United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF JUSTICE, U.S.
MARSHALL SERVICE, Del Rio, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-683
Issued: October 2, 2012

Case Submitted on the Record

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

JURISDICTION
On February 3, 2012 appellant, through his representative filed a timely appeal from
nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP) dated
November 9 and December 5, 2011 denying his request for reconsideration. Because more than
180 days has elapsed between the last merit decision dated November 30, 2010, to the filing of
this appeal, the Board lacks jurisdiction to review the merits of appellant’s case. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
does not have jurisdiction over the merits of these decisions.
ISSUE
The issue is whether OWCP, in its November 9 and December 5, 2011 decisions,
properly refused to reopen appellant’s case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 19, 2005 appellant, then a 49-year-old supervisory deputy, filed a traumatic
injury claim alleging that on January 17, 2005 he injured his right knee when he stepped in a
hole and fell on his right side while jogging. OWCP accepted the claim for right knee meniscus
lateral cartilage tear, right lower leg osteoarthrosis and displaced lumbar intervertebral disc.
On March 30, 2006 Dr. Patrick W. Mulroy, a treating Board-certified physiatrist,
diagnosed disc protrusions at L3-4 and L5-S1 and myofascial restrictions. Using the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides), he concluded that appellant had a 10 percent right lower extremity impairment
based on right hip internal rotation and flexion.
On July 25, 2006 appellant filed a claim for a schedule award.
On February 3, 2009 Dr. Ronald Blum, an OWCP medical adviser and Board-certified
orthopedic surgeon, reviewed Dr. Mulroy’s March 30, 2006 report and the statement of accepted
facts. He agreed with the 10 percent right lower extremity impairment rating based on the fifth
edition of the A.M.A., Guides.
On March 6, 2009 OWCP requested that Dr. Blum reevaluate his impairment finding as
appellant has previously received a schedule award for a 10 percent impairment of his right
lower extremity on March 7, 2002 under claim number xxxxxx192.
By letter dated March 16, 2009, OWCP informed appellant that claim numbers
xxxxxx192, xxxxxx087, xxxxxx072 and xxxxxx417 had been combined with claim number
xxxxxx192 as the master claim number.
On April 9, 2009 Dr. Blum concluded that appellant was entitled to an additional nine
percent impairment of the right lower extremity using the fifth edition of the A.M.A., Guides.
By letter dated March 3, 2010, OWCP informed appellant that effective May 1, 2009 all
schedule award determinations were based on the sixth edition of the A.M.A., Guides and
requested that he provide a report from his treating physician using the sixth edition.
In a July 23, 2010 report, Dr. Sofia M. Weigel, a second opinion Board-certified
physiatrist, noted that appellant had sustained multiple employment injuries and had four claims
which were combined. Accepted conditions included right knee dislocation, bilateral knee
lateral meniscus tear, bilateral lower leg osteoarthritis, lumbar disc nerve displacement and left
knee sprain. Using the sixth edition of the A.M.A., Guides, she concluded that appellant had a
zero percent right lower extremity impairment.
On September 30, 2010 Dr. Blum reviewed Dr. Weigel’s report and concurred with her
finding of a zero percent right lower extremity impairment based on the sixth edition of the
A.M.A., Guides.
By decision dated November 3, 2010, OWCP denied appellant’s claim for schedule
award.

2

On September 12, 2011 OWCP received factual and medical evidence from appellant
including an October 22, 2010 report from Dr. Frank J. Garcia, an attending Board-certified
orthopedic surgeon and OWCP correspondence. Dr. Garcia noted appellant’s medical and
employment injury history. He opined that appellant was not able to perform his duties as a law
enforcement official due to his injuries.
On October 26, 2011 appellant requested reconsideration of OWCP’s denial of an
additional schedule award. He noted his disagreement with Dr. Weigel’s impairment findings
and OWCP’s failure to timely process his schedule award claim under the fifth edition of the
A.M.A., Guides.
By nonmerit decision dated November 9 and December 5, 2011, OWCP denied
reconsideration of the merits.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.5
ANALYSIS
Appellant’s October 26, 2011 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by OWCP.
Appellant’s dissatisfaction with Dr. Weigel’s impairment rating and the use of the sixth edition
of the A.M.A., Guides instead of the fifth edition, are not legal arguments that would warrant
further merit review of his schedule award. Therefore, he is not entitled to a review of the merits
based on the first and second above-noted requirements under section 10.606(b)(2).6
Appellant also failed to submit any relevant and pertinent new evidence with his
October 26, 2011 request for reconsideration. Most of the evidence accompanying his request
2

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
3

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218, issued July 24, 2009; Susan A. Filkins, 57 ECAB
630 (2006).
4

Id. at § 10.607(a). See S.J., Docket No. 08-2048, issued July 9, 2009; Robert G. Burns, 57 ECAB 657 (2006).

5

Id. at § 10.608(b). See Y.S., Docket No. 08-440, issued March 16, 2009; Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
6

Id. at § 10.606(b)(2)(1) and (2).

3

was previously of record. Submitting additional evidence that repeats or duplicates information
already in the record does not constitute a basis for reopening a claim.7 Although Dr. Garcia’s
October 22, 2010 report was new to the record, the report did not address the extent of any lower
extremity impairment under the A.M.A., Guides (6th ed., 2009), but noted appellant’s injury
history and that appellant was disabled from performing his date-of-injury position as a result of
his employment injuries.8 Appellant did not provide any new medical evidence that might
arguably impact the prior schedule award decision in that the report was not relevant to the
extent and degree of any employment-related impairment. His reconsideration request failed to
show that OWCP erroneously applied or interpreted a point of law, nor did it advance a point of
law or fact not previously considered by OWCP. OWCP did not abuse its discretion in refusing
to reopen appellant’s claim for a review on the merits.
CONCLUSION
The Board finds that OWCP properly declined to reopen appellant’s case for further
review of the merits of his case.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 5 and November 9, 2011 are affirmed.
Issued: October 2, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

8

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000) (evidence which does not
address the particular issue involved does not constitute a basis for reopening a case for a merit review).

4


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

)
)
)
)
)
)
)
)

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1267
Issued: February 12, 2019

