United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.J., Appellant
and
DEPARTMENT OF DEFENSE,
CONSTRUCTION SUPPLY CENTER,
Columbus, OH, Employer
__________________________________________

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

Docket No. 20-1123
Issued: September 27, 2021

Case Submitted on the Record

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

JURISDICTION
On May 5, 2020 appellant filed a timely appeal from a January 23, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees ’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

Appellant’s AB-1 Form notes that she is appealing from a purported “April 17, 2020” OWCP merit decision.
However, the record is devoid of any such decision. The only adverse final decision over which the Board may
exercise jurisdiction is OWCP’s January 23, 2020 merit decision. See 20 C.F.R. §§ 501.2(c) and 501.3.
1

2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 23, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant ’s
wage-loss compensation and medical benefits, effective June 18, 2019; and (2) whether appellant
has met her burden of proof to establish continuing employment-related disability or residuals on
or after June 18, 2019 due to the accepted March 18, 2015 employment injury.
FACTUAL HISTORY
This case was previously before the Board on a different issue.4 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On March 20, 1985 appellant, then a 45-year-old supply clerk, filed a traumatic injury
claim (Form CA-1) alleging that on March 18, 1985 she sustained back and right foot injuries
when she tripped in a hole and fell in an employing establishment parking lot while in the
performance of duty. OWCP accepted the claim for a lower back strain and paid her compensation
for intermittent periods of disability commencing April 8, 1985. In May 1986, appellant
experienced a recurrence of the original injury. She was terminated from her employment effective
July 10, 1986. OWCP subsequently determined that the physical aspect of appellant’s claim
contained in the statement of accepted facts (SOAF) had resolved, but expanded its acceptance of
the claim to include chronic pain disorder. It subsequently placed appellant on its periodic
compensation rolls.
In September 11, October 11, and November 15, 2018 reports, Dr. Nikesh Batra, a Boardcertified pain medicine specialist, provided an assessment of sprain of other parts of the lumbar
spine and pelvis. In his September 11, 2018 report, he concluded that appellant had chronic low
back pain due to lumbar disc disease and he continued her on pain medication management.
On December 10, 2018 OWCP referred appellant to Dr. James R. Hawkins, a Boardcertified psychiatrist, for a second opinion examination. It requested that he administer the
Minnesota Multiphasic Personality Inventory (MMPI) psychological testing and perform a mental
status examination to evaluate whether she continued to have residuals/disability causally related
to her work-related psychiatric diagnosis (chronic pain disorder) that was based solely on her
physical work-related diagnosis (low back strain) that was considered administratively resolved.
The accompanying SOAF was dated November 14, 2012.
In a January 8, 2019 report, Dr. Hawkins indicated that he had reviewed the SOAF and
appellant’s medical history and records. He reported that the MMPI psychological testing was
invalid and likely consistent with exceptionally significant malingering as she had embellished all
of her physical and psychological symptoms.
Dr. Hawkins also reported mental status
examination findings, noting that appellant exaggerated all of her psychological symptoms and
was not truthful with some of her documented personal history. Appellant was also angry of being
sent to this examination. Dr. Hawkins diagnosed chronic pain disorder and major depressive
disorder, single episode, mild, and chronic. He indicated that appellant related all of her
4

Docket No. 86-1034 (issued June 12, 1986).

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complaints to a lumbar strain as a result of the fall in 1985. Dr. Hawkins opined that it was unlikely
that lumbar strain could cause the plethora of symptoms she reported. He opined that, while
appellant did suffer from major depressive disorder, single episode, mild, and chronic, this was
unrelated to the resolved physical work-related condition. Dr. Hawkins found no evidence that
she was depressed because of the 33-year-old industrial injury of lumbar strain, which generally
resolved within six months, and there were no psychiatric residuals as a result of the accepted
injury. He noted that he was aware that the work-related diagnosis of low back strain was
considered administratively resolved, but appellant did not mention this during the interview and
became angry. Dr. Hawkins stated that her history matched the information noted on the SOAF
until 1985 when the injury actually occurred. After that appellant’s history did not match the
SOAF information, highly suggesting malingering. Dr. Hawkins concluded that there were no
psychiatric residuals as a result of the work injury and that she was capable of returning to her
former position without psychological restrictions. In a work capacity evaluation (Form OWCP5c) dated January 7, 2018, he opined that appellant could perform her usual work eight hours a
day without medical restrictions.
Dr. Batra continued to provide progress reports regarding appellant’s condition of “sprain
of other parts of lumbar spine and pelvis” and his management of her pain medication.
On February 8, 2019 OWCP prepared an updated SOAF. On February 11, 2019 it referred
appellant to Dr. Ralph G. Rohner, Jr., a Board-certified orthopedic surgeon, for a second opinion
examination. OWCP requested that he evaluate whether she continued to have residuals/disability
causally related to her accepted March 18, 1985 employment injury.
In a March 12, 2019 report, Dr. Rohner indicated that he had reviewed the SOAF and
appellant’s medical history and records. He noted that she had related that she had low back pain
which had progressed as she aged. Dr. Rohner presented examination findings, noting that
appellant was not magnifying her symptoms, but was 79 years old with multiple medical and
psychiatric issues and a very poor memory. He diagnosed low back strain and complex pain
disorder, which he opined were not residuals of the allowed diagnoses. Dr. Rohner noted that
there was no documentation in the records provided that would justify that residuals of that injury
had persisted for the past 34 years or would indicate any involvement in his examination findings.
He opined that appellant’s significant findings on examination were due to the aging phenomenon
and not her work injury. Dr. Rohner further opined that she had no additional diagnoses that were
caused, aggravated, accelerated, or precipitated by the March 18, 1985 work injury. Rather,
appellant’s evaluation was age related. Dr. Rohner opined that, based on her age-related medical
examination, she was unable to work in any field of endeavor for which she was suited by age,
education, and work experience. He further opined that appellant’s care was palliative in nature.
On April 12, 2019 OWCP requested that Dr. Hawkins review Dr. Rohner report and
indicate whether his previous opinion that appellant no longer had complex pain disorder or any
psychiatric diagnosis related to her March 18, 1985 work injury had changed.
In an April 22, 2019 addendum report, Dr. Hawkins noted that he reviewed the updated
SOAF and Dr. Rohner report. He reiterated his opinion that appellant has major depressive
disorder, mild and chronic as a result of multiple nonwork-related medical illnesses and that she
was psychiatrically capable of returning to work.

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In a May 8, 2019 letter, OWCP advised appellant that it proposed to terminate her wageloss compensation and medical benefits because she ceased to have residuals/disability causally
related to her accepted March 18, 1985 employment injury. It advised her that the proposed action
was based on the opinion of Dr. Hawkins and Dr. Rohner and afforded her 30 days to submit
additional evidence or argument challenging the proposed action.
In a May 21, 2019 letter, Dr. Charles B. May, an osteopathic physician specializing in
family practice, reported that appellant had chronic low back pain, for which she saw Dr. Batra for
pain management, and Dr. Jerold Altman, a psychiatrist, but noted that he had not received recent
reports from either physician. He reported her physical examination findings, noting that she
ambulated with a wheeled walker and had exquisite lumbar tenderness throughout with very little
active range of motion and had difficulty transitioning from sitting to standing and from standing
to the examination table.5 Dr. May opined that appellant suffered from a chronic pain disorder, as
allowed in the claim, and that she needed continued pain management and psychiatric treatment.
He also opined that she was unable to work.
By decision dated June 18, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date. It found that the weight of the medical evidence was
represented by the reports of Dr. Hawkins and Dr. Rohner.
On June 27, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. As of July 20, 2019 counsel no longer
represented appellant. A telephonic hearing took place on November 7, 2019.
OWCP continued to receive evidence.
In an August 20, 2019 letter, Dr. May disagreed with the findings of Dr. Rohner that
appellant’s current disability was due to unrelated medical problems with her spine. He indicated
that he was aware that she had osteoarthritis of the lumbar spine, as confirmed by a July 9, 2019
x-ray, but stated that the fact that there are expected degenerative changes in the spine did not
mean that her pain was coming from those expected aging or degenerative changes. Rather,
Dr. May opined that appellant’s pain was psychological in nature and, thus, directly related to the
allowed pain disorder in her claim, which was causing her permanent and total disability. He again
noted that she was being treated by a pain management specialist and a psychiatrist for her chronic
pain syndrome. In an August 20, 2019 progress report, Dr. May noted appellant’s physical
examination findings. He also noted that she reported that her psychiatrist recently passed away.
In an October 23, 2019 letter, Dr. Ronald Lakatos, a Board-certified orthopedic surgeon,
noted the history of appellant’s work injury. He indicated that diagnostic testing revealed
degenerative spondylolisthesis at L4-5 and lumbar stenosis L4-5 with neurogenic claudication and
requested that those conditions be added to her claim and surgical authorization be approved.
Progress reports dated September 23 and October 23, 2019 were also submitted. Dr. Lakatos
reviewed magnetic resonance imaging (MRI) scan images and reported that appellant had positive
5

Straight leg raising was reported as negative for sciatic tension and deep tendon reflexes in both lower extremities
were 2/4 and equal bilaterally. No atrophy, motor or sensory loss in either lower extremity was detected and no ankle
clonus was noted.

