United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

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

Docket No. 17-1639
Issued: November 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 24, 2017 appellant, through counsel, filed a timely appeal from a May 3, 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 to consider the merits of the case.
ISSUE
The issue is whether appellant’s claim is timely pursuant to 5 U.S.C. § 8122(a) of FECA.
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.

On appeal counsel contends that the three-year period for timeliness under FECA began
when appellant received his medical diagnosis and became aware of his condition and its
relationship to his employment.
FACTUAL HISTORY
On December 7, 2015 appellant, then a 62-year-old retired mail handler, filed an
occupational disease claim (Form CA-2) alleging that he developed noise-induced hearing loss
due to noise exposure in his federal employment. He noted that he was employed by the
employing establishment for almost 30 years and was exposed to very loud noise on a daily
basis. Appellant indicated that he first became aware of his condition on December 1, 2015 and
first attributed this condition to his employment on that date. His supervisor indicated that he
had retired on August 31, 2012 but that he stopped work on July 10, 2009 due to a separate
employment injury. The supervisor noted that appellant became aware of his hearing loss more
than three years after he stopped work at the employing establishment.
In support of his claim, appellant submitted an audiogram dated December 1, 2015. The
audiologist, Jennifer Srour, noted that appellant reported long-term noise-induced hearing loss
bilaterally. She noted appellant’s noise exposure at work as well as significant hearing difficulty
while listening to speech, driving, and watching television. Appellant also reported tinnitus
bilaterally, worse on the right. Dr. Sydney C. Butts, a Board-certified otolaryngologist, reviewed
the audiogram and audiological report on January 15, 2016 and noted that appellant’s tinnitus
began two years earlier. He opined that appellant had a mainly high frequency sensorineural
hearing loss which could certainly be due to a history of loud noise exposure. Dr. Butts also
noted that it was possible that appellant’s hearing loss could include a component of presbycusis
as well.
Appellant provided a narrative statement dated December 7, 2015 and indicated that the
start date of his hearing loss was unknown. He listed his noise exposure to loud machines at the
employing establishment for almost 30 years. Appellant also provided a notification of
personnel action which indicated that his last day in pay status was July 10, 2009 and that he
retired effective August 31, 2012.
In a letter dated May 5, 2016, OWCP requested additional factual and medical evidence
from appellant in support of his occupational disease claim. It found that the evidence submitted
failed to establish that appellant’s claim was timely filed. OWCP afforded appellant 30 days to
provide additional evidence that his claim was filed within three years of his date of last
exposure to the noise at the employing establishment on July 10, 2009. On the same date, it
requested that the employing establishment provide information relating to appellant’s history of
occupational noise exposure.
Appellant responded on May 13, 2016 to OWCP’s questions and noted that he was not
diagnosed with a noise-induced hearing loss until December 1, 2015. He provided the
employing establishment with his Form CA-2 on December 7, 2015. Appellant asserted that he
did not know that he had a hearing loss until the December 1, 2015 audiogram. He further noted
that Ms. Srour and Dr. Butts informed him that his hearing loss was due to his employmentrelated noise exposure.

2

In a June 7, 2016 letter, the employing establishment denied the presence of noise
hazards. It further noted that there had not been any other claims of hearing loss due to noise in
that department of the employing establishment and that appellant had not reported any noise
hazards during his employment period. The employing establishment also asserted that hearing
protection was not required at appellant’s work site because the noise levels did not exceed 85
decibels, the allowable amount for safe operation established by the Occupational Safety &
Health Administration (OSHA). The employing establishment reported that appellant had not
undergone preemployment audiograms, or an employment-related medical examination, as he
did not operate a motor vehicle at the employing establishment.
By decision dated June 7, 2016, OWCP denied appellant’s occupational disease claim
finding that it was not timely filed. It noted that appellant filed his claim on December 7, 2015
with a date of injury of December 1, 2015. However, OWCP further noted that appellant’s dateof-last-exposure was July 10, 2009 and that he had three years from that date to file his claim.
On June 13, 2016 counsel requested an oral hearing from OWCP’s Branch of Hearings
and Review. Appellant testified at the oral hearing before an OWCP hearing representative on
February 16, 2017. He reported his exposure to very loud machine noise. Appellant testified
that he stopped work due to his back condition in 2009. He started noticing his hearing loss in
2015 when his wife retired and she brought to his attention the volume levels on the radio and
television. His wife encouraged him to make an appointment with a hearing specialist.
Appellant testified that he did not know that he had a hearing loss until 2015. Counsel contended
that appellant did not know of his hearing loss until 2015 and that he therefore timely filed his
claim.
By decision dated May 3, 2017, OWCP’s hearing representative found that appellant’s
claim for hearing loss was not timely filed. She noted that appellant stopped work on July 10,
2009 and retired three years later on August 31, 2012. Appellant testified that he did not realize
his hearing loss until 2015. The hearing representative noted that appellant’s claim was filed on
December 7, 2015 more than three years after appellant’s last exposure to noise at the employing
establishment. She further found that there was no evidence that appellant’s supervisor had
actual knowledge of his injury within 30 days.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.3 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death.4 Section 8122(b)
of FECA provides that the time for filing in latent disability cases does not begin to run until a
claimant is aware or by the exercise of reasonable diligence should have been aware, of the
3

Charles Walker, 55 ECAB 238 (2004); B.V., Docket No. 16-1249 (issued November 10, 2016); M.S., Docket
No. 14-0930 (issued February 25, 2015).
4

5 U.S.C. § 8122(a); 20 C.F.R. § 10.101(b); Linda J. Reeves, 48 ECAB 373 (1997); L.G., Docket No. 16-0535
(February 6, 2017); I.W., Docket No. 15-1691 (issued February 11, 2016).

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causal relationship between the employment and the compensable disability.5 When an
employee becomes aware, or reasonably should have been aware, that he or she has a condition
which has been adversely affected by factors of his or her federal employment, such awareness is
competent to start the limitation period even though the employee does not know the precise
nature of the impairment or whether the ultimate result of such affect would be temporary or
permanent.6 For example, in prior cases the Board has noted that appellant should have been
aware of a latent hearing loss as of the date of an audiogram.7 Where an employee continues in
the same employment after he or she reasonably should have been aware that he or she has a
condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.8
FECA provides that compensation for disability or death, including medical care in
disability cases, may not be allowed if a claim is not filed within three years unless the
immediate superior had actual knowledge of the injury or death within 30 days. The knowledge
must be such as to put the immediate superior reasonably on notice of an on-the-job injury or
death.9
ANALYSIS
OWCP denied appellant’s occupational disease claim as it was not timely filed. It found
that the latent disability claim for hearing loss should have been filed within three years of
appellant’s last exposure to the implicated employment exposures on July 10, 2009. However,
OWCP failed to consider when appellant first became aware of his noise-induced hearing loss.
Appellant reported that he first noticed his hearing loss in 2015 when his wife informed him that
the volume on the television was too high. He sought medical treatment on December 1, 2015
and underwent an audiogram which demonstrated high-frequency hearing loss. Appellant filed
his claim for employment-related hearing loss on December 7, 2015. On January 15, 2016
Dr. Butts diagnosed high-frequency sensorineural hearing loss and indicated that this loss of
hearing could be attributed to noise exposure. He also noted that appellant began to experience
tinnitus two years earlier.
The Board finds that the record does not establish that he should have known earlier than
December 1, 2015 that he had an employment-related hearing loss. The December 1, 2015
audiogram was the first notification that he may have sustained a noise-induced hearing loss due
5

Id.

