United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, SLIDELL MAIN POST )
OFFICE, Slidell, LA, Employer
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__________________________________________ )
T.P., Appellant

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

Docket No. 21-0868
Issued: December 21, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 20, 2021 appellant filed a timely appeal from an April 28, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted March 13, 2021 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 28, 2021 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review
of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus,
the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 15, 2021 appellant, then a 28-year-old rural carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on March 13, 2021 he injured his lower back when he
stood up as he was loading packages on his truck while in the performance of duty. He stopped
work on the date of the alleged injury.
In an accompanying statement, appellant indicated that he was loading his truck when he
experienced a striking pain in his lower back. He noted that he then notified his coworker and
supervisors of his pain. Appellant related that his condition gradually worsened throughout the
day and that he had to leave work at 6:30 p.m. due to his back pain.
In a March 15, 2021 witness statement, D.S, appellant’s supervisor, noted that on
March 13, 2021, when he called appellant into his office to discuss a pay issue, he reported that
his back was sore and that he believed the injury occurred the day before. He also alleged that he
was leaning over to sort small parcels in the back of his truck when he experienced soreness. D.S.
advised appellant not to lean for extended periods. In a witness statement of even date, A.E., a
coworker, noted that on March 13, 2021 appellant notified her that his back was hurting without
indicating why. She offered appellant over-the-counter pain medicine, which he accepted.
In a March 23, 2021 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of medical evidence
needed and afforded him 30 days to submit the necessary evidence.
On March 15, 2021 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16).
In a March 15, 2021 injury report, containing an illegible signature, an unidentifiable
healthcare provider noted that appellant sustained an injury on March 13, 2021 and could return
to work on March 17, 2021 with restrictions.
In a March 15, 2021 progress report, Amber Kelley, a medical assistant, noted that
appellant experienced a sharp pain while loading his truck on March 12, 2021, but continued to
work. She indicated that his pain worsened over the next days.
In a March 16, 2021 employing establishment accident report, C.D., appellant’s immediate
supervisor, related that on March 13, 2021 appellant experienced lower back pain when loading
his vehicle with large parcels.
In a March 19, 2021 injury report, containing an illegible signature, an unidentifiable
healthcare provider noted that appellant could return to work the next day with restrictions.
In a March 19, 2021 progress report, Deanna A. Dardar, a nurse practitioner, noted that
appellant presented with lower back pain after sustaining a work -related injury on March 13, 2021.
She conducted a physical examination and diagnosed lumbar strain.
On March 22, 2021 appellant accepted an offer for a modified assignment as a limited-duty
rural carrier assistant.
2

In an undated attending physician’s report, Part B of the Form CA-16, Julie Galloway, a
nurse practitioner, noted that appellant experienced a sharp pain in his lower back while loading
his truck with packages. She diagnosed lumbar strain.
In March 26, 2021 injury report and progress report, Ms. Galloway again diagnosed lumbar
strain. In a duty status report (Form CA-17) of even date, she reiterated her diagnosis and provided
work restrictions.
By decision dated April 28, 2021, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence containing a medical diagnosis in c onnection
with the accepted March 13, 2021 employment incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury. 7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
3

Supra note 1.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).

3

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 incident
identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted March 13, 2021 employment incident.
In support of his claim, appellant submitted reports dated March 15, 19, and 26, 2021 from
nurse practitioners and a medical assistant. OWCP also received an undated Part B of the Form
CA-16 from a nurse practitioner. However, the Board has held that certain healthcare providers
such as nurse practitioners and medical assistants are not considered physicians as defined under
FECA.10 Consequently, their medical findings and/or opinions will not suffice for purposes of
establishing causal relationship. 11 As such, this evidence is of no probative value and insufficient
to meet appellant’s burden of proof.
Appellant also submitted May 15 and 19, 2021 injury reports, containing an illegible
signature. The Board has held that reports that are unsigned or bear an illegible signature lack
proper identification and cannot be considered probative medical evidence, as the author cannot
be identified as a physician. 12 Therefore, these documents have no probative value and are
insufficient to establish the claim.
Accordingly, as there is no rationalized medical evidence of record establishing a
diagnosed medical condition causally related to the accepted March 13, 2021 employment
incident, the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

Section 8101(2) provides that under FECA the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by the applicable state law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual,
Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006); see also J.T., Docket No. 20-1486 (issued March 16, 2021) (medical assistants); R.L., Docket No. 190440 (issued July 8, 2019) (nurse practitioners).
11

Id.

12

R.L., Docket No. 20-0284 (issued June 30, 2020); M.A., Docket No. 19-1551 (issued April 30, 2020); T.O.,
Docket No. 19-1291 (issued December 11, 2019); Merton J. Sills, 39 ECAB 572, 575 (1988).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted March 13, 2021 employment incident. 13
ORDER
IT IS HEREBY ORDERED THAT the April 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 21, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

13

The Board notes that the employing establishment executed a Form CA-16. A completed Form CA-16
authorization may constitute a contract for payment of medical expenses to a medical facility or physician, when
properly executed. The form creates a contractual obligation, which does not involve the employee directly, to pay
for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c);
J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, HIGHLAND HILLS
STATION, Dallas, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-1098
Issued: October 26, 2017

Case Submitted on the Record

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

On September 20, 2016 appellant filed a timely appeal from a May 13, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 In the May 13, 2016
decision, an OWCP hearing representative affirmed a November 12, 2015 decision that denied a
request for authorization of an Ergo adjustable base bed with Tempur-pedic mattress and pillow.
OWCP accepted that on August 23, 2010 appellant sustained brachial neuritis or
radiculitis; lumbar sprain; major depression, recurrent episode; chronic pain syndrome; cervical
spinal stenosis; and impotence of organic origin.2 Appellant stopped work and was placed on the
periodic compensation rolls. In August 2013 Dr. Ronnie D. Shade, an attending Board-certified
orthopedic surgeon, requested authorization for a queen-size bed. In an April 18, 2014 letter of
medical necessity, Dr. Shade recommended an Ergo adjustable base bed with Tempur-pedic
mattress. On May 13, 2014 Dr. Ronald Blum, a Board-certified orthopedic surgeon and OWCP
medical adviser, reviewed the record and concluded that the requested equipment was not
1

Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R.
§ 501.5(b). By order dated September 8, 2017, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for
Oral Argument, Docket No. 17-1098 (issued September 8, 2017).
2

On October 24, 2012 appellant had an authorized anterior cervical discectomy.