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straight leg raise bilaterally with no focal motor deficits. He diagnosed lumbar stenosis with
neurogenic claudication and degenerative spondylolisthesis at L4-5 with high-grade stenosis and
discussed surgical options.
In a December 10, 2019 letter, Dr. Batra indicated that he had been seeing appellant for the
past two years for her chronic lower back pain. He noted that she, on her initial visit, provided a
history of her work injury. Dr. Batra opined that appellant’s pain came from more than just a back
sprain, noting that she had degenerative disc disease from L3-S1 levels as well as facet arthropathy.
He concluded that, going by her history, her chronic intractable lower back and bilateral sciatica
pain resulted from her 1985 work injury. In progress notes dated June 14, July 12, and August 14,
2019, Dr. Batra diagnosed sprain of other parts of the lumbar spine and pelvis and sciatica,
unspecified side. He noted that appellant denied any new injury, the last MRI scan in 2016 showed
multilevel degenerative changes, and she was receiving prescription opioid medications for
chronic pain.
In a December 20, 2019 letter, Dr. Avneet Hira, a Board-certified psychiatrist, indicated
that he had treated appellant since August 2019 for depression after her previous psychiatrist,
Dr. Altman, passed away earlier that year. He noted that she reported that her depression related
to her work injury and that she had been dealing with a lot of pain issues as well. Dr. Hira opined
that appellant continues to experience depression and anxiety-related symptoms from which she
was permanently and totally disabled.
Diagnostic testing received included February 23, 2016 MRI scan of lumbar spine ,
August 19, 2019 x-rays of thoracic spine, which noted degenerative changes, August 30, 2019
x-ray of lumbar spine, which noted grade 1 anterolisthesis of L4 and L5 and very minimal amount
of anterolisthesis at L5-S1, September 19, 2019 lumbar spine MRI scan, noting grade 1
spondylosithesis of L4 on L5 and stenosis thecal sac, and narrowing of neural foramina at various
levels, worst at L4-5.
By decision dated January 23, 2020, an OWCP hearing representative affirmed the
June 18, 2019 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.6 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment
injury.7 OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background. 8

6

S.P., Docket No. 19-0196 (issued June 24, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59
ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
7

See S.P., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989);
Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
8

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. 9 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment. 10
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 18, 2019.
In his May 12, 2019 report, Dr. Rohner reviewed the latest SOAF and appellant’s medical
history and records. He reported that the significant findings on examination were due to aging.
Dr. Rohner indicated that appellant’s diagnoses of low back strain and complex pain disorder were
no longer residuals of the accepted conditions, but were rather due to the aging phenomenon. He
explained that there was no documentation in the records provided that would justify that residuals
of a low back strain persisted for the past 34 years or indicate any other involvement in her agerelated examination findings. Dr. Rohner further opined that appellant had no additional diagnoses
that were caused, aggravated, accelerated, or precipitated by the March 18, 1985 work injury. He
concluded that, based on her age-related medical examination findings, she was unable to work in
any field of endeavor for which she was suited by age, education, and work experience.
Dr. Rohner further opined that appellant’s care was palliative in nature.
The Board finds that Dr. Rohner’s opinion has reliability, probative value, and convincing
quality with respect to whether appellant has any employment-related residuals or disability based
upon his finding that her significant findings on examination were solely due to the aging
phenomenon and not her work injury. Dr. Rohner provided a thorough factual and medical history
and accurately summarized the relevant medical evidence. 11 He provided rationale for his opinion
and reached a reasoned conclusion regarding the absence of employment-related disability or
residuals of appellant’s accepted conditions.12
Dr. Hawkins, in his January 8, 2019 report, provided mental status examination findings
and conducted appropriate psychological testing, which he opined that was invalid and consistent
with exceptionally significant malingering as appellant had embellished all of her physical and
psychological symptoms. He diagnosed chronic pain disorder and major depressive disorder,
single episode, mild, and chronic. With regard to the chronic pain disorder, Dr. Hawkins found
no evidence that appellant was depressed because of the 33-year-old industrial injury of lumbar
strain and there were no psychiatric residuals as a result of the accepted injury. He explained that
her recitation of her medical history did not match the SOAF information after the injury occurred,
which was highly suggestive of malingering.
Dr. Hawkins concluded that there were no
psychiatric residuals as a result of the work injury and that appellant was capable of returning to
9

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

10

L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).

11

M.R., Docket No. 19-0518 (issued September 12, 2019); A.G., Docket No. 19-0113 (issued July 12, 2019).

12

See J.N., Docket No. 20-1030 (issued November 20, 2020).

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her former position without psychological restrictions. He further opined that the diagnosis of
major depressive disorder, single episode, mild, and chronic was unrelated to the resolved physical
work-related condition. Dr. Hawkins subsequently reviewed the updated SOAF and Dr. Rohner’s
opinion. He opined, in his May 12, 2019 report, that his earlier opinion was unchanged.
The Board finds that Dr. Hawkins based his opinion on a proper factual and medical history
and mental status examination findings and provided medical rationale for his opinion that
appellant did not have any psychiatric residuals as a result of the accepted injury and was capable
of returning to her former position without psychological restrictions. Dr. Hawkins reviewed the
latest SOAF and Dr. Rohner’s report and found no evidence of psychiatric residuals as a result of
the accepted injury. He explained that appellant’s psychological testing was invalid and both the
psychological testing and mental status examination were consistent with significant malingering
as she had embellished all of her physical and psychological symptoms. Dr. Hawkins further
opined that the diagnosis of major depressive disorder, single episode, mild, and chronic was
unrelated to the resolved physical work-related condition. Thus, the Board finds that he provided
a well-rationalized opinion based on medical evidence and his mental status examination regarding
appellant’s March 18, 1985 employment injury. 13
The Board finds that the remaining contemporaneous medical evidence received prior to
the termination of appellant’s benefits is insufficient to overcome the weight of medical evidence
given to the reports of Dr. Rohner and Dr. Hawkins. Dr. Batra continued to provide opioid pain
management and continued to diagnose “sprain of other parts of lumbar spine and pelvis” and
managed her pain medications. However, he did not address the issue of whether appellant
continued to have residuals due to her accepted March 18, 1985 employment injury.14
In his May 21, 2019 report, Dr. May reported that appellant saw Dr. Batra for pain
management of her chronic low back pain and Dr. Altman. He opined that she was totally disabled
from a chronic pain disorder, as allowed in the claim, and that she needed continued pain
management and psychiatric treatment. Dr. May failed, however, to provide rationale for
appellant’s conclusory opinion and his own findings to support the diagnosis or that the condition
continued to be causally related to the 1985 employment injury. 15
Accordingly, OWCP properly relied on the second opinion reports from Dr. Rohner and
Dr. Hawkins in terminating appellant’s wage-loss compensation and medical benefits for the
March 18, 1985 employment injury. 16 As such, their reports constitute the weight of the medical
evidence.

13

Id.

14

See R.R., Docket No. 19-0173 (issued May 2, 2019); O.W., Docket No. 17-1881 (issued May 1, 2018).

15

See P.L., Docket No. 19-0268 (issued July 9, 2019).

16
See C.C., Docket No. 19-1062 (issued February 6, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019);
see also A.F., Docket No. 16-0393 (issued June 24, 2016).