6

Larry E. Young, 52 ECAB 264 (2001); Delmont L. Thompson, 51 ECAB 155 (1999); I.W., supra note 4. See
A.T., Docket No. 13-0611 (issued March 5, 2014) (where the Board found that the claimant knew or should have
known that the tingling and numbness in his wrist, hands, and arms was related to his employment at least by his last
day of employment on January 3, 2008; as he did not file his claim until June 13, 2011, over three years subsequent
to that date, the Board held that his claim was not timely filed).
7

See G.M., Docket No. 16-0220 (issued March 15, 2016); C.G., Docket No. 08-1634 (issued January 9, 2009).

8

Duet Brinson, 52 ECAB 168 (2000); Reeves, supra note 4; J.Y., Docket No. 16-0332 (issued June 8, 2016).

9

Supra note 4.

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to noise exposure as a mail handler.10 The Board finds that the evidence is insufficient to
establish that appellant was aware or reasonably should have been aware of an employmentrelated hearing loss more than three years before December 7, 2015.11 There are no other
medical reports, audiograms or other evidence prior to the December 1, 2015 audiogram to
establish that appellant had a noise-induced hearing loss.
The Board finds that appellant first became aware that his hearing loss was an
occupational disease resulting from exposure to noise at work on or about December 1, 2015.
This was the first evidence to establish that he reasonably should have been aware that his
hearing loss was due to occupational exposure. The Board finds that his claim filed on
December 7, 2015 was within three years of his December 1, 2015 date of awareness and was,
therefore, timely. The case will be remanded for OWCP to address the merits of the claim.
After any further development that it deems necessary, OWCP should issue a de novo decision.
CONCLUSION
The Board finds that appellant’s claim for a hearing loss is timely pursuant to 5 U.S.C.
§ 8122(a) of FECA.

10

See G.B., Docket No. 10-1873 (issued June 7, 2011) (finding that without medical evidence or a hearing
conservation program, the date of the diagnosis was the date that the claimant knew or should have known of that
his hearing loss was related to his employment).
11

See William C. Oakley, 56 ECAB 519 (2005) (as appellant had no knowledge that his hearing loss was noiserelated, the first diagnosis of this relationship began to run the three-year time limitation for latent disability under
FECA) ; G.B., id.

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ORDER
IT IS HEREBY ORDERED THAT the May 3, 2017 decision of the Office of Workers’
Compensation Programs is reversed and the case remanded for further action consistent with this
decision.
Issued: November 27, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Milwaukee, WI, Employer
__________________________________________

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

Docket No. 09-1567
Issued: February 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 4, 2009 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated March 17, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s claim for compensation was timely filed under 5 U.S.C.
§ 8122.
FACTUAL HISTORY
On March 22, 2007 appellant filed an occupational disease claim (Form CA-2) alleging
that he had sustained depression and post-traumatic stress disorder (PTSD) as a result of his
federal employment. He alleged that he was subject to a hostile work environment by his
supervisors. On the claim form appellant reported he became aware of his condition and its
relationship to employment on April 18, 2001. By letter dated April 19, 2007, the employing

establishment noted that appellant’s last day in a pay status was July 13, 2001, and he had been
removed from employment effective June 28, 2002.
On May 10, 2007 appellant submitted evidence regarding his claim, including an
April 24, 2007 narrative statement. Appellant reported an incident of alleged threatening
remarks by a supervisor, although he could not recall the date of the incident. He also stated that
another supervisor had for many years made work a nightmare. Appellant previously filed a
CA-2 in 1992.
The evidence submitted included a March 29, 2000 decision from an administrative law
judge in an Equal Employment Opportunity Commission (EEOC) complaint, finding appellant
was subject to a hostile work environment in 1993 and 1994. The decision noted that appellant
had sought treatment for depression. In an EEOC “information for precomplaint counseling”
dated July 13, 2000, appellant stated that conditions created by his supervisor was aversely
affecting his health.
In a report dated October 23, 2001, Dr. Paul Stein, a psychiatrist, reported appellant had
been diagnosed with depressive disorder with anxiety, triggered by an incident at work.
Dr. Stein stated that appellant had been treated since 1999 for work-related stress.
By decision dated October 23, 2007, the Office denied the claim for compensation,
finding appellant had established a compensable work factor regarding a hostile work
environment, but the medical evidence did not establish causal relationship with a diagnosed
condition.
On August 19, 2008 appellant submitted an August 8, 2008 report from Dr. Kathryn
Krieg, a psychiatrist, who stated that appellant had been a patient at the clinic since 2001. There
was also a history of treatment by non-Veterans Administration providers prior to 2001.
Dr. Krieg diagnosed depressive disorder and indicated that the symptoms dated back to 1993.
She stated that appellant had been her patient since 2004.
By decision dated October 7, 2008, the Office found that the March 22, 2007 claim for
compensation was untimely filed.
Appellant requested reconsideration and stated that he had filed two previous claims. He
argued that he had established causal relationship in this case. In a January 16, 2009 letter,
appellant asserted the date of injury should be November 22, 2004, when he began treatment
with Dr. Krieg.
In a decision dated March 17, 2009, the Office denied modification of its October 7, 2008
decision. It found the claim was not timely filed.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, “An original claim for compensation
or death must be filed within three years after the injury or death.”1 This section also indicates
1

5 U.S.C. § 8122(a).

2

that a claim not filed within three years will not be allowed unless the immediate supervisor had
actual knowledge of the injury or death within 30 days or written notice of injury was given
within 30 days.2 Section 8122(b) provides that in latent disability cases, the time limitation does
not begin to run until the claimant is aware, or by the exercise of reasonable diligence should
have been aware, of the causal relationship between his employment and the compensable
disability.3
ANALYSIS
The specific claim for compensation in this case was filed on March 22, 2007. Although
the record indicates appellant had filed claims for emotional conditions in 1992 and 1997, those
claims are not before the Board on this appeal. Appellant filed a new claim for compensation on
March 22, 2007 for depression and PTSD causally related to an alleged hostile work
environment. The claim must be filed within the time limitations of 5 U.S.C. § 8122.
The initial question presented is when the three-year period began to run in the instant
case. As noted, in latent disability cases, the time period begins when appellant was aware, or by
reasonable diligence should have been award, of causal relationship between the condition and
the alleged employment factor. It is not clear what specific incidents appellant is alleging in the
March 22, 2007 claim constituted a hostile work environment. A March 29, 2000 EEOC
decision found a hostile work environment in 1993 and 1994 and noted that appellant had been
receiving medical treatment for a depressive condition. Appellant also referred to incidents that
may have occurred until the time he stopped working in 2001. The medical evidence from
Dr. Stein advised that appellant had been treated since 1999 for work-related stress. In a July 13,
2000 EEOC document, appellant stated his health was adversely affected by conditions at work.
Appellant himself reported on the claim form that he was aware of a causal relationship with his
federal employment as of April 2001. While appellant later argued that the proper date for
determining the timeliness of this claim should be November 2004 when he began treatment with
Dr. Krieg, the evidence does not support this argument. Dr. Krieg noted that appellant had been
treated since 1993. Her report does not suggest that appellant would not have become aware of
an emotional condition causally related to the alleged employment factors only as of 2004.
The Board finds appellant was aware, or reasonably should have been aware, of a causal
relationship between the claimed emotional condition and the employment factors prior to his
removal from work effective June 28, 2002. It is noted that when there is continued exposure to
the alleged employment factors, the time limitation period does not begin until the date of last
exposure.4 To the extent appellant is alleging employment incidents that occurred up until his
removal from employment in 2002, the date of last possible exposure would be June 28, 2002.
In addition, no evidence was presented to establish actual knowledge of the injury by the
immediate supervisor within 30 days or written notice within 30 days of the specific claim at

2

Id.

