United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, IN, Employer
__________________________________________

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Docket No. 14-0943
Issued: November 25, 2016

Oral Argument May 19, 2015

Appearances:
Ron Watson, for the appellant1
No appearance, for the Director

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

JURISDICTION
On March 14, 2014 appellant, through her representative, timely appealed the
September 23, 2013 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 the claim.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
3

5 U.S.C. § 8101 et seq.

Appellant timely requested Oral Argument and the Board, exercising its discretion, granted appellant’s request.
Order Granting Oral Argument, Docket No. 14-0943 (issued April 17, 2015). The oral argument hearing was held
on May 19, 2015. The Board subsequently requested a pleading on the application of Chapter 15 of the sixth edition
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).
Responses were received from both the Director of OWCP and appellant’s representative.

ISSUE
The issue is whether appellant has established more than eight percent permanent
impairment of the right upper extremity, for which she received a schedule award.
FACTUAL HISTORY
Appellant, a 57-year-old letter carrier, injured her right shoulder while delivering mail on
June 18, 2007. She was walking up a flight of stairs when her mailbag got caught on a handrail
and jerked her right shoulder.4 OWCP accepted right shoulder sprain, rotator cuff tendinitis, and
suprascapular neuropathy under File No. xxxxxx194.5 Additionally, it approved a June 24, 2010
right shoulder arthroscopic procedure performed by Dr. Gary W. Misamore, a Board-certified
orthopedic surgeon.6
On June 10, 2012 appellant filed a claim for a schedule award (Form CA-7). OWCP
contacted Dr. Misamore on June 20, 2012 and requested that he provide an impairment rating in
accordance with the A.M.A., Guides (6th ed. 2009). It instructed Dr. Misamore to include a
discussion of the rationale for the calculation based on the applicable criteria and/or tables in the
sixth edition of the A.M.A., Guides. Additionally, OWCP noted that, if there was more than one
method of impairment evaluation in the A.M.A., Guides, the rating report should include “an
explanation for the calculation method chosen.”
In a report dated August 3, 2012, Dr. Misamore found 20 percent permanent impairment
of the right upper extremity, which he attributed to loss of motion and strength due to
glenohumeral osteoarthritis, rotator cuff tendinosis, and suprascapular neuropathy. Although he
referenced various tables from Chapter 15 (The Upper Extremities) of the sixth edition of the
A.M.A., Guides, it was not readily apparent how he arrived at his 20 percent permanent
impairment rating.
OWCP referred appellant for a second opinion examination with Dr. Norman Mindrebo,
a Board-certified orthopedic surgeon.7 It prepared a statement of accepted facts (SOAF) which it
forwarded to Dr. Mindrebo. OWCP also instructed him to examine appellant and provide a
rating of the right upper extremity using the sixth edition of the A.M.A., Guides. The rating
report was to include a “[d]escription of any restriction of movement in terms of degrees of
retained active motion of the bilateral upper extremities.” OWCP also provided Dr. Mindrebo an
upper extremity impairment rating worksheet for the purpose of showing his calculations.
4

Appellant had previously injured the same shoulder on September 19, 2005, and underwent surgery on
January 6, 2006 (File No. xxxxxx259). OWCP accepted appellant’s September 19, 2005 right shoulder injury for
sprain/strain and impingement syndrome. The January 6, 2006 arthroscopic surgery included subacromial
decompression/acromioplasty and right distal clavicle resection (Mumford procedure).
5

OWCP doubled the two right shoulder injury claims and designated the June 18, 2007 injury as the master file
(File No. xxxxxx194).
6

The June 24, 2010 surgery included arthroscopic suprascapular nerve decompression, revision arthroscopic
acromioplasty, and limited glenohumeral joint debridement.
7

Dr. Mindrebo is also Board-certified in the subspecialty of orthopedic sports medicine.

2

Dr. Mindrebo examined appellant on July 18, 2013 and found 21 percent permanent
impairment of the right upper extremity based on loss of shoulder ROM under Table 15-34,
A.M.A., Guides 475 (6th ed.). His narrative report included the following information regarding
appellant’s bilateral upper extremity ROM:
“[Appellant] definitely has limitations with regard to her shoulders and neck. For
example, she has active forward flexion only to 85 degrees involving the right
shoulder compared to 170 degrees with the left shoulder. [Appellant] has active
abduction to 85 degrees with the right shoulder compared to active left shoulder
abduction of 170 degrees. She has active extension of the right shoulder to 30
degrees compared to 50 degrees involving the unaffected left shoulder.
[Appellant] has active internal rotation on the right to only 30 degrees compared
to internal rotation actively to 90 degrees on the left. She has external rotation to
60 degrees on the right shoulder compared to 90 degrees on the left shoulder.
[Appellant] has adduction to 30 degrees on the right shoulder compared to
adduction of 60 degrees on the unaffected left shoulder.”8
Dr. Mindrebo recorded the above-noted right shoulder ROM deficits on the ratings
worksheet provided by OWCP and he identified the corresponding upper extremity impairment
under Table 15-34, Shoulder Range of Motion, A.M.A., Guides 475 (6th ed. 2009). The
impairments due to loss of flexion (9 percent), abduction (6 percent), adduction (1 percent),
internal rotation (4 percent), and extension (1 percent) totaled 21 percent of the right upper
extremity, which corresponded to a grade 2 ROM modifier under Table 15-35, A.M.A., Guides
477 (6th ed. 2009). Additionally, Dr. Mindrebo assigned a grade 2 modifier for Functional
History (GMFH). Because the functional history and ROM grade modifiers were the same (2),
no further adjustment was required pursuant to Table 15-36, A.M.A., Guides 477 (6th ed. 2009).
Accordingly, Dr. Mindrebo calculated a final right upper extremity impairment rating of 21
percent.
On August 7, 2013 OWCP referred Dr. Mindrebo’s July 18, 2013 impairment rating to a
district medical adviser (DMA) for review. In a report dated August 8, 2013, Dr. Morley
Slutsky, the designated DMA, disagreed with Dr. Mindrebo’s right shoulder ROM impairment
rating.9 He noted that Dr. Mindrebo “used the less preferred ROM method with invalid
measurements.” Dr. Slutsky explained that diagnosis-based impairment (DBI) was the preferred
methodology, rather than the ROM-based method the second opinion physician utilized. He
quoted section 15.2, page 387 of the A.M.A., Guides (6th ed. 2008) noting that “Range of motion
is used primarily as a physical examination adjustment factor and only to determine actual
impairment values in the rare case when it is not possible to otherwise define impairment....”
Dr. Slutsky also questioned the validity of Dr. Mindrebo’s ROM measurements, noting he

8

The narrative report also indicated that appellant exhibited some difficulty in performing activities of daily
living (ADLs), such as caring for herself. Dr. Mindrebo noted for example, “when [appellant] tries to do her hair,
she typically leans her head to the right and reaches out with her right hand keeping her shoulder forward flexed
about 45 degrees and her elbow maximally flexed.”
9

Dr. Slutsky is Board-certified in occupational medicine.

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documented only one measurement per joint, which was considered inconsistent with the criteria
for assessing motion under section 15.7a, A.M.A., Guides 464-65 (6th ed. 2008).
Dr. Slutsky applied the DBI method and found seven percent permanent impairment of
the right upper extremity for right shoulder glenohumeral post-traumatic degenerative joint
disease under Table 15-5, A.M.A., Guides 405 (6th ed. 2008).10 He also found an additional one
percent for peripheral nerve impairment under Table 15-21, A.M.A., Guides 436, 442 (6th ed.).11
Dr. Slutsky determined that appellant had a total of eight percent permanent impairment of the
right upper extremity and was considered to be at maximum medical improvement (MMI) as of
July 18, 2013, the date of Dr. Mindrebo’s examination.
In a September 23, 2013 decision, OWCP granted a schedule award for eight percent
permanent impairment of the right upper extremity. The award covered a period of 24.96 weeks
beginning July 18, 2013. OWCP based the schedule award on Dr. Slutsky’s August 8, 2013
impairment rating. The claims examiner noted that Dr. Slutsky, the DMA, disagreed with
Dr. Mindrebo’s impairment rating because he “used the less preferred [ROM] impairment
method with invalid measurements.” She further noted that Dr. Slutsky used the preferred DBI
method and also quoted “[s]ection 15.2, page 387,” noting that ROM was to be used for rating
impairment “only ... in the rare case when it is not possible to otherwise define impairment....”12
Accordingly, OWCP found that Dr. Slutsky’s DBI rating represented the weight of the medical
evidence because he “correctly applied the [A.M.A., Guides] to the examination findings.”
Appellant’s representative argues on appeal that OWCP should have based the
September 23, 2013 schedule award on the 21 percent ROM-based rating provided by
Dr. Mindrebo, OWCP’s referral physician. He contends that Dr. Mindrebo found that
appellant’s primary impairing diagnosis was right shoulder glenohumeral arthritis and that he
then appropriately rated appellant’s arthritis/degenerative joint disease under the ROM
methodology, finding loss of shoulder motion for 21 percent right upper extremity permanent
impairment. Appellant’s representative further contends that Dr. Slutsky, the DMA, improperly
applied the A.M.A., Guides and rated appellant for a combination of impairments due to
shoulder degenerative joint disease and a mild sensory loss (peripheral nerve impairment) under
the DBI methodology on an improper application of the A.M.A., Guides. He asserts that
Dr. Slutsky and the hearing representative erred in citation to section 15.2 of the A.M.A., Guides
when quoting that ROM was to be used for rating impairment “only … in the rare cases when it
is not possible to otherwise define impairment.” Appellant’s representative notes that the
language of section 15.2 was amended in the second printing of the A.M.A., Guides and the
updated language in section 15.2, page 387 now states that “Range of motion is used primarily as

