should be rated on motor and sensory deficits
only.6 The A.M.A., Guides provides that, in compression neuropathies, additional impairment
values are not given for decreased motion strength in the absence of a complex regional pain
syndrome.7 Carpal tunnel syndrome is an entrapment/compression neuropathy of the median
nerve.8
ANALYSIS
The Office accepted appellant’s claim for bilateral tenosynovitis of the hands and wrists
and bilateral carpal tunnel syndrome and authorized carpal tunnel release. On August 20, 2008
he received schedule awards for two percent impairment of each upper extremity. The Board
finds, however, that this case is not in posture for decision.
Dr. Brandt, an attending physician, found in a June 3, 2008 report that appellant did not
have any impairment due to motor and sensory deficit as he had Grade 5 muscle loss (A.M.A.,
Guides 482, 484, Table 16-10 and Table 16-11).9 He calculated impairment ratings of two
5

A.M.A., Guides 495; Silvester DeLuca, 53 ECAB 500 (2002).

6

Id. at 494; T.A., 59 ECAB 221 (2007); Robert V. Disalvatore, 54 ECAB 351 (2003).

7

Id. at 494; see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 4 (June 2003); Kimberly M. Held, 56 ECAB 670 (2005); David D. Cumings, 55 ECAB 285 (2004).
8

Id. at 492.

9

See supra note 6.

4

percent each for the right and left upper extremities based on loss of range of motion which as
noted above, is not allowed in rating impairment due to carpal tunnel syndrome.10 The Board
finds, therefore, that Dr. Brandt’s impairment ratings are insufficient to form the basis for a
schedule award.
Similarly, the Board finds that the two percent impairment ratings of Dr. Slutsky, an
Office medical adviser, are of diminished probative value because he did not address the
A.M.A., Guides. He calculated his impairment ratings based on Dr. Brandt’s loss of range of
motion measurements which as stated, are not allowed in rating compression neuropathy such as,
carpal tunnel syndrome.11
For the stated reasons, the case will be remanded to the Office for a proper evaluation of
appellant’s claim for a schedule award in accordance with the above-described standards. After
such development as it deems necessary, the Office shall issue a de novo decision.12
CONCLUSION
The Board finds that this case is not in posture for decision as further medical
development is necessary regarding the extent of appellant’s right and left upper extremity
impairment.

10

See supra note 7.

11

Id.

12

The reports of Mr. Romney, a physical therapist, and Mr. DeLong, a hand therapist, are of no probative value
as therapists are not physicians as defined under the Act. 5 U.S.C. § 8101(2); A.C., 60 ECAB ___ (Docket No. 081453, issued November 18, 2008).

5

ORDER
IT IS HEREBY ORDERED THAT the December 8 and August 20, 2009 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further action consistent with this decision.
Issued: February 1, 2011
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, Portland, OR,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-937
Issued: December 12, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On March 4, 2011 appellant filed a timely appeal of a November 4, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The record also contains a
February 7, 2011 OWCP decision denying her request for a hearing as untimely. The appeal was
docketed as No. 11-937.
A review of the November 4, 2010 decision indicated that OWCP made findings that
there were compensable work factors: (1) coworkers commented about appellant’s age,
intelligence and ethnicity; (2) coworkers played pranks on appellant’s computer and
(3) comments were made regarding menopausal women. In addition, OWCP found these
allegations not established: (1) coworkers made fun of what appellant ate; (2) coworkers made
fun of appellant’s dress and culture and (3) coworkers commented on appellant’s odor.
The findings of fact were not accompanied by any explanation as to underlying legal
principles for compensability under the Federal Employees’ Compensation Act, such as assigned
duties, administrative actions or verbal abuse. Moreover, there was no explanation as to how the
evidence of record was considered in the determination of compensability. For example, the
accepted factors appeared to be allegations that were raised in an October 26, 2009 memorandum
of a discussion between appellant and two supervisors. The memorandum noted appellant’s

allegations and indicated that training sessions would be scheduled and the situation monitored.
OWCP did not explain whether it was finding the allegations had occurred based on this
memorandum, and if so, why these allegations are compensable. The Board also notes the
finding that other allegations were “not established” was not accompanied by any discussion of
the evidence or other explanation.1
In addition, there were allegations that were not addressed by OWCP. The October 26,
2009 memorandum stated that appellant had alleged sexual harassment, and OWCP provided no
findings on this allegation. Additional allegations had also been raised by her in statements
submitted on July 22 and August 9, 2010 that were not considered in the merit decision.
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered. If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.2
The case will accordingly be remanded to OWCP for proper findings on the issue
presented. After such further development as OWCP deems necessary, it should issue an
appropriate decision.