Case Submitted on the Record

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

JURISDICTION
On June 8, 2018 appellant, through counsel, filed a timely appeal from a December 14,
2017 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 that she developed
neck and shoulder conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On March 9, 2016 appellant, then a 55-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that, on or about January 14, 2016, she developed a bulging disc and
a slight tear in her right rotator cuff due to lifting heavy objects in the performance of duty. She
stopped work on that date.
In a March 18, 2016 development letter, OWCP requested additional factual and medical
evidence supporting appellant’s occupational disease claim. It afforded her 30 days to respond.
Appellant subsequently submitted a narrative statement, in which she explained that, after
work on January 14, 2016, her shoulder hurt and she sought medical treatment the next day. She
noted that magnetic resonance imaging (MRI) scans of her shoulder and cervical spine
demonstrated a bulging disc and partial right rotator cuff tear. Appellant noted that her work duties
placed stress on her arms, shoulders, and back.
OWCP also received a note dated January 15, 2016 from Dr. Martin Pollack, a Boardcertified internist, which diagnosed a muscle strain.
Diagnostic testing reports revealed that on January 25, 2016 appellant underwent cervical
spine and right shoulder MRI scans. Her cervical spine MRI scan demonstrated a C7-T1 broad
right disc protrusion blocking the entrance to the right neural foramen. Appellant’s right shoulder
MRI scan demonstrated rotator cuff tendinosis with a high-grade partial tear.
By decision dated May 6, 2016, OWCP denied appellant’s claim, finding that she had not
provided sufficient factual information to establish job-related activities or exposures and, thus,
she did not establish an injury as defined by FECA.
On May 9, 2016 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. On January 18, 2017 appellant testified that she had been
employed by the employing establishment for 13 years as a rural carrier. She described her work
duties of delivering parcels weighing up to 50 pounds with a route of 400 stops. Appellant reported
that she had no previous cervical or shoulder injuries.
Following the oral hearing, appellant submitted a form report from Dr. John Mak, a
physician Board-certified in pain management, dated March 24, 2016. Dr. Mak diagnosed
cervical radiculopathy and a herniated disc at C7-T1. He described appellant’s employment duties
of heavy lifting and repetitive work. Dr. Mak checked a box marked “yes” indicating that her
conditions were caused or aggravated by her employment activities.
By decision dated April 3, 2017, OWCP’s hearing representative found that appellant had
sufficiently established her work exposure to satisfy the factual component of fact of injury.
However, he further found that the medical evidence of record was lacking a reasoned opinion
2

establishing causal relationship between the established work exposure and appellant’s diagnosed
conditions.
On May 4, 2017 appellant, through counsel, requested reconsideration of the April 3, 2017
decision. In support of this request, counsel provided a report dated April 12, 2017 from Dr. Mak.
Dr. Mak noted examining appellant due to neck and right shoulder pain which began on
January 15, 2016. He reported that appellant’s job duties as rural carrier for the past 13 years
required her to repetitively deliver mail averaging 400 stops per day and carry heavy packages
weighing up to 50 pounds. Dr. Mak provided his findings on physical examination and reviewed
her MRI scan opining that the cervical herniation was the cause of her pain with right upper
extremity radicular symptoms, paresthesia, and diffuse weakness. He opined that appellant’s
diagnosis was causally related to her repetitive work and heavy lifting. Dr. Mak further determined
that appellant’s job duties resulted in acceleration of underlying cervical degenerative disc disease
leading to cervical herniated nucleus pulposus and cervical radiculopathy. He supported his
opinion by noting that appellant had an isolated herniated disc at C7-T1 with no significant disc
disease at other levels which likely represented a repetitive injury rather than chronic degenerative
disease.
By decision dated December 14, 2017, OWCP denied modification of the April 3, 2017
decision. It noted that appellant had not submitted sufficient medical opinion evidence to establish
causal relationship between her diagnosed conditions and her accepted employment duties.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the identified employment factors.5
Causal relationship is a medical question, which requires rationalized medical opinion
evidence to resolve the issue.6 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
3

Id.

4

20 C.F.R. § 10.115(e), (f); see C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48
ECAB 232, 235-36 (1996).
5

C.D., id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

See C.D., supra note 4; Robert G. Morris, 48 ECAB 238 (1996).

3

complete factual and medical background.7 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
developed neck and shoulder conditions causally related to the accepted factors of her federal
employment.
The records contain medical reports from Dr. Mak dated March 24, 2016 and
April 12, 2017. In his March 24, 2016 report, Dr. Mak indicated that appellant’s diagnosed
cervical radiculopathy and herniated disc C7-T1 were related to her employment duties of heavy
lifting and repetitive work. He checked the box marked “yes” indicating that the diagnosed
conditions were caused or aggravated by appellant’s work. Although the “yes” checkmark
indicates support for causal relationship, the Board has held that when a physician’s opinion on
causal relationship consists only of a checkmark on a form report, without more by way of medical
rationale, the opinion is of diminished probative value.9 Dr. Mak did not provide medical rationale
explaining how heavy lifting and repetitive work caused or aggravated appellant’s diagnosed
condition. As such, the Board finds that Dr. Mak’s March 24, 2016 report is of diminished
probative value.
In his April 12, 2017 report, Dr. Mak listed appellant’s job duties and diagnosed cervical
disc herniation as the cause of her pain with right upper extremity radicular symptoms, paresthesia,
and diffuse weakness. He opined that appellant’s diagnosis was causally related to her repetitive
work and heavy lifting. Dr. Mak explained that appellant’s job duties resulted in acceleration of
underlying cervical degenerative disc disease leading to cervical herniated nucleus pulpous and
cervical radiculopathy. He concluded that as appellant had an isolated herniated disc at C7-T1
with no significant disc disease at other levels and that this likely represented a repetitive injury.
The Board has held that a report is of limited probative value regarding causal relationship if it
does not contain medical rationale explaining how a given medical condition was related to
employment factors.10 A mere conclusory opinion provided by a physician, without the necessary
rationale explaining how and why the work factors were sufficient to result in the diagnosed
medical condition, is insufficient to meet a claimant’s burden of proof to establish a claim.11 The
Board finds that although Dr. Mak has provided a supportive opinion regarding causal relationship,
7

Supra note 5.

8

Id.

9

S.W., Docket No. 18-0721 (issued November 6, 2018); Lucrecia M. Nielson, 42 ECAB 583, 594 (1991).

10

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

11

J.D., Docket No. 14-2061 (issued February 27, 2015).

4

he has not provided the medical rationale which is necessary to explain how lifting heavy objects
in the performance of duty was sufficient to result in the claimed neck and shoulder conditions.
As such, the April 12, 2017 report is insufficient to establish appellant’s claim.
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish neck and shoulder conditions causally related to the accepted factors of her
federal employment. Appellant therefore 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 of proof to establish that she
developed neck and shoulder conditions causally related to the accepted factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-46
Issued: March 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 6, 2008 appellant filed a timely appeal from an August 27, 2008 merit
decision of the Office of Workers’ Compensation Programs finding that she received an
overpayment of compensation and that she was at fault in creating the overpayment. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the overpayment decision.1
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $6,202.77 for the period September 1, 2006 to March 15, 2008 because she received
compensation at the augmented rate; and (2) whether the Office properly found that she was at
fault in creating the overpayment.