3

5 U.S.C. § 8122(b).

4

Alicia Kelly, 53 ECAB 244, 246 (2001); Larry E. Young, 52 ECAB 264, 266 (2001).

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issue. The Office properly found the claim to be untimely filed under 5 U.S.C. § 8122 as
appellant filed it more than three years after June 28, 2002.
CONCLUSION
The Board finds that the March 22, 2007 occupational claim was not timely filed
pursuant to 5 U.S.C. § 8122.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 17, 2009 and October 7, 2008 are affirmed.
Issued: February 26, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF AGRICULTURE,
HORTICULTURAL RESEARCH
LABORATORY, Fort Pierce, FL, Employer
__________________________________________

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

Docket No. 15-1253
Issued: August 27, 2015

Case Submitted on the Record

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

JURISDICTION
On May 14, 2015 appellant filed a timely appeal from an April 21, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an occupational
disease while in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

On appeal, the employing establishment submitted new evidence. However, the Board cannot consider
evidence that was not before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On February 27, 2015 appellant, then a 22-year-old biologic science technician, filed an
occupational disease claim (Form CA-2) alleging that she suffered from skin irritation, breathing
difficulty, and burning of the throat, chest, eyes, and nose, as a result of sprouting trees. She first
became aware of the condition and its relationship to her work on September 26, 2014.
Appellant stopped work on September 26, 2014 and resigned on September 29, 2014.3
A September 26, 2014 medical report, bearing an illegible signature, reflects that
appellant was cutting trees when she experienced shortness of breath, a scratchy throat, and a
sore tongue. Appellant was diagnosed with chemical exposure. The medical provider checked a
box “yes” to indicate that the condition was caused or aggravated by work activity and noted that
she could resume regular work on September 26, 2014.
By letter dated March 2, 2015, OWCP advised appellant that the evidence of record was
insufficient to support her claim. It requested that she provide a medical report containing a
diagnosis with a physician’s explanation as to how employment activities caused or aggravated
the diagnosed medical condition.
In a March 30, 2015 OWCP questionnaire form, appellant indicated that she was exposed
to unknown chemicals being sprayed on September 26, 2014, while she was trimming trees. She
inhaled the chemicals which caused coughing, wheezing, and burning in her chest and eyes.
Appellant reported not previously experiencing a similar reaction.
On April 21, 2015 OWCP denied appellant’s claim for a traumatic injury finding that she
failed to submit medical evidence establishing that a diagnosed condition was causally related to
the work event.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,4 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.5 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
3

OWCP adjudicated this as a claim for a traumatic injury as appellant attributed her condition to an event that
happened within a single workday. See 20 C.F.R. § 10.5(ee).
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

R.C., 59 ECAB 427 (2008).

6

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
OWCP accepted that appellant’s duties included cutting and trimming trees and that
chemicals were sprayed on or near those trees on September 26, 2014. The Board, however,
finds that appellant failed to submit medical evidence sufficient to establish a causal relationship
between these federal work factors and a diagnosed medical condition.
The only medical evidence received by OWCP was the September 26, 2014 report, with
an illegible provider’s signature. It may have been prepared by an attending physician but it is
impossible to verify from the report itself. The Board has held that reports bearing illegible
signatures cannot be considered probative medical evidence because they lack proper
identification.9 Therefore, the report is insufficient to establish appellant’s claim. Appellant has
not provided any medical evidence from a physician who explains how appellant’s workplace
exposure on September 26, 2014 caused or contributed to a diagnosed medical condition.
On appeal, a safety officer from the employing establishment asserts that appellant was
injured when she had workplace chemical exposure on September 26, 2015. He requests that
OWCP pay appellant’s medical bills. As explained, it is not disputed that the workplace events
occurred. The claim is denied because appellant has not submitted medical evidence supporting
that the exposure caused a diagnosed medical condition.
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.

7

T.H., 59 ECAB 388 (2008).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Thomas L. Agee, 56 ECAB 465 (2005) (holding that a medical report may not be considered probative medical
evidence unless it can be established that the person completing the report is a physician as defined in 5 U.S.C.
§ 8101(2)).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an
occupational disease while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 27, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 14-833
Issued: September 9, 2014

Case Submitted on the Record

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

JURISDICTION
On March 4, 2014 appellant, through his attorney, filed a timely appeal from a
January 27, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established entitlement to a schedule award based on
his accepted left arm and back conditions.
FACTUAL HISTORY
This case has previously been before the Board. In a March 25, 2013 order remanding
case, the Board set aside OWCP’s August 20, 2012 decision denying appellant’s schedule award

1

5 U.S.C. §§ 8101-8193.

claim due to employment injuries of December 27, 2002 and April 9, 2003.2 The facts and
history contained in the prior appeal are incorporated by reference.3
On August 29, 2008 appellant filed a Form CA-7 claim for a schedule award. On
February 1, 2010 he underwent L5-S1 laminectomy and fusion surgery. OWCP subsequently
referred appellant to Dr. Bienvenido D. Ortega, a Board-certified neurologist, for a second
opinion regarding his schedule award claim. In a March 20, 2010 report, Dr. Ortega reported his
review of the medical record, including the statement of accepted facts and objective studies and
noted that appellant reported complete resolution of left elbow shortly after the accident and that
he had so far recovered fully following the February 1, 2010 surgery with no pain whatsoever.
He opined that there was no medical evidence that appellant had any permanent impairment due
to any current objective findings as a result of the work-related injury.
On April 11, 2012 an OWCP medical adviser reviewed Dr. Ortega’s March 20, 2010
impairment evaluation as well as an August 25, 2010 report from Dr. Bruce T. Cohn, a Boardcertified orthopedic surgeon, who released appellant to full-duty work. The medical adviser
found no motor or sensory deficits of the bilateral lower extremities under the sixth edition of the
American Medical Association’s supplemental publication (The Guides Newsletter)
(hereinafter). He agreed with Dr. Ortega that there was no residual lower extremity impairment.
In an April 20, 2012 decision, OWCP denied appellant’s schedule award claim.
Appellant requested an oral hearing, which was held on July 18, 2012. A June 19, 2012
report from Dr. John L. Dunne, an osteopath, noted the history of injury, a review of medical
records and examination findings. He opined that appellant had zero percent impairment for a
fully resolved contusion of the left elbow. Dr. Dunne also opined that there was 12 percent
impairment of the whole person for the lumbar spine. He explained that there had been an
alteration of motion segment integrity at a single level and explained the methodologies used to
compute the impairment rating under Chapter 17 of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides) (hereinafter).
By decision dated August 20, 2012, an OWCP hearing representative affirmed the prior
decision of April 20, 2012. She noted that Dr. Dunne’s report “neither utilizes the guidelines in
The Guides Newsletter nor addresses Dr. Ortiz’ lack of any objective findings of ongoing
herniation or radiculopathy.”4
Following the Board’s order on remand, OWCP referred the case record to its medical
adviser to review Dr. Dunne’s June 19, 2012 report. In an April 29, 2013 report, Dr. Morton
Slutsky, an OWCP medical adviser Board-certified in occupational medicine, noted his review of
the record and opined that appellant had reached maximum medical improvement as of
2

Docket No. 12-1932 (issued March 25, 2013).