medically necessary. Dr. Shade continued to request authorization for the bed. In a June 11,
2014 decision, OWCP denied authorization for the requested bed and mattress. After a timely
hearing request, on December 17, 2014an OWCP hearing representative found a conflict in
medical evidence between Dr. Shade and Dr. Blum and remanded the case to OWCP to obtain an
impartial evaluation regarding the need for the recommended bed/mattress. OWCP referred
appellant to Dr. Dale R. Allen, a Board-certified orthopedic surgeon, for an impartial evaluation.
In a June 11, 2015 report, Dr. Allen opined that, while the requested items would give appellant
some subjective pain relief, it would not be considered likely to cure or lessen his need for
compensation or give him any long-term benefit or relief of the symptoms caused by the workrelated injury. In a November 12, 2015 decision, OWCP denied authorization for the Ergo
adjustable base bed with Tempur-pedic mattress and pillow.
After a timely hearing request, a hearing was held on March 17, 2016. The hearing
transcript indicates that appellant submitted a February 25, 2016 letter of medical necessity from
Dr. Shade which the hearing representative indicated was being placed in the record as Exhibit 1.
The hearing representative and appellant discussed the report at the hearing. By decision dated
May 13, 2016, an OWCP hearing representative affirmed the November 12, 2015 decision. She
discussed both Dr. Allen’s June 11, 2015 report and the report of Dr. Shade dated February 25,
2016, submitted by appellant at the March 17, 2016 hearing. The hearing representative
specifically described elements of Dr. Shade’s report.
The Board finds that the case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), the Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Decisions on claims are based on the written
record, which may include forms, reports, letters, and other evidence of various types such as
photographs, videotapes or drawings.3 Evidence may not be incorporated by reference, and
evidence from another claimant’s case file may not be used.4 All evidence that forms the basis
of a decision must be in that claimant’s case record.5
The hearing representative’s May 13, 2016 decision referenced a February 25, 2016 letter
of medical necessity that appellant submitted at the March 17, 2016 hearing and was placed into
evidence by OWCP’s hearing representative as Exhibit 1. She relied on this medical evidence in
denying appellant’s request for authorization of the requested items. This report is not found in
the case record before the Board in this appeal. Due to this oversight, the Board is not in a
position to make an informed decision regarding appellant’s request for authorization.6
As the record lacks sufficient evidence for the Board to render an informed decision, the
case shall be remanded to OWCP for further development. As noted, all evidence that forms the

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
4

Id.

5

Id.

6

See L.W., Docket No. 17-0526 (issued May 12, 2017).

2

basis of a decision must be included in the case record.7 After OWCP has developed the record
consistent with the above-noted directive, it shall issue a de novo decision regarding appellant’s
request for authorization of an Ergo adjustable bed base with Tempur-pedic mattress and pillow.
IT IS HEREBY ORDERED THAT the May 13, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: October 26, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7

Supra note 3.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL MARSHAL AIR SERVICE,
Atlantic City, NJ, Employer
__________________________________________

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)

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

Docket No. 14-133
Issued: April 1, 2014

Case Submitted on the Record

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

JURISDICTION
On October 22, 2013 appellant filed a timely appeal from a May 8, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established entitlement to a schedule award.
FACTUAL HISTORY
On April 17, 2007 appellant, a 34-year-old federal air marshal, sustained abdominal pain
while performing weighted assisted pull ups. OWCP accepted the claim for left inguinal hernia.
It authorized surgery which was performed on June 7, 2007.
1

5 U.S.C. §§ 8101-8193.

Appellant came under the treatment of Dr. Glenn M. Zuck, an osteopath, on May 9, 2007
for a left groin injury. He reported being a fitness instructor for the federal air marshals and two
weeks prior he was performing pull-ups with weights and felt a sharp pain in the left inguinal
region. Dr. Zuck noted examination findings of slight fullness on the left and tenderness to
palpation about the left inguinal region. He diagnosed left inguinal strain and probable left
inguinal hernia. Dr. Zuck recommended a general surgical consultation. Thereafter, appellant
was treated by Dr. David May, a Board-certified general surgeon, who diagnosed left inguinal
hernia. On May 17, 2007 Dr. May noted findings of a cyst on the right testicle. On June 7, 2007
he performed an open repair of the left inguinal hernia with mesh and diagnosed left inguinal
hernia.2
On January 22, 2013 appellant filed a claim for a schedule award.
By letter dated February 11, 2013, OWCP noted that the evidence of record did not
contain a physician’s report which established that appellant had reached maximum medical
improvement or provided an impairment rating. It indicated that, while his claim was accepted
for inguinal hernia of the abdomen, it was not a scheduled member or function. OWCP
requested that appellant obtain a report from his physician who evaluates the extent of permanent
impairment of a scheduled member of the body under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3
Appellant submitted a March 4, 2012 statement noting that his current physician could
not adequately evaluate his injury for a schedule award for permanent impairment and requested
that OWCP recommend a specialist for his evaluation. No additional medical evidence was
submitted.
In a March 18, 2013 decision, OWCP denied appellant’s claim for a schedule award,
finding that the evidence was not sufficient to establish that he sustained any permanent
impairment to a scheduled member or function of the body under section 8107 of FECA.
Appellant submitted a March 26, 2013 letter requesting his medical file. He also
resubmitted his March 4, 2013 letter noting that his current physician could not adequately
evaluate his injury for a schedule award impairment and requested that OWCP recommend a
specialist for his evaluation.
In an April 5, 2013 letter, OWCP advised that it would schedule a second opinion
examination if appellant’s claim met the essential elements for a schedule award claim of work
related permanent condition involving a scheduled body member. It advised that his claim did
not meet these elements. OWCP explained that there was no evidence to show that appellant
sustained a work-related permanent impairment due to the accepted inguinal hernia that involved
a scheduled body member.
2

On August 5, 2008 appellant filed a Form CA-2a, notice of recurrence of disability, alleging that on July 20,
2008 he sustained a recurrence of disability which had been ongoing since the injury. He submitted an August 12,
2008 computerized tomography scan of the abdomen and pelvis which revealed a hydrocele in both testicles. On
September 19, 2008 OWCP accepted appellant’s recurrence of disability on July 20, 2008.
3

A.M.A., Guides (6th ed. 2008).

2

On April 9, 2013 appellant requested reconsideration. In a letter of that date, he
referenced an operative report documenting his injury and initial injury information and
diagnosis from a physician. Appellant indicated that he could not find a specialist to provide an
impairment rating and notified OWCP by telephone and in writing and did not receive a
response. He requested that he be scheduled for a second opinion physician. Appellant
submitted an attending physician’s report and narrative report from Dr. Zuck dated May 9, 2007
previously of record.
In a decision dated May 8, 2013, OWCP denied modification of the March 18, 2013
decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides6 has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.8 OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.9
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.10 FECA identifies members such as the arm, leg,
hand, foot, thumb and finger, organs to include the eye and functions as loss of hearing and loss

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Supra note 3.

7

See supra note 5.

8

Tammy L. Meehan, 53 ECAB 229 (2001).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(b) (August 2002).
10

See Leroy M. Terska, 53 ECAB 247 (2001).