1

By decision dated March 17, 2008, the Office terminated appellant’s compensation on the grounds that she had
no further employment-related disability. On April 8, 2008 appellant requested an oral hearing on the termination.
She has not appealed the March 17, 2008 decision to the Board and thus it is not before the Board at this time. See
20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On November 10, 2005 appellant, then a 44-year-old mail carrier, filed a traumatic injury
claim alleging that on November 5, 2005 she sustained stress, anxiety, a swollen right check,
nausea and a headache after she was struck on the face by an assailant in the performance of
duty. She stopped work on November 7, 2005 and did not return. The Office accepted the claim
for a contusion of the face, scalp and neck and post-traumatic stress disorder. It paid appellant
compensation at the three-fourths rate, or 75 percent of the applicable pay rate, for claimants
with dependents beginning December 22, 2005.
On May 8, 2006 the Office notified appellant that it was placing her on the periodic rolls
effective April 16, 2006. It informed her that she should notify the Office by letter of any
changes in the status of dependents.
In a Form EN1032 dated August 19, 2006, appellant indicated that her husband did not
live with her and she did not make regular payments for his support. She did not claim
compensation due to other dependents. The Form EN1032 explained that compensation was
paid at 66 2/3 percent of the applicable pay rate if the claimant had no dependents and at 75
percent if the claimant had one or more dependents. The Form EN1032 further provided that a
dependent included a husband who resided with the claimant or received direct payments for
support, an unmarried child under the age of 18 or an unmarried child over the age of 18 who
either attended school full time or was unable to support himself or herself because of a
disability.
On March 17, 2008 the Office notified appellant that she may have received an
overpayment of compensation and requested her children’s dates of birth. It also requested
addition information regarding her separation and divorce.2 On April 8, 2008 appellant advised
that her son was born June 10, 1985 and her daughter September 1, 1988. She separated from
her husband on September 1, 2006. Appellant did not make support payments. She and her
husband divorced on November 15, 2007.
By letter dated May 1, 2008, the Office requested information regarding whether
appellant’s children attended school. Appellant responded that her son graduated from high
school in June 2003 and her daughter in June 2006.
On June 18, 2008 the Office notified appellant of its preliminary determination that she
received an overpayment of $6,202.77 because she received compensation at the augmented rate
from September 1, 2006 to March 15, 2008. It determined that it paid appellant $50,998.30 in
compensation for the period September 1, 2006 through March 15, 2008 at the three-quarters
augmented rate. The Office calculated that it should have paid her $44,795.53 in compensation
during this time at the two-thirds rate applicable for claimants without dependents. It further
notified her of its preliminary determination that she was at fault in creating the overpayment.
The Office attached appeal rights to the preliminary overpayment notification. By decision dated
2

By decision dated March 17, 2008, the Office terminated appellant’s entitlement to compensation effective
March 17, 2008 on the grounds that the weight of the evidence established that she had no further employmentrelated condition.

2

July 16, 2008, it finalized its finding that she received an overpayment of $6,202.77 and that she
was at fault in its creation. On July 16, 2008 appellant requested reconsideration of the June 18,
2008 preliminary determination of overpayment. Appellant also requested a telephone
conference. She submitted financial information.
On July 28, 2008 the Office issued another preliminary determination of overpayment
that superseded the June 18 and July 17, 2008 preliminary determination of overpayment and
overpayment decision. It noted that it had erroneously included appeal rights with the June 18,
2008 preliminary overpayment finding. The Office informed appellant again of its preliminary
determination that she received a $6,202.77 overpayment as she received compensation from
September 1, 2006 to March 15, 2008 at the three-quarters rather than the two-thirds rate and that
she was at fault in creating the overpayment. It requested that she complete an enclosed
overpayment action request if she still desired a telephone conference on the July 28, 2008
preliminary determination of overpayment. The Office further requested that appellant complete
the enclosed overpayment recovery questionnaire and submit supporting financial documents.
Additionally, it notified her that, within 30 days of the date of the letter, she could request a
telephone conference, a final decision based on the written evidence or a prerecoupment hearing.
By decision dated August 27, 2008, the Office finalized its finding that appellant received
an overpayment of $6,202.77 because it paid her compensation at the augmented rate from
September 1, 2006 to March 15, 2008 rather than the rate applicable for claimants without
dependents. It further finalized its determination that she was at fault in the creation of the
overpayment. The Office requested that she submit a check for the full amount as repayment.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act3 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.4 If the disability is total, the United States shall pay the
employee during the disability monthly compensation equal to 66 2/3 percent of his monthly
pay, which is known as his basic compensation for total disability.5 Where the employee has one
or more dependents as defined in the Act, he or she is entitled to have his or her basic
compensation augmented at the rate of 8 1/3 percent, for a total of 75 percent of monthly pay.6
A dependent includes a student, which under 5 U.S.C. § 8101 means an individual under 23
years of age who has not completed four years of education beyond high school and is pursuing a
full-time course of study.7 If a claimant receives augmented compensation during a period
where he has no eligible dependents, the difference between the compensation he was entitled to
receive at the two-thirds compensation rate and the augmented compensation received at the
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8102(a).

5

Id. at § 8105(a).

6

Id. at § 8110(b).

7

Id. at § 8110(a).

3

three-quarters rate constitutes an overpayment of compensation.8 Section 8110(a)(2) of the Act
provides that a husband qualifies as a dependent if he is a member of the same household as the
employee or is receiving regular contributions from the employee for his support or the
employee has been ordered by a court to contribute to his support.9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in the amount of $6,202.77.
Appellant separated from her husband no later than September 1, 2006 and her youngest child
turned 18 on September 1, 2006.10 She did not make regular support payments to her husband
and her children did not attend school. Appellant, consequently, was not entitled to receive
compensation at the augmented three-fourths rate for claimants with dependents after
September 1, 2006. The Office, however, continued to pay her compensation at the augmented
three-fourths rate through March 15, 2008. It paid appellant $50,998.30 in compensation from
September 1, 2006 through March 15, 2008 instead of the proper amount of $44,795.53 for
claimants without dependents. The Office properly determined that she received an
overpayment of $6,202.77, the difference between the amount of compensation that she actually
received and the amount of compensation that she was entitled to receive.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act11 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of the Office’s implementing regulations12
provide that in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(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.”

8

Diana L. Booth, 52 ECAB 370 (2001).

9

5 U.S.C. § 8110(a)(2); Nancy J. Masterson, 52 ECAB 507 (2001).

10

Appellant indicated that on the August 19, 2006 EN1032 form that she and her husband were separated. On
April 8, 2006 she informed the Office that she and her husband separated on September 1, 2006.
11

5 U.S.C. § 8129(b).

12

20 C.F.R. § 10.433.

4

ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment because
she accepted a payment which she knew or should have known to be incorrect. In order for the
Office to establish that appellant was with fault in creating the overpayment of compensation, the
Office must show that, at the time appellant received the compensation checks in question, she
knew or should have known that the payment was incorrect.13 With respect to whether an
individual is with fault, section 10.433(b) of the Office regulations provide that whether or not
the Office determines that an individual was with fault with respect to the creation of an
overpayment depends on the circumstances surrounding the overpayment. The degree of care
expected may vary with the complexity of the circumstances and the individual’s capacity to
realize that he or she is being overpaid.14
The Board finds that appellant was at fault in creating the overpayment from
September 1, 2006 through March 15, 2008. On May 8, 2006 the Office advised her that she
should notify it by letter of any changes in dependents. Appellant completed a Form EN1032 on
August 19, 2006 which provided her with the definition of a dependent and explained that she
was not entitled to receive compensation at the augmented rate if she did not have dependents.
She indicated that she and her husband had separated and she did not make payments for his
support. Appellant did not claim any other dependents and the record indicates that her daughter
turned 18 on September 1, 2006. By receiving the May 8, 2006 letter and signing the
Form EN1032 on August 19, 2006, she had notice that she was not entitled to compensation at
the augmented rate if she did not have a dependent. Appellant thus knew or should have know
that the compensation she received after September 1, 2006 was incorrect as she had separated
from her husband and her youngest child was 18 years old and not a student. Even if an
overpayment resulted from negligence by the Office, this does not excuse a claimant from
accepting payment that the claimant knew or should have been expected to know was incorrect.15
As appellant is not without fault in the creation of the overpayment, she is not eligible for waiver
of the recover of the overpayment. The Office is required by law to recover the overpayment.16
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $6,202.77 for the period September 1, 2006 to March 15, 2008 because she received
compensation at the augmented rate. The Board further finds that the Office properly found that
she was at fault in creating the overpayment.