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LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminated compensation benefits, the burden shifts to appellant to
establish continuing disability after that date causally related to the accepted injury.17 To establish
causal relationship between the accepted conditions as well as any attendant disability claimed and
the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background supporting such causal relationship. 18
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish continuing
employment-related disability or residuals on or after June 18, 2019 due to the accepted March 18,
1985 employment injury.
Subsequent to the termination of her wage-loss compensation and medical benefits,
appellant submitted an August 20, 2019 letter from Dr. May. Dr. May indicated that he was aware
that she had osteoarthritis of the lumbar spine, but stated that the fact that there are expected
degenerative changes in the spine did not mean that her pain was coming from those expected
aging or degenerative changes. Rather, he opined that appellant’s pain was psychological in nature
and, thus, directly related to the allowed pain disorder in her claim, which was causing her
permanent and total disability. Dr. May, however, did not provide rationale to explain why her
continuing disability was causally related to her accepted pain disorder. The Board has held that
a mere conclusion without the necessary rationale as to whether a medical condition or disability
is due to an accepted employment condition is insufficient to meet a claimant’s burden of proof. 19
Dr. May’s report is therefore of diminished probative value and insufficient to meet appellant ’s
burden of proof to establish continuing residuals or disability.20
In an October 23, 2019 letter, Dr. Lakatos noted the history of the work injury and indicated
in the letter, and in progress reports, that appellant had degenerative spondylolisthesis at L4-5 and
lumbar stenosis L4-5 with neurogenic claudication. He requested that those conditions be added
to her claim and surgical authorization be approved. Dr. Lakatos, however, did not address the
issue of whether appellant’s diagnosed conditions and need for continued treatment was due to her
accepted March 18, 1985 employment injury.21 Medical evidence that does not offer an opinion
regarding the cause of an employee’s condition or disability is of no probative value on the issue
of causal relationship. 22 Thus, his reports are insufficient to meet appellant’s burden of proof to
establish continuing disability or residuals.
17

See J.N., Docket No. 20-1030 (issued November 20, 2020); L.C., Docket No. 18-1759 (issued June 26, 2019).

18

Id.

19

A.T., Docket No. 19-0410 (issued August 13, 2019); E.L., Docket No. 17-1632 (issued January 3, 2018).

20

E.J., Docket No. 20-0013 (issued November 19, 2020); L.S., supra note 10.

21

See R.R., supra note 14.

22

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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Appellant submitted several progress reports from Dr. Batra containing findings similar to
those in his previously submitted progress reports with the additional condition of sciatica,
unspecified side, diagnosed. In his December 10, 2019 letter, Dr. Batra indicated that he had been
treating her for the past two years for her chronic lower back pain and that she, on her initial visit,
provided a history of her work injury. He opined that appellant’s pain came from more than just
a back sprain, noting that she had degenerative disc disease from L3-S1 levels as well as facet
arthropathy. Dr. Batra opined that, going by her history, her chronic intractable lower back and
bilateral sciatica pain resulted from her 1985 work injury. He did not, however, provide any
rationale for his causation finding and thus his opinion is of little probative value. 23
In a December 20, 2019 letter, Dr. Hira indicated that he had treated appellant since
August 2019 for depression, which she related to her work injury and pain issues. While he opined
that she continued to experience depression and anxiety-related symptoms from which she was
permanently and totally disabled, he did not address the issue of whether her depression and
anxiety-related symptoms and resultant disability was due to her accepted March 18, 1985
employment injury.24 Thus, Dr. Hira’s opinion is of diminished probative value and insufficient
to meet appellant’s burden of proof to establish continuing residuals or disability. 25
While the multiple diagnostic testing reveals multiple back conditions, the Board has
explained that diagnostic studies, standing alone, lack probative value as they do not address
whether the employment injury caused any of the diagnosed conditions. 26
Appellant has not submitted rationalized medical evidence sufficient to establish
employment-related disability or residuals on or after June 18, 2019 due to accepted employmentrelated conditions. As such, the Board finds that she has not met her burden of proof. 27
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 OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 18, 2019. The Board further finds that she has

23

A.T., Docket No. 20-0334 (issued October 8, 2020) (a medical report is of limited probative value on a given
medical issue if it contains a medical opinion which is unsupported by medical rationale).
24

See R.R., supra note 14.

25

See E.J., supra note 20.

26

R.C., Docket No. 19-0376 (issued July 15, 2019).

27

Id.

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not met her burden of proof to establish continuing employment-related disability or residuals on
or after June 18, 2019 due to her accepted March 18, 1985 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
GOVERNMENT PRINTING OFFICE,
MAINTENANCE DEPARTMENT,
Washington, DC, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
No appearance, for the Director

Docket No. 09-1607
Issued: July 26, 2010

Oral Argument April 9, 2010

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

JURISDICTION
On June 8, 2009 appellant filed a timely appeal from the July 2, 2008 and March 5, 2009
merit decisions of the Office of Workers’ Compensation Programs concerning forfeiture and an
overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant forfeited his
right to compensation for the period May 15, 2002 to September 30, 2007; (2) whether the Office
properly found that he received a $226,821.74 overpayment of compensation; and (3) whether
the Office properly found that he was at fault in creating the overpayment of compensation,
thereby precluding waiver.

FACTUAL HISTORY
The Office accepted that on April 1, 1993 appellant, then a 48-year-old elevator
repairman, sustained a lumbosacral sprain and a herniated nucleus pulposus at L4-5 due to taking
a motor and bracket off a roll lift. Appellant stopped work from April 14 to November 14, 1993
and returned to light-duty work at the employing establishment on November 15, 1993. He
stopped work on November 29, 1993 and did not return. Appellant received wage-loss
compensation from the Office for periods of total disability and underwent an authorized
laminectomy and discectomy surgery at L4-5 on July 6, 1995.1
In a May 2, 2007 memorandum of interview, Nathaniel Brown, III, a special agent for the
employer’s Office of Inspector General, indicated that he was memorializing an interview he
conducted with appellant on that date. Appellant stated that around 1984 he and a friend, Daniel
Barrett, started a company in Maryland called B&W Housing. The two men sold houses, which
they had remodeled or arranged to have built without particular buyers in mind. After appellant
moved to Myrtle Beach, South Carolina, in 1998, he and Mr. Barrett started a company called
B&W Properties of Myrtle Beach and bought three properties. Appellant indicated that he was
the property manager of the properties and stated that the activity gave him “something to do.”
He located renters, collected rent, went to the properties if the renters were having problems with
the house and did minor repairs if necessary, such as fix an appliance. Appellant hired his
brother, David Williams, if a job was too difficult or large for him. He and his brother invested
equally in a house in Myrtle Beach in 2002 or 2003 and appellant went to the job site regularly
and picked up supplies at home improvement stores. The two men sold the property and made a
small profit. Appellant indicated that he helped neighbors with small projects around their
houses but did not charge them any money.
In a May 7, 2007 memorandum of interview, Mr. Brown indicated that he was
memorializing an interview he conducted with Mr. Barrett on that date. Mr. Barrett stated that in
the 1980s he bought several rental properties with appellant in Maryland and that they started a
company called B&W Housing in order to facilitate their investment in the properties.2 The
formation of the company was recommended by Mr. Barrett’s accountant in order to ensure that
they would only have limited liability in case something happened at one of the properties.
Appellant moved to Myrtle Beach in the late 1990s after he was injured at work and the two men
bought several rental properties there. Mr. Barrett indicated that he and appellant got $500.00 to
$600.00 per month in rent for each property and placed the money back into their company. He
indicated that appellant was managing the properties in Maryland and wanted to manage the
properties in South Carolina in order “to stay busy.” Managing the properties consisted of
finding renters, collecting rent, checking on the houses and making repairs when necessary.
Mr. Barrett stated that he believed that appellant performed some minor repairs on the properties
but often had his brother, Mr. Williams, work on the properties. He also knew many
subcontractors in the area.
1

In October 1996, the Office accepted that appellant sustained depression, chronic pain disorder and chronic
insomnia due to his April 1, 1993 work injury.
2

Mr. Barrett believed that he and appellant bought properties which they renovated and sold, but noted that “he
could not recall.”