3

This claim involves master case file number xxxxxx520, which was accepted for contusion of the back,
contusion of the left elbow, lumbar sprain, lumbosacral neuritis or radiculitis and herniated disc as a result of the
December 27, 2002 fall and subsidiary case file number xxxxxx026, which involved an April 9, 2003 temporary
aggravation of lumbar sprain and lumbar disc herniation, resolved as of August 2, 2004.
4

While the hearing representative refers to the second opinion examiner as Dr. Ortiz, this should be Dr. Ortega.

2

August 25, 2010. He advised that there was no basis for a left upper extremity rating related to
the accepted left elbow condition, as this was the same rating Dr. Dunne had rated for the left
elbow. Dr. Slutsky further advised that there was no basis for a lower extremity impairment
rating in either extremity since there were no objective sensory/motor deficits in the lower
extremities related to the accepted lumbar conditions. He noted that Dr. Dunne reported normal
lower extremity strength and sensation. Dr. Slutsky also noted that Dr. Dunne based his rating
on tables in Chapter 17 of the sixth edition of the A.M.A., Guides,5 which referred to impairment
of the spine itself and not to the lower extremities. He explained that impairment of a lower
extremity, referable to an accepted spinal injury, was covered by the July/August 2009 The
Guides Newsletter and not the spine tables in Chapter 17.
By decision dated July 25, 2013, OWCP denied appellant’s schedule award claim. The
weight of the medical evidence was accorded to the medical adviser’s opinion. Appellant,
through his attorney, requested a telephonic hearing, which was held on December 2, 2013. He
testified that, while he was still working full duty as a letter carrier, he had difficulty with
personal matters such as jogging and swimming due to his back condition. Appellant’s attorney
argued that the July/August 2009 The Guides Newsletter was faulty and OWCP should apply a
rating method more favorable to appellant, such as that determined by Dr. Dunne.
In a decision dated January 27, 2014, an OWCP hearing representative found that the
weight of the medical evidence rested with the opinion of OWCP’s medical adviser, Dr. Slutsky,
finding that Dr. Dunne’s rating was not based on The Guides Newsletter.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.9
For decisions issued after May 1, 2009, the sixth edition is to be used.10

5

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

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
10

FECA Bulletin No. 09-03 (issued March 15, 2009).

3

Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.11 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.12
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.13 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in a
July/August 2009 The Guides Newsletter.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a ratable
impairment of the left upper extremity or either of his lower extremities due to his accepted left
arm and back conditions. OWCP accepted that, under the current case file, he sustained lumbar
sprain, lumbosacral neuritis or radiculitis and a herniated disc as a result of the December 27,
2002 fall. Under subsidiary case file number xxxxxx026, it accepted that appellant sustained an
April 9, 2003 temporary aggravation of his lumbar sprain and a lumbar disc herniation, resolved
as of August 2, 2004. Appellant filed a schedule award claim.
In his June 19, 2012 report, Dr. Dunne opined that there was zero percent impairment of
the left upper extremity. Thus, there was no basis for a left upper extremity rating related to the
accepted left elbow condition. Accordingly, appellant has not established entitlement to left
upper extremity impairment.
In his June 19, 2012 report, Dr. Dunne also opined that there was 12 percent whole
person impairment based on the accepted spinal injury under Chapter 17 of the A.M.A., Guides.
FECA does not authorize schedule awards for loss of use of the spine.15 A claimant may still be
entitled to an award for loss of use of a limb where the cause of the impairment originated in the
spine. Because the A.M.A., Guides does not provide a separate mechanism for rating spinal
nerve injuries as impairments of the extremities, OWCP has adopted the standard set forth in The
11

Pamela J. Darling, 49 ECAB 286 (1998).

12

Thomas J. Engelhart, 50 ECAB 319 (1999).

13

Rozella L. Skinner, 37 ECAB 398 (1986).

14

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 9 at
Chapter 3.700, Exhibit 1, n.5 (January 2010); The Guides Newsletter is included as Exhibit 4.
15

See J.Q., 59 ECAB 366 (2008).

4

Guides Newsletter. In this case, Dr. Dunne failed to utilize the proper standard. Therefore, his
opinion as to the extent of appellant’s permanent impairment was of limited probative value.16
The Board finds that the weight of the medical evidence rests with the opinion of
Dr. Slutsky, an OWCP medical adviser, who explained how Dr. Dunne’s impairment evaluation
did not comport with the sixth edition of the A.M.A., Guides. The weight of the 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.17
Dr. Slutsky reviewed Dr. Dunne’s impairment ratings. He agreed with Dr. Dunne that there was
no ratable impairment for the left upper extremity. Dr. Slutsky also noted that, since Dr. Dunne
reported normal lower extremity strength and sensation, there was no basis for lower extremity
impairment. He correctly pointed out that Dr. Dunne’s impairment for the spine was not based
on the standards set forth in The Guides Newsletter. Dr. Slutsky properly noted that, while
Dr. Dunne provided an impairment rating by using the tables in Chapter 17, the A.M.A., Guides
provides the appropriate method of evaluating extremity impairments resulting from a spinal
nerve injury such as radiculopathy.18 When the examining physician does not provide an
estimate of impairment that conforms to the A.M.A., Guides, OWCP may rely on the impairment
rating provided by an OWCP medical adviser.19 Accordingly, the weight of the medical opinion
evidence is accorded to Dr. Slutsky’s medical report.
There are no other impairment evaluations of record which find a ratable permanent
impairment to either the left upper extremity or the lower extremities.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish entitlement to
a schedule award for permanent impairment based on the accepted left arm and back conditions.

16

James Kennedy, Jr., 40 ECAB 620, 627 (1989).

17

I.R., Docket No. 09-1229 (issued February 24, 2010); James Mack, 43 ECAB 321, 329 (1991).

18

See, e.g., P.G., Docket No. 12-30 (issued May 15, 2012).

19

See supra note 15.

5

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


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

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

Docket No. 10-199
Issued: August 24, 2010

Case Submitted on the Record

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

JURISDICTION
On October 26, 2009 appellant filed a timely appeal from a September 17, 2009 merit
decision of the Office of Workers’ Compensation Programs regarding 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 received an
overpayment of compensation in the amount of $386.73 during the period June 30 to July 4,
2009; and (2) whether the Office properly found that appellant was at fault in the creation of this
overpayment and therefore not entitled to waiver.
FACTUAL HISTORY
On September 28, 2007 appellant, then a 42-year-old part-time flexible letter carrier, filed
a traumatic injury claim alleging that on September 26, 2007 she tripped and fell off a porch and
hurt her right arm. On January 7, 2008 the Office accepted the condition of right shoulder strain.