3

of vision.11 Section 8107(c)(22) of FECA provides for the payment of compensation for
permanent loss of any other important external or internal organ of the body as determined by the
Secretary of Labor.12 The Secretary of Labor has made such a determination and pursuant to the
authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle,
ovary, uterus and tongue to the schedule.13
ANALYSIS
OWCP accepted appellant’s claim for left inguinal hernia due to an April 17, 2007 workrelated injury. On January 22, 2013 appellant filed a schedule award claim for his hernia.
OWCP denied his schedule award claim finding that he had not submitted sufficient evidence to
establish that he sustained a permanent impairment to a scheduled body member.
The Board notes that a schedule award cannot be granted for permanent impairment
based on appellant’s hernia condition because the hernia or abdomen have not been included
under FECA or the regulations as a scheduled member.14 The terms of FECA are specific as to
the method and amount of payment of compensation. Neither, OWCP nor the Board has the
authority to enlarge the terms of FECA or to make an award of benefits under terms other than
those specified in the statute.15
The Board finds that the medical evidence fails to establish that appellant has any
permanent impairment which would entitle him to a schedule award. Appellant has not
submitted sufficient evidence to establish that he sustained any permanent impairment to a
scheduled member as defined under section 8107 of FECA or the implementing federal
regulations. By letter dated February 13, 2013, OWCP informed him of the evidence necessary
to establish a schedule award. It requested that appellant submit an impairment evaluation from
his attending physician using the sixth edition of the A.M.A., Guides. No medical report from
his physicians specifically found permanent impairment to a scheduled member based on the
accepted hernia. Thus, OWCP properly denied appellant’s request for a schedule award.
On appeal, appellant asserts that he could not find a specialist to provide an impairment
rating and notified OWCP by telephone and in writing and did not receive a response. He
requested that he be scheduled for a second opinion physician. However, it is the claimant’s
burden to establish that he has sustained a permanent impairment of the scheduled member or
function as a result of any employment injury.16 OWCP procedures further provide that, if he
does not provide an impairment evaluation from his physician when requested, and there is no
11

5 U.S.C. § 8107(c).

12

Id. at § 8122(c)(22).

13

Supra note 5; Henry B. Floyd, III, 52 ECAB 220 (2001).

14

K.H., Docket No. 09-275 (issued August 14, 2009); S.K., Docket No. 08-848 (issued January 26, 2009).

15

Danny E. Haley, 56 ECAB 393 (2005).

16

Tammy L. Meehan, 53 ECAB 229 (2001).

4

indication of permanent impairment in the medical evidence of file, it may proceed with a formal
denial of the award.17
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 1, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(c) (February 2013).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Orlando, FL,
Employer
__________________________________________

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

Docket No. 19-1118
Issued: October 25, 2019

Case Submitted on the Record

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

JURISDICTION
On April 22, 2019 appellant, through counsel, filed a timely appeal from a March 27, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the March 27, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On September 23, 2017 appellant, then a 55-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that she injured both her right knee and middle to lower back that same date
while in the performance of duty. She explained that she had adjusted the height of her stool and
when she went to sit on it, the stool fell down. OWCP accepted appellant’s claim for cervical
sprain, lower back strain, and right knee sprain.
On August 8, 2018 appellant filed a claim for a schedule award (Form CA-7).
In a July 12, 2018 report Dr. Matthew D. Imfield, a Board-certified physiatrist, performed
an examination of appellant’s lower extremities noting symmetric manual muscle testing,
symmetric sensation, symmetric reflexes, and a negative straight leg raising test. An
electromyogram (EMG) demonstrated results consistent with bilateral S1 radiculopathy with no
acute changes. Dr. Imfield noted that the findings were consistent with an old injury or stenosis.
The EMG also demonstrated no evidence for peripheral neuropathy; findings consistent with
compression of the lateral popliteal neuropathy at the left fibular head; or findings consistent with
bilateral compression of the medial plantar, lateral plantar, and Baxter’s nerve.
On July 19, 2018 Dr. David P. Kalin, a Board-certified family practitioner, indicated that
he had utilized the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides)4 and determined that appellant’s bilateral lumbar
radiculopathy had resulted in five percent whole-body permanent impairment. He opined that
appellant had reached maximum medical improvement (MMI) on July 19, 2018. Dr. Kalin noted
that appellant had multiple preexisting morbidities, which had caused impairment.
On
examination he noted “full range of motion with minimal guarding” of the bilateral shoulders and
all other extremities were within normal limits; a vertical postsurgical incision over the right knee;
and diminished sensation circumferentially around the right knee, which was otherwise normal.
Dr. Kalin diagnosed chronic cervical musculoskeletal ligamentous strain with multilevel mild
degenerative spondylosis with facet arthropathy and postoperative changes following anterior
cervical discectomy and fusion of C5-6 without evidence of hardware complication; mild rightsided neural foraminal stenosis; a history of post-traumatic bilateral lumbar radiculopathy; chronic
cervicothoracic musculoskeletal ligamentous strain; a history of post-traumatic pain and “limited
range of motion” with the bilateral shoulders; status post right knee replacement on April 14, 2016;
history of cervicothoracic and thoracolumbar levoscoliosis; and status post left foot surgery for
flat feet.
On September 10, 2018 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving
as a district medical adviser (DMA), reviewed Dr. Kalin’s July 19, 2018 report, the medical
evidence of record, and a statement of accepted facts (SOAF). He found that Dr. Kalin’s
impairment evaluation could not be considered probative for schedule award purposes under
FECA, because he referenced no tables and provided no worksheets, narrative, or calculations to
4

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

2

explain the method by which he arrived at his determination. The DMA further noted that FECA
did not allow a schedule award for the spine, nor did it recognize whole person impairment.
Referring to Dr. Kalin’s findings on physical examination on July 19, 2018, as well as
Dr. Imfield’s findings on July 12, 2018, he rendered impairment evaluations of the right and left
lower extremities utilizing The Guides Newsletter, Rating Spinal Nerve Extremity Impairment
Using the Sixth Edition (July/August 2009) (The Guides Newsletter). The DMA noted that
Dr. Kalin had described strength within normal limits and diminished sensation around the right
knee that was otherwise normal, which was consistent with a total knee replacement, but not spinal
nerve dermatomal loss. Using Proposed Table Two for spinal nerve impairment resulting in lower
extremity impairment, he noted no motor deficit for spinal nerves L3-5 and S1, resulting in a
class 0 impairment for both lower extremities with a default value of zero and no net adjustment.
As such, the DMA calculated zero percent impairment of the right and left lower extremities.
By decision dated October 1, 2018, OWCP denied appellant’s schedule award claim
finding that she had not met her burden of proof to establish, through the medical evidence of
record, permanent impairment of a scheduled member or function of the body.
On October 9, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
In a follow-up report dated November 28, 2018, Dr. Kalin requested a diagnosis update for
lumbosacral strain and lumbar radiculopathy, noting that Dr. Imfield had confirmed lumbar
radiculopathy by EMG. On examination, he observed minimal swelling, full range of motion, and
normal neurovascular status of the bilateral hands.
The hearing took place on January 25, 2019. During the hearing, counsel noted that
Dr. Imfield’s July 12, 2018 electrodiagnostic testing report had been submitted to the record.
OWCP’s hearing representative held the case record open for at least 30 days for the submission
of additional evidence. No evidence was received.
By decision dated March 27, 2019, OWCP’s hearing representative affirmed the
October 1, 2018 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