10

The DMA noted that appellant’s right shoulder degenerative joint disease represented class 1, Class of
Diagnosis (CDX) impairment, with a default upper extremity rating of five percent. Additionally, the DMA
calculated a net adjustment of 1, which resulted in a final right upper extremity rating of seven percent. Net
Adjustment (1) ꞊ (GMFH 1 - CDX 1) + (GMPE 1 - CDX 1) + (GMCS 2 - CDX 1). See section 15.3d, A.M.A.,
Guides 409-12 (6th ed.).
11

The rating was based on a mild sensory deficit involving the suprascapular nerve.

12

A.M.A., Guides 387 (6th ed. 2008).

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a physical examination adjustment factor and only to determine actual impairment values when
a grid permits its use as an option….”13 Thus permitting the ROM calculation of Dr. Mindrebo.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to the Director of OWCP to implement the FECA program.14 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.15 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.16
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the American Medical Association issued a 52-page document entitled
“Clarifications and Corrections, Sixth Edition, Guides to the Evaluation of Permanent
Impairment.” The document included various changes to the original text, intended to serve as
an erratum/supplement to the first printing of the A.M.A., Guides. In April 2009, these changes
were formally incorporated into the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).17 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.18
ANALYSIS
The issue on appeal is whether appellant has more than eight percent permanent
impairment of the right upper extremity, for which she had received a schedule award. The
Board finds this case not in posture for decision.
13

A.M.A., Guides 387 (6th ed. 2009). The amended language -- “when a grid permits it use as an option” -- first
appeared in the 2008 Clarification and Corrections document at page 15.
14

See 20 C.F.R. §§ 1.1-1.4.

15

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
16

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
18

In the Matter of Isidoro Rivera, 12 ECAB 348 (1961).

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After appellant reached MMI she provided an impairment rating from her attending
physician, Dr. Misamore, who found 20 percent permanent impairment of her right upper
extremity using the ROM methodology. She was subsequently referred by OWCP for a second
opinion examination. The second opinion physician, Dr. Mindrebo, also applied the ROM
methodology under the sixth edition to find 21 percent permanent impairment of appellant’s
right upper extremity. The record was forwarded to Dr. Slutsky, the DMA, who disagreed with
Dr. Mindrebo’s second opinion impairment rating because he had “used the less preferred ROM
method with invalid measurements.” Dr. Slutsky quoted the A.M.A., Guides, noting that
according to section 15.2, page 387, ROM was to be used for rating impairment “only ... in the
rare case when it is not possible to otherwise define impairment....” Dr. Slutsky found that
appellant had only eight percent permanent impairment of the right upper extremity using the
DBI method. In its September 23, 2013 decision, OWCP granted appellant eight percent
permanent impairment of the right upper extremity, finding that Dr. Slutsky’s opinion
represented the weight of the medical evidence regarding the extent of appellant’s right upper
extremity impairment. The claims examiner quoted the same language that Dr. Slutsky relied on
from section 15.2, page 387 of the first printing of the sixth edition to find that ROM was to be
used “only ... in the rare case when it is not possible to otherwise define impairment....”19
However, the Board notes that with the 2009 second printing of the A.M.A., Guides, this quoted
language was redacted and replaced. The second printing instructs that ROM “is used primarily
as a physical examination adjustment factor and only to determine actual impairment values
when a grid permits its use as an option.”
OWCP adopted the “most recent version” of the sixth edition of the A.M.A., Guides on
March 15, 2009, with an effective date of May 1, 2009. The most recent version of the sixth
edition at that time was the second printing of the sixth edition.
The plain language of the A.M.A., Guides itself provides conflicting guidance as to how
upper extremity impairments should be rated. In adopting the sixth edition, OWCP noted that
this edition “substantially revises the evaluation methods used in previous editions,
characterizing the new methodology’s objectives as: to be consistent, to enhance relevancy, to
promote precision and to standardize the rating process.” OWCP, in FECA Bulletin No. 09-03,
summarized key changes affecting the calculation of schedule awards for FECA claimants under
the sixth edition. For musculoskeletal impairments of the upper extremities under Chapter 15,
FECA Bulletin No. 09-03 noted that the upper extremity is divided into four separate zones
including digits/hand, wrist, elbow, and shoulder and that diagnosis classes for the upper
extremities are broken into the categories of soft tissue, muscle and tendon, ligament, and bone
and joint. No further guidance was provided for use of the sixth edition for upper extremity
impairment ratings, including no guidance for when to use the DBI methodology or when to use
the ROM methodology.
The sixth edition “Principles of Assessment” for calculating impairment for upper
extremity conditions notes that the user must initially become familiar with Chapters 1 and 2 and
the Glossary. Chapters 1 and 2 discuss the A.M.A., Guides’ purpose, applications, and methods
of performing and reporting impairment evaluations while the glossary provides definitions of
19

A.M.A., Guides 387 (6th ed. 2008).

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common terms used in impairment evaluation. The procedures utilized for upper extremity
impairment ratings are not specifically discussed in Chapters 1 and 2.
One of the fundamental principles under the sixth edition is that “If the [A.M.A.,] Guides
provides more than one method to rate a particular impairment or condition, the method
producing the higher rating must be used.”20 Impairment evaluations of the upper extremity
must be performed within the context of the directives in Chapters 1 and 2 of the A.M.A., Guides
and only performed when conditions have reached MMI.
Chapter 15, which provides the criteria for evaluating upper extremity impairment, notes
that impairment ratings “must be performed within the context of the directives in Chapters 1
and 2 and only performed when conditions have reached MMI.”21 Under Chapter 15 of the sixth
edition, DBI is noted as the primary method of evaluation of the upper limb and the A.M.A.,
Guides instruct that most impairment values for the upper extremity are calculated using the DBI
method. Initially in Chapter 15, when defining DBI, ROM is noted to be used primarily as a
physical examination adjustment factor and only to determine actual impairment values when a
grid permits its use as an option. Diagnoses in the particular regional grids that may alternatively
be rated using ROM are followed by an asterisk (*).
Chapter 15 divides the upper extremity into four regions: Digits/Hand; Wrist; Elbow;
and Shoulder. In addition, Table 15-5, Shoulder Regional Grid, provides 20 specific diagnoses
divided among three categories: Soft Tissue; Muscle/Tendon; and Ligament/Bone/Joint. Of
those 20 diagnoses, 17 of them include an asterisk (*). At the bottom of Table 15-5, the asterisk
(*) designation is explained as follows: “If motion loss is present, this impairment may
alternatively be assessed using section 15.7, Range of Motion Impairment. A range of motion
impairment stands alone and is not combined with diagnosis impairment.”22
Section 15.7, Range of Motion Impairment, sets forth the process of rating upper
extremity ROM deficits. The section begins by noting: “Range of motion determination is an
essential component of upper extremity impairment rating with a strong historical precedent.”23
Section 15.7 also reiterates in section 15.2, that DBI is the method of choice for calculating
impairment and ROM is used principally as an adjustment factor (physical examination).
Section 15.7 further explains that “[s]ome of the DBI grids refer to the range of motion section
when that is the most appropriate mechanism for grading the impairment.”24 The A.M.A.,
Guides explain that “[section 15.7] is to be used as a stand-alone rating when other grids refer
[the evaluator/examiner] to this section or when no other diagnosis-based sections of [Chapter
15] are applicable for impairment rating of a condition.” (Emphasis added.) Lastly, Figure
15-13, Upper Extremity Range of Motion Record, is used to record motion findings and to
20

A.M.A., Guides 20 (6th ed. 2009).