Appellant stopped work on April 15, 2008 and underwent right shoulder arthroscopy on
April 18, 2008. The Office paid compensation benefits. As a result of being on extended
temporary total disability, the Office eventually placed appellant on the periodic rolls.
By letter dated January 23, 2009, the Office informed appellant of her entitlement to
compensation payments and advised her that she must notify the Office immediately when she
returned to work. Appellant was additionally advised of her responsibility to return any payment
issued which included any payment of compensation after she returned to work or an
overpayment of compensation would result. She was informed that each payment showed the
period for which payment was made. On February 4, 2009 appellant acknowledged that she read
the information contained in the Form EN1049 and understood the conditions under which she
may receive compensation and the items she must report to the Office in connection with her
claim.
On June 30, 2009 appellant returned to work in a full-time light-duty position.1 On
July 4, 2009 she received a payment in the net amount of $2,165.68 for the period June 7 through
July 4, 2009. On July 7, 2009 appellant informed the Office that she had returned to work on
June 30, 2009.
In a letter dated August 17, 2009, the Office advised appellant that it made a preliminary
determination that she received a $386.73 overpayment of compensation that arose because she
had returned to full-time modified work on June 30, 2009 but continued to receive compensation
for total disability until July 4, 2009. It preliminarily found that she was at fault in the creation
of the overpayment on the basis that she was aware or reasonably should have been aware that
she was not entitled to compensation for total disability after her return to work on
June 30, 2009. In attached work sheets, the Office found that appellant was paid a net amount of
$2,165.68 for the period June 7 to July 4, 2009 but should have been paid a net amount of
$1,778.95 for the period June 7 to June 29, 2009. It therefore calculated an overpayment of
$386.73 for the period June 30 to July 4, 2009. Appellant was informed of her right to inspect
and copy the Office records with respect to the debt and to dispute any information contained in
those records concerning the debt. She was also informed of her right to challenge the amount of
the overpayment or request a waiver of the overpayment. If appellant wished a waiver of the
overpayment, she was specifically directed to submit financial information by completing an
overpayment recovery questionnaire.2
On September 16, 2009 appellant contacted the Office regarding her overpayment. She
agreed that there was an overpayment and wanted to repay the overpayment by sending $100.00
a month for three months and then $86.00 for the final payment.
By decision dated September 17, 2009, the Office finalized its determination that
appellant received an overpayment of compensation in the amount of $386.73 that arose because
1

On June 16, 2009 appellant returned to work for one hour; however, she was told no modified work was
available.
2

On August 18, 2009 the Office paid appellant $53.18 for the period June 30 to August 6, 2009 for 3.68 hours at
$14.45 hourly compensation rate.

2

she returned to work on June 30, 2009 but continued to receive compensation for total disability
until July 4, 2009. It further found that appellant was at fault in the matter of the overpayment as
she had accepted payments she knew or reasonably should have known that she was not entitled
as she had returned to work. The Office ordered repayment by having her pay $100.00 each
month for three months and then a final payment of $86.00 as discussed in the September 16,
2009 telephone call.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 provides that the United
States shall pay compensation as specified for the disability or death of an employee resulting
from personal injury sustained while in the performance of duty. A claimant, however, is not
entitled to receive temporary total disability and actual earnings for the same period.4 Office
procedures provide that an overpayment in compensation is created when a claimant returns to
work but continues to receive wage-loss compensation.5
ANALYSIS -- ISSUE 1
The record establishes that appellant received an overpayment of compensation in the
amount of $386.73. The record reflects that she returned to work on June 30, 2009 but that she
continued to receive payments for compensation for temporary total disability through
July 4, 2009. When an employee has earnings from employment, appellant is not entitled to
receive temporary total disability benefits and actual earnings for the same time period.6 As
appellant was not entitled to receive compensation after she returned to work, the Office properly
found that an overpayment of compensation was created.
The Office, as noted, indicated that appellant received net compensation for the period
June 7 to July 4, 2009 in the amount of $2,165.68. It indicated that she was entitled to $1,778.95
for the period June 7 to 29, 2009, as she returned to work on June 30, 2009. The Office
subtracted the amount appellant should have received, $1,778.95, from the amount she actually
received, $2,165.58, to determine that the amount of the overpayment is $386.73.
Consequently, appellant received an overpayment of compensation from June 30 to
July 4, 2009 in the amount of $386.73. There is no contrary evidence regarding the fact of and
the amount of the overpayment. The Board will affirm the Office’s finding on the fact and the
amount of the overpayment.

3

5 U.S.C. §§ 8101-8193, 8102(a).

4

Id. at § 8116(a).

5

Danny E. Haley, 56 ECAB 393, 400 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2(a) (September 1994).
6

L.S., 59 ECAB ___ (Docket No. 07-1961, issued February 14, 2008); Daniel Renard, 51 ECAB 466 (2000);
20 C.F.R. § 10.403(c).

3

LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act7 provides that adjustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of the Act or would be against equity
and good conscience. The Office’s regulations provide that, in determining whether a claimant
is at fault, the Office will consider all pertinent circumstances. An individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which he
or she knew or should have known to be incorrect; (2) failed to provide information which he or
she knew or should have known to be material; or (3) accepted a payment which he or she knew
or should have known to be incorrect.8
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.9
Section 10.430(a) of the Office’s regulations advises that the Office includes on each
periodic check a clear indication of the period for which payment is being made. A form is sent
to the recipient with each supplemental check which states the period for which payment is being
made. Section 10.430(b) notes that, by these means, the Office puts the recipient on notice that a
payment was made and the amount of the payment.10
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment because
she accepted a payment that she knew or should have known to be incorrect. As noted, appellant
was not entitled to wage-loss compensation during the period June 30 to July 4, 2009 because
she had actual earnings from employment during that same period.
The Office notified appellant in a January 23, 2009 letter, when she was placed on the
periodic compensation rolls, that she was to immediately inform the Office upon her return to
work to avoid an overpayment in compensation and that, if she worked during any period
covered by a compensation payment, she had to return the payment to the Office. Under these
circumstances, appellant should have known that she could not receive wage-loss compensation
during any period that she worked.11 While she notified the Office of her return to work, she did

7

5 U.S.C. § 8129(b).

8

20 C.F.R. § 10.433(a).

9

Id. at § 10.433(b).

10

Id. at § 10.430.

11

See Neill D. Dewald, 57 ECAB 451 (2006).

4

not return the compensation she received by check for the period June 7, 2009 through July 4,
2009, which covered the period following her return to work.12
Furthermore, the Office includes on each periodic check a clear indication of the period
for which payment is being made. By doing this, it puts the recipient on notice that a payment
was made and the amount of the payment.13 This is evidence that appellant should have been
aware that, when she accepted the compensation for the period in question, she was not entitled
to receive wage-loss compensation for total disability for a period when she worked.
The Board finds that appellant knew or should have known after she returned to work
that she was not entitled to concurrently receive a salary and wage-loss compensation. Appellant
had an obligation to return payments that she knew or should have known to be incorrect. She
was at fault in the creation of the overpayment and is not entitled to waiver of the overpayment
in compensation.14
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation during the period June 30 to July 4, 2009 in the amount of
$386.73 for which she was at fault in creating the overpayment.15

12

The fact that the Office may have been negligent in making payment to a claimant does not relieve the
employee of fault in accepting an incorrect payment. See Ricky Greenwood, 57 ECAB 462 (2006).
13

J.R., 60 ECAB ___ (Docket No. 08-1107, issued June 15, 2009). 20 C.F.R. § 10.430.