13

See Otha J. Brown, 56 ECAB 228 (2004); Karen K. Dixon, 56 ECAB 145 (2004).

14

20 C.F.R. § 10.433(b).

15

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

16

No waiver of an overpayment is possible if the claimant is at fault in creating the overpayment. L.J., 59
ECAB __ (Docket No. 07-1844, issued December 11, 2007). With respect to recovery of the overpayment, the
Board’s jurisdiction is limited to those cases where the Office seeks recovery from continuing compensation benefits
under the Act. L.D., 59 ECAB ___ (Docket No. 08-678, issued August 7, 2008).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 27, 2008 is affirmed.
Issued: March 5, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. SECRET SERVICE UNIFORMED
DIVISION, Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-425
Issued: August 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 28, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated January 9 and October 9, 2008 which denied an
increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant is entitled to an increased schedule award for his left lower
extremity, greater than the 10 percent impairment previously awarded, as a result of his accepted
employment injury or authorized surgeries.
FACTUAL HISTORY
On July 10, 2001 appellant, then a 29-year-old special agent, filed a traumatic injury
claim alleging that on July 9, 2001 he experienced a sharp pain in his lower back and continuous
pain in his left leg. By decision dated October 9, 2001, the Office denied his claim. It found the

evidence insufficient to establish that he sustained a medical condition causally related to the
accepted July 9, 2001 employment incident.
On April 4, 2002 appellant requested
reconsideration. By decision dated June 4, 2002, the Office vacated the October 9, 2001
decision. It found the evidence sufficient to establish that appellant sustained left herniated
nucleus pulposus at L5 causally related to the accepted July 9, 2001 employment incident and
accepted his claim. On August 28, 2002 the Office authorized a lumbar discectomy which was
performed on September 11, 2002 by Dr. Keith D. Williams, an attending Board-certified
orthopedic surgeon.
On October 4, 2002 appellant filed a claim (Form CA-7) for a schedule award. By
decision dated September 24, 2003, the Office granted him a schedule award for a 10 percent
impairment of the left lower extremity.
On March 21 and July 3, 2006 Dr. Williams performed left L5 discectomy revision due
to recurrent left L5 disc herniation which was authorized by the Office.
On March 25, 2007 appellant filed a Form CA-7 claim for an additional schedule award.
In a March 20, 2007 medical report, Dr. Williams stated that appellant sustained a 15 percent
impairment of the whole person which constituted a 38 percent impairment of the left lower
extremity based on Table 17-3 on page 527 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
On April 24, 2007 Dr. G.M. Pujadas, an Office medical adviser, reviewed appellant’s
medical records. He stated that the July 3, 2006 revision surgery did not improve appellant’s
clinical factors. Dr. Pujadas opined that appellant’s 10 percent impairment rating for the left
lower extremity had not changed.
By decision dated June 6, 2007, the Office denied appellant’s claim for an increased
schedule award based on Dr. Pujadas’ April 24, 2007 opinion. On July 11, 2007 appellant
requested reconsideration. In a June 29, 2007 treatment note, Dr. Williams stated that his
symptoms had significantly worsened since his initial impairment rating in 2003. Appellant’s
leg pain was more distal and severe in nature. He had minimal weakness in the S1 distribution
which he did not have before. Dr. Williams stated that his 38 percent impairment rating for the
left lower extremity was based on the diagnosis-related estimate (DRE) Category III in the
A.M.A., Guides with a conversion to impairment from the whole person to the lower extremity.
He related that his impairment rating included the previously awarded 10 percent impairment
rating.
On September 25, 2007 Dr. Robert Wysocki, an Office medical adviser, reviewed
appellant’s medical records. He noted that, although appellant continued to experience back and
left leg pain following the July 3, 2006 surgery, he returned to full-duty work on
January 19, 2007. Dr. Wysocki stated that appellant reached maximum medical improvement on
June 29, 2007. He determined that appellant sustained a three percent impairment of the left
lower extremity for high severity Grade 3 pain in the distribution of the S1 nerve root (A.M.A.,
Guides 424, Tables 15-15 and 15-18). Dr. Wysocki further determined that appellant sustained
two percent impairment for low-mid severity Grade 4 motor deficit in distribution of the S1
nerve root (A.M.A., Guides 424, Tables 15-15 and 15-18). He combined the three percent

2

impairment rating for pain and the two percent impairment for motor deficit to calculate a five
percent impairment of the left lower extremity (A.M.A., Guides 604 and Combined Values
Chart). Dr. Wysocki stated that, since this impairment rating was less than the prior schedule
award, appellant was not entitled to an increased schedule award.
By decision dated October 18, 2007, the Office denied modification of the June 6, 2007
decision. It found that appellant was not entitled to an increased schedule award based on
Dr. Wysocki’s September 25, 2007 opinion. On October 31, 2007 appellant requested
reconsideration.
On December 26, 2007 Dr. Wysocki again reviewed appellant’s medical records. He
reiterated his prior opinion that appellant sustained a five percent impairment of the left lower
extremity (A.M.A., Guides 424, 604, Tables 15-15 and 15-18, Combined Values Chart).
By decision dated January 9, 2008, the Office denied modification of the October 18,
2007 decision. Appellant requested reconsideration on July 7, 2008.
In a July 3, 2008 letter, Dr. Williams contended that Dr. Wysocki improperly used the
range of motion methodology in rating appellant’s impairment. He, however, stated that
Dr. Wysocki properly utilized Tables 15-15 and 15-18 of the A.M.A., Guides in determining that
appellant sustained an eight percent impairment of the left lower extremity. Dr. Williams related
that, based on section 15.8, range of motion method, on page 398 of the A.M.A., Guides,
Dr. Wysocki failed to include range of motion of the impaired spine and accompanying
diagnoses listed in Table 15-7 on page 404 of the A.M.A., Guides with his spinal nerve deficit
impairment rating. He stated that no range of motion determinations had been obtained.
Dr. Williams determined that appellant sustained a 10 percent impairment of the whole person
based on Table 15-7 under Category II, intervertebral discs or other soft tissue lesion, which
constituted a 25 percent impairment based on Table 17-3 on page 527 of the A.M.A., Guides.
He combined this 25 percent impairment of the back with Dr. Wysocki’s 8 percent impairment to
calculate a 31 percent impairment of the lower extremity (A.M.A., Guides 604, Combined
Values Chart). Dr. Williams, however, stated that this impairment rating was still incomplete as
it did not include the necessary element of a range of motion evaluation as directed by the
A.M.A., Guides. He noted that his previous finding of 38 percent impairment was based on the
DRE methodology and, appellant’s additional surgery and residual symptoms. Dr. Williams
stated that if the range of motion method must be used, it would require range of motion
determinations to be made. He further stated if appellant sustained an impairment based on this
element, then it would have to be added to the 31 percent impairment rating utilizing the
Combined Values Chart.
On September 24, 2008 Dr. Amon Ferry, an Office medical adviser, reviewed appellant’s
medical records. He stated that Dr. Williams’ 38 percent impairment for the left lower extremity
did not conform to the A.M.A., Guides as he utilized Table 17-3 to award impairment of the
whole person and suggested determining permanent impairment for decreased range of motion of
the back. Dr. Ferry noted that a schedule award cannot be awarded for the axial skeleton or
person as a whole but, only for the extremities under the A.M.A., Guides. He stated that, under
this guideline, impairment for the whole person or range of motion of the spine could not be
awarded. He further stated that using Table 17-3 to calculate permanent impairment from whole