21

Id. at 384.

22

Id. at Table 15-5, 405.

23

Id. at 459-60.

24

Id. at 461

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document impairments.25 The summary comment of Chapter 15, in apparent contradiction, notes
that “only if no other approach is available to rating, calculate impairment based on range of
motion, as explained in [s]ection 15.7.”26
The Board finds that OWCP has inconsistently applied Chapter 15 of the sixth edition
when granting schedule awards for upper extremity claims. No consistent interpretation has
been followed regarding the proper use of the DBI or the ROM methodology when issuing an
upper extremity schedule award. The purpose of the use of uniform standards is to ensure
consistent results and to ensure equal justice under the law to all claimants.27 As is highlighted
in this case, even OWCP physicians are at odds over the proper methodology for rating upper
extremity impairment. The Board has observed attending physicians, evaluating physicians,
second opinion physicians, impartial medical examiners, and district medical advisers use both
DBI and ROM methodologies interchangeably without any consistent basis. Furthermore,
physicians interchangeably cite to language in the first printing or the second printing when
justifying use of either ROM or DBI. When OWCP’s own physicians are inconsistent or
inaccurate in the application of the A.M.A., Guides, OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.
In light of the conflicting language of the sixth edition as noted above, it is incumbent
upon OWCP through its implementing regulations and/or internal procedures to establish a
consistent method for rating upper extremity impairment. In order to ensure consistent results
and equal justice under the law for cases involving upper extremity impairment, the Board will
remand the case to OWCP for development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly. Following this and such other
development as deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for
an upper extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

25

The A.M.A., Guides caution that if it is clear to the evaluator evaluating loss of ROM that a restricted ROM has
an organic basis, three measurements should be obtained and the greatest ROM should be used for the determination
of impairment.
26

Id. at 481.

27

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

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ORDER
IT IS HEREBY ORDERED THAT the September 23, 2013 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: November 25, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ROBLEY REX VA MEDICAL CENTER,
Louisville, KY, Employer
__________________________________________

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

Docket No. 21-0602
Issued: March 10, 2022

Case Submitted on the Record

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

JURISDICTION
On March 9, 2021 appellant, through counsel, filed a timely appeal from a February 17,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.
FACTUAL HISTORY
On October 29, 2019 appellant, then a 51-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that on January 30, 2019 she sustained an injury to the left side
of her hip and lower back when she fell on a wet floor after exiting an elevator to walk to her
assigned clinic while in the performance of duty. She stopped work on February 1, 2019 and
returned to work on February 12, 2019. The employing establishment contended that appellant
was not injured in the performance of duty as she was en route to her workplace location, but had
not yet reported for duty.
In a development letter dated November 6, 2019, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence needed and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment regarding the circumstances
of appellant’s claimed injury. It afforded both parties 30 days to respond.
OWCP subsequently received an emergency department report dated January 30, 2019,
wherein a physician assistant diagnosed right knee contusion with possible right knee strain and
right quadriceps strain.
A magnetic resonance imaging (MRI) scan of the left hip obtained on September 4, 2019
demonstrated no internal derangement of the hips, avascular necrosis, or fracture; bilateral gluteal
tendon pathology, worse on the left, where there is gluteus minimus tear/detachment and mo derate
peritendinous inflammation with adjacent peritrochanteric fluid; and minimal inferior sacroiliac
joint subarticular marrow edema without effusion or erosion, likely arthritic. An MRI scan of the
lumbar spine obtained on the same date demonstrated multilevel degenerative disc disease and
facet arthropathy with no significant change from a previous scan obtained on May 28, 2019. An
MRI scan of the pelvis obtained on October 8, 2019 demonstrated: mild left and minimal right
anterior inferior sacroiliac joint subarticular marrow edema, predominating on the sacral side
anteriorly on the left with minimal anterior spurring; intact subchondral bone plats; no evidence of
definitive erosive arthropathy; no effusion or periarticular inflammation; suspected m inimal
subarticular sclerosis; possible osteoarthrosis with stress-related marrow change favored over a
primary inflammatory or crystal arthritis; no change in end plate marrow edema at L4 -5 and
bilateral L4-5 facet arthrosis with a moderate inflammatory component; and no change in the
pelvis and hips compared to an MRI scan obtained in September 2019.
In an October 10, 2019 report, Dr. Gary Reasor, Board-certified in anesthesiology and pain
medicine, examined appellant for complaints of low back pain, beginning seven months prior.
Appellant also told Dr. Reasor that the pain was a result of an incident at work on January 30, 2019
when she slipped and fell on her left hip due to water on the floor, and that the pain became much
worse in March and April. Dr. Reasor noted past medical history including back pain, sciatica,
degenerative disc disease, and kidney stones. He related appellant’s physical examination findings

2

and diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain. In an accompanying note of the same date,
Dr. Reasor recommended work restrictions of no standing for more than 15 minutes and no
repetitive bending or twisting of the waist.
In a letter dated October 25, 2019, Dr. Reasor noted that appellant had been seen on
October 10, 2019 on referral from her rheumatology office for severe back pain. Appellant told
Dr. Reasor that she was injured at work on January 30, 2019 when she entered the employing
establishment and slipped on a wet floor, landing on the left hip. She continued to have significant
back pain after the fall and was markedly increased after she was asked to participate in
cardiopulmonary resuscitation (CPR) training. Dr. Reasor reviewed his physical findings on
examination and MRI scan results. He opined that appellant developed significant low back pain
attributable to injury of her left sacroiliac joint as well as inflammation of the left lower lumbar
facet joints, directly related and caused by her fall at work as the history and mechanism of injury
matched her findings on examination.
In a note dated November 15, 2019, Dr. Reasor recommended work restrictions of no
lifting, bending, standing, or squatting for more than 15 minutes. In a note dated November 20,
2019, he recommended that appellant be excused from work from November 11 through 22, 2019.
On November 27, 2019 the employing establishment controverted appellant’s claim,
contending that a medical condition had not been diagnosed resulting from the claimed injury on
January 30, 2019 and that the medical evidence of record did not establish a causal relationship
between any diagnosed condition and the claimed January 30, 2019 injury.
In a letter dated December 7, 2019, Dr. Reasor diagnosed lumbar spondylosis with pain
derived from the lumbar facet joints. He opined that appellant was injured on January 30, 2019
and that the mechanism of injury was a slip and fall on a wet floor as she entered the workplace.
Dr. Reasor noted that appellant struck the floor on her left hip and has had back and hip pain since
that time. His physical examination revealed tenderness over the lumbar spine and he noted that
further examination of the lumbar facets demonstrated concordance between the facets and her
complaints of pain. Dr. Reasor stated that an MRI scan study demonstrated hypertrophy of the
lumbar facets and opined that without question, the lumbar facets were injured as a result of the
fall. He opined to a high degree of medical certainty that there was a direct cause and effect
relationship between appellant’s fall and her current back and hip pain.
By decision dated December 16, 2019, OWCP denied appellant’s claim, finding that the
factual evidence of record was insufficient to establish that the January 30, 2019 employment
incident occurred, as alleged. It noted that she had not provided a clear description of the events
supporting an injury at work on January 30, 2019. OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On December 30, 2019 appellant requested reconsideration.
By decision dated February 27, 2020, OWCP reviewed the merits of appellant’s claim and
found that the medical evidence of record was sufficient to establish that the January 30, 2019
incident occurred as alleged; however, the claim remained denied as the medical evidence of