2

In a May 2, 2007 memorandum of interview, Mr. Brown memorialized an interview he
conducted with Mr. Williams on that date. He reported that in 2002 he moved to Myrtle Beach
and bought a house with appellant, which they remodeled and sold eight months later for a small
profit. Mr. Williams advised that he or subcontractors performed construction, electrical and
plumbing work on the houses and stated that appellant performed no real work. Mr. Williams,
Mr. Barrett and appellant had a company called B&W Properties of Myrtle Beach and owned
two duplexes and a single-family house, which they rented out. Mr. Williams performed work
on all the houses at different times and appellant “may perform minor work on these properties”
but called him if there was a project he could not perform himself.
In several memoranda of interview, Mr. Brown detailed other interviews held on
May 2, 2007. Eduardo Rafael indicated that he saw appellant when he came by his house, one of
appellant’s rental properties and looked at problems such as a broken air conditioner or
dishwasher. Appellant fixed an appliance at Mr. Rafael’s house but he also had his brother make
repairs at the house. Maxine Hypes, a neighbor of appellant, stated that she saw appellant on a
daily basis working in his yard and workshop. Glenda Davi, another neighbor, stated that
appellant would do small projects for her without charge, such as fixing a pipe on her sprinkler
system.
The record contains Internal Revenue Service (IRS) S-Corporation tax forms (Form
1120S) for B&W Properties of Myrtle Beach, Inc., and 25th Avenue, a limited liability company
(LLC), completed by appellant’s accountant, Daniel Coale. The forms cover the years 2004
through 2006 and, under Schedule K-1, include entries for “ordinary business income.”3 A
report prepared by the private company United Self-Insured Services entitled “comprehensive
individual claim credibility analysis” noted that appellant owned three properties in South
Carolina. The report memorialized a conversation in which David Williams indicated that he
and appellant performed most of the construction, interior modeling and carpentry work on
houses that they bought together for remodeling and sale. It is unclear who conducted the
interview or prepared the report. In EN1032 forms completed on August 15, 2003, December 30,
2004, January 5 and December 14, 2006 (each of which covered a 15-month period going back
from the date of completion) appellant answered “no” on each form in response to a question
asking whether he was self-employed or involved in any business for the 15-month period prior
to completing each form. In a Form EN1032 completed on September 30, 2007, appellant
indicated in the section for reporting self-employment that since January 2006 he had spent 20
minutes each month depositing rent checks.
In an August 22, 2007 report of investigation, Sonja L. Scott, a special agent for the
employing establishment’s Office of Inspector General, provided excerpts from the May 2007
memoranda of interview and discussed the entries from appellant’s tax returns between 2004 and
2006, including deductions made for repairs and payments to subcontractors.4 She asserted that
3

Under Schedule K-1, the following entries were made for ordinary business income for B&W Properties: an
$8,662.00 loss for 2004, $3,109.00 in income for 2005 and $296.00 in income for 2006. In 2005, 25th Avenue had
$14.00 in ordinary business income and, in 2006, it had $148.00 of such income.
4

In a May 23, 2007 letter to Ms. Scott, appellant listed properties he owned and indicated that any repairs on the
properties were performed by David Williams or hired workers.

3

the tax deductions established that appellant acted not only as a property manager, but also as a
general contractor who directed subcontractors. Ms. Scott stated that bank statements showed
several debits to a Lowe’s Home Improvement Store made on the B&W Properties account and
posited that this circumstance showed that appellant had performed work at rental properties.5
She concluded that the interviews, tax records and bank statements established that appellant
falsified EN1032 forms completed on August 15, 2003, December 30, 2004, January 5 and
December 14, 2006 when he answered “no” in response to whether he was self-employed or
involved in any business for the 15-month period prior to completing each form.
In an October 17, 2007 letter to the Office, appellant stated that since 1988 he was half
owner in a company that invested in real estate. Since 1993, he had only received rent from the
company as a passive investor and it was his belief that investments were not encompassed by
the EN1032 forms he completed for the Office. Appellant stated that it was incorrect that he
performed construction repairs and work on the homes of neighbors and he had not been able to
perform such work since his 1993 injury.
In a November 27, 2007 letter to the Office concerning the $2,598.00 he reported to the
Social Security Administration (SSA), appellant stated that he belonged to an investment group,
which purchased a rental, property and had been depositing a rent check each month. He was
unaware that, according to IRS rules, his portion of the business income was not considered
nonpassive income on the Schedule K-1 form but rather was considered passive income in the
amount of $2,813.00.6 Appellant stated that he spent about 20 minutes a month depositing the
rent check he received. On March 27, 2008 an Office claims examiner noted that he had
telephoned the IRS about appellant’s Schedule K-1 income. He was informed that some income
from partnerships could be considered self-employment income and had to be reported to the
SSA. The claims examiner stated, “[S]o the claimant’s letter of November 27, 2007 is a
reasonable explanation of why the SSA reported wages.”
In a July 2, 2008 decision, the Office determined that appellant forfeited his right to
compensation for the period May 15, 2002 to September 30, 2007 because he knowingly
understated or underreported earnings and employment activities related to his management of
rental properties. The amount of compensation forfeited was $226,821.74.7 The Office noted that
appellant completed EN1032 forms on August 15, 2003, December 30, 2004, January 5 and
December 14, 2006 and September 30, 2007 (each of which covered a 15-month period going back
from the date of completion) but found that he failed to fully report earnings for the periods
covered by the forms. While appellant claimed that he only received rent, the Office found that he
performed work as a landlord or property manager. Appellant’s income could not be considered
passive income from an investment or capital gains because, according to his statements and those
5

Appellant’s March 2007 bank statement shows two entries for a Lowe’s Home Improvement Store.

6

It does not appear that the documents regarding appellant’s dealings with the SSA are in the record.

7

The Office calculated the amount of the forfeiture based on the compensation appellant received from July 1,
2002 to September 30, 2007 because it was not clear from the payment history how much he received from May 15
to July 1, 2002 “due to overlapping payments.” Although the Office determined that appellant forfeited his right to
compensation for the period May 15, 2002 to September 30, 2007, it should be noted that the EN1032 forms
completed by appellant did not cover the period August 16 to September 30, 2003.

4

of his brother, he performed at least light construction work and was active in the management of a
real estate company. The Office found that there was no evidence to establish that appellant did
not understand that the forms notified him to report any earnings or work he performed. The
decision stated:
“According to an interview conducted with you on [May 2, 2007] you admitted
not only that you owned rental property but that since 1998 you have been the
property manager for rental properties you co-own, that you locate renters, collect
rent, go to properties and do small repair work. An interview with your brother
on the same day corroborates these activities. Since you have never reported this
work on your [EN1032 forms], stating on each one … that you never worked for
the period 15 months prior, you have provided false statements and forfeiture of
all compensation is appropriate. When confronted with this evidence you denied
any involvement other than collecting rent for approximately 20 minutes per
month, which still makes you an active participant in a business.”
In a July 2, 2008 letter, the Office advised appellant of its preliminary determination that
he received a $226,821.74 overpayment of compensation because he provided false statements
on EN1032 forms for the period May 15, 2002 to September 30, 2007 and forfeited
compensation for this period. It made a preliminary determination that he was at fault in the
creation of the overpayment because he knew or should have known that he failed to report
earnings on EN1032 forms. It advised appellant that he could submit evidence challenging the
fact, amount or finding of fault and request waiver of the overpayment. The Office informed
appellant that he could submit additional evidence in writing or at prerecoupment hearing, but
that a prerecoupment hearing must be requested within 30 days of the date of the written notice
of overpayment. It requested that appellant complete and return an enclosed financial
information questionnaire within 30 days even if he was not requesting waiver of the
overpayment.
In a September 9, 2008 letter, appellant disputed the Office’s preliminary overpayment
determination. He disagreed that he performed light construction work or was active in business
management during the periods covered by the EN1032 forms he completed. Appellant asserted
that he was a passive investor in real estate and stated that all activities concerning the
management of the company he co-owned were performed by others, including management
company workers or other hired personnel. The IRS had determined that the monies he received
from the company constituted partnership income rather than wages. Appellant denied any
admission that he was a property manager or that he located renters, collected rent, went to
properties or performed small repair work. He stated that he spent 20 minutes each month
depositing the proceeds he received from his investment properties.
In a July 21, 2008 letter, appellant’s accountant, Mr. Coale, stated that his firm had been
filing S Corporation tax forms (Form 1120S) for the companies B&W Housing, Inc., and B&W
Properties of Myrtle Beach, Inc. He stated that appellant did not have any earned income during
the past several years, but rather only had passive and nonpassive income from various
investments. In 2006, appellant was the general partner in a limited liability company known as
25th Avenue, LLC, but he was not compensated for any services, which could qualify as earned
income. Mr. Coale stated that appellant was issued a Schedule K-1 form and the income from