3

person impairment was inappropriate. Dr. Ferry concluded that Dr. Williams’ impairment rating
should be disregarded. He opined that there was no additional medical evidence that warranted a
change in appellant’s schedule award.
In an October 9, 2008 decision, the Office denied modification of the January 9, 2008
decision. It found that appellant did not sustain more than a 10 percent impairment of the left
lower extremity based on Dr. Ferry’s September 24, 2008 opinion.
LEGAL PRECEDENT
A claim for an increased schedule award may be based on new exposure.1 Absent any
new exposure to employment factors, a claim for an increased schedule award may also be based
on medical evidence indicating that the progression of an employment-related condition has
resulted in a greater permanent impairment than previously calculated.2
In determining entitlement to a schedule award, preexisting impairment to the scheduled
member should be included.3 Any previous impairment to the member under consideration is
included in calculating the percentage of loss except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.4
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 sets forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.7 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice, under the law for all claimants, the Office adopted the A.M.A., Guides as a
standard for determining the percentage of impairment and the Board has concurred in such
adoption.8

1

Linda T. Brown, 51 ECAB 115 (1999).

2

Id.

3

Carol A. Smart, 57 ECAB 340 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (November 1998).
5

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

6

20 C.F.R. § 10.404.

7

5 U.S.C. § 8107(c)(19).

8

20 C.F.R. § 10.404.

4

ANALYSIS
Appellant previously received a schedule award for 10 percent impairment of his left
lower extremity due to his accepted left herniated nucleus pulposus at L5 and lumbar
discectomy. He subsequently filed a claim for an increased schedule award for his accepted
condition, including additional surgeries. In a March 20, 2007 report, Dr. Williams, an attending
physician, stated that appellant sustained a 15 percent impairment of the whole person which
constituted a 38 percent impairment of the left lower extremity (A.M.A., Guides 527 and Table
17-3). His June 29, 2007 treatment note explained that his 38 percent impairment rating
included the 10 percent impairment previously awarded and was based on the DRE Category III
in the A.M.A., Guides. Dr. Williams related that appellant’s symptoms significantly worsened
since his initial impairment rating in 2003. He further related that his leg pain was more distal
and severe in nature and he had minimal weakness in the S1 distribution which he had not
previously experienced. The Board finds that Dr. Williams’ use of Table 17-3 to convert his
back derived 15 percent impairment of the whole person to a 38 percent left lower extremity
impairment is of limited probative value as it was impermissibly based on back impairment. The
Board notes that the DRE Category III relates to the lumbosacral spine (A.M.A., Guides 384-88,
section 15.4). Neither the Act, nor the implementing federal regulations provide for the payment
of a schedule award for the permanent loss of use of the back or the body as a whole. A claimant
is not entitled to such a schedule award.9 The Board notes that section 8101(20) of the Act
specifically excludes the back from the definition of organ.10 A claimant may be entitled to a
schedule award for permanent impairment to an upper or lower extremity even though the cause
of the impairment originates in the spine. However, the Board finds that appellant did not submit
sufficient medical evidence to support any additional impairment to his left lower extremity
causally related to the accepted back condition.11
When the medical evaluator improperly uses the A.M.A., Guides and the Office may
follow the advice of the Office medical adviser if he or she has properly used the A.M.A.,
Guides.12 In this case, the Office medical advisers, Dr. Pujadas, Dr. Wysocki and Dr. Ferry
determined that appellant did not sustain any increased impairment to the left lower extremity.
Dr. Pujadas opined that appellant’s prior schedule award for a 10 percent impairment of the left
lower extremity remained unchanged as the July 3, 2006 revision surgery did not improve his
clinical factors. Dr. Wysocki stated that appellant sustained a five percent impairment of the left
lower extremity, noting that this was less than the impairment for which he had already received
a schedule award. In calculating his impairment rating, he determined that appellant sustained a
three percent impairment of the left lower extremity for high severity Grade 3 pain in the
distribution of the S1 nerve root (A.M.A., Guides 424, Tables 15-15 and 15-18).
Dr. Wysocki further determined that appellant sustained two percent impairment for low-mid
severity Grade 4 motor deficit in distribution of the S1 nerve root (A.M.A., Guides 424, Tables
9

5 U.S.C. § 8107; see also Richard R. Lemay, 56 ECAB 341 (2006).

10

5 U.S.C. § 8101(20).

11

See Richard R. Lemay, supra note 9; see also Thomas J. Engelhart, 50 ECAB 319 (1999).

12

See Carolyn E. Sellers, 50 ECAB 393 (1999).

5

15-15 and 15-18). He combined the three percent impairment rating for pain and the two percent
impairment for motor deficit to calculate a five percent impairment of the left lower extremity
(A.M.A., Guides 604 and Combined Values Chart). The Board notes that Dr. Wysocki
improperly referred to Table 15-15 in rating appellant’s impairment for motor deficit as this table
refers to impairment due to sensory loss. Dr. Wysocki’s finding of a Grade 4 motor deficit in the
S1 nerve root multiplied by the maximum leg impairment for loss of strength in the S1 nerve
root of 20 percent results in a 5 percent impairment of the left lower extremity (A.M.A., Guides
424, Tables 15-16 and 15-18). In combining the three percent impairment for pain and five
percent impairment for motor deficit, the Board finds that appellant sustained an eight percent
impairment of the whole person (A.M.A., Guides 604 and Combined Values Chart). In a July 3,
2008 letter, Dr. Williams stated that Dr. Wysocki used the improper methodology to determine
that appellant sustained an eight percent impairment of the left lower extremity as he failed to
provide range of motion measurements and diagnosed conditions related to appellant’s back. He
stated that Dr. Wysocki should have used Table 15-7 on page 404 of the A.M.A., Guides and
Table 17-3 which converted back impairment of the whole person to lower extremity
impairment. Utilizing these tables, Dr. Williams determined that a 10 percent back impairment
of the whole person represented a 25 percent impairment of the left lower extremity. He
combined Dr. Wysocki’s 8 percent impairment and his 25 percent impairment rating to calculate
a 38 percent impairment of the left lower extremity. However, as stated, appellant is not entitled
to a schedule award for permanent loss of the back or the body as a whole.13 Therefore, the
Board finds that Dr. Wysocki’s 38 percent impairment rating is of diminished probative value.
Dr. Ferry also stated that Dr. Williams’ 38 percent impairment rating for the left lower extremity
did not conform to the A.M.A., Guides as he referred to Table 17-3 and suggested rating
impairment for decreased range of motion of the back in finding that appellant did not sustain
increased impairment to the left lower extremity.
The Board finds that the evidence of record establishes that appellant did not sustain
more than a 10 percent impairment of the left lower extremity, for which he received a schedule
award. Appellant did not submit any other medical evidence sufficient to establish that he
sustained additional impairment to his left lower extremity. Accordingly, the Board finds that he
has not established entitlement to an increased schedule award resulting from his employment
injury and accepted surgeries.
CONCLUSION
The Board finds that appellant is not entitled to an increased schedule award as a result of
his accepted employment injury or authorized surgery.