14

Supra note 8.

15

The Board has no jurisdiction over recovery of the overpayment of compensation as the Office has not sought
to recover the overpayment from compensation benefits. See J.K., 60 ECAB ___ (Docket No. 08-1761, issued
January 8, 2009) (the Board’s jurisdiction over recovery of an overpayment is limited to reviewing those cases
where the Office seeks recovery from continuing compensation benefits under the Act).

5

ORDER
IT IS HEREBY ORDERED THAT the September 17, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burns, TN, Employer
__________________________________________

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

Docket No. 09-1821
Issued: March 11, 2010

Case Submitted on the Record

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

JURISDICTION
On July 10, 2009 appellant filed a timely appeal from a June 5, 2009 merit decision of the
Office of Workers’ Compensation Programs affirming an October 22, 2008 merit decision
denying her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant satisfied her burden of proof to establish that she sustained
an injury in the performance of duty causally related to her employment.
FACTUAL HISTORY
On September 8, 2008 appellant, a 53-year-old rural carrier, filed an occupational disease
claim (Form CA-2) for carpal tunnel syndrome. She alleged that her carpal tunnel syndrome was
caused by repetitive hand motions she performed in the course of her duties at the employing
establishment, as well as by driving her rural route vehicle with her left hand.

Appellant submitted a September 3, 2008 report and subsequent reports, wherein
Dr. Jeffry T. Watson, a Board-certified orthopedic surgeon, diagnosed “left carpal tunnel
syndrome. She submitted results from diagnostic tests. Appellant underwent carpal tunnel
release surgery on September 8, 2008. In a subsequent note, dated September 20, 2008,
Dr. Watson reported that she could return to work on October 21, 2008 with restrictions.
Appellant submitted an undated note in which she described her employment duties,
medical condition and hobbies. She asserted that her condition was caused by the repetitive hand
motions performed in the course of her employment.
By decision dated October 22, 2008, the Office denied the claim. While it accepted that
appellant established employment factors allegedly responsible for her condition, it denied the
claim because she had not established that the accepted employment factors caused a medically
diagnosed condition.
On November 21, 2008 appellant, through her attorney, requested a hearing. At a
hearing, conducted March 16, 2009, she described her employment duties, history of injury and
course of treatment.
On April 27, 2009 Dr. W. Bryan Burnette, a Board-certified neurologist, reported that a
needle electromyogram (EMG) examination revealed severe left median neuropathy in
appellant’s wrist.
By decision dated June 5, 2009, the Office affirmed its October 22, 2008 decision
because the evidence of record did not establish that the employment factors caused her carpal
tunnel syndrome.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,2
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.3 As part of her burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

G.T., supra note 3; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

2

the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
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.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
The Office accepted that repetitive hand motions and rural route vehicle driving were
factors of appellant’s federal employment. Appellant also submitted substantial medical
documentation that she has sustained left carpel tunnel syndrome. Her burden of proof however
also requires that she submit rationalized medical evidence to demonstrate that the accepted
employment factors caused the medically diagnosed condition. The Board finds that appellant
has not satisfied her burden of proof and consequently has not established that she sustained an
injury in the performance of duty causally related to her employment.
Dr. Watson diagnosed “left carpal tunnel syndrome.” His reports are only of probative
value in establishing this diagnosis. Dr. Watson did not provide a factual history of appellant’s
employment duties. He did not describe the repetitive hand motions required by her job nor did
he describe the rural route driving she performed with her left hand. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8 As Dr. Watson had no history of appellant’s employment duties he
could not offer and, in fact did not offer, any opinion regarding the cause of appellant’s
diagnosed conditions. Accordingly, his reports are insufficient to satisfy her burden.
5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

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

7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
8

Id.

3

Dr. Burnette reported that a needle EMG examination revealed severe left median
neuropathy in appellant’s wrist. His report, however, is also of limited probative value on the
issue of causal relationship because it lacks rationalized opinion explaining how this condition
was caused by the established employment factors.9 Thus, Dr. Burnette’s report is insufficient to
satisfy appellant’s burden.
The Board has held that the fact that a condition manifests itself or worsens during a
period of employment10 or that work activities produce symptoms revelatory of an underlying
condition11 does not raise an inference of causal relationship between a claimed condition and
employment factors.
The Board finds that appellant has not satisfied her burden of proof and consequently has
not established that she sustained an injury in the performance of duty causally related to her
employment.
CONCLUSION
The Board finds that appellant has not satisfied her burden of proof and consequently has
not established that she sustained an injury in the performance of duty causally related to her
employment.

9

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). See also, Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB
332 (2001).
10

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

11

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the June 5, 2009 and October 22, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: March 11, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


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

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

Docket No. 07-1961
Issued: February 14, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 18, 2007 appellant filed a timely appeal from an April 13, 2007 merit decision of
the Office of Workers’ Compensation Programs finding that she received an overpayment of
compensation and denying waiver.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the overpayment decision.
ISSUES
The issues are: (1) whether appellant received a $3,233.32 overpayment of compensation
for the period July 16, 1998 through October 31, 1999; (2) whether the Office properly denied
waiver of the overpayment; and (3) whether the Office properly determined that the overpayment
should be collected by withholding $90.00 from her continuing compensation payments.

1

The record also contains an August 21, 2006 decision reducing her compensation based on the Office’s finding
that she had the capacity to earn wages as a receptionist effective September 3, 2006 and an October 31, 2006
decision denying her request for an oral hearing on the wage-earning capacity determination as untimely. Appellant
has not appealed these decisions and thus they are not before the Board at this time. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On July 17, 1996 appellant, then a 51-year-old casual clerk, filed a claim alleging that she
injured her left foot and toe on July 15, 1996 when a heavy parcel fell on her foot. The Office
accepted her claim for a contusion of the left foot. Appellant worked with restrictions following
her employment injury until June 1997, when she was terminated from the employing
establishment because she had worked the maximum allowable time in her casual appointment.
The Office paid appellant compensation for total disability beginning June 30, 1997. In a
decision dated January 25, 2000, the Office denied authorization for surgery as not causally
related to the accepted employment injury. Appellant requested a hearing, which was held on
July 18, 2000. At the hearing, she related that she worked for a year as a paid caretaker for her
father prior to his death on November 3, 1999. The money that appellant earned was paid by the
state and was subsequently reimbursed to the state from her father’s estate.2 In an EN-1032
form, she related that she earned minimum wage from July 1998 to October 1999 as a caretaker
to her father. The state subsequently claimed $7,542.94 from the father’s estate as repayment of
caretaker expenses which the estate paid. Appellant did not repay any of the caretaker pay
In a memorandum to the file dated July 25, 2002, the Office determined that appellant’s
actual earnings from July 16, 1998 to October 31, 1999 were $7,542.94. The earnings occurred
over 67.86 weeks and resulted in average actual earnings of $111.15 per week. The Office
calculated appellant’s wage-earning capacity using the formula in Albert C. Shadrick,3 to find
that she was entitled to compensation of $906.00 every four weeks based on her actual earnings.
The Office determined that she received $17,348.97 but should have received $14,115.65 in
compensation, resulting in an overpayment of $3,233.32. The Office noted that the work
appellant performed was not available on the open market and thus did not issue a formal wageearning capacity determination.
On July 31, 2002 the Office advised appellant of its preliminary finding that she received
an overpayment of compensation of $3,233.32 for the period July 16, 1998 to October 31, 1999
as she received wages as a caretaker while also receiving compensation for total disability. The
Office further advised her of its preliminary determination that she was without fault in the
creation of the overpayment and requested that she complete and submit an enclosed
overpayment recovery questionnaire.
On August 29, 2002 appellant requested waiver of the overpayment and a decision based
on the written evidence. She submitted a completed overpayment recovery questionnaire. In a
letter dated September 8, 2002, appellant informed the Office that she had overestimated her
husband’s income.