3

the A.M.A., Guides as the uniform standard applicable to all claimants. 7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 8
Neither FECA nor its regulations provide for a schedule award for impairment to the back
or to the body as a whole. 9 Furthermore, the back is specifically excluded from the definition of
organ under FECA. 10 The sixth edition of the A.M.A., Guides does not provide a separate
mechanism for rating spinal nerve injuries as impairments of the extremities. Recognizing that
FECA allows ratings for extremities and precludes ratings for the spine, The Guides Newsletter
offers an approach to rating spinal nerve impairment consistent with the sixth edition methodology.
For peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries,
OWCP procedures indicate that The Guides Newsletter is to be applied. 11 The Board has
recognized the adoption of this methodology for rating extremity impairment as proper in order to
provide a uniform standard applicable to each claimant for a schedule award for extremity
impairment originating in the spine. 12
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment. 13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
On July 12, 2018 Dr. Imfield conducted an electrodiagnostic consultation with regard to
appellant’s lower extremities. On examination he noted symmetric manual muscle testing,
symmetric sensation, symmetric reflexes, and a negative straight leg raising test. An EMG
demonstrated results consistent with bilateral S1 radiculopathy with no acute changes. Dr. Imfield
noted that the findings were consistent with an old injury or stenosis.
In a report dated July 19, 2018, Dr. Kalin indicated that he had utilized the sixth edition of
the A.M.A., Guides to determine that appellant’s bilateral lumbar radiculopathy had resulted in
five percent whole-body permanent impairment. He opined that appellant had reached MMI on
July 19, 2018. In accordance with its procedures, OWCP properly referred the evidence of record
to its DMA, Dr. Katz. Dr. Katz found, in a September 10, 2018 report, that the impairment
7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
9

See L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB
354 (2004).
10

See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48
ECAB 572 (1997).
11

Supra note 9 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

12

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

13

See G.S., supra note 10; Veronica Williams, 56 ECAB 367 (2005).

4

evaluation of Dr. Kalin could not be considered probative for the purpose of recommending a
schedule award under FECA because he referenced no tables and provided no worksheets,
narrative, or calculations to explain the method by which he arrived at his determination. The
DMA also correctly noted that FECA does not allow a schedule award for the spine, nor does it
recognize whole person permanent impairment. Referring to Dr. Kalin’s physical examination
findings from the July 19, 2018 examination, as well as Dr. Imfield’s findings from July 12, 2018,
the DMA rendered impairment evaluations of the right and left lower extremities utilizing the
A.M.A., Guides and The Guides Newsletter. Dr. Imfield noted that Dr. Kalin had described
strength within normal limits and diminished sensation around the right knee that was otherwise
normal, which was consistent with a total knee replacement, but not spinal nerve dermatomal loss.
Using Proposed Table Two for spinal nerve impairment resulting in lower extremity impairment,
he noted no motor deficit for spinal nerves L3-5 and S1, resulting in a class 0 impairment for both
lower extremities with a default value of zero and no net adjustment. As such, the DMA calculated
zero percent impairment of the right and left lower extremities.
The Board finds that the DMA applied the appropriate tables and grading schemes of the
sixth edition of the A.M.A., Guides and The Guides Newsletter to the clinical findings of
Drs. Kalin and Imfield. The DMA’s calculations were mathematically accurate and there is no
medical evidence of record utilizing the appropriate tables of the sixth edition of the A.M.A.,
Guides and The Guides Newsletter demonstrating a percentage of permanent impairment. The
Board finds that he explained that Dr. Kalin’s rating was improperly based on whole person
impairment and that he had not explained the method by which he arrived at his percentage of
impairment, and that FECA does not allow a schedule award for the spine. The DMA further
noted that clinical findings for the lower extremities had been normal, with diminished sensation
around the right knee attributable to prior right knee replacement. The Board finds that the DMA
properly determined that appellant had zero percent permanent impairment of the lower
extremities.14
Appellant has submitted no other medical evidence in conformance with the sixth edition
of the A.M.A., Guides or The Guides Newsletter, establishing permanent impairment of a
scheduled member or function of the body. The Board therefore finds that she has not met her
burden of proof to establish her claim for a schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

14

See id.

5

ORDER
IT IS HEREBY ORDERED THAT the March 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2019
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

6


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

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

Docket No. 08-2105
Issued: February 11, 2009

Case Submitted on the Record

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

JURISDICTION
On July 25, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 15 and June 6, 2008 merit decisions denying her claims for a
recurrence of total disability and modification of a wage-earning capacity determination.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a recurrence of total disability on January 12, 2008 due to her accepted employment
injury, bilateral carpal tunnel syndrome; and (2) whether appellant met her burden of proof to
modify the Office’s September 28, 2001 wage-earning capacity determination.

FACTUAL HISTORY
In early 1991 the Office accepted that appellant, then a 28-year-old letter sorting machine
operator, sustained bilateral carpal tunnel syndrome due to the repetitive duties of her job.1
Appellant underwent a left carpal tunnel release on July 8, 1994 and a right carpal tunnel release
on August 19, 1994. Both surgical procedures were authorized by the Office. In October 1994
appellant returned to work for the employing establishment in a light-duty position as a modified
distribution clerk. In a December 8, 1994 decision, the Office reduced appellant’s compensation
effective October 1, 1994 based on its determination that her actual wages as a modified
distribution clerk fairly and reasonably represented her wage-earning capacity. In late 1998
appellant started working in another modified clerk position for the employing establishment. In
a September 17, 1999 decision, the Office adjusted appellant’s compensation effective
September 12, 1999 based on its determination that her wages in this modified clerk position
fairly and reasonably represented her wage-earning capacity.
On November 6, 1999 appellant began working for the employing establishment in a
light-duty position as a modified transportation clerk.2 The position involved checking mail for
quality control purposes. The physical requirements of the position did not require lifting more
than 10 pounds, prolonged fine motor movements of the arms, prolonged reaching or reaching
above the shoulders.
On April 24, 2000 Dr. Ward indicated that appellant’s arm condition had not changed.
On March 20, 2001 he indicated that appellant continued to complain of bilateral wrist pain.
In a September 28, 2001 decision, the Office adjusted appellant’s compensation effective
December 3, 2000 based on its determination that her wages as a modified transportation clerk
fairly and reasonably represented her wage-earning capacity.
On December 5, 2002 Dr. Ward stated that appellant continued to report extremity pain
from her carpal tunnel syndrome but could continue in her light-duty work. On August 10, 2005,
September 12, 2006 and March 5, 2007 Dr. Ward indicated that appellant’s condition was stable
and noted that she could continue to perform her light-duty position for six hours per day.
Appellant’s modified transportation clerk job was withdrawn by the employing
establishment effective January 12, 2008. She filed a claim alleging that on January 12, 2008
she sustained a recurrence of disability due to her accepted employment condition and bilateral
carpal tunnel syndrome. She also requested modification of the Office’s September 28, 2001
wage-earning capacity determination.

1

Appellant worked less than 40 hours per week at the time she sustained her employment injury.