3

record was insufficient to establish causal relationship between her diagnosed lumbar spondylosis
and the accepted employment incident.
On July 1, 2020 appellant, through counsel, requested reconsideration. Submitted with the
request was a letter from Dr. Reasor dated June 7, 2020. Dr. Reasor explained that appellant was
referred on October 10, 2019 from an advanced practice registered nurse (APRN) who saw
appellant for widespread osteoarthritis and was asked to evaluate appellant’s complaints of left
back, buttock, and leg pain. Appellant recounted that she fell at work on January 30, 2019 when
she slipped on a wet floor, causing her to fall and land on her left hip. Over the course of the next
two to three months her pain worsened, particularly when she underwent mandatory CPR training.
Dr. Reasor reviewed his physical findings on examination and MRI scan findings. He diagnosed
lumbar spondylosis without myelopathy, lumbosacral intervertebral disc degeneration, and low
back pain. Dr. Reasor described administering the lumbar medial branch nerve blocks bilaterally
at L3, L4, and L5 on November 15, 2019 and January 24, 2020. He noted that to his knowledge,
there were no imaging studies of the lumbar spine or hip antedating the January 30, 2019 fall; but,
opined that taking that into account, it remained his medical opinion to a high degree of certainty
that her fall was the cause of her continued back pain. Dr. Reasor explained that assuming
appellant developed lumbar facet arthropathy before the fall in which she slipped on a wet floor
and landed on her left hip, it would have caused, at a minimum, an aggravation of underlying facet
arthropathy. He further noted that it was unknown if she had an annular tear of the L5 -S1 disc,
but that the fall “could have easily been the cause of the annular tear in an already-desiccated disc.”
Dr. Reasor stated that the fall on the left hip, wherein appellant landed on her left buttock, was
“the most likely cause of the torn or detached left gluteus minimus tendon. The mechanism of
injury, in my opinion, is clear to see.”
In a report dated May 6, 2019, an APRN, Sheena Steele, diagnosed cervical radiculopathy,
thoracic and low back pain. An MRI scan of appellant’s lumbar spine obtained on May 28, 2019
demonstrated a small central annular tear posterior disc margin at L5-S1 that could be a source of
back pain, but with no evidence of nerve root impingement, bilateral L4-5 facet arthropathy, and
mild inflammation/edema surrounding the L4-5 facet joints that may indicate an active process.
In a report dated May 30, 2019, Ms. Steele diagnosed thoracic spine and low back pain,
cervical radiculopathy, and unspecified joint pain.
An MRI scan of appellant’s thoracic spine obtained on June 5, 2019 demonstrated: a mild
chronic compression fracture of T11, healed with mild deformity; normal thoracic cord signal
intensity, no pathologic cord enhancement, no thoracic canal stenosis, and no significant foraminal
impingement; and thoracic degenerative changes.
In a report dated June 7, 2019, Lori Weiss, an APRN, diagnosed thoracic and low back
pain, cervical radiculopathy, and current long-term use of an opiate analgesic. In a report dated
August 15, 2019, she diagnosed thoracic spine, left hip, and low back pain, cervical radiculopathy,
and long-term current use of an opiate analgesic. Appellant told the nurse that while completing
a CPR class recently, she experienced increased pain to her back and reinjured her alread y-chronic
symptoms from earlier in 2019.

4

Additional reports received from Dr. Reasor indicated that on November 15, 2019 he
performed a medial branch nerve block at L3, L4, and L5 for treatment of diagnosed lumbar
spondylosis without radiculopathy.
In a report dated December 3, 2019, Dr. Reasor followed up with appellant after her
November 15, 2019 procedure. He opined that her pain was facet-related and due to her fall. On
physical examination, Dr. Reasor observed pain with palpation of the lumbar spine with bilateral
tenderness over the lumbar facets and pain on extension. He diagnosed lumbar spondylosis
without myelopathy or radiculopathy, low back pain, and lumbosacral intervertebral disc
degeneration.
On January 24, 2020 Dr. Reasor performed another medial branch nerve block at L3, L4,
and L5 bilaterally for treatment of diagnosed lumbar spondylosis without radiculopathy. He noted
post-procedure pain reduction of 100 percent.
In a report dated February 14, 2020, Dr. Reasor followed up with appellant after her
January 24, 2020 medial branch nerve block at L3, L4, and L5. He noted post-procedure relief of
eighty percent for several hours. Appellant advised Dr. Reasor that her pain remained at 8 out of
10 at this follow-up examination. On physical examination of the lumbar spine, Dr. Reasor
observed pain with palpation of the midline and bilateral facets and pain on flexion and extension.
He diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain.
In a report dated March 5, 2020, Dr. Reasor examined appellant for low back, buttocks,
and left lower extremity pain with tingling. He noted that the pain began seven months prior and
that it was a result of a work-related incident. Dr. Reasor observed that appellant had an antalgic
gait. On physical examination of the lumbar spine, he observed pain with palpation, marked
tenderness of the left facets, decreased range of motion, and pain on flexion, e xtension, lateral
movement, and rotation. On examination of the thoracic spine, Dr. Reasor observed pain with
palpation, marked tenderness of the left facets, and pain on rotation. He diagnosed thoracic spine
pain, lumbar spondylosis without myelopathy or radiculopathy, lumbosacral intervertebral disc
degeneration, and low back pain.
By decision dated February 17, 2021, OWCP denied modification.3
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 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
3

The February 17, 2021 decision was a reissuance of a decision dated September 29, 2020, wherein OWCP
reviewed the merits of appellant’s claim and denied modification of the February 27, 2020 decision. A copy of this
decision was not mailed to appellant’s counsel of record. On October 8, 2020 the employing establishment requested
that a copy of the September 29, 2020 decision be mailed to appellant’s counsel of record, as it had not yet been
annotated as being forwarded to counsel. In a letter dated October 15, 2020, counsel requested an update as to the
request for reconsideration in appellant’s case.
4

Id.

5

States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 5 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. 6 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.7
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. The first component is that 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 and can be established only by medical
evidence.8
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted January 30, 2019 employment incident.
In his October 25, 2019 report, Dr. Reasor opined that appellant developed significant low
back pain attributable to injury of her left sacroiliac joint as well as inflammation of the left lower
lumbar facet joints. He opined that her condition was directly related and caused by her fall at
work, as the history and mechanism of injury matched her findings on examination. In his
December 3, and 7, 2019 reports, Dr. Reasor opined that appellant was injured on January 30,
2019 and that the mechanism of injury was a slip and fall on a wet floor as she entered the
5

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).
6

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).
7

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).
8

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).
9

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).
10

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).

6

workplace. He opined that without question, the lumbar facets were injured as a result of the fall.
Dr. Reasor further opined to a high degree of medical certainty that there was a direct cause and
effect relationship between appellant’s fall and her current back pain. In the June 7, 2020 report,
he opined that it remained his medical opinion to a high degree of certainty that her fall was the
cause of her continued back pain. Dr. Reasor explained that assuming appellant developed lumbar
facet arthropathy before the fall in which she slipped on a wet floor and landed on her left hip, it
would have caused, at a minimum, an aggravation of underlying facet arthropathy . He further
noted that it was unknown if she had an annular tear of the L5-S1 disc, but that the fall could have
easily caused the tear in an already-desiccated disc. The Board has found that in any case where
a preexisting condition involving the same part of the body is present and the issue of causal
relationship therefore involves aggravation, acceleration, or precipitation, the physician must
provide a rationalized medical opinion that differentiates between the effects of the work-related
injury or disease and the preexisting condition.11 While Dr. Reasor noted appellant’s past medical
history including back pain, sciatica, and degenerative disc disease. He did not specifically
differentiate between appellant’s preexisting condition(s) and the effects of the January 30, 2019
employment incident. These reports were therefore insufficient to establish causal relationship
between the diagnosed lumbar conditions and the accepted January 30, 2019 employment incident.
Regarding appellant’s left hip condition, Dr. Reasor stated that the fall on the left hip,
wherein appellant landed on her left buttock, was “the most likely cause” of her torn or detached
left gluteus minimus tendon. He opined that the mechanism of injury was clear to see. The June 7,
2020 report is insufficient to establish appellant’s claim as Dr. Reasor couched his conclusions
that the fall “could have easily been” the cause of an annular disc tear and that her detached left
gluteus minimus tendon was “most likely” caused by the fall in equivocal terms. The Board has
held that while the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, it must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty. 12 The Board also notes that
Dr. Reasor did not discuss the apparent inconsistency between his account of appellant’s fall onto
her left side on January 30, 2019 and the emergency department report of January 30, 2019, in
which the fall was described involving her left leg extending to the front falling hard on her right
knee and upper front right thigh. Medical opinions based on an incomplete or inaccurate history
are of diminished probative value.13 Without a discussion of the apparent inconsistency between
his account of appellant’s fall onto the left side and the January 30, 2019 emergency department
report’s account of a fall onto the right knee and right thigh, Dr. Reasor’s opinions are therefore
insufficiently rationalized to establish appellant’s claim.
Appellant submitted additional reports and notes dated October 10, November 15,
November 20, and December 7, 2019; and January 24, February 14, and March 5, 2020 from
Dr. Reasor. These reports and notes did not offer a medical opinion regarding the cause of
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., supra note 6; R.D., Docket No. 18-1551 (issued March 1, 2019).
12

L.S., Docket No. 18-1494 (issued April 12, 2019); Ricky S. Storms, 52 ECAB 349 (2001).