5

this form was reported on his individual income tax return. A $397.00 payment was made to the
SSA on a $2,813.00 dividend based on the proportionate distribution to appellant of the overall
earnings of 25th Avenue, LLC. Mr. Coale stated that this distribution was not earned income but
was nonpassive income because of appellant’s role as general partner in 25th Avenue, LLC. He
noted that the term nonpassive income did not imply that the monies qualified as earned income.
To his knowledge, appellant had never been compensated for any services performed in
connection with his investments during the past several years.
On December 15, 2008 Mr. Barrett signed a document, which addressed the text of his
May 7, 2007 memorandum of interview. He noted that the statement he “allegedly made” had
been used to determine that appellant was actively managing real estate since 2002; but asserted
that this characterization was false. Mr. Barrett stated, “With regard to the question as to
whether, since 2002, [appellant] finds renters, collects rent, or performs any repairs, minor or
otherwise, I am unaware of any such activity on the part of [appellant].”8 On January 2, 2009
Mr. Williams signed a document, which addressed the text of his May 2, 2007 memorandum of
interview. He noted that since 2002 appellant did nothing other than act as a passive investor
and, to his knowledge, had not performed any work. Mr. Williams advised that the
characterization that appellant engaged in minor repairs or running errands was false. He noted,
“With regard to the question as to whether, since 2002, [appellant] finds renters, collects rent, or
performs any repairs, minor or otherwise, I am unaware of any such activity on the part of
[appellant].”
In a December 19, 2008 letter, Mr. Brown stated that he had reviewed the August 22,
2007 report of investigation, the associated memoranda of the interviews held with appellant,
Mr. Barrett, Mr. Williams and others and all available notes taken during the interviews. He
attested that these records “accurately and completely document the statements made by
[appellant] and other witnesses during the course of this investigation.”
At a November 14, 2008 hearing before an Office hearing representative, appellant
reiterated that he did not serve as a property manager, locate renters, collect rent or perform
minor repairs on properties nor admit to such activities when questioned by the investigator from
the Office of Inspector General. Appellant stated that his brother performed management duties
and that he only deposited rental checks. His attorney asserted that the investigator only
provided summaries of interviews and that the record did not contain any transcripts of the
interviews. Appellant denied that he picked up building supplies as indicated in the summary of
his brother’s statement to the investigator.
In a March 5, 2009 decision, an Office hearing representative affirmed the Office’s
forfeiture decision, found a $226,821.74 overpayment of compensation caused by the forfeiture
and determined that appellant was at fault in creating the overpayment of compensation, thereby
precluding waiver.9 The Office hearing representative noted that appellant provided a Schedule
K-1 from his accounting firm concerning passive income reported to the SSA and acknowledged
8

The record also contains a document signed on December 28, 2008 which contains virtually the same contents.

9

The Office hearing representative indicated that appellant had “multiple investment properties that would
suggest he is able to repay the overpayment in full” and found that the overpayment was due and payable in full.

6

that the IRS did not consider this income to be earned wages. She noted that this did not negate
appellant’s interview with the Office of Inspector General and his admission of active
involvement in his investment properties. Although appellant asserted that the characterization
of his activities by the Office of Inspector General was inaccurate, the statements of the Office of
Inspector General were found to have greater credibility than those of appellant.10
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Federal Employees’ Compensation Act11 provides in pertinent
part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.... An employee who -(1) fails to make an affidavit or report when required; or
(2) Knowingly omits or understates any part of his earnings; forfeits his
right to compensation with respect to any period for which the affidavit or
report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered by a deduction from the compensation
payable to the employee or otherwise recovered under section 8129 of this
title, unless recovery is waived under that section.”12
The Board has distinguished between income received from investment and earnings
received by performing work. The former is not considered to be evidence of a claimant’s
ability to work and earn wages but rather is considered to be a return on investment. The latter is
considered to be wages if the source of income can be established to be the product of the
claimant’s work.13 In the case of Gregg B. Manston,14 the Board found that, while passive land
investment can be considered an investment, activity such as property management can be
considered employment from which a claimant derives earnings as the product of his work.
Management activities may be considered self-employment activities if someone else could be
10

The Office hearing representative noted Mr. Brown’s December 19, 2008 statement attesting to the accuracy of
the May 2007 interviews.
11

5 U.S.C. § 8106(b).

12

While section 8106(b)(2) refers only to partially disabled employees, the Board has held that the test for
determining partial disability is whether, for the period under consideration, the employee was in fact either totally
disabled or merely partially disabled and not whether he received compensation for that period for total or partial
loss of wage-earning capacity. Ronald H. Ripple, 24 ECAB 254, 260 (1973). The Board explained that a totally
disabled employee normally would not have any employment earnings and therefore a statutory provision about
such earnings would be meaningless. Id. at 260. The Board has held that the test of what constitutes reportable
earnings is not whether appellant received a salary but what it would have cost to have someone else perform the
work. See Monroe E. Hartzog, 40 ECAB 322, 329 (1988).
13

Anthony V. Knox, 50 ECAB 402 (1999); Burnett Terry, 46 ECAB 457 (1995).

14

45 ECAB 344 (1994).

7

hired to perform such activities, if the employee was not performing them. The distinction to be
made is between passive business investment profit and active work resulting in earnings.
Before the Office can declare a forfeiture of compensation, it must establish that appellant
received earnings from self-employment, not from passive investment in business ventures.15
The Board has held that the Office may not base its application of the forfeiture provision
strictly on conclusions drawn in an investigation; rather, the evidence of record must establish
that the claimant has had unreported earnings from employment which were knowingly not
reported.16 In FECA Bulletin No. 83-7, the Office noted that an investigative report showing that
a claimant has had unreported earnings from employment must be used in conjunction with other
evidence of record in order to properly find a forfeiture of compensation.17 The Board cited this
bulletin in Claudia J. Thibault,18 in finding that the evidence of record was insufficient to
establish that the employee had earnings within the meaning of the Act. In declaring a forfeiture
of compensation, the only document that the Office presented in support of its position was a
memorandum in which a special agent from the Office of Inspector General for the employees’
employing establishment memorialized a telephone interview with a witness who commented on
her activities. The Board noted that the memorandum was written by the special agent rather
than the person interviewed and found that the evidence was not sufficient to outweigh the
claimant’s testimony that she did not have earnings.
An employee can only be subjected to the forfeiture provision of section 8106 of the Act
if he “knowingly” omitted or understated earnings. It is not enough to merely establish that there
were unreported earnings. The Office procedure manual recognizes that forfeiture is a penalty,19
and, as a penalty provision, it must be narrowly construed.20 The term “knowingly” is not
defined within the Act or its regulations. In common usage “knowingly” is defined as: “[w]ith
knowledge; consciously; intelligently; willfully; intentionally.”21
ANALYSIS -- ISSUE 1
In the present case, the Office determined that appellant forfeited his right to compensation
from May 15, 2002 to September 30, 2007 because he knowingly failed to report earnings and
employment activities related to his management of real estate on several EN1032 forms.22 The
15

See Anthony V. Knox, supra note 13.

16

Louis P. McKenna, Jr., 46 ECAB 328 (1994).

17

FECA Bulletin No. 83-7 (issued March 31, 1984).

18

40 ECAB 836 (1989).

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Cases, Chapter 2.812.10c
(July 1993).
20

See Christine P. Burgess, 43 ECAB 449, 458 (1992).

21

Black’s Law Dictionary (5th ed. 1979); see Anthony A. Nobile, 44 ECAB 268, 271-73 (1992).

22

During the period of forfeiture, appellant was a co-owner of two businesses, B&W Properties of Myrtle Beach,
Inc., and 25th Avenue, LLC.

8

amount of Office compensation found to be forfeited was $226,821.74. The Office found this
resulted in a $226,821.74 overpayment of compensation for which he was at fault in creating the
overpayment of compensation, thereby precluding waiver.
On appeal, counsel argued that the Office did not support its forfeiture determination
because it did not present sufficient evidence to establish appellant’s failure to report earnings
and employment activities. He claimed that the investigative reports of record only contained
unsigned summaries of witness statements and had misrepresented the statements of appellant,
his business partner Mr. Barrett, his brother Mr. Williams and others. Counsel asserted that
appellant’s rental properties were passive investments, that he did not actively manage these
properties and that later affidavits of appellant, Mr. Williams and Mr. Barrett clarified their
earlier statements.
The Board has held that the Office may not base its application of the forfeiture provision
strictly on conclusions drawn in an investigation, but rather the evidence of record must establish
that the claimant has had unreported earnings from employment which were knowingly not
reported.23 The Board finds that the Office did not present sufficient evidence to establish that
appellant failed to report earnings or employment activities on the EN1032 forms he completed
such that he should be subjected to the forfeiture provisions of the Act.24
In finding that appellant forfeited compensation, the Office relied on memoranda of
interviews obtained by Special Agent Brown of the Office of Inspector General in May 2007.
Mr. Brown reported that appellant stated during a May 2007 interview that he acted as a property
manager, which included the tasks of locating renters, collecting rent, going to properties if the
renters were having problems and performing minor repairs if necessary, such as fixing an
appliance. He also asserted that appellant stated that in 2002 or 2003 he went to a job site
regularly and picked up supplies at home improvement store. In another interview held in
May 2007, Mr. Brown reported that Mr. Barrett indicated that appellant managed properties in
Maryland and South Carolina and that managing the properties consisted of finding renters,
collecting rent, checking on the houses and making minor repairs when necessary.25
The Board finds that the Office did not present sufficient evidence to support its
determination that appellant failed to report earnings or employment activities during the period
May 15, 2002 to September 30, 2007. In the memoranda of interview memorializing the
interviews conducted in May 2007, Mr. Brown merely provided summaries of the interviews he
held with appellant, Mr. Barrett, Mr. Williams and others. Appellant, Mr. Barrett and
Mr. Williams later disputed the characterization of their statements as reported by Mr. Brown in
his May 2007 memoranda. The record does not contain any transcript detailing the questions
Mr. Brown asked of the various interviewees or the actual responses made by the interviewees.
23

See supra note 16.