2

The position involved working six hours per day for five days per week. In an August 30, 1999 report,
Dr. Thomas N. Ward, an attending Board-certified neurosurgeon, indicated that appellant continued to report pain
and numbness in her hands, especially on the left. He provided no indication that appellant could not continue
performing light-duty work. On December 2, 1999 Dr. Ward stated that appellant reported that “she feels pretty
well.”

2

In a January 14, 2008 letter, Denise Wilson, a manager for safety and health at the
employing establishment, indicated that the modified transportation clerk position was tailored to
appellant’s work restrictions and was not “a proper position on which to base [a loss of wageearning capacity].”
In a February 15, 2008 decision, the Office found that appellant did not meet her burden
of proof to establish that she sustained a recurrence of total disability on January 12, 2008 due to
her accepted employment injury because she did not submit sufficient medical evidence to
establish a recurrence. It also found that she did not meet her burden of proof to modify the
Office’s determination of her wage-earning capacity because she did not show that the original
determination was improper, that she had a material change in her employment-related condition
or that she was vocationally rehabilitated.
In a March 19, 2008 letter, John T. Godlewski, Jr., the manager of human resources for
the employing establishment, stated:
“The [p]ostal [s]ervice prior to the implementation of the [n]ational
[r]eassessment [p]rocess, would create these type of make work modified
[p]ositions in an effort to accommodate employees who had sustained an injury
while in a work status. The withdrawal of this October 25, 1999 position is a
result of the [n]ational [r]eassessment [p]rocess currently being undertaken
nationwide within the [p]ostal [s]ervice. This process is neither a downsizing nor
a reduction-in-force. If necessary work for one employee cannot be identified
within their medical limitations, their current modified position is withdrawn and
the employee is advised they can submit a claim for compensation for this injury
from [the Office]. This is the situation in your specific claim.
“It is the position of [p]ostal management that the action taken as a result of the
[n]ational [r]eassessment [p]rocess meets the definition of a valid recurrence
claim in accordance with [Office] procedures and highly recommends that you
contact [the Office] directly seeking their reconsideration of their determination to
not accept your claim for compensation.”
In a June 6, 2008 decision, the Office hearing representative affirmed the Office’s
February 15, 2008 decision.
LEGAL PRECEDENT -- ISSUE 1
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that she cannot perform such light duty. As part of this burden the employee must show a
change in the nature and extent of the injury-related condition or a change in the nature and extent
of the light-duty job requirements.3 Office procedure provides that a recurrence of disability can
3

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

3

be caused by withdrawal of a light-duty assignment made specifically to accommodate an
employee if the withdrawal is not due to misconduct or nonperformance of job duties.4
ANALYSIS -- ISSUE 1
Appellant claimed that she sustained a recurrence of total disability when her modified
transportation clerk position was withdrawn effective January 12, 2008. In a March 19, 2008
letter, Mr. Godlewski, Jr., the manager of human resources for the employing establishment,
acknowledged that appellant’s position was withdrawn as part of a wider restructuring of the
modified-duty positions at the employing establishment. He noted, “It is the position of [p]ostal
management that the action taken as a result of the [n]ational [r]eassessment [p]rocess meets the
definition of a valid recurrence claim in accordance with [Office] procedures and highly
recommends that you contact [the Office] directly seeking their reconsideration of their
determination to not accept your claim for compensation.” There is no indication that the
modified transportation clerk position was withdrawn due to misconduct or nonperformance of
job duties. Therefore, the Board finds appellant has established that she sustained an
employment-related recurrence of total disability when her modified work was withdrawn by her
employer effective January 12, 2008.5
LEGAL PRECEDENT -- ISSUE 2
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
employment-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was in fact erroneous.6 The burden of proof is on the
party attempting to show the award should be modified.7
Section 8115(a) of the Federal Employees’ Compensation Act provides that the “wageearning capacity of an employee is determined by [her] actual earnings if [her] actual earnings
fairly and reasonably represent [her] wage-earning capacity.”8 The Board has stated, “Generally,
wages actually earned are the best measure of a wage-earning capacity and in the absence of
evidence showing that they do not fairly and reasonably represent the injured employee’s wageearning capacity, must be accepted as such measure.”9 However, wage-earning capacity may not
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3b(1)(c) (January 1995).

5

See supra note 4 and accompanying text.

6

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

7

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

8

5 U.S.C. § 8115(a).

9

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is
defined in the implementing federal regulations as “the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury.” (Emphasis added.) 20 C.F.R. § 10.5(f). Once it is
determined that the actual wages of a given position represent an employee’s wage-earning capacity, the Office
applies the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in
the employee’s compensation.

4

be based on an odd-lot or make-shift position designed for an employee’s particular needs or a
position that is seasonal in an area where year-round employment is available.10 Wage-earning
capacity may only be based on a temporary or part-time position if the position held by the
employee at the time of injury was a temporary or part-time position.11
Office procedures direct that a wage-earning capacity determination based on actual
wages be made following 60 days of employment.12 The procedures provide for a retroactive
determination where an employee has worked for at least 60 days, the employment fairly and
reasonably represents the claimant’s wage-earning capacity, and work stoppage did not occur
due to any change in the claimant’s injury-related condition.13
ANALYSIS -- ISSUE 2
Appellant did not submit any evidence to show that the Office’s original determination
with regard to her wage-earning capacity was erroneous. In the present case, the Office based
appellant’s loss of wage-earning capacity on a determination that her actual earnings as a
modified transportation clerk beginning November 6, 1999 represented her wage-earning
capacity. This determination was consistent with section 8115(a) of the Act which provides that
the wage-earning capacity of an employee is determined by her actual earnings if her actual
earnings fairly and reasonably represent her wage-earning capacity.14 The Office properly noted
that appellant had received actual earnings as a modified transportation clerk for more than 60
days in that she had been working in the position since November 6, 1999 when the Office
issued its September 28, 2001 decision and there is no evidence that appellant’s earnings in this
position did not fairly and reasonably represent her wage-earning capacity. The modified
transportation clerk position was not an odd-lot or make-shift position designed for appellant’s
particular needs and it was not seasonal in nature.15 Moreover, the position was not a temporary
and, although it was a part-time position, appellant had been working part time at the time she
was injured.16
The evidence does not show that appellant’s actual earnings as a modified transportation
clerk did not fairly and reasonably represent her wage-earning capacity and the Office properly
adjusted her compensation based on this wage-earning capacity determination. For these
10

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7a(1) (July 1997).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7a(1), (3) (July 1997).
12

See id. at Chapter 2.814.7c (December 1993).

13

Id. at Chapter 2.814.7e (December 1993).

14

See supra note 9 and accompanying text.

15

See supra note 10 and accompanying text. An employing establishment official suggested that the position was
tailored to appellant’s work restrictions but she did not provide sufficient detail in her statement to establish that the
position was make-shift in nature.
16

See supra note 11 and accompanying text.