13

See D.B., Docket No. 19-0663 (issued August 27, 2020); D.W., Docket No. 18-0123 (issued October 4, 2018);
L.G., Docket No. 09-1692 (issued August 11, 2010).

7

appellant’s diagnosed conditions. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 14 Therefore these reports are insufficient to establish appellant’s claim.15
Appellant also submitted a report dated January 30, 2019 from a physician assistant and
reports dated May 6, May 30, June 7, and August 15, 2019 from APR nurses. However, certain
healthcare providers such as physician assistants, nurse practitioners, and physical therapists are
not considered physicians as def ined under FECA. 16 Consequently, these reports will not suffice
for purposes of establishing entitlement to FECA benefits. 17
The remaining evidence consists of diagnostic reports dated May 28, June 5, September 4,
and October 8, 2019. The Board has held that diagnostic tests, standing alone, lack probative value
on the issue of causal relationship as they do not provide an opinion on the relationship between
the employment incident and a claimant’s diagnosed condition. 18
As appellant has not submitted rationalized medical evidence establishing that her
diagnosed medical conditions were causally related to the accepted employment incident of
January 30, 2019, the Board finds that she has not met her 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.
CONCLUSION
The Board finds that appellant has not met her burden proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.

14

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
15

S.W., Docket No. 19-1579 (issued October 9, 2020); see L.B., id.; D.K., id.

Section 8101(2) provides that 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); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket
No. 19-0221 (issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (finding that lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
16

17

See M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians under
FECA); R.K., Docket No. 20-0049 (issued April 10, 2020) (physician assistants are not considered physicians under
FECA).
18

See C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

8

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Buffalo, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0683
Issued: November 6, 2018

Case Submitted on the Record

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

JURISDICTION
On February 9, 2018 appellant filed a timely appeal from a November 6, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has met her burden of proof to establish a lumbar injury
causally related to an accepted April 27, 2016 employment incident.
FACTUAL HISTORY
On April 27, 2016 appellant, then a 52-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that, on that date, she sustained a lumbosacral strain/sprain while assisting in the
1

5 U.S.C. § 8101 et seq.

podiatry clinic. On the reverse side of the claim form, appellant’s supervisor corroborated her
account of the April 27, 2016 events. Appellant stopped work on the date of injury and has not
returned.
In support of her claim, appellant submitted work excuse slips from Carrie M. Van Grol, a
nurse practitioner, and May 13, 2016 physical therapy treatment notes.
By development letter dated July 7, 2016, OWCP notified appellant of the type of factual
and medical evidence necessary to establish her claim. Appellant was also provided a list of
questions for her physician inquiring how the alleged employment incident would have caused or
contributed to the claimed lumbar injury. OWCP advised that a physician’s detailed, wellrationalized opinion on causal relationship was crucial to her claim. It afforded appellant 30 days
to submit the necessary evidence.
In response, appellant submitted a July 11, 2016 statement in which she described
removing and replacing patients’ shoes and socks throughout her April 27, 2016 work shift at the
podiatry clinic, which required repetitive stooping, crouching, and bending.
A June 10, 2016 lumbar magnetic resonance imaging (MRI) scan demonstrated multilevel
degenerative changes, most pronounced at L2-3.2
By decision dated August 11, 2016, OWCP denied the claim as causal relationship had not
been established. It accepted that the April 27, 2016 employment incident occurred at the time,
place, and in the manner alleged. However, OWCP denied the claim as the medical evidence of
record was insufficient to establish causal relationship between the accepted employment incident
and the claimed lumbar injury.3
On January 26, 2017 appellant requested reconsideration and submitted additional medical
evidence.
Appellant provided notes dated from April 29 to August 2017 signed by Ms. Van Grol and
countersigned by Dr. Rhonda Peterson, an attending Board-certified family practitioner.
Dr. Peterson related appellant’s account of repetitive bending, crouching, and stooping while
assisting patients in the podiatry clinic on April 27, 2016. On examination, she noted lumbosacral
tenderness and bilaterally positive straight leg raising tests. Dr. Peterson diagnosed chronic lumbar
pain with bilateral radiculopathy. She prescribed medication and physical therapy.
In a report dated August 8, 2016, Dr. Peterson again related appellant’s account of
repetitive bending on April 27, 2016 while assigned to the podiatry unit. She noted that physical
therapy and medication had failed to relieve appellant’s chronic lumbar pain with bilateral
radiculopathy. Dr. Peterson noted that a June 10, 2016 MRI scan demonstrated significant
2

Appellant also submitted physical therapy treatment notes dated in June and July 2016.

3

On August 24, 2016 and on November 1, 2016 appellant requested a telephonic oral hearing before an OWCP
hearing representative. By decision dated February 17, 2017, OWCP denied appellant’s request for an oral hearing
as it was not timely filed within 30 days of OWCP’s August 11, 2016 decision. It exercised its discretion and further
denied the claim as the issue involved could be addressed equally well by a valid request for reconsideration.

2

degenerative changes at L2-3. She diagnosed a herniated lumbar disc with radiculopathy.
Dr. Peterson opined that the “repeated work duties of having to bend over, having to lift the legs
and feet of patients -- taking off theirs shoes and socks, while the patient was in a low position
chair at the podiatry clinic is a direct cause of the injury to [appellant].” She noted that, prior to
the April 27, 2016 injury, appellant had worked in the podiatry clinic on other dates, but had not
sustained any injury. Dr. Peterson found appellant totally disabled from work.4
By decision dated April 13, 2017, OWCP denied modification of its August 11, 2016
decision, finding that the additional evidence submitted was insufficiently rationalized to meet
appellant’s burden of proof to establish causal relationship between the accepted April 27, 2016
employment incident and the claimed lumbar injury.
On April 18, 2017 appellant requested reconsideration and submitted additional medical
evidence.
In a report dated February 15, 2017, Dr. Gregory Castiglia, a Board-certified neurosurgeon
to whom Dr. Peterson referred appellant for a surgical consultation, noted a history of injury and
treatment. On examination he found restricted lumbar motion in all planes. Dr. Castiglia noted
that a lumbar spine MRI scan demonstrated annular tears at L2-3 and L5-S1, and a broad-based
disc bulge at L4-5 with mild-to-moderate foraminal narrowing bilaterally. He diagnosed lumbar
radiculopathy and lumbar degenerative disc disease. Dr. Castiglia opined that appellant’s
symptoms “appeared to be” directly related to an employment incident dating back to April 2016.
A May 23, 2017 lumbar MRI scan demonstrated an annular bulge at L1-2 with an annular
tear, an annular bulge at L2-3 extending into both neural foramina, a L2-3 annual tear, moderate
canal stenosis at L4-5 due to disc extrusion and an annular tear, and central canal stenosis at L5S1 due to a central disc herniation.
In a report dated April 26, 2017, Dr. Joanne Wu, a Board-certified physiatrist to whom
Dr. Peterson referred appellant for a consultation, provided a history of injury and treatment. She
related appellant’s symptoms of lumbar and bilateral lower extremity pain and paresthesias. On
examination, Dr. Wu observed restricted lumbar motion and bilateral lumbar paraspinal spasms.
She diagnosed degenerative lumbar disc disease, lumbar radiculopathy, and paraspinal muscle
spasms. Dr. Wu prescribed medication and physical therapy. She opined that the April 27, 2016
incident was competent to produce appellant’s symptoms.
In notes dated from May 19, 2017 to early July 2017, Dr. Peterson noted appellant’s
worsening lumbar pain with bilateral radiculopathy. Medication, physical therapy, and
chiropractic manipulation had failed to ameliorate appellant’s symptoms. Dr. Peterson diagnosed
chronic low back pain, lumbar disc disease, sciatica, and left leg weakness. She found appellant
totally disabled from work. Dr. Peterson also provided a July 5, 2017 narrative report in which
she summarized appellant’s history of injury and treatment. She related appellant’s descriptions
of sudden “searing, knife-like, stabbing back pain” during her April 27, 2016 work shift.
Dr. Peterson opined that appellant sustained an occupational lumbar injury in the podiatry clinic
4
Appellant also submitted physical therapy treatment notes dated from May 13, 2016 to March 16, 2017. She also
provided notes from Ms. Van Grol dated July 19 and August 17, 2016.