13

See supra note 9.

6

ORDER
IT IS HEREBY ORDERED THAT the October 9 and January 9, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 18, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-42
Issued: April 21, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 3, 2007 appellant filed a timely appeal from the October 20, 2006 and
June 15, 2007 merit decisions of the Office of Workers’ Compensation Programs denying her
traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant sustained a back injury while in the performance of duty
on August 30, 2005.
FACTUAL HISTORY
On April 17, 2006 appellant, a 48-year-old mail processor, filed a traumatic injury claim
alleging that, on August 30, 2005 at 4:50 a.m., she felt severe pain in her lower back when she
bent down to pick up some mail that had fallen to the floor. She stopped work on
August 31, 2005.

The record contains a September 9, 2005 notice of recurrence (Form CA-2a), filed under
claim No. 03-0233592.1 Appellant alleged that, on August 31, 2005, she experienced a
recurrence of disability due to a March 10, 1998 work-related injury, which resulted in a
herniated disc. She stated that, while she was sitting repairing torn mail, she felt sharp, stabbing
pains across her back and radiating down her buttocks and into her thighs. Appellant indicated
that she had suffered chronic pain since her original injury.
Appellant submitted a September 2, 2005 duty status report from Dr. Bruce Williams, a
Board-certified osteopath, specializing in the area of family practice. Dr. Williams diagnosed
herniated disc at L5-S1 and identified the date of injury as March 10, 1998. In a September 23,
2005 attending physician’s report, he reiterated his previous diagnosis, but stated that the date of
injury was August 30, 2005. Dr. Williams provided a history of continuing lower back pain. In
a narrative report dated October 11, 2005, he stated that appellant was no longer able to work
due to the chronic nature of her herniated lumbar disc, noting that she had been out of work since
August 31, 2005. Referencing a September 16, 2005 x-ray report, Dr. Williams diagnosed
minimal osteoarthritis at L5-S1, and repetitive strain of the lumbar spine, secondary to job duties.
He stated that appellant’s condition remained aggravated.
A magnetic resonance imaging (MRI) scan report dated December 28, 2005 provided an
impression of central and slightly left paracentral disc extrusion at L5-S1. A September 16, 2005
x-ray report reflected minimal osteoarthritis at L5-S1. The record contains unsigned chart notes
for the period March 13, 1998 through September 1, 2000.
Appellant submitted a September 20, 2005 report from Dr. R. Bruce Heppenstall, a
Board-certified orthopedic surgeon, who stated that appellant complained of having low back
pain since August 30, 2005. Dr. Heppenstall noted that the September 16, 2005 x-ray showed
minimal osteoarthritis at L5-S1. His examination revealed minimal tenderness to direct
palpation over the lower lumbar area. Dr. Heppenstall found 80 degrees of flexion and full
extension. Lateral bending was not painful. The sitting root test was negative bilaterally, and
there was no evidence of any nerve root tension signs. Reflexes and sensation were intact to
both lower extremities. The extension hallucis longus was equal and normal bilaterally.
Appellant submitted notes from Dr. Williams for the period January 29, 2003 through
December 20, 2005. Notes dated September 2, 2005 reflected appellant’s complaints of pain
with radiculopathy in both buttocks. Appellant expressed her belief that her work duties had
exacerbated her lower back pain. On December 20, 2005 Dr. Williams stated that appellant
continued to suffer from a May 17, 1999 work-related injury, which resulted in a herniated disc
between L5-S1, causing subsequent L5-S1 retrolisthesis with bilateral foraminal stenosis. He
indicated that appellant’s condition had become chronic since the May 17, 1999 injury, and that
1

The record reflects that, on March 10, 1998, appellant filed a traumatic injury claim (No. 030233592) alleging
that she injured her lower back while lifting mail. The claim was not formally adjudicated with a merit decision at
that time. On September 9, 2005 appellant filed a Form CA-2a in claim No. 030233592, alleging that she suffered a
recurrence of disability on August 31, 2005 while sitting in a chair repairing torn mail. By decision dated March 6,
2006, the Office denied appellant’s 1998 traumatic injury claim and her September 9, 2005 claim for recurrence.
Appellant also filed a May 17, 1999 traumatic injury claim that was accepted for lumbar strain, claim
No. 030243280.

2

she had experienced exacerbations of her preexisting condition, the most recent being
August 30, 2005.
On March 24, 2006 Dr. Williams indicated that appellant had been out of work since
August 30, 2005 as a result of her March 10, 1998 accident. He noted that this was the most
recent flare-up of her chronic condition. In a report dated June 1, 2006, Dr. Williams stated that
appellant’s current condition was a direct result of her March 10, 1998 work-related accident.
He indicated that her lumbar herniated disc on lateral L5 was displacing the left S1 nerve root,
causing significant low back pain and sciatica of the left buttock and left posterior thigh, down
the leg and into the left foot. Dr. Williams stated that, on August 30, 2005, appellant was
“made” to “lift, bend and stand until she finally was broken. Her body simply could not do it
any longer.” On June 20, 2006 he reiterated his diagnosis of central and slightly left paracentral
disc extrusion at L5-S1. Dr. Williams stated that appellant had “been out due to a traumatic
injury since August 30, 2005 as a result of the March 10, 1998 accident, which is work related.
This is her most recent flare-up from the aforementioned chronic condition.”
In a narrative report dated August 22, 2006, Dr. Heppenstall stated that he first examined
appellant on June 4, 2002 following a 1998 work accident. He next saw her on September 20,
2005, when she complained of low back pain beginning August 30, 2005. Dr. Heppenstall noted
that September 16, 2005 x-rays revealed mild osteoarthritis at L5-S1, a December 28, 2005 MRI
scan showed central and to the left paracentral disc extrusion at the L5-S1 interval, which abutted
but did not displace the left S1 nerve root.
By decision dated October 20, 2006, the Office denied appellant’s claim, finding that the
medical evidence did not contain a diagnosis that could be connected to the claimed event. On
October 25, 2006 appellant, through her representative, requested an oral hearing.
In a September 27, 2006 addendum to his letter of August 22, 2006, Dr. Heppenstall
stated that appellant had sustained an injury in 1998 when she experienced low back pain and left
sciatica. Appellant continued to have symptoms until August 30, 2005, when she sustained
another injury to her back and lower extremities. Dr. Heppenstall compared a September 13,
2004 MRI scan to a December 28, 2005 MRI scan, which showed that appellant’s herniated disc
on the left had increased in size. He opined that both injuries were work related and were the
direct cause of appellant’s herniated L5 disc on the left.
At the February 22, 2007 hearing, appellant testified that she injured her back on
March 10, 1998 while bending and lifting a tray of mail at work. On May 17, 1999 she reinjured
her back while pushing a container of mail. Appellant’s pain never disappeared, but rather
increased over time. She stated that on August 30, 2005 she experienced pain in her lower back
when she picked up mail that had fallen on the floor. Appellant stated that the following day she
reported the incident to her supervisor, Pat Kowalski, who advised her to file a recurrence claim.
In a May 2, 2007 addendum to his August 22, 2006 letter, Dr. Heppenstall stated that
appellant reinjured her back on August 30, 2005, when she bent over to pick up mail from the
floor. At that time, “she felt exquisite pain in her low back and down her left leg in the form of
sciatica. This aggravated the symptoms in [appellant’s] back and her left lower extremity.”