1

20 C.F.R. § 10.126.

2

T.G., 58 ECAB 189 (2006); F.L. Docket No. 11-638 (issued October 13, 2011).

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IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 4, 2010 is set aside and the case remanded for further
action consistent with this order of the Board.
Issued: December 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
ROBERT LEFLORE STATION, Chicago, IL,
Employer
__________________________________________

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

Docket No. 16-0204
Issued: April 8, 2016

Case Submitted on the Record

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

JURISDICTION
On November 13, 2015 appellant filed a timely appeal from a June 24, 2015 merit
decision and an August 12, 2015 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an upper
thigh muscle/groin strain causally related to factors of her federal employment; and (2) whether

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2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted new medical evidence. However, as the Board’s review is limited to evidence in
the case record at the time OWCP made its decision over which the Board has jurisdiction, the Board cannot review
evidence submitted for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); D.B., Docket No. 12-1653 (issued
March 26, 2013).

OWCP properly refused to reopen appellant’s case for further review on the merits pursuant to
5 U.S.C. § 8128(a).
On appeal, appellant contends that she has established that the injury occurred as a result
of her employment.
FACTUAL HISTORY
On December 2, 2014 appellant, then a 47-year-old carrier technician, filed an
occupational disease claim (Form CA-2) alleging that she sustained a left thigh strain as a result
of constant walking and ascending and descending stairs. In a note dated November 19, 2014,
she stated that she was injured on November 15, 2014. Appellant indicated that she had
completed her route and was returning to the station when she experienced excruciating pain in
her left upper thigh. She noted that every time she walked up or down stairs, the pain would
flare up again. The employing establishment controverted the claim.
In a December 5, 2014 note, a physician with an illegible signature indicated that
appellant could work “in the station only” due to left groin injury.
By letter dated December 16, 2014, OWCP informed appellant of the additional
information that was necessary to establish her claim. Appellant was afforded 30 days to submit
the requested information. She did not file a timely response.
By decision dated January 16, 2015, OWCP denied appellant’s claim as she failed to
submit medical evidence establishing a diagnosed medical condition.
On March 16, 2015 appellant requested reconsideration of the January 16, 2015 decision.
OWCP thereafter received additional medical evidence.
In a November 19, 2014 ultrasound of appellants left groin, Dr. Peter Berger, a Boardcertified radiologist, found a small benign-appearing left inguinal lymph node, no evidence of
soft tissue mass, and no definitive hernia.
In a January 6, 2015 report, Dr. Matthew T. Johnson, a physician Board-certified in
family medicine, noted that appellant stated that on November 15, 2014 she “pulled a muscle in
thigh” after finishing her walk for the employing establishment. He noted that she stated that the
pain only returned with stairs, not walking. Dr. Johnson diagnosed muscle strain of left thigh
and noted that appellant was already in physical therapy, but needed pain suppression and
anti-inflammatory medication.
Appellant also submitted ongoing treatment notes from November 19, 2014 through
February 11, 2015 by Dr. Joseph R. Mejia, a physician Board-certified in physical medicine and
rehabilitation. She related that she injured her left groin on November 19, 2014 when exiting a
vehicle while working for the employing establishment. Dr. Mejia diagnosed groin strain.
Appellant also submitted a January 5, 2015 duty status report by a physician with an
illegible signature; work status reports dated December 5 and 30, 2014 and January 5, 2015 that
also contained an illegible signature; and discharge instructions dated January 6, 2015 from the
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University of Illinois Hospital and Health Science System. She also submitted physical therapy
notes for treatment of groin strain by Sean O’Connor.
By decision dated June 24, 2015, OWCP modified its prior decision to reflect that
appellant had now established a diagnosed condition of the upper thigh muscle/groin strain.
However, the claim remained denied as she had not submitted sufficient medical evidence to
establish how the diagnosed condition was attributable to the accepted factors of employment.
On July 1, 2015 appellant again requested reconsideration. In support thereof, she
resubmitted the November 19, 2014 progress report by Dr. Mejia. However, Dr. Mejia added a
June 30, 2015 addendum wherein he noted, “Regarding the mechanism of causation, it is my
professional opinion that there is a causal relationship between [appellant’s] conditions and the
employment duties.”
By decision dated August 12, 2015, OWCP denied appellant’s reconsideration request
without conducting a merit review under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period, 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 the employment injury.3 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.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in 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 evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

See S.P., 59 ECAB 184, 188 (2007).