5

reasons, appellant has not shown that the Office’s original determination with regard to her
wage-earning capacity was erroneous.
Appellant suggested that there was a material change in the nature and extent of her
employment-related condition. However, the record does not contain evidence of such a
material change. Throughout the time she worked as a modified transportation clerk, Dr. Ward,
an attending neurosurgeon, indicated that appellant’s employment-related bilateral carpal tunnel
condition remained stable and that she could continue to perform her light-duty work. Moreover,
appellant has not been retrained or otherwise vocationally rehabilitated such that her work as a
modified transportation clerk would not be representative of her wage-earning capacity.
Therefore, appellant has not established that the Office’s September 28, 2001 wage-earning
capacity determination should be modified.
CONCLUSION
The Board finds that appellant met her burden of proof to establish that she sustained an
employment-related recurrence of total disability on January 12, 2008. The Board further finds
that appellant did not meet her burden of proof to modify the Office’s September 28, 2001 wageearning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 6 and February 15, 2008 decisions are reversed with respect to appellant’s claim for
recurrence of total disability effective January 12, 2008. The decisions are affirmed with respect
to appellant’s request for modification of the Office’s September 28, 2001 wage-earning capacity
determination.
Issued: February 11, 2009
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, WILLIAMSBURG FEDERAL
CORRECTIONAL INSTITUTION, Salters, SC,
Employer
__________________________________________

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

Docket No. 07-1362
Issued: October 19, 2007

Case Submitted on the Record

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

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from the April 6, 2007 decision of the
Office of Workers’ Compensation Programs finding that an overpayment of $703.26 had been
created and that he did not meet the criteria for waiver. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the issue of overpayment.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $703.26; and (2) whether the Office properly
denied waiver of the overpayment.1

1

The Board notes that appellant submitted new evidence along with his request for appeal. The Board is unable
to review this information as it was not part of the record at the time the Office issued its final decision. 20 C.F.R.
§ 501.2(c).

FACTUAL HISTORY
On August 28, 2006 appellant, then a 31-year-old senior correctional officer, filed a
traumatic injury claim alleging that his left knee was injured when his coworkers fell on it as
they attempted to move an inmate. He stopped work on August 28, 2006 and received
continuation of pay. On September 15, 2006 the Office accepted appellant’s claim for a left knee
strain. On October 23, 2006 he was placed on the periodic rolls. On December 14, 2006
appellant returned to full-time work in a light-duty position at the same rate of pay as his date-ofinjury position. The Office paid him for total disability through December 23, 2006.
By letter dated January 12, 2007, the Office informed appellant that he had been overpaid
in the amount of $703.26. The Office determined that appellant was without fault in the creation
of the overpayment and, therefore, eligible to seek a waiver of repayment. It provided him with
the opportunity to present evidence related to any request for waiver.
On January 19, 2007 appellant requested waiver of the overpayment. He contended that
he should not have to repay the overpayment because he played no part in its creation. Appellant
stated that his period of total disability had caused financial hardship to his family, in part
because he was paid monthly rather than biweekly. His family experienced physical and mental
effects from his period of total disability. Despite having her own health problems, appellant’s
wife overexerted herself to make up for his limitations and was hospitalized in October 2006.
On the attached overpayment recovery questionnaire, appellant stated that the family’s monthly
income was $4,041.002 and monthly expenditures were approximately $3,688.54. He reported
that he and his spouse had a total of $695.14 in their checking and savings accounts and that his
wife had jointly inherited a piece of land, which was of unknown value and had not yet been
divided.
By decision dated April 6, 2007, the Office denied waiver of repayment and found that a
repayment of $75.00 per month would be appropriate. The Office found that the evidence
presented by appellant did not establish that he required substantially all of his current income to
meet current ordinary and necessary living expenses each month. The Office stated that, because
appellant did not provide the value of the land owned by his wife, it could not determine whether
appellant’s resource base exceeded $8,000.00 plus $960.00 for each of his three children. For
these reasons, appellant did not meet the requirements of waiver of repayment.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act3 defines the limitations on the right to
receive compensation benefits. Section 8116 of the Act provides that, while an employee is
receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.4 The implementing regulation provides that
2

It is presumed that this sum represents their post-tax net income.

3

5 U.S.C. §§ 8101 et seq.

4

5 U.S.C. § 8116(a).

2

compensation for wage loss due to disability is available only for any periods during which an
employee’s work-related medical condition prevents him or her from earning the wages earned
before the work-related injury.5
ANALYSIS -- ISSUE 1
Appellant does not contest that an overpayment of compensation was created in this case.
He was placed on the periodic rolls on October 23, 2006 and received compensation every
28 days thereafter. On December 14, 2006 appellant returned to work with no loss of pay in a
full-time light-duty position. The Office noted that he received compensation for wage loss
through December 23, 2006. Since appellant was not entitled to compensation while working
full time, the amount he received from December 14 to 23, 2006 represents an overpayment of
compensation. The Office determined that appellant had been paid $703.26 during this period
and the Board finds that this represents the amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
When an overpayment has been made because of an error of fact or law, the Office is
required to adjust it in accordance with its regulations.6 Section 8129(b) of the Act provides:
“Adjustment or recovery by the United States may not be made when incorrect payment has
been made to an individual who is without fault and when adjustment or recovery would defeat
the purpose of [the Act] or would be against equity and good conscience.”7 The guidelines for
determining whether recovery of an overpayment would defeat the purpose of the Act or would
be against equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the
Code of Federal Regulations.
According to section 10.436, recovery of an overpayment would defeat the purpose of the
Act if it would cause hardship because the beneficiary needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and, also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.8 To establish that recovery
defeats the purpose of the Act, appellant must show that he or she needs substantially all current
income to meet current ordinary and necessary living expenses and that his or her assets do not
exceed the resource base.9

5

20 C.F.R. § 10.500.

6

5 U.S.C. § 8129(a).

7

5 U.S.C. § 8129(b).

8

Office procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004).
9

See Robert E. Wenholz, 38 ECAB 311 (1986).

3

Section 10.437 provides that recovery of an overpayment is considered against equity and
good conscience when an individual who received an overpayment would experience severe
financial hardship in attempting to repay the debt; and when an individual, in reliance on such
payments, gives up a valuable right or changes his or her position for the worse.10
ANALYSIS -- ISSUE 2
As appellant was without fault in the creation of the overpayment, the Office is allowed
to recover the overpayment only if recovery would neither defeat the purpose of the Act nor be
against equity and good conscience. As noted, repayment would defeat the purposes of the Act
if appellant needed substantially all of his current income to meet ordinary and necessary living
expenses and his assets did not exceed the resource base. Appellant stated that he and his wife
had a monthly income of $4,041.00 and monthly expenditures of $3,688.54, leaving $352.46 per
month. The Board has held that an individual is deemed to need substantially all of his or her
income to meet current ordinary and necessary living expenses if monthly income does not
exceed monthly expenses by more than $50.00.11 As appellant’s income exceeds his
expenditures by $352.46, the Board finds that he is not deemed to need substantially all of his
current income to meet his ordinary and necessary living expenses. He also reported that he and
his wife had a total of $695.14 in liquid assets and that his wife had jointly inherited a piece of
land of unknown value as it had not yet been divided. Appellant has not met the first part of the
two-part test of whether recovery of the overpayment would defeat the purposes of the Act, it is
not necessary for the Office to consider whether the assets of his or his wife exceed the allowable
resource base.12
Recovery of the overpayment would also be improper if it were against equity and good
conscience. Appellant stated that his period of disability had caused financial hardship to his
family, but presented no evidence that repayment of the overpayment would present severe
financial hardship. The evidence does not demonstrate that appellant relinquished a valuable
right or changed his position for the worse in reliance on the overpaid compensation.
The Board finds that appellant has not shown that recovery of the overpayment would
defeat the purpose of the Act or would be against equity and good conscience. Therefore, the
Office properly denied waiver of recovery of the $703.26 overpayment of compensation.
With respect to the recovery of the overpayment, the Board notes that its jurisdiction is
limited to reviewing those cases where the Office seeks recovery from continuing compensation
benefits under the Act.13 As the record does not indicate that appellant is receiving continuing
compensation benefits, the Board does not have jurisdiction over the Office’s decision to recover
the overpayment by requiring appellant to remit $75.00 per month.