3

Dr. Heppenstall reiterated that the 1998 and 2005 injuries were work related, and were the direct
cause of appellant’s herniated L5 disc on the left.
By decision dated June 15, 2007, an Office hearing representative affirmed the Office’s
October 20, 2007 decision. Although he accepted that the work event occurred as alleged, the
representative found that the medical evidence was insufficient to establish that appellant’s
medical condition resulted from the established work incident.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury, and generally this can be established only by medical evidence.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident, or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship.7 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).
6

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

7

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

4

the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.9
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.10
ANALYSIS
The Office accepted that appellant was a federal employee, she timely filed her claim for
compensation benefits, and the August 30, 2005 workplace incident occurred as alleged. The
issue, therefore, is whether appellant has submitted sufficient medical evidence to establish that
the employment incident caused an injury. The medical evidence presented does not contain a
rationalized medical opinion establishing that the work-related incident caused or aggravated any
particular medical condition or disability. Therefore, appellant has failed to satisfy her burden of
proof.
Medical evidence submitted by appellant consists of reports and notes from Dr. Williams
and Dr. Heppenstall; reports of MRI scans and x-ray reports. None of these reports constitutes
probative medical evidence.
Dr. Williams’ reports are insufficient to establish appellant’s claim. His notes for the
period January 29, 2003 through December 20, 2005 do not contain an opinion as to the cause of
appellant’s condition. The Board has long held that medical evidence which does not offer an
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.11 In a September 2, 2005 duty status report, Dr. Williams diagnosed a
herniated disc at L5-S1, but identified the date of injury as March 10, 1998. As the report was
not consistent with the history of injury provided by appellant, and did not include an opinion on
the cause of her diagnosed condition, it is of diminished probative value. In his September 23,
2005 attending physician’s report, Dr. Williams reiterated his previous diagnosis and stated that
appellant had sustained an injury on August 30, 2005; however, he did not provide a complete
history of injury or a definitive opinion as to the cause of her condition.

8

Id.

9

20 C.F.R. § 10.303(a).

10

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

11

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

5

On October 11, 2005 Dr. Williams stated that appellant was no longer able to work due to
the chronic nature of her herniated lumbar disc, noting that she had been out of work since
August 31, 2005. Referencing a September 16, 2005 x-ray report, he diagnosed minimal
osteoarthritis at L5-S1, and repetitive strain of the lumbar spine, secondary to job duties, and
stated that appellant’s condition remained aggravated. Dr. Williams did not opine that a specific
traumatic event caused or aggravated appellant’s diagnosed condition. Rather, he indicated that
her condition was due to repetitive job activities, which, by definition, does not constitute a
traumatic injury.12 Therefore, his report is both inconsistent with the history of injury related by
appellant and unsupported by medical rationale.
On December 20, 2005 Dr. Williams stated that appellant continued to suffer from a
May 17, 1999 work-related injury, which resulted in a herniated disc between L5-S1, causing
subsequent L5-S1 retrolisthesis with bilateral foraminal stenosis. He indicated that appellant’s
condition had become chronic, and that she had experienced exacerbations of her preexisting
condition, the most recent being August 30, 2005. However, Dr. Williams did not sufficiently
describe the job duties appellant was engaged in on August 30, 2005; nor did he explain the
medical process through which such duties would have been competent to cause the claimed
condition. Medical conclusions unsupported by rationale are of little probative value.13
In reports dated March 24, June 1 and 20, 2006, Dr. Williams stated that on August 30,
2005 appellant had experienced a flare-up of her chronic condition that resulted from her
March 10, 1998 work-related accident. On June 1, 2006 he indicated that her lumbar herniated
disc on lateral L5 was displacing the left S1 nerve root, causing significant low back pain and
sciatica of the left buttock and left posterior thigh, down the leg and into the left foot.
Dr. Williams stated that on August 30, 2005 appellant was “made” to “lift, bend and stand until
she finally was broken. Her body simply could not do it any longer.” On June 20, 2006 he
reiterated his diagnosis of central and slightly left paracentral disc extrusion at L5-S1, and stated
that appellant had “been out due to a traumatic injury since August 30, 2005 as a result of the
March 10, 1998 accident, which is work related.” None of the aforementioned reports provided
an accurate history of injury, consistent with the history provided by appellant.14 Moreover,
Dr. Williams did not explain the physiological process whereby appellant’s diagnosed condition
resulted from the alleged August 30, 2005 employment incident. Therefore, these reports are of
diminished probative value.
Dr. Heppenstall’s reports are also insufficient to establish appellant’s claim. On
September 20, 2005 he noted that appellant complained of having low back pain since
August 30, 2005. Dr. Heppenstall noted that the September 16, 2005 x-ray showed minimal
osteoarthritis at L5-S1. His examination revealed minimal tenderness to direct palpation over the
12

See 5 U.S.C. § 8101(5) (“injury” defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or
Illness” and “Traumatic injury” defined).
13

Willa M. Frazier, 55 ECAB 379 (2004).

14

The Board notes that appellant reported inconsistent versions of the alleged injury. In her September 9, 2005
CA-2a, filed under claim No. 03-0233592, she alleged that she suffered a recurrence of disability on August 31,
2005 while sitting in a chair repairing torn mail. In her CA-1 filed in this case, appellant alleged that she felt severe
pain in her lower back when she bent down to pick up some mail that had fallen to the floor.