6

See Roy L. Humphrey¸ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

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factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS -- ISSUE 1
Appellant established that she experienced the alleged factors of federal employment and
established that she suffered from a groin strain. However, she failed to establish causal
relationship between her diagnosed groin strain and the accepted factors of her federal
employment. Accordingly, the Board finds that OWCP properly denied appellant’s claim.
None of the physicians of record provided a rationalized medical opinion establishing a
causal relationship between the accepted factors of appellant’s federal employment and her
medical diagnosis. In his progress notes dated from November 19, 2014 through February 11,
2015, Dr. Mejia noted that she indicated that she injured her left groin while exiting a vehicle at
the employing establishment and he provided a diagnosis of a groin strain. The Board notes that
Dr. Mejia’s reports were based upon an inaccurate history of injury as appellant alleged that her
injury occurred while walking and ascending up and descending stairs, not while exiting a
vehicle. The Board has held that medical reports must be based on a complete and accurate
factual and medical background. Medical opinions based on an incomplete or inaccurate history
are of limited probative value.8 Dr. Mejia did not provide a well-rationalized medical opinion
explaining how appellant’s groin strain was causally related to her accepted employment factors.
Dr. Johnson noted appellant’s employment history and diagnosed muscle strain of the left
thigh, but failed to provide a well-rationalized opinion linking the medical diagnosis to her
accepted employment factors. His opinion is of limited probative value as it does not contain
any medical rationale explaining how her job duties physiologically caused the diagnosed left
thigh condition.9 Therefore, Dr. Johnson’s report is insufficient to establish causal relationship.
Dr. Berger interpreted appellant’s ultrasound, but offered no opinion on causation.
Accordingly, his opinion is of limited probative value as he did not discuss causal relationship.10
The record contains numerous documents that contain an illegible signature. These
documents are of no probative value as it cannot be discerned whether a physician signed the
documents.11 Similarly, the hospital discharge notes are not signed by a physician. Appellant

7

I.J., 59 ECAB 408 (2008); supra note 4.

8

C.L., Docket No. 14-1585 (issued December 16, 2014); J.R., Docket No. 12-1099 (issued November 7, 2012);
Douglas M. McQuaid, 52 ECAB 382 (2001).
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T.W., Docket No. 15-1603 (issued October 20, 2015).

10

G.M., Docket No. 14-2057 (issued May 12, 2015).

11

See Merton J. Sills, 39 ECAB 572, 575 (1988); see also Sheila A. Johnson, 46 ECAB 323, 327 (1994).

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also submitted physical therapy reports.
physicians as defined by FECA.12

However, physical therapists are not considered

An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment, nor her belief that the condition was caused by her employment is sufficient to
establish causal relationship.13 As appellant did not establish that her medical condition was
causally related to the accepted factor of her employment, OWCP properly denied her claim.
Appellant may submit new evidence or argument as part of a formal 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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,14
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.15 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.16 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.17
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim as she failed to submit medical evidence sufficient to
establish that her accepted medical condition was causally related the accepted employment
factors. The Board finds that she has not submitted sufficient evidence with her reconsideration
request to warrant merit review. The only evidence that appellant submitted on reconsideration
was a June 30, 2015 addendum to the previously submitted report wherein Dr. Mejia concluded
12

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical
therapists are not competent to render a medical opinion under FECA). A.C., Docket No. 08-1453 (issued
November 18, 2008). Under FECA, a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical
opinion, in general, can only be given by a qualified physician).
13

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

14

Supra note 1. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against
payment of compensation at any time on [her] own motion or on application.” 5 U.S.C. § 8128(a).
15

20 C.F.R. § 10.606(b)(3).

16

Id. at § 10.607(a).

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Id. at § 10.608(b).