10

20 C.F.R. § 10.437.

11

Desiderio Martinez, 55 ECAB 245 (2004).

12

Id.

13

Levon H. Knight, 40 ECAB 658 (1989).

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CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $703.26. The Board further finds that the Office
properly denied waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 6, 2007 is affirmed.
Issued: October 19, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., claiming as a widow of N.H., Appellant
and
DEPARTMENT OF JUSTICE, U.S.
ATTORNEY’S OFFICE, Oxford, MS, Employer
__________________________________________

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

Docket No. 12-1930
Issued: March 28, 2013

Case Submitted on the Record

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

JURISDICTION
On September 19, 2012 appellant, the employee’s widow, filed a timely appeal from a
March 23, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for survivor’s benefits. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the employee’s death is causally related to his accepted employment
injury.
FACTUAL HISTORY
On April 25, 1997 the employee, then a 45-year-old law enforcement coordinator, filed
an occupational disease claim alleging that he sustained bilateral femoral deep vein thrombosis
1

5 U.S.C. § 8101 et seq.

causally related to factors of his federal employment. He attributed his condition to extensive
sitting during a business trip. The employee stopped work on February 3, 1997. OWCP
accepted the claim for bilateral venous thrombosis, an injury to the inferior vena cava and lateral
popliteal nerve lesions.
It paid the employee compensation for disability beginning
September 14, 1997.
On November 30, 2006 appellant advised OWCP that the employee died on
November 18, 2006. A death certificate dated December 1, 2006 listed the cause of death as a
myocardial infarction.
In a report dated October 27, 2009, Dr. R. Barry Jones, Board-certified in family
medicine, related that he had treated the employee beginning January 1997. He attributed many
of the employee’s health problems to “gunshot wound injuries he sustained in the line of duty.
These injuries le[d] to venous thrombosis in his legs and resultant post phlebitis syndrome as
well as nerve damage in his legs. [The employee] was also found to have severe sleep apnea that
never was adequately corrected with forced air and supplemented oxygen.” Dr. Jones related
that it was unlikely a heart condition caused the employee’s death as he was taking
anticoagulates for his chronic venous condition. He stated, “With [the employee’s] severe sleep
apnea and the severe pain that he was in it is likely that he died of either respiratory failure from
a pulmonary embolus or cardiac failure from chronic hypoxemia and pulmonary hypertension.
Since he was anticoagulated I feel that the latter possibility is more likely.” Dr. Jones noted that
the employee took pain medication the morning of his death that “would have contributed to his
respiratory failure.”
In a report dated October 29, 2009, Dr. Frank Nichols, a Board-certified surgeon, related
that he treated the employee during his hospitalization in January 1997 for bilateral deep vein
thrombosis. He subsequently evaluated the employee every six months and performed
“aggressive treatment for venous pooling related to valve damage from clots, including
prescription of compression stockings, pneumatic cuffs and continued Coumadin therapy.” In
1999, Dr. Nichols referred the employee for the placement of a catheter to dissolve the clot and
improve the flow of blood. He stated, “For [the employee], this was a last resort effort since he
was pooling 80 percent of the blood in [his] lower extremities and suffering significant shortness
of breath.” Dr. Nichols related that his condition progressively deteriorated. He asserted that the
employee had no history of a myocardial infarction and opined that the identification of
myocardial infarction as the cause of death was “premature.” Dr. Nichols noted that the pain
medications he took for his popliteal nerve lesions could cause respiratory depression and that
his position on the ground when found indicated that “respiratory depression leading to arrest
could have been the direct cause of death.” He asserted:
“In my opinion, [the employee’s] death was accelerated by or precipitated by the
diagnoses of venous thrombosis, bilateral, injury to vena cava or treatment of
lateral popliteal nerve lesions. [He] had been seated with his legs in a dependent
position with limited movement for approximately three hours. He placed himself
in a position on the ground in order to assist the return flow of blood to his heart
as if he were experiencing acute distress of lower extremity pain or shortness of
breath. These facts suggest a possible pulmonary embolus as the cause of death.”

2

In an undated statement received November 17, 2009, John Conrad, a friend and former
coworker of the employee, described his pain and limitations following his 1997 employment
injury. He related that he found the employee after he died and that it seemed that he had “lain
down intentionally as opposed to falling down….”
On November 2, 2009 appellant filed a claim for death benefits.2
On August 6, 2010 an OWCP medical adviser reviewed the case record and noted that
the cause of death listed on the death certificate as a heart attack was “largely speculative without
a postmortem exam[ination].” He asserted that if the death resulted from a pulmonary embolism
it would be employment related.
On March 29, 2012 OWCP referred the case record and a statement of accepted facts to
Dr. Soheila Benrazavi, a Board-certified internist, for a second opinion examination. The
statement of accepted facts provided that the employee had a preexisting gunshot injury to his
inferior vena cava in 1974 and resulting pulmonary emboli.
In a report dated March 9, 2012, Dr. Benrazavi reviewed the history of the employee’s
injury and the medical evidence of record. He noted that the employee had a preexisting injury
to his inferior vena cava from a gunshot wound. Dr. Benrazavi related that a review of the
records revealed no history of heart failure or coronary artery disease. He discussed the
employee’s history of sleep apena but found that it was not likely that it caused a heart condition
based on a review of the medical evidence. Dr. Benrazavi stated:
“What we do have substantial evidence for in the medical records is the picture of
a man who, unfortunately for him, had a longstanding history of problems with
deep venous thrombosis. Although initially this came to light more so on
January 31, 1997 after returning from the business trip and prolonged sitting
during that travel and the claimant was granted disability based on that,
unfortunately for him the condition never resolved. To the contrary, by review of
medical records, over time his condition worsened. Although Dr. Nichols
attempted to help him by referring the claimant to an outside hospital to perform
invasive radiological procedures in an attempt to open up the occluded lower
extremity veins, we do know that in the September 1999 hospitalization, in fact
there were multiple complications related to this procedure. It was a very
extensive hospitalization with multiple complications.
“Unfortunately, over time, not only did the condition not get better, but worsened.
This is firmly established by review of medical records and results of venogram
and venous studies of the lower extremities.”