24

In several EN1032 forms, appellant answered “no” in response to a question asking whether he was selfemployed or involved in any business for the 15-month period prior to completing each form.
25

Mr. Brown reported that Mr. Williams indicated in a May 2007 interview that appellant “may perform minor
work” on these properties held in South Carolina. He also stated that Mr. Williams reported that appellant
performed no “real” work in connection with his properties.

9

There are no individual statements signed by any of the parties questioned. Mr. Brown
submitted a December 28, 2008 statement in which he attested to the accuracy of the interviews
he held, but this statement alone does not cure the deficiencies in the evidence of record.
In Claudia J. Thibault,26 the Board noted that the only document presented to support
finding forfeiture was a memorandum in which a special agent from the Office of Inspector
General for the employee’s employing establishment memorialized a telephone interview with a
witness who commented on the employee’s activities. The Board noted that the memorandum
was written by the special agent rather than the person interviewed. There was nothing signed
by the witness attesting to the accuracy of the information provided. The Board found that the
evidence was not sufficient to outweigh the employee’s testimony that she did not have earnings.
In the present case, given the absence of the actual signed statements of the interviewees, there is
inadequate evidence to establish that appellant had earnings or was engaged in employment
activities which were required to be reported on the EN1032 forms he submitted.
Appellant testified that the only actions he took in connection with his companies were in
his role as a passive investor. The Board has distinguished between income received from
investment and earnings received by performing work noting that the former is considered to be
a passive return on investment rather than evidence of a claimant’s ability to work and earn
wages whereas the latter is considered to be wages only if the source of income can be
established to be the product of the claimant’s work.27 Appellant stated on several occasions that
all he did in connection with the real estate companies was to spend 20 minutes each month
depositing rent checks. Mr. Barrett and Mr. Williams testified that appellant did not perform any
notable work.28 In the absence of sufficient credible evidence to show that appellant engaged in
real estate management activities, his involvement with his real estate companies and receipt of
monies from these companies must be seen as participation in a passive investment.29
Because the Office did not show that appellant had earnings that had to be reported on the
EN1032 forms he completed, it did not meet its burden of proof to show that he forfeited his
right to compensation for the period May 15, 2002 to September 30, 2007.
26

See supra note 18.

27

See supra note 13.

28

The Office also indicated that bank statements showed that appellant made purchases at home improvement
stores and therefore engaged in property management activities. Appellant’s March 2007 bank statement shows two
entries for purchases made at a Lowe’s Home Improvement Store. There are no other records of home improvement
store purchases and it is unclear how the May 2007 bank statement would establish that appellant engaged in
management activities. Tax records for appellant’s companies show deductions for property repairs and payments
to subcontractors, but these deductions would not establish that appellant served as a property manager or chief
contractor.
29

The record contains S Corporation tax forms (IRS Form 1120S) for B&W Properties of Myrtle Beach, Inc., and
25 Avenue, LLC which cover the years 2004 through 2006 and include entries for “ordinary business income.”
Appellant’s accountant indicated that despite, the characterization of the monies recorded on the forms, they
represented investment returns rather than earned income. The Office properly found that the characterization of the
monies on the IRS forms did not in itself show that they constituted earnings that had to be reported on EN1032
forms.
th

10

LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of the Act 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 his duty.30 Section 8129(a) of the Act provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
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.”31
ANALYSIS -- ISSUE 2
The Office based its determination that appellant received a $226,821.74 overpayment of
compensation on its finding that he forfeited his right to compensation for the period May 15,
2002 to September 30, 2007. For the reasons explained above, the Office improperly determined
that appellant forfeited his right to compensation for the period May 15, 2002 to
September 30, 2007. Therefore, there currently is no basis to find that appellant received a
$226,821.74 overpayment. As the Office has not shown that appellant received an overpayment,
it also has not shown that he was at fault in the creation of an overpayment such that it would not
be subject to waiver.
CONCLUSION
The Board finds that the Office improperly determined that appellant forfeited his right to
compensation for the period May 15, 2002 to September 30, 2007. The Board further finds that
appellant did not receive a $226,821.74 overpayment of compensation.

30

5 U.S.C. § 8102(a).

31

Id. at § 8129(a).

11

ORDER
IT IS HEREBY ORDERED THAT the March 5, 2009 and July 2, 2008 decisions of
the Office of Workers’ Compensation Programs are reversed.
Issued: July 26, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shaker Heights, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1472
Issued: December 6, 2017

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 27, 2017 appellant, through counsel, filed a timely appeal from an April 6, 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.
ISSUE
The issue is whether appellant met his burden of proof to establish bilateral carpal tunnel
syndrome causally related to the accepted factors of his federal employment.
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.

FACTUAL HISTORY
On December 17, 2013 appellant, then a 54-year-old mail clerk, filed an occupational
disease claim (Form CA-2) alleging that he developed a bilateral injury to his arms and hands as
a result of factors of his federal employment. He reported that from 1983 to 1992 he worked on
the conveyer belt as a mail handler, loading heavy boxes and sacks. Appellant stopped work due
to a September 22, 1992 work-related back injury and returned in 1993 to perform limited-duty
office clerk work; OWCP assigned File No. xxxxxx782. He performed office work from 1993 to
2009 which involved repetitive activities of filing and typing on a computer. Appellant was then
sent for office management systems training on October 21, 2010. He reported first being
diagnosed with carpal tunnel syndrome (CTS) on March 14, 2007. Appellant first became aware
of his condition and of its relationship to his federal employment duties on October 21, 2010. He
further reported that initially he filed a traumatic injury claim (Form CA-1) for his injury because
he did not know that it was really an occupational disease claim.3 On the reverse side of the
claim form, appellant’s supervisor reported that he was no longer on the periodic rolls and that
he had retired on January 12, 2011.
By letter dated December 27, 2013, OWCP informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised of the medical and factual
evidence necessary and was afforded 30 days to submit the necessary evidence. No evidence
was received within the required time frame.
By decision dated February 10, 2014, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that the occupational exposure occurred as alleged.
On February 18, 2014 appellant, through counsel, requested a telephone hearing before
an OWCP hearing representative.
In support of his hearing request appellant submitted additional evidence. In a March 19,
2007 diagnostic report from Dr. Karen Murata, Board-certified in physical medicine and
rehabilitation, related that an electrodiagnostic study revealed findings consistent with median
neuropathy of bilateral wrists, and mild bilateral carpal tunnel syndrome.
In a February 19, 2013 work status report, Dr. Steve Huang, Board-certified in nuclear
medicine, noted an October 15, 2010 date of injury and diagnosed carpal tunnel syndrome. He
provided work restrictions and checked a box marked “yes” indicating that the diagnosed
condition was work related.
In a May 14, 2014 industrial work status report, Dr. Bhavesh Pandya, Board-certified in
occupational medicine, noted a September 22, 1992 date of injury and provided appellant
permanent work restrictions under File No. xxxxxx782.
At the August 13, 2014 hearing, appellant explained that he was initially employed at the
employing establishment as a mail handler which required lifting heavy sacks and boxes. After
3

Appellant’s traumatic injury claim for carpal tunnel syndrome was denied under File No. xxxxxx334. The
record before the Board contains no other information pertaining to this claim.