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that there was causal relationship between her condition and her employment factors. This
addendum is repetitive of Dr. Mejia’s previously submitted reports. Although he emphasized
that there is causal relationship, Dr. Mejia did not provide any explanation as to how appellant’s
injury occurred, causally related to the accepted employment factors. As previously noted,
Dr. Mejia’s previous reports all noted an inaccurate history of injury. The Board has found that
evidence which is repetitive, duplicative, or cumulative in nature is insufficient to warrant
reopening a claim for merit review.18 Accordingly, the Board finds that this report is not
sufficient to warrant a merit review.
Appellant did not submit relevant new and pertinent evidence with her request for
reconsideration. Furthermore, she neither showed that OWCP erroneously applied or interpreted
a specific point of law, nor advanced relevant legal argument not previously considered by
OWCP. Because appellant failed to meet one of the standards enumerated under section 8128(a)
of FECA, she was not entitled to further merit review of the claim.
CONCLUSION
The Board finds that appellant has not established that she suffered an upper thigh
muscle/groin strain causally related to factors of her federal employment. Furthermore, the
Board finds that OWCP properly refused to reopen her case for further review on the merits
pursuant to 5 U.S.C. § 8128(a).

18

J.B., Docket No. 14-1164 (issued November 20, 2014); Denis M. Dupor, 51 ECAB 482 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 12 and June 24, 2015 are affirmed.
Issued: April 8, 2016
Washington, DC

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

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

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

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

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

Docket No. 08-620
Issued: June 24, 2008

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 December 26, 2007 appellant filed a timely appeal from the May 4, 2007 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a left thumb injury while in the performance of
duty on August 10, 2006.
FACTUAL HISTORY
On March 16, 2007 appellant, a 51-year-old general expeditor, filed a traumatic injury
claim alleging that he injured his left thumb on August 10, 2006, when he fell while closing
equipment. The employing establishment controverted the claim on the grounds that appellant
had failed to establish the fact of injury, and that he had provided no medical evidence.

On August 19, 2007 Supervisor Mary Brow stated that she had no knowledge of the
alleged August 10, 2006 incident until March 16, 2007, when appellant told her that a gate fell
on his hand in the process of closing equipment. The record contains an employing
establishment injury display sheet, reflecting that appellant sustained a right shoulder strain on
April 9, 2004.
In a letter dated April 2, 2007, the Office informed appellant that the information
submitted was insufficient to establish his claim and allowed him 30 days to submit additional
information, including a detailed account of the alleged injury and a physician’s report, with a
diagnosis and a rationalized opinion as to the cause of the diagnosed condition.
By decision dated May 4, 2007, the Office denied appellant’s claim. Although it
accepted that the work event occurred as alleged, the Office found that he had failed to provide
any medical evidence from a physician, with a history of injury, a diagnosis, and a medical
opinion explaining the cause of his condition. Therefore, the evidence was insufficient to
establish that appellant had sustained an injury under the Act on August 10, 2006.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of the 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 or specific condition for
which compensation is claimed is causally related to the employment injury.1 When an
employee claims that he sustained a traumatic injury in the performance of duty, he must
establish the “fact of injury,” namely, he must submit sufficient evidence to establish that he
experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged, and that such event, incident or exposure caused an injury.2
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.3 Causal relationship is a
medical issue, and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion 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
1

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

2

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). The term “injury” as
defined by the Act, refers to a disease proximately caused by the employment. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(q), (ee).
3

Katherine J. Friday, 47 ECAB 591, 594 (1996).

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rationale explaining the nature of the relationship between the diagnosed condition and the
established incident, or factor of employment.4
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.5
ANALYSIS
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits, and that the workplace incident occurred as alleged. The issue,
therefore, is whether he has submitted sufficient medical evidence to establish that the
employment incident caused an injury. Appellant submitted no medical evidence in support of
his claim prior to the Office’s May 4, 2007 decision. Therefore, he failed to establish a prima
facie claim for compensation.
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
employment.6 To establish causal relationship, he must submit a medical report in which the
physician reviews those factors of employment identified by appellant as causing his condition
and, taking these factors into consideration, as well as findings upon examination and appellant’s
medical history, explains how these employment factors caused or aggravated any diagnosed
condition; and presents medical rationale in support of his opinion.7 Appellant failed to submit
such evidence and, therefore, failed to satisfy his burden of proof. The Board finds that the
Office properly denied his claim for benefits under the Act.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on August 10, 2006.

4

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

5

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

6

Patricia J. Glenn, 53 ECAB 159 (2001).

7

Robert Broome, supra note 1.

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ORDER
IT IS HEREBY ORDERED THAT the May 4, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 24, 2008
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

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