3

on April 27, 2016, which rendered her totally disabled from work due to severe, chronic lumbar
pain.5
By decision dated July 13, 2017, OWCP denied modification of its April 13, 2017 decision,
finding that the additional evidence submitted in support of reconsideration contained insufficient
medical rationale to meet appellant’s burden of proof to establish causal relationship.
On August 8, 2017 appellant requested reconsideration and submitted additional medical
evidence.6
In a May 11, 2017 note, Dr. Peterson found appellant’s condition unchanged.
In a report dated June 21, 2017, Dr. Jaffar Siddiqui, a Board-certified orthopedic surgeon
associated with Dr. Castiglia, opined that the April 27, 2016 occupational incident was competent
to produce appellant’s ongoing symptoms. He recommended a caudal epidural injection.
In a report dated July 12, 2017, Dr. Castiglia noted that appellant’s condition remained
unchanged. He found that appellant remained totally disabled from work due to sequelae of the
April 27, 2016 occupational incident.
In an August 29, 2017 narrative report, Dr. Peterson reviewed appellant’s history of injury
and treatment. She opined that repetitive awkward crouching, stooping, bending, leaning, twisting,
lifting, and pushing caused or aggravated appellant’s April 27, 2016 employment related lumbar
condition. Dr. Peterson explained that these movements strained and placed additional stress on
appellant’s ligaments, muscles, and joints between the spine and the sacroiliac joints, weakening
and damaging discs involved, which in turn caused annular tears that lead to disc bulges and nerve
root compression. The nerve root compression caused the onset of sudden, severe lumbar pain
with radiculopathy. Dr. Peterson noted that prior to the injury appellant had been assigned to the
podiatry unit on other occasions and had experienced transient lumbar discomfort, but had not
sustained an injury. She related that, prior to April 27, 2016, appellant was a physically active
person.
By decision dated November 6, 2017, OWCP denied modification of its July 13, 2017
decision, finding that the additional evidence submitted in support of reconsideration was
insufficient to establish causal relationship between the accepted April 27, 2016 occupational
incident and the claimed lumbar injury.

5

Appellant also submitted an April 25, 2017 physical therapy treatment note.

6

May 6, 2016 lumbar x-rays demonstrated mild-to-moderate degenerative changes. February 15, 2017 lumbar
x-rays showed mild straightening of the lumbar lordosis, multilevel spondylitic changes, advanced space narrowing
and facet joint arthropathy at L4-5 and L5-S1. Appellant also submitted copies of evidence previously of record.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA7 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.8 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.9
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP must determine whether fact of injury has been established. First, an employee has the
burden of proof to demonstrate the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.10 Second, the
employee must submit medical evidence to establish that the employment incident caused a
personal injury.
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.11 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.12
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 causal relationship.13
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that the incident occurred at the time, place, and in the manner alleged,
but denied the claim as the medical evidence of record was insufficient to establish causal
relationship.

7

Supra note 1.

8

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

9

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

10

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

11

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

13

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

5

In support of her claim, appellant submitted medical evidence, including several reports
from April 29, 2016 onward from Dr. Peterson, an attending Board-certified family practitioner.
Dr. Peterson consistently provided an accurate history of injury and detailed clinical findings. In
an August 29, 2017 narrative report, she explained the chain of pathophysiologic mechanisms
whereby the accepted repetitive bending and stooping stressed appellant’s ligaments, muscles, and
joints between the spine and the sacroiliac joints, weakening and damaging intervertebral discs,
which caused annular tears, resultant disc bulging, and finally nerve root compression.
Appellant also submitted reports from Dr. Castiglia, a Board-certified neurosurgeon, who
opined on February 15 and July 12, 2017 that the accepted April 27, 2016 occupational incident
was competent to cause appellant’s chronic lumbosacral pain with bilateral radiculopathy.
Similarly, Dr. Siddiqui, a Board-certified orthopedic surgeon, and Dr. Wu, a Board-certified
physiatrist, opined that the accepted occupational incident caused appellant’s lumbar condition.
The Board finds that the medical opinion of Dr. Peterson is sufficient to require further
development of the medical evidence as it relates to whether appellant’s diagnosed lumbar
conditions are causally related to the accepted April 27, 2016 occupational incident. Dr. Peterson
provided an accurate history of the accepted repetitive bending and stooping, and attributed the
diagnosed lumbar conditions to it. Her opinion is of sufficient probative quality, given the absence
of any opposing medical evidence, to require further development of the record.14
It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.15 OWCP has an obligation to see that justice is
done.16
The case will be remanded to OWCP for further action consistent with this decision. On
remand, after such further development of the case record as OWCP deems necessary, it shall issue
a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

14

See S.S., Docket No. 17-0322 (issued June 26, 2018); J.G., Docket No. 17-1062 (issued February 13, 2018); A.F.,
Docket No. 15-1687 (issued June 9, 2016). See also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29
ECAB 820 (1978).
15

S.S., supra note 13. See, e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Dorothy Sidwell, 36 ECAB
699, 707 (1985); Michael Gallo, 29 ECAB 159, 161 (1978).
16

S.S., supra note 13, William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

6

ORDER
IT IS HEREBY ORDERED THAT the November 6, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: November 6, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
PORTLAND, OR, Employer
__________________________________________

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

Docket No. 13-1016
Issued: September 13, 2013

Case Submitted on the Record

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

JURISDICTION
On March 18, 2013 appellant filed a timely appeal from September 26, 2012 and
February 7, 2013 merit decisions 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
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she was
entitled to wage-loss compensation on July 5, 2012 for a medical appointment; (2) whether
OWCP properly determined that she received an overpayment in the amount of $1,283.32 for the
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional medical reports following the September 26, 2012 decision.
Since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision,
the Board may not consider this evidence regarding her disability compensation claim for the first time on appeal.
Appellant may file this or any new evidence with a request for reconsideration within one year of the final merit
decision. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

period June 16 to 29, 2012; and (3) whether OWCP properly found that she was at fault in the
creation of the overpayment andtherefore not entitled to waiver of recovery.
FACTUAL HISTORY
On January 18, 2012 appellant, then a 62-year-old regular rural carrier, filed an
occupational disease claim alleging that she developed an infected right toe due to the repetitive
motions of using the gas and brake pedals, stepping up and down from the postal vehicle while
delivering packages and mail, and stepping up and down from the platform at the mail center.3
She first became aware of her condition and realized that it resulted from her employment on
December 2, 2011. Appellant did not stop work. The employing establishment noted that she
workedlimited duty.4
OWCP accepted appellant’s claim for ulcer of the secondtoe on the right foot and
hammer toe of thesecond toe on the right foot. In the April 26, 2012 decision accepting her
claim, it advised her that she was expected to return to work as soon as she was able and that
compensation was payable only while she was unable to perform the duties of her regular job
due to her accepted employment-related condition. OWCP instructed appellant that if she
received a compensation check which included payment for a period she had worked she was to
return it immediately in order to prevent an overpayment in compensation.
On June 7, 2012 appellant underwent foot surgery. She stopped work and submitted a
claim for disability compensation for the period June 7 to 14, 2012. OWCP paid disability
compensation for total disability by check for the period June 7 to 15, 2012.
In a June 14, 2012 report, Dr. Daniel J. Granville, a podiatrist, described appellant’s
condition of right secondtoe ulcer and provided an accurate history. He noted that she returned
to work, but was concerned about recurrence. Dr. Granville conducted an examination and
released appellant to her regular duties.
Appellant returned to light duty. On June 15, 2012 she submitted another claim for
disability compensation for the period June 16 to 29, 2012. The time analysis form indicated that
appellant requested four hours of leave without pay (LWOP) on June 27, 2012. The employing
establishment verified that she worked 72 hours, received 17.2 hours of overtime pay and used 8
hours of annual leave during that period.
OWCP paid compensation for 10 days of total disability by check for the period June 16
to 29, 2012.
On July 13, 2012 appellant informed OWCP via telephone that she was working and
should not have been paid for the entire June 16 to 29, 2012 period because she missed one

3

The record reflects that appellant filed two previous claims (File No. xxxxxx511 &File No. xxxxxx548).

4

Appellant worked four hours a day as a modified rural carrier with restrictions of no lifting, pushing, or pulling
items over 20 pounds and no reaching above her shoulder or repetitive motion over four hours per day.