2

his 1992 injury, he was placed on light duty and performed office work. Appellant attributed his
bilateral CTS to his repetitive employment duties after he began to experience numbness, pain,
and tingling in his bilateral upper extremities. He reported that he was first diagnosed with CTS
in 2007. Appellant stated that in 2009, the employing establishment informed him that they
could no longer provide him with limited duty and sent him for a six-month office management
training course. The course involved typing on a computer and his carpal tunnel continued to
cause symptoms, for which he sought medical attention and filed this occupational disease claim.
By decision dated October 23, 2014, OWCP’s hearing representative affirmed the
February 10, 2014 decision, finding that the evidence of record failed to establish that the
occupational exposure occurred as alleged. He noted that there were inconsistencies in the
evidence as to the time, place, and manner of the alleged injury since appellant had attributed his
symptoms to varying causes.
On January, 6, 2015 appellant, through counsel, requested reconsideration of OWCP’s
decision. Counsel noted submission of medical reports from Dr. Huang not previously
considered in support of appellant’s claim.
In an October 25, 2010 diagnostic report, Dr. Nazanin Matloubi, a Board-certified
neurologist, reported that appellant complained of right hand numbness for the past few years
which had worsened during the past two weeks. Electromyography and nerve conduction
velocity (EMG/NCV) studies of the right upper extremity performed on that date revealed
abnormal findings.
Dr. Matloubi noted electrodiagnostic evidence of right median
mononeurapathy across the wrist such as seen in carpal tunnel syndrome, mild in degree.
In medical reports dated November 8 and 9, 2010, and February 19, 2013, Dr. Huang
noted that appellant reported repetitive use of his arm and hand while typing. Appellant
attributed his symptoms to repetitive typing, noting that he developed pain, numbness, and
tingling in the right hand. Dr. Huang noted appellant’s occupation as a clerical typist which
involved prolonged computer work/typing. He reviewed the EMG/NCV study and diagnosed
carpal tunnel syndrome. Dr. Huang provided appellant work restrictions and checked a box
marked “yes” indicating that the diagnosed condition was work related.
By decision dated March 10, 2015, OWCP affirmed the October 23, 2014 decision, as
modified, finding that the evidence of record failed to establish that his diagnosed condition was
causally related to the accepted factors of his federal employment. It noted that appellant
established fact of injury. However, the medical evidence of record failed to establish a causal
relationship between his carpal tunnel syndrome and the accepted factors of his federal
employment.
On February 9, 2016 appellant, through counsel, requested reconsideration of OWCP’s
decision. Counsel noted submission of medical reports from Kaiser Permanente which were not
previously considered.
In support of his claim, appellant resubmitted medical evidence previously of record as
well as a December 3, 2010 medical report from Dr. Huang virtually identical to his prior
reports. Dr. Huang diagnosed carpal tunnel syndrome and provided appellant work restrictions.

3

By decision dated April 6, 2017, OWCP affirmed the March 10, 2015 decision finding
that the evidence of record failed to establish that his diagnosed carpal tunnel syndrome was
causally related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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.5 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.7 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.9 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. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. The weight of
4

Supra note 2.

5

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6

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

7

Elaine Pendleton, supra note 5.

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

4

medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.10
ANALYSIS
OWCP accepted that appellant engaged in repetitive activities of typing in his
employment duties as a mail clerk. It denied his claim, however, finding that the evidence of
record failed to establish a causal relationship between the accepted employment factors and his
bilateral carpal tunnel syndrome.
The Board finds that the medical evidence of record is insufficient to establish that
appellant developed bilateral carpal tunnel syndrome causally related to the accepted factors of
his federal employment as a mail clerk.
In support of his claim, appellant submitted medical reports dated November 8, 2010
through February 19, 2013 from Dr. Huang who documented treatment for his carpal tunnel
syndrome. Dr. Huang’s reports lack the specificity and detail needed to establish that appellant’s
injuries are a result of a work-related occupational exposure.11 While he provided a diagnosis of
carpal tunnel syndrome, he failed to provide a fully-rationalized opinion on the cause of
appellant’s condition. In his reports, Dr. Huang checked a box marked “yes” indicating that the
diagnosed condition was work related. The Board has held that a report that addresses causal
relationship with a checkmark, without medical rationale explaining how the work condition
caused the alleged injury, is of diminished probative value and insufficient to establish causal
relationship.12 Moreover, Dr. Huang failed to sufficiently discuss appellant’s employment
duties, only generally noting prolonged computer work/typing.
While he had some
understanding of these employment duties, he failed to detail how long appellant worked as a
typist, the number of hours per day spent performing each task, and the frequency of the physical
movements which appellant attributes to his injury. Dr. Huang’s statement on causation failed to
provide a sufficient explanation as to the mechanism of injury pertaining to this occupational
disease claim as alleged by appellant, namely, how repetitive typing would cause or aggravate
his bilateral carpal tunnel syndrome.13 Without explaining how physiologically the movements
involved in appellant’s employment duties caused or contributed to his diagnosed condition, his
opinion on causal relationship is equivocal in nature and of limited probative value.14
The remaining medical evidence of record is also insufficient to establish appellant’s
occupational disease claim. Dr. Murata and Dr. Matloubi’s diagnostic reports only interpreted
10

James Mack, 43 ECAB 321 (1991).

11

P.O., Docket No. 14-1675 (issued December 3, 2015); S.R., Docket No. 12-1098 (issued September 19, 2012).

12

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

13

S.W., Docket No. 08-2538 (issued May 21, 2009).

14

See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).

5

imaging studies and provided no opinion on the cause of appellant’s injury.15 The Board has
held that diagnostic reports are of limited probative value as they fail to provide an opinion on
the causal relationship between appellant’s employment duties and the diagnosed conditions.16
Without any mention of the specific repetitive employment duties, any carpal tunnel findings
made could not be related to his claim to establish causal relationship.17
Dr. Pandya’s industrial work status report is also of no probative value as the report was
unrelated to this claim and pertained to his prior back injury. Any medical opinion evidence
appellant may submit to support his claim should reflect a correct history and offer a medically
sound explanation by the physician of how the specific employment factors caused or aggravated
his bilateral carpal tunnel syndrome.18
An award of compensation may not be based on surmise, conjecture, speculation, or on
the employee’s own belief of causal relation.19 Appellant’s honest belief that his occupational
employment duties caused his medical injury is not in question, but that belief, however
sincerely held, does not constitute the medical evidence necessary to establish causal
relationship.20 In the instant case, the record lacks rationalized medical evidence establishing a
causal relationship between appellant’s federal employment duties as a mail clerk and his
diagnosed bilateral carpal tunnel syndrome. Thus, appellant has failed to meet his burden of
proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s 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 his burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of his federal employment.

15

D.H., Docket No. 11-1739 (issued April 18, 2012).

16

See S.G., Docket No. 17-1054 (issued September 14, 2017).

17

S.Y., Docket No. 11-1816 (issued March 16, 2012).

18

M.R., Docket No. 14-11 (issued August 27, 2014).

19

D.D., 57 ECAB 734 (2006).

20

See J.S., Docket No. 17-0967 (issued August 23, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the April 6, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2017
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Richmond, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0189
Issued: May 14, 2019

Case Submitted on the Record

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

JURISDICTION
On November 5, 2018 appellant filed a timely appeal from a June 27, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish right shoulder and
right elbow conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On July 21, 2017 appellant, then a 52-year-old claims representative, filed an occupational
disease claim (Form CA-2) for a right elbow condition. She noted that she was working at her
desk when her elbow started to hurt. Appellant identified July 19, 2017 as the date that she first
1