2

Appellant submitted her marriage certificate.

3

Dr. Benrazavi related that the employee’s deep venous thrombosis became chronic. He
indicated that a probable cause of death for a person with significant deep venous thrombosis
would be pulmonary embolism. Dr. Benrazavi stated:
“Not having access to any eye witness account, I would just state that if there is
any account of eye witnesses that such symptoms developed shortly before he
collapsed and died, I would say that there is more than 75 percent probability that
he was experiencing a deadly condition of pulmonary embolism.
“In his case, with such extensive history of chronic deep venous thrombosis, he
might also have had showers of emboli to the lungs and overwhelming of the
pulmonary system if not saddle emboli. However, if there are no eye witness
accounts in the last moment before his death, I would say that given this man’s
history by review of medical records and the pathophysiology of sudden death in
the context of his history of extensive chronic venous thrombosis, it is more likely
than not (more than 50 percent likelihood) that this man’s death was caused by
pulmonary embolism.
“As such pulmonary embolism would be directly related to the chronic condition
of deep venous thrombosis of the lower extremities as the blood clot from the legs
is what migrates up to the pulmonary system and unfortunately ending up near the
great vessels of the heart and in the case of saddle embolism and in the case of
shower emboli, could overwhelm the pulmonary system and cause hypoxemia,
which in turn places the myocardium in hypoxic stress leading to cardiac
arrhythmia and ventricular fibrillation and death.
“Given that, it is less probable and less likely than not, (less than 50 percent
probability) that another condition such as myocardial infarction or a cardiac
failure for which we have no evidence in the medical records and by history,
could have caused the claimant’s death.”
By decision dated March 23, 2012, OWCP denied appellant’s claim for survivor’s
benefits. It found that the evidence was insufficient to show that the employee’s death was
causally related to his accepted work injury.
On appeal, appellant discusses Dr. Benrazavi’s report and contends that his opinion
supports her claim for death benefits.
LEGAL PRECEDENT
The United States shall pay compensation for the death of an employee resulting from
personal injury sustained while in the performance of duty.3 An appellant has the burden of
proving by the weight of the reliable, probative and substantial evidence that the employee’s
death was causally related to his or her federal employment. This burden includes the necessity
of furnishing medical opinion evidence of a cause and effect relationship based on a proper
3

5 U.S.C. § 8102(a).

4

factual and medical background.4 The opinion of the physician must be one of reasonable
medical certainty and must be supported by medical rationale.5 The mere showing that an
employee was receiving compensation for total disability at the time of death does not establish
that the employee’s death was causally related to his or her federal employment.6
It is not necessary to provide a significant contribution of employment factors for the
purpose of establishing causal relationship.7
Once OWCP starts to procure a medical opinion, it must do a complete job.8 It has the
responsibility to obtain from its referral physician an evaluation that will resolve the issue
involved in the case.9
ANALYSIS
OWCP accepted that the employee sustained bilateral venous thrombosis, an injury to the
inferior vena cava and lateral popliteal nerve lesions as a result of extensive sitting while on
travel in the course of his federal employment. The employee had a preexisting injury to his
inferior vena cava as a result of a 1974 gunshot injury with a resulting history of pulmonary
emboli. OWCP paid the employee compensation for total disability until his death on
November 18, 2006. A December 1, 2006 death certificate provided the cause of death as a
myocardial infarction.
Appellant filed a claim for death benefits. On October 27, 2009 Dr. Jones, who had
treated the employee since January 1997, found that many of his health problems resulted from
his gunshot injury. He indicated that the gunshot wound caused bilateral venous thrombosis,
nerve damage and postphlebitis. Dr. Jones also discussed the employee’s history of sleep apnea
that required oxygen. He asserted that his death was more likely due to respiratory failure from a
pulmonary embolus or cardiac failure from hypoxemia and pulmonary hypertension than to a
heart condition.
In a report dated October 29, 2009, Dr. Nichols, another attending physician, related that
he treated the employee during his hospitalization in January 1997 for deep vein thrombosis in
both legs. He described his attempts to treat the employee for venous pooling and noted that his
condition steadily deteriorated. Dr. Nichols attributed the cause of death resulted to his bilateral
vena cava injury or from the treatment of his popliteal nerve lesions.

4

Viola Stanko (Charles Stanko), 56 ECAB 436 (2005).

5

L.R. (E.R.), 58 ECAB 369 (2007); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

6

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139 (2001).

7

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

8

See Beth P.Chaput, 37 ECAB 158 (1985); William N. Saathoff, 8 ECAB 769 (1956).

9

See Melvin James, 55 ECAB 406 (2004); Mae Z. Hackett, 34 ECAB 1421 (1983).

5

OWCP referred the employee’s case record to Dr. Benrazavi for a second opinion
examination. Dr. Benrazavi reviewed the history of the employee’s accepted employment
injury, his preexisting gunshot wound to the inferior vena cava and his sleep apnea. He found
that the employee’s death was not likely due to a heart condition as he had no history of
treatment for a heart condition or coronary artery disease. Dr. Benrazavi related that the
employee had an extensive history of deep venous thrombosis that “came to light” after his
business trip in January 1997. He asserted that with the employee’s history of deep venous
thrombosis a pulmonary embolism was a probable cause of death. Dr. Benrazavi concluded that
it was more likely than not that a pulmonary embolism caused his death. He attributed the
pulmonary embolism to the deep venous thrombosis.
Dr. Benrazavi’s medical opinion is supportive of appellant’s claim that the employee died
as a result of his work injury. As noted, it is not necessary to prove a significant contribution of
employment factors to a condition for the purpose of establishing causal relationship. If the
medical evidence reveals that a work factor contributed in any way to the employee’s condition,
the condition is compensable.10 Dr. Benrazavi offered a detailed explanation of how the deep
venous thrombosis could cause a pulmonary embolism leading to hypoxemia, cardiac arrhythmia
and death. He did not, however, specifically address whether the deep venous thrombosis, which
he found more likely than not caused a pulmonary embolism and the employee’s death, was due
to the accepted employment injury or the 1974 gunshot injury. As noted, Dr. Jones attributed a
large portion of the employee’s problems to a prior history of a gunshot wound causing venous
thrombosis bilaterally.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. Once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do in a manner that will resolve the relevant issues in the case.11 The Board
finds that, although Dr. Benrazavi’s report insufficiently addressed the issue of causal
relationship, it raises an inference of causal relationship sufficient to require further
development. Accordingly, the Board finds that the case must be remanded to OWCP. On
remand, OWCP should request that Dr. Benrazavi submit a supplemental, clarifying report on
the issue of whether the employee’s death was due to deep venous thrombosis resulting from the
accepted work injury. Following this and any other development deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

10

See R.M., Docket No. 11-1701 (issued March 19, 2012); Arnold Gustafson, 41 ECAB 131 (1989).

11

See Melvin James, supra note 9.

6

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2012 merit decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: March 28, 2013
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

7