2

dayor four hours of work. Shenoted that she was off work from June 7 to 14, 2012 and that she
would be off work again due to surgery.
On July 13, 2012 appellant submitted a claim for disability compensation for the period
June 30 to July 13, 2012. A time analysis form indicated that on July 5, 2012 she worked 4.17
hours and requested 3.83 hours of LWOP. The employing establishment verified that during that
period appellant worked 64.37 hours. It noted that she requested four hours of LWOP for a
medical appointment, but there was no medical report to support an appointment on July 5, 2012.
On July 18, 2012 OWCP advised appellant that insufficient medical documentation was
received to support her claim for disability compensation on July 5, 2012 and requested
additional evidence to establish that she had a medical appointment on July 5, 2012 causally
related to her work-related conditions.
In an unsigned July 23, 2012 duty status report, an unknown provider authorized
appellant to return to work eight hours a day and five days per week with restrictions.
In a decision dated September 26, 2012, OWCP denied appellant’s claim forwage-loss
compensation on July 5, 2012 finding insufficient medical evidence to establish that she received
medical treatment on that date as a result of her accepted conditions.
On September 20, 2012 appellant underwent foot surgery again. She stopped work and
requested disability compensation for the period September 22 to November 17, 2012. OWCP
paid disability compensation and placed appellant on the periodic rolls.
An overpayment worksheet dated September 26, 2012 indicated that appellant received
compensation for 40 hours of time loss for the period June 16 to 29, 2012, which totaled
$1,357.57. It stated that she should have received $74.25 of compensation for four hours of
wageloss on June 27, 2012, resulting in an overpayment of $1,283.32.
On October 25, 2012 OWCP issued a preliminary determination that appellant received
an overpayment in compensation in the amount of $1,283.32 for the period June 16 to 29, 2012
because she received compensation for total disability from June 16 to 29, 2012 after she
returned to work. It noted that she was only entitled to four hoursof wage-loss compensation.
OWCP also found that appellant was at fault in the creation of the overpayment because she
accepted payments that she knew or reasonably should have known to be incorrect. It informed
her of her appellate options and instructed her to complete an enclosed overpayment recovery
form and submit supporting documentation.
In a letter dated December 10, 2012, appellant requested a copy of OWCP records
regarding the preliminary overpayment finding. She stated that she had problems with mail
delivery and did not receive the notice of preliminary overpayment until much later. Appellant
also noted that she had been on very strong medication so she was unable to respond within the
30 days from the notice date. She explained that she had two ongoing claims which caused
confusion. Appellant noted that she was responding within 30 days from the time that she
actually received the mail piece.

3

On December 14, 2012 appellant returned to light-duty working four hours a day. She
continued to receive compensation for intermittent periods of wageloss.
On December 31, 2012 appellant requested that OWCP make a decision based on the
written evidence and requested a waiver alleging that overpayment occurred through no fault of
her own. She explained that the mistake was made by her employer and that management made
several errors in putting in her pay calculations and time. Appellant also reported that her
payments were delayed for many weeks and that she had no idea she was overpaid because
everything seemed to add up to what she was owed. She stated that she was confused with her
wages because she had two injuries at the same time. Appellant noted that she spoke with
OWCP on several occasions and was informed that it would be taken care of.5
By decision dated February 7, 2013, OWCP finalized the overpayment in the amount of
$1,283.32 and found that appellant was at fault in the creation of the overpayment because she
accepted payments that she knew or reasonably should have known to be incorrect. As appellant
was no longer receiving compensation, it asked her to forward a check in the amount of $215.00
every month until August 7, 2013.
LEGAL PRECEDENT-- ISSUE NO.1
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the
accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of reliable, probative and substantial medical opinion evidence. The Board will
not require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.6
With respect to claimed disability for medical treatment, section 8103 of FECA provides
for medical expenses, along with transportation and other expenses incidental to securing
medical care, for injuries.7 Appellant would be entitled to compensation for anytime missed
from work due to medical treatment for an employment-related condition. OWCP’s obligation
to pay for medical expenses and expenses incidental to obtaining medical care, such as loss of
wages, extends only to expenses incurred for treatment of the effects of any employment-related
5

In the overpayment questionnaire, appellant reported no monthly income and one dependent son. She stated that
her monthly expenses included a mortgage of $1,175.00, food of $700.00 and clothing of $150.00. Appellant’s
other expenses included $30.00 for water, $120.00 for sewer, $200.00 for utilities, $105.00 for cable and internet,
$60.00 for medicine and $104.00 for automobile and home insurance. Her other monthly obligations included credit
card payments of $85.00 for Nordstrom, $30.00 for Sears, $228.00 for Visa and $110.00 for Visa. Appellant noted
that she had $150.00 in her checking account.
6

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

7

5 U.S.C. § 8103(a).

4

condition. Appellant has the burden of proof, which includes the necessity to submit supporting
rationalized medical evidence.8
OWCP’s procedure manual provides that wages lost for compensable medical
examination or treatment may be reimbursed.9 It notes that a claimant who has returned to work
following an accepted injury or illness may need to undergo examination or treatment and such
employee may be paid compensation for wage loss while obtaining medical services and for a
reasonable time spent traveling to and from the medical provider’s location.10 As a rule, no more
than four hours of compensation or continuation of pay should be allowed for routine medical
appointments. Longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care.11
ANALYSIS-- ISSUE NO.1
OWCP accepted appellant’s claim for ulcer of the secondtoe on the right foot and
hammer toe of the secondtoe on the right foot. Appellant stopped work on June 7, 2012 and
received disability compensation for total disability. She returned to light duty. On July 13,
2012 appellant submitted a claim for disability compensation for the period June 30 to
July 13, 2012. A time analysis form indicated that on the only time she was off work during that
period was July 5, 2012 for 3.83 hours of LWOP. The employing establishment noted that
appellant requested four hours of LWOP for a medical appointment. Appellant has the burden of
proof to establish that she was undergoing medical treatment or examination on July 5, 2012 as a
result of her employment-related conditions.
The most relevant medical reports regarding appellant’s medical treatment in July 2012
are a June 14, 2012 report by Dr. Granville and an unsigned July 23, 2012 duty status report.
The Board notes that there are no medical reports pertaining to the date of July 5, 2012 and there
is no rationalized medical evidence explaining the relationship between appellant’s employmentrelated conditions and an inability to work on this date. As appellant has not provided sufficient
medical evidence to establish that she missed time from work due to medical treatment for her
accepted conditions, the Board finds that she is not entitled to four hours of compensation for a
medical appointment on July 5, 2012.
Appellant has failed to submit rationalized medical evidence establishing that she was
seen for treatment of her accepted conditions on July 5, 2012 or was otherwise disabled as a
result of her conditions on the above-mentioned date.

8

Dorothy J. Bell, 47 ECAB 624 (1996); Zane H. Cassell, 32 ECAB 1537 (1981).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19
(February 2013).
10

Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

11

Federal (FECA) Procedure Manual, supra note 8.

5

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.
LEGAL PRECEDENT -- ISSUE NO.2
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.12
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section provides that, while an employee is receiving such compensation, he or she may not
receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.13 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.14 An employee is not entitled to compensation
for temporary total disability after he or she returns to work.15 If he or she returns to work and
receives actual earnings and disability compensation during the same period, an overpayment
occurs.16
ANALYSIS -- ISSUE NO.2
The Board finds that OWCP properly found that appellant received an overpayment in
compensation in the amount of $1,283.32 because she received compensation for total disability
from the period June 16 to 29, 2012 even though she returned to work. The record reflects that
she returned to light duty and was off work for only four hours during that period. Appellant
received wage-loss compensation benefits for the same period. Compensation for wage loss due
to disability is only available for periods during which an employee’s work-related medical
conditions prevents her from earning wages.17 Because appellant received compensation in the
amount of $1,357.57 for total disability from June 16 to 29, 2012,but was only entitled to $74.25
for four hours of timeloss,the Board finds that she received an overpayment in the amount of
$1,283.32.
The Board finds that there is no contrary evidence and appellant does not contest the
amount and period of the overpayment. Thus, the Board finds that she received an overpayment
in the amount of $1,283.32 for the period June 16 to 29, 2012.
12

5 U.S.C. § 8102(a).

13

Id. at § 8116; R.H., Docket No. 09-1981 (issued June 11, 2010).

14

20 C.F.R. § 10.500.

15

W.B., Docket No. 09-1440 (issued April 12, 2010).

16

D.C., Docket No. 09-1460 (issued April 19, 2010).

17

20 C.F.R. § 10.500(a); see also Tammi L. Wright, 51 ECAB 463 (2000) (where the record established that the
employee returned to work at the employing establishment for four hours per day from August 7, 1996 to January 8,
1997 but received compensation for total disability for that same period, the Board found that the employee received
an overpayment of compensation).