2

By decision dated September 29, 2000, the hearing representative affirmed the January 25, 2000 decision
denying authorization for surgery.
3

See Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(c).

2

By decision dated April 13, 2007, the Office finalized its finding that appellant received a
$3,233,32 overpayment because she earned wages as a caretaker from July 16, 1998 to
October 31, 1999 while in the receipt of compensation for total disability. The Office further
finalized its finding that she was without fault in the creation of the overpayment. The Office
found that, based on appellant’s 2002 financial information, her monthly income of $2,170.00
per month exceeded her monthly expenses of $2,007.00 per month by $163.00. The Office
further noted that she had $3,000.00 in a checking account, $2,256.00 in a savings account and
$6,000.00 in investments. The Office indicated that it would withhold $90.00 per month from
appellant’s continuing compensation payments to repay the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act provides that the
United States shall pay compensation as specified by this subchapter for the disability or death of
an employee resulting from personal injury sustained while in the performance of duty.4 A
claimant, however, is not entitled to receive temporary total disability and actual earnings for the
same period.5 Office procedures provide that an overpayment in compensation is created when a
claimant returns to work but continues to receive wage-loss compensation.6
Section 8106(a) provides in pertinent part:
“If the disability is partial, the United States shall pay the employee during the
disability monthly monetary compensation equal to 66 2/3 percent of the
difference between [her] monthly pay and [her] monthly wage-earning capacity
after the beginning of the partial disability, which is known as [her] basic
compensation for partial disability.”7
ANALYSIS -- ISSUE 1
The record establishes that appellant received an overpayment of compensation in the
amount of $3,233.32 for the period July 16, 1998 through October 31, 1999 because she had
actual earnings during a period for which she received total disability compensation. When an
employee has earnings from employment, she is not entitled to receive temporary total disability
benefits and actual earnings for the same time period.8 Under these circumstances, the Office
offsets actual earnings pursuant to the Shadrick formula. If a reduction of benefits based upon
actual earnings is not accompanied by a determination that the actual earnings “fairly and
reasonably” represent wage-earning capacity, an informal reduction of benefits utilizing the
4

5 U.S.C. § 8102(a).

5

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

6

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (May 2004).
7

5 U.S.C. § 8106(a).

8

Daniel Renard, 51 ECAB 466 (2000); 20 C.F.R. § 10.403(c).

3

Shadrick formula is proper rather than a formal loss of wage-earning capacity determination.
The Office did not find that appellant’s actual earnings as a caretaker for her father fairly and
reasonably represented her wage-earning capacity and thus properly provided an informal
determination of the amount owed based on her actual earnings using the Shadrick formula.9
In determining the amount of the overpayment, the Office found that appellant’s actual
earnings from July 16, 1998 to October 31, 1999 were $7,542.94 or $111.15 per week. Using
the Shadrick formula, the Office found that she was entitled to compensation during this period
based on her actual earnings in the amount of $14,115.65.10 The Office subtracted the amount of
compensation owed, $14.115.65, from the amount of compensation received, $17,348.97, to find
an overpayment of $3,233.32. Appellant has not submitted any evidence showing that she did
not receive an overpayment of compensation or contesting the amount of overpayment. The
Office thus properly determined that she received an overpayment of compensation in the
amount of $3,233.32.
Appellant contends that she did not receive an overpayment of compensation as the state
received reimbursement from her father’s estate. Appellant did not reimburse the state. A
claimant, however, is not entitled to receive compensation for temporary total disability and
actual earnings for the same period.11 As appellant had actual earnings for the period July 16,
1998 through October 31, 1999, she is not entitled to compensation for total disability.
Additionally, she did not reimburse the state for her salary earned as caretaker to her father,
instead, the money came from her father’s estate.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act12 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. The Office must then exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of the Act or would be against equity and
good conscience.13

9

Supra note 7; see id.

10

The Office divided appellant’s current actual earnings of $111.15 a week by her current pay rate of the position
held when injured of $393.14 to find a 28 percent wage-earning capacity. The Office multiplied the pay rate at the
time disability began of $383.66 by the 28 percent wage-earning capacity percentage. The resulting amount of
$107.42 was subtracted from appellant’s date-of-disability pay rate of $383.66 which provided a loss of wageearning capacity of $276.24 per week. The Office then multiplied this amount by the appropriate compensation rate
of three-fourths which yielded $207.18. The Office found that cost-of-living adjustments increased this amount to
$226.40 or $906.00 every four weeks.
11

Donna M. Rowan, 54 ECAB 698 (2003).

12

5 U.S.C. § 8129.

13

Wade Baker, 54 ECAB 198 (2002).

4

Section 10.436 of the implementing federal regulations14 provides that recovery of an
overpayment will defeat the purpose of the Act if recovery would cause undue hardship by
depriving a presently or formerly entitled beneficiary of income and resources needed for
ordinary and necessary living expenses and outlines the specific financial circumstances under
which recovery may be considered to “defeat the purpose of the Act.”
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.15
ANALYSIS -- ISSUE 2
In its April 13, 2007 overpayment decision, the Office determined that recovery of the
overpayment would not defeat the purpose of the Act as appellant’s monthly income exceeded
her expenses by $163.00 per month. The Office further noted that she had assets in checking and
saving accounts and investments. The Office, however, relied upon information provided by
appellant in an August 29, 2002 overpayment recovery questionnaire. There is no indication that
the Office attempted to secure current financial information from appellant in order to make a
determination on eligibility for waiver of the overpayment. Since the only financial information
in the record was almost five years old, the Office should have attempted to obtain current
information regarding her income, expenses and assets. It is appellant’s current financial
situation at the time of the waiver determination that must be considered.16
The case will be remanded for the Office to obtain current financial information from
appellant and to determine whether waiver of recovery of the overpayment is warranted. After
such further development as the Office deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that appellant received a $3,233.32 overpayment of compensation for the
period July 16, 1998 through October 31, 1999. The Board further finds that the case is not in
posture for decision on the issue of waiver of the overpayment.17

14

20 C.F.R. § 10.436.

15

Id. at § 10.437.

16

See Ronald E. Smith, 36 ECAB 652 (1985).