6

lower lumbar area. Dr. Heppenstall found 80 degrees of flexion and full extension. Lateral
bending was not painful. The sitting root test was negative bilaterally, and there was no evidence
of any nerve root tension signs. Reflexes and sensation were intact to both lower extremities.
The extension hallucis longus was equal and normal bilaterally. As the report did not contain an
opinion as to the cause of appellant’s condition, it is of diminished probative value. On
August 22, 2006 Dr. Heppenstall stated that he first examined appellant on June 4, 2002,
following a 1998 work accident. He next saw her on September 20, 2005, when she complained
of low back pain beginning August 30, 2005. Dr. Heppenstall noted that September 16, 2005
x-rays revealed mild osteoarthritis at L5-S1, a December 28, 2005 MRI scan showed central and
to the left paracentral disc extrusion at the L5-S1 interval, which abutted but did not displace the
left S1 nerve root. As this report does not contain an opinion on the cause of appellant’s
condition, it is of limited probative value.
On September 27, 2006 Dr. Heppenstall stated that appellant had sustained an injury in
1998 when she experienced low back pain and left sciatica, and that she continued to have
symptoms until August 30, 2005, when she sustained another injury to her back and lower
extremities. He compared a September 13, 2004 MRI scan to a December 28, 2005 MRI scan,
which showed that her herniated disc on the left had increased in size. Dr. Heppenstall opined
that both injuries were work related and were the direct cause of appellant’s herniated L5 disc on
the left. The Board finds that Dr. Heppenstall’s opinion is not sufficiently rationalized to
establish a causal relationship between the August 30, 2005 employment incident and appellant’s
diagnosed condition. His opinion was not based on a complete factual and medical background,
and was not supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident.15 Dr. Heppenstall supported his opinion by
comparing a September 13, 2004 MRI scan to a December 28, 2005 MRI scan, which showed
that appellant’s herniated disc on the left had increased in size. However, the mere fact that
appellant’s condition changed between the respective dates of the MRI scans is insufficient to
establish a causal relationship.16 Dr. Heppenstall did not describe the August 30, 2005 incident
or explain the medical process through which the incident would have caused appellant’s
condition.
On May 2, 2007 Dr. Heppenstall stated that appellant reinjured her back on August 30,
2005, when she bent over to pick up mail from the floor. At that time, “she felt exquisite pain in
her low back and down her left leg in the form of sciatica. This aggravated the symptoms in her
back and her left lower extremity.” Dr. Heppenstall reiterated that the 1998 and 2005 injuries
were work related, and were the direct cause of appellant’s herniated L5 disc on the left. Once
again, this report is of diminished probative value, as it fails to adequately describe how the act
of bending over to pick up mail on August 30, 2005 caused or aggravated appellant’s diagnosed
condition. Dr. Heppenstall’s categorical statement, without explanation, is insufficient to
establish causal relationship.
Appellant has not provided a narrative report containing a physician’s rationalized
opinion establishing a causal relationship between her condition and the established August 30,
15

John W. Montoya, supra note 10.

16

Id.

7

2005 work incident. The remaining medical evidence of record, including x-ray reports and MRI
scan reports, lacks any opinion on causal relationship and is, therefore, of limited probative
value.17
Appellant expressed her belief that her back condition resulted from the August 30, 2005
employment incident. The Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.18 Neither the fact that the condition became apparent during a period of
employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.19 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, appellant’s belief that her condition was caused by the work-related incident
is not determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment, and the doctor’s
opinion, with medical reasons, explaining how her diagnosed condition was related to the
August 30, 2005 employment incident. Appellant failed to submit appropriate medical
documentation in response to the Office’s request. As there is no probative, rationalized medical
evidence explaining how appellant’s claimed back condition was caused or aggravated by her
employment, she has not met her burden of proof in establishing that she sustained an injury in
the performance of duty.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on August 30, 2005.

17

Michael E. Smith, 50 ECAB 313 (1999).

18

See Joe T. Williams, 44 ECAB 518, 521 (1993).

19

Id.

8

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2007 and October 20, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 21, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Z., Appellant
and
FEDERAL EMERGENCY MANAGEMENT
ADMINISTRATION, Oklahoma City, OK,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-531
Issued: May 11, 2007

Case Submitted on the Record

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

JURISDICTION
On December 18, 2006 appellant filed a timely appeal from a November 29, 2006 Office
of Workers’ Compensation Programs’ hearing representative decision and a May 12, 2006 merit
decision. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has established that he sustained injuries to his face, head
and eyes in the performance of duty on February 2, 2006.
FACTUAL HISTORY
Appellant, a 63-year-old project manager, filed a traumatic injury claim on February 3,
2006 alleging that he injured his face, head and eyes on February 2, 2006 when a door struck him
in the face. He also alleged that his prescription glasses were damaged when the door hit him in
the face on February 2, 2006.

On April 7, 2006 the Office advised appellant that it required factual and medical
evidence to determine whether he was eligible for compensation benefits. The Office asked
appellant to submit a report from his treating physician containing a diagnosis of his condition
and an opinion as to whether his claimed condition was causally related to his federal
employment. The Office requested that appellant submit this evidence within 30 days.
Appellant did not respond.
By decision dated May 12, 2006, the Office denied the claim finding that appellant failed
to submit evidence in support of his claim. The Office determined that appellant failed to submit
medical evidence providing a diagnosis resulting from the February 2, 2006 work incident.
On May 25, 2006 appellant requested an oral hearing which was held on
September 13, 2006. He testified at the hearing that after his accident he received treatment for
his injuries at a medical clinic. Appellant stated that he paid $75.00 for this treatment. He also
related that he underwent an eye examination for a new eyeglass prescription and bought new
glasses. Appellant asserted that he was seeking reimbursement for the clinic treatment and the
new eyeglasses. He did not, however, submit any factual or medical evidence in support of his
claim.
By decision dated November 29, 2006, an Office hearing representative affirmed the
May 12, 2006 Office decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.4 Second, the

1

5 U.S.C. §§ 8101-8193.

2

Joe Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

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

2

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5
The Act in pertinent part at section 8101(5) defines injury as follows: injury includes, in
addition to injury by accident, a disease proximately caused by the employment, and damage to
or destruction of medical braces, artificial limbs and other prosthetic devices which shall be
replaced or repaired, and such time lost while such device or appliance is being replaced or
repaired; except that eyeglasses and hearing aids would not be replaced, repaired or otherwise
compensated for, unless the damages or destruction is incident to a personal injury requiring
medical services.
ANALYSIS
In this case, it is uncontested that appellant experienced the employment incident at the
time, place and in the manner alleged. However, the question of whether an employment
incident caused a personal injury generally can be established only by medical evidence.6
Appellant has not submitted rationalized, probative medical evidence to establish that the
employment incident on February 2, 2006 caused any personal injury.
The Office advised appellant of the evidence required to establish his claim; however,
appellant failed to submit such evidence. Appellant did not provide a diagnosis of his condition
or a medical opinion to sufficiently describe or explain the medical process through which the
February 2, 2006 work accident would have caused the claimed injury. Accordingly, as he has
failed to submit any probative medical evidence establishing that he sustained an injury in the
performance of duty, the Office properly denied appellant’s claim for compensation.
While appellant alleges that the incident in question necessitated that he purchase new
prescription glasses, he has not met his burden of proof in this regard. The Act states that
eyeglasses will not be replaced, repaired or otherwise compensated for, unless the damage or
destruction is incidental to a personal injury requiring medical services. Appellant has not
established that he sustained an injury as a result of the accepted incident and he has not
established that new prescription glasses were prescribed by a qualified physician.7
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof in establishing that
his claimed face, head and eye injuries were sustained in the performance of duty.

5

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee). For a definition of the term
“occupational disease or illness,” see 20 C.F.R. § 10.5(g).
6

John J. Carlone, supra note 4.

7

See Mary Patricia Birdsall, 9 ECAB 166 (1966). See also Isadore J. Berman, 16 ECAB 217 (1964).

3

ORDER
IT IS HEREBY ORDERED THAT the November 29 and May 12, 2006 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: May 11, 2007
Washington, DC

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

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

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

4