6

LEGAL PRECEDENT -- ISSUE NO.3
When an overpayment of compensation has been made because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled. According to section 8129(b) of FECA, the
only exception to this general rule is that adjustment or recovery by the United States may not be
made when incorrect payment had been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.18
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
receives from OWCP are proper. The recipient must show good faith and exercise a high degree
of care in reporting events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found at fault with respect to creating an
overpayment: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment which he or she knew or should
have known to be incorrect.19
Whether or not an individual was at fault with respect to the creation of an over payment
depends on the circumstances. The degree of care expected may vary with the complexity of
those circumstances and the individual’s capacity to realize that he or she is being overpaid.20
ANALYSIS -- ISSUE NO.3
OWCP found that appellant was at fault in the creation of the overpayment based on the
third criterion, that she accepted payments which she knew or reasonably should have known to
be incorrect. With respect to whether an individual is with fault, OWCP regulations provide that
the determination of fault with respect to receipt of an overpayment depends on the
circumstances. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being overpaid.21
In this case, appellant received wage-loss compensation for total disability by check for
the period June 16 to 29, 2012. The period of compensation was listed on each check that she
received. In the April 26, 2012 decision accepting her claim, OWCP properly advised appellant
that compensation was payable only while she was unable to perform the duties of her regular
job due to her accepted employment-related condition and instructed her that if she received a
compensation check which included payment for a period she had worked she was to return it
18

5 U.S.C. § 8129(b).

19

20 C.F.R. § 10.433(a).

20

Id. at § 10.433(b).

21

Id.

7

immediately in order to prevent an overpayment in compensation. Under these circumstances,
appellant knew or should have known that she could not receive wage-loss compensation during
any period that she worked or continued to receive wages from the employing establishment.
The record reflects that she worked a total of 72 hours from June 15 to 29, 2012 and that she
only requested compensation for 4 hours of LWOP. Appellant received a compensation check
for 10 days of total disability from June 15 to 29, 2012. She did not return the compensation
check. The Board finds that under these circumstances appellant knew or should have known
that she was not entitled to receive wage-loss compensation for total disability for the same
period that she concurrently received wages from employment.22 Accordingly, the Board finds
that she is at fault in the creation of the overpayment and is not entitled to waiver of recovery of
the overpayment in the amount of $1,283.32.
On appeal, appellant contends that the overpayment was not her fault as it was not
intentional and requests a waiver of the overpayment as she got behind on her bills while she was
off work. The Board has held, however, that even if OWCP was at fault for issuing
compensation checks after she returned to work, this fact does not by itself relieve the individual
who received the overpayment from liability for repayment if the individual also was at fault in
accepting the overpayment.23 As noted above, appellant knew or should have known that the
check she received represented wage-loss compensation for the same period that she returned to
work. Since she is at fault on the issue of overpayment, recovery cannot be waived.
The Board finds that appellant was at fault in creating the overpayment as she knew or
should have known that the payment she accepted for the period June 16 to 29, 2012 for total
disability was incorrect. As appellant was with fault in this matter, she is not entitled to
consideration of waiver. The Board will affirm OWCP’s February 7, 2013 decision on the issue
of fault.
CONCLUSION
The Board finds that appellant was not entitled to wage-loss compensation on July 5,
2012 for a medical appointment. The Board also finds that she received an overpayment of
compensation in the amount of $1,283.32 for the period June 16 to 29, 2012. The Board further
finds that OWCP properly found that appellant was at fault in the creation of the overpayment
and is not entitled to waiver of recovery of the overpayment.

22
23

See R.F., Docket No. 12-1646 (issued March 26, 2013).
20 C.F.R.§ 10.435(a); see also J.A., Docket No. 13-478 (issued June 4, 2013).

8

ORDER
IT IS HEREBY ORDERED THATthe February 7, 2013 and September 26, 2012
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 13, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Seattle, WA,
Employer
__________________________________________

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

Docket No. 13-784
Issued: July 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 19, 2013 appellant, through her attorney, filed a timely appeal of a
December 6, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for compensation.1 Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether appellant established that she was disabled for the period August 26
through September 28, 2012 due to her accepted employment injury.
1

OWCP issued two final decisions after the February 19, 2013 appeal date. On February 25, 2013 it denied
appellant’s claim for a subsequent period of disability and on March 28, 2013 OWCP suspended her compensation
benefits due to her refusal to submit to a scheduled medical examination. Appellant has not appealed from these
decisions in the current appeal. See 20 C.F.R. § 501.3(a).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 12, 2012 appellant, then a 29-year-old realty specialist, filed an occupational
disease claim alleging cervicalgia, bulging discs, chest, neck, elbow and wrist pain and difficulty
breathing due to repeated stress and strain due to her federal employment. She first became
aware of her condition on April 26, 2012 and first related it to her employment on that date. On
July 11, 2012 OWCP accepted appellant’s claim for degeneration of cervical intervertebral disc.
On July 16, 2012 appellant’s attending physician, Dr. John M. Tudela, a Board-certified
internist, stated that she was disabled through August 1, 2012. In a report dated July 27, 2012,
Dr. ChiKit Gall, a Board-certified internist, examined appellant and noted slow improvement of
her discomfort with physical therapy and light-duty work four hours a day. She stated that
appellant should consider ergonomic evaluation of her office space before she returned to work.
Dr. Gall stated, “Should return to her regular workout as tolerated.”
On October 5, 2012 appellant filed claims for compensation.
In a letter dated October 10, 2012, OWCP stated that appellant’s claim for compensation
for the period May 6 through August 11, 2012 was not payable as additional information was
needed from the employing establishment. On October 15, 2012 it stated that the additional
periods of compensation claimed, April 26 through May 6 and August 12 through September 28,
2012, were not currently payable as the employing establishment had not submitted the
necessary information. OWCP also noted that additional medical evidence was necessary for
compensation claims beginning August 11, 2012.
On October 1, 2012 Dr. Tudela stated that appellant continued to work from home and
experienced episodic spasms of the neck, which caused physical impairment at times. He
diagnosed degeneration of cervical intervertebral disc and noted spasm of the trapezius.
Dr. Tudela stated that appellant’s condition was improving and recommended continued massage
and physical therapy.
OWCP authorized compensation benefits for the period April 26 through
August 25, 2012. In a letter dated November 2, 2012, it requested additional medical evidence to
support appellant’s disability claimed from August 26 through September 28, 2012. OWCP
allowed 30 days for a response.
By decision dated December 6, 2012, OWCP denied appellant’s claim for compensation
for the period August 26 through September 28, 2012. It found that the medical evidence from
Drs. Gall and Tudela did not specifically address appellant’s disability for the period in question.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which

3

5 U.S.C. §§ 8101-8193.

2

compensation is claimed is causally related to the employment injury.4 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurt too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.7 The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
employees to self-certify their disability and entitlement to compensation.8
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.9 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant.10 Neither the 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
causal relationship.11
ANALYSIS
OWCP accepted that appellant developed degeneration of cervical intervertebral disc due
to her employment duties. It authorized compensation benefits through August 25, 2012, but
4

G.T., 59 ECAB 477 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Id.

8

Id.

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Leslie C. Moore, 52 ECAB 132 (2000).

11

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

3

requested additional medical evidence supporting her disability after that date. By decision dated
December 6, 2012, OWCP denied appellant’s claim for compensation from August 26 through
September 28, 2012.
The Board finds that appellant has not established that she was disabled for the period
August 26 through September 28, 2012. Appellant’s attending physician, Dr. Tudela, opined on
July 16, 2012 that she was disabled through August 1, 2012. Dr. Gall examined appellant on
July 27, 2012 and found improvement of her discomfort while performing light-duty work four
hours a day. She recommended ergonomic evaluation of appellant’s work space at the
employing establishment. Dr. Gall advised that appellant could return to her regular work. On
October 1, 2012 Dr. Tudela noted that appellant continued to work from home. He noted only
that she experienced periods of disability due episodic spasms of the neck. Dr. Tudela
recommended further treatment.
The medical evidence does not address the specific period of disability claimed. Neither
Dr. Tudela nor Dr. Gall explained whether appellant was disabled on or after August 26, 2012.
Dr. Tudela noted that appellant was continuing to work from home and that she experienced
some periods of disability, but he did not opine that it was medically necessary that appellant
work light duty or provide any list of periods of disability. Appellant has not submitted
sufficient medical evidence to establish that she was disabled for the period August 26 through
September 28, 2012 due to her accepted employment injury. She has not met her burden of
proof to establish that she is entitled to compensation during that period.
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.§ 8218(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish her disability
for the period August 26 through September 28, 2012 as causally related to her accepted
employment injury.

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ORDER
IT IS HEREBY ORDERED THAT the December 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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