5 U.S.C. § 8101 et seq.

became aware of the condition and that she first realized the condition was causally related to
factors of her federal employment. On the reverse side of the Form CA-2, the employing
establishment indicated that appellant reported experiencing pain in her right forearm up through
her shoulder, which she believed was due to repetitive computer work.
In a development letter dated August 8, 2017, OWCP notified appellant of the type of
additional evidence needed to establish her occupational disease claim, including factual evidence
documenting hazardous exposures at work, and a narrative report from her attending physician
that included a diagnosis and an explanation regarding causal relationship. It also inquired as to
whether she had a prior history of elbow injuries. OWCP afforded appellant 30 days to submit the
requested evidence.
In an August 11, 2017 statement, appellant indicated that she would sit and type eight hours
a day processing disability claims. She believed that repetitive typing motions caused elbow
tenderness, as well as a sharp shooting pain down to her wrist. Appellant further noted that she
had been working for the employing establishment for 10 years doing the same types of repetitive
movement. She typed all day for eight hours or more, five days per week, and occasionally worked
overtime on weekends. Appellant indicated that she had “no elbow injuries.” Her elbow “started
hurting a couple years ago,” and she saw a doctor who gave her a cortisone shot. However, they
were no longer as effective.
A July 2, 2013 lumbar magnetic resonance imaging (MRI) scan revealed early
degenerative disc disease of the lower lumber spine, contributed to by grade one anterolisthesis of
L4 on L5. No significant spinal canal stenosis was seen with foraminal stenosis primarily at the
L4-5 level.
On July 14, 2015 appellant sought treatment with Dr. Morteza Farr, a Board-certified
orthopedic surgeon, for an evaluation of her elbow, hip, and back. Dr. Farr noted the MRI scan
demonstrated evidence of spondylolisthesis with facet arthropathy at L4-5, but no stenosis. He
indicated that appellant’s pain in her elbow was consistent with lateral epicondylitis, and the
symptoms of her hip were consistent with bursitis and iliotibial band syndrome. Dr. Farr
diagnosed lateral epicondylitis and lumbar degenerative disc disease. He prescribed physical
therapy and continued chiropractic treatment.
In a report dated January 20, 2017, Dr. Farr indicated that appellant presented for
evaluation of the epicondylitis in her right arm. He noted a history of pain and discomfort, which
worsened with activity. Dr. Farr noted that past treatment included an injection “years ago,” which
worked well. Appellant described her pain as severe and frequent. Dr. Farr diagnosed lateral
epicondylitis, unspecified elbow and administered an injection. He indicated that appellant would
return for treatment on an as-needed basis.
In a report dated July 27, 2017, Dr. Farr evaluated appellant’s left elbow and he again
diagnosed lateral epicondylitis, unspecified elbow and administered another injection. He repeated
that appellant should return for treatment on an as-needed basis.
By decision dated October 24, 2017, OWCP denied appellant’s occupational disease claim.
It explained that the medical evidence of record failed to establish that appellant’s lumbar and

2

lumbosacral degenerative disc disease and lateral epicondylitis were causally related to the
accepted employment factor(s).
On November 21, 2017 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
At the February 26, 2018 hearing, appellant clarified that although she submitted evidence
relating to her lumbar condition, she was only filing a claim for her right elbow epicondylitis. She
testified that she has built up a tolerance to cortisone shots, which rendered them ineffective to
treat her elbow pain. In her testimony, appellant implicated repetitive motion she performed at the
employing establishment as the causative factor. The hearing representative explained the type of
evidence needed to show causal relationship, and afforded her 30 days to submit additional
evidence.
A February 21, 2018 right elbow MRI scan revealed mild lateral epicondylitis and a partialthickness tear of the common extensor tendon.
In a February 27, 2018 e-mail to appellant, Dr. C. Scott Walthour, a Board-certified
orthopedic surgeon, indicated that he had reviewed the MRI scan and found mild changes
consistent with probable lateral epicondylitis or tennis elbow. In terms of relation to work he
noted, “[a]ll I can say is that it may be related to an overuse[-]type activity as there was no major
trauma or injury that occurred.”
In a note dated March 5, 2018, Dr. Frank M. De Mayo, a Board-certified orthopedic
surgeon, diagnosed bursitis of the right shoulder and lateral epicondylitis of the right elbow. He
opined that these diagnosed conditions are, within reasonable medical certainty, related to her work
activities.
On March 19, 2018 appellant filed a page of the transcript with a written notation clarifying
that her right shoulder had also been injured due to repetitive work.
In March 28, 2018 progress notes, Dr. Walthour indicated that appellant was recovering
from a recent lateral tendon debridement procedure. He explained that appellant indicated to him
that she completes electronic forms, uses a keyboard and mouse, answers telephone calls, uses a
scanner and fax machine, and occasionally is required to handwrite. Dr. Walthour noted that
appellant uses a computer for most of her workday. He noted that certainly due to the type of work
that appellant performs it is reasonable that she may have some overuse-type syndrome that could
be exacerbated by her work activities. Dr. Walthour explained, however, that unfortunately lateral
epicondylitis occurs to those who type, but also to those who do not type and therefore there is no
100 percent causal relationship opinion, but certainly repetitive overuse-type activities can
exacerbate or even, in some cases, be the cause of epicondylitis. He noted that her symptoms are
exacerbated by work and have been going on again for several years and therefore, in his
professional opinion, it is reasonable to consider that her lateral epicondylitis had been exacerbated
by an overuse type of injury which could occur in the workplace.
By decision dated April 10, 2018, OWCP’s hearing representative affirmed the prior
denial, finding that the medical evidence of record failed to establish causal relationship. She
explained that neither Dr. De Mayo nor Dr. Walthour provided sufficient medical rationale
3

explaining the relationship between appellant’s work activities and her diagnosed right elbow
lateral epicondylitis and/or right shoulder bursitis.
On May 17, 2018 appellant requested reconsideration.
In a May 14, 2018 note, Dr. De Mayo repeated verbatim the content of his March 5, 2018
letter, and added, “there is a causal relationship between work activities and these problems.”
By decision dated June 27, 2018, OWCP denied modification of the prior decision. It
determined that Dr. De Mayo’s letter of May 14, 2018 was conclusory, and therefore, insufficient
to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,3 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.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
2

Id.

3

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

4

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 factor(s).9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish right shoulder
and right elbow conditions causally related to the accepted factors of her federal employment.
In support of her claim appellant submitted medical reports of Dr. Farr. Dr. Farr
consistently diagnosed lateral epicondylitis. However, his July 14, 2015, and January 20 and
July 27, 2017 reports did not include an opinion as to causal relationship. Medical evidence which
does not offer an opinion on causal relationship is of no probative value to the issue of causal
relationship.10 Therefore these reports are insufficient to establish appellant’s claim.
Dr. De Mayo’s notes of March 5 and May 14, 2018 also do not establish that appellant’s
injury was causally related to the accepted factors of her employment. He diagnosed bursitis of
the right shoulder and lateral epicondylitis of the right elbow. Dr. De Mayo explained that these
orthopedic problems are within reasonable medical certainty related to her work activities and
thus, there is a causal relationship between work activities and these problems. His notes do not
contain a physiological explanation as to how appellant’s right shoulder bursitis and right elbow
lateral epicondylitis occurred.11 The Board has held that a medical opinion is of limited value if it
is conclusory in nature.12 A medical opinion must provide an explanation of how the implicated
employment factors physiologically caused, contributed to, or aggravated the specific diagnosed
conditions.13 Without this explanation, Dr. De Mayo’s notes are insufficient to establish the
claim.14
Dr. Walthour, in a March 28, 2018 report, accurately described the causative factors of
employment and notes a temporal relationship between the onset of pain and the accepted factors.
He does not, however, offer an unequivocal opinion that the right shoulder and elbow conditions
were caused by appellant’s federal employment. Of lateral epicondylitis as an elbow condition
generally, Dr. Walthour noted that overuse-type activities can exacerbate or even, in some cases,
be the cause of epicondylitis. In regards to appellant’s specific case, he explained that she noted
that her symptoms were exacerbated by work and this had been going on again for several years
and thus it is certainly reasonable to consider that her lateral epicondylitis had been exacerbated
by an overuse-type of injury which could occur in the workplace. However, the Board has found
that the mere fact that a disease manifests itself during a period of employment does not raise an
9

Id.; Victor J. Woodhams, supra note 6.

10

See L.T., Docket No. 18-1603 (issued February 21, 2019).

11

B.H., Docket No. 18-1219 (issued January 25, 2019).

12

Id.

13

Id.

14

Id.

5

inference that there is a causal relationship between the two,15 and temporal relationship alone will
not suffice for purposes of establishing causal relationship.16 Dr. Walthour’s opinion is couched
in speculative terms, noting only the possibility that appellant’s condition “could” have been
caused by her federal employment. Entitlement to FECA benefits may not be based on surmise,
conjecture, speculation, or on the employee’s own belief of a causal relationship.17 While the
opinion supporting causal relationship does not have to reduce the cause or etiology of a disease
or condition to an absolute certainty, the opinion must be one of reasonable medical certainty and
not speculative or equivocal in character.18 Because Dr. Walthour’s opinion is speculative and
equivocal in nature, it does not carry appellant’s burden of proof as to causal relationship.
For these reasons, the Board finds the evidence of record is insufficient to meet appellant’s
burden of proof on the issue of causal relationship.
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 right shoulder
and right elbow conditions causally related to the accepted factors of her federal employment.

15

L.T., supra note 10; Birger Areskog, 30 ECAB 571 (1979).

16

Id.

17

Id.

18

C.L., Docket No. 18-1379 (issued February 5, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the June 27, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 14, 2019
Washington, DC

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

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

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

7