17

In view of the Board’s finding that the case is not in posture for decision on the issue of waiver, it is premature
to consider the issue of whether the Office properly required repayment of the overpayment by withholding $90.00
from appellant’s continuing compensation.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 13, 2007 is affirmed in part and set aside in part and the
case is remanded for further proceedings consistent with this decision of the Board.
Issued: February 14, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 08-1461
Issued: December 17, 2008

Case Submitted on the Record

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

JURISDICTION
On April 23, 2008 appellant, through her attorney, filed a timely appeal from the
August 27, 2007 and April 3, 2008 merit decisions of the Office of Workers’ Compensation
Programs, which terminated her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of the case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation for
the accepted medical conditions; and if so, (2) whether appellant has met her burden of
establishing continuing residuals of the accepted employment injury.
FACTUAL HISTORY
On December 7, 1999 appellant, then a 39-year-old casual clerk, sustained a traumatic
injury in the performance of duty when her left hand was caught between two pie carts. The
Office accepted her claim for left hand contusion, left wrist sprain and reflex sympathetic

dystrophy (RSD) of the left hand and wrist. Appellant received compensation for temporary
total disability on the periodic rolls.
In 2007 the Office referred appellant, together with the medical record and a statement of
accepted facts, to Dr. Gerald S. Steiman, a Board-certified neurologist, for a second opinion
evaluation. On May 12, 2007 Dr. Steiman related appellant’s history of injury and described her
date-of-injury job activities. He reported her current complaints and reviewed her medical
record. After describing his findings on examination, Dr. Steiman discussed whether appellant
currently suffered from the accepted RSD. Based on the American Medical Association, Guides
to the Evaluation of Permanent Impairment (5th ed. 2001), he identified eleven objective criteria
for diagnosing RSD and divided the criteria into four categories: vasomotor criteria, sudomotor
criteria, trophic criteria and radiographic criteria. To satisfy the A.M.A., Guides’ definition of
RSD, he explained, an individual must concurrently exhibit eight or more of the eleven objective
criteria.
Dr. Steiman reported that appellant did not exhibit a single characteristic of RSD.
Appellant demonstrated no vasomotor, sudomotor, trophic or radiographic changes indicative of
the diagnosis. Dr. Steinman reported that appellant’s subjective complex was inconsistent with
objective anatomical findings and could not be explained by the accepted medical conditions.
He added that appellant’s history, medical record, physical examination and pain assessment
provided no credible evidence of a work-related condition. Appellant did not demonstrate
evidence of a left hand contusion, a left wrist sprain or RSD. Dr. Steiman attached an article,
“Understanding Complex Regional Pain Syndrome (Reflex Sympathetic Dystrophy),” which
described the history of RSD as a formal diagnosis, the development of objective diagnostic
criteria and treatment studies.
In a decision dated August 27, 2007, the Office terminated appellant’s compensation
effective August 31, 2007. It found that Dr. Steiman’s opinion represented the weight of the
medical evidence and established that the accepted medical conditions had resolved. The Office
noted that medical forms and treatment notes from appellant’s family practitioner, Dr. Chandre
Gowda, were old, incomplete and provided no opinion on causal relationship or explanation of
why appellant remained totally disabled for work.
Appellant requested a hearing before an Office hearing representative, which was held on
February 12, 2008. She submitted an August 21, 2007 report from Dr. Nancy Renneker, a
Board-certified physiatrist, who related appellant’s history of injury, medical treatment, current
complaints and findings on examination. Dr. Renneker then evaluated appellant under the
A.M.A., Guides and found a 75 percent left upper extremity impairment due to chronic pain or
RSD. Appellant also submitted a March 6, 2008 report from Dr. Gowda:
“I have been seeing this patient since December of 2005. Her approved diagnosis
codes for BWC are 842.10 hand strain and 842.0 wrist strain. During the time I
saw this patient the pain had spread up her arm to include her shoulder on the left
side. Therefore, my opinion was that the arm and shoulder needed further
evaluation for the condition of radiculopathy left arm. The patient still
experiences chronic pain with this condition and I again recommend further
testing and evaluation to find the cause of this condition and the patient would

2

benefit from a referral to an orthopedic physician and pain management
physician.”
In a decision dated April 3, 2008, the Office hearing representative affirmed the
termination of appellant’s compensation. The hearing representative found that the Office
appropriately accorded the weight of the medical evidence to Dr. Steiman. The hearing
representative also found that appellant failed to submit substantive medical evidence to establish
that she had ongoing disabling residuals of her December 7, 1999 work injury.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.1 Once the Office accepts a
claim, it has the burden of proof to justify termination or modification of compensation benefits.2
After it has determined that an employee has disability causally related to her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.3
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a left hand contusion, a left wrist sprain and
RSD as a result of the December 7, 1999 incident at work. It therefore has the burden of proof to
justify the termination of her compensation benefits.
The Office based its termination on the May 12, 2007 opinion of Dr. Steiman, a Boardcertified neurologist. It provided Dr. Steiman with a statement of accepted facts and appellant’s
medical record so he could base his opinion on a proper factual and medical history.
Dr. Steiman examined appellant and offered a well-reasoned opinion that she demonstrated no
evidence of a left hand contusion, a left wrist sprain or RSD. He explained in detail that
appellant exhibited not one of the eleven objective criteria of RSD, as stated in the A.M.A.,
Guides. Dr. Steiman buttressed his report by attaching a monograph on diagnosing RSD.
Dr. Steiman’s opinion is sound, logical and well reasoned. In the absence of a reasonably
contemporaneous medical opinion to the contrary, his May 12, 2007 report stands as the weight
of the medical opinion evidence. The Board therefore finds that the Office met its burden of
proof to terminate compensation for appellant’s December 7, 1999 employment injury. The
Board will affirm the Office’s August 27, 2007 decision.

1

5 U.S.C. § 8102(a).

2

Harold S. McGough, 36 ECAB 332 (1984).

3

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).

3

LEGAL PRECEDENT -- ISSUE 2
Where the Office meets its burden of proof to justify the termination of compensation
benefits, the burden is on the claimant to establish that any subsequent disability is causally
related to the accepted employment injury.4 The evidence generally required to establish causal
relationship is rationalized medical opinion evidence. The claimant must submit a rationalized
medical opinion that supports a causal connection between her current condition and the
employment injury. The medical opinion must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury, and must explain from a
medical perspective how the current condition is related to the injury.5
ANALYSIS -- ISSUE 2
The Office having met its burden of proof to justify the termination of compensation, the
burden of proof switched to appellant to establish that any subsequent disability was causally
related to the December 7, 1999 employment injury. Following its August 27, 2007 termination
decision, appellant submitted an August 21, 2007 report from Dr. Renneker, a Board-certified
physiatrist. Although Dr. Renneker found a 75 percent permanent impairment of appellant’s left
upper extremity due to chronic pain or RSD, she did not adequately explain what current
findings supported a diagnosis of RSD. She did not address or take issue with Dr. Steiman’s
report, nor did she explain how appellant met the objective criteria for a formal diagnosis of
RSD. Because Dr. Renneker did not provide a well-reasoned medical opinion to support
continuing residuals of the December 7, 1999 employment injury, the Board finds that her
August 21, 2007 report is of diminished probative value on the issue.
The March 6, 2008 report from Dr. Gowda, appellant’s family practitioner, is also of little
probative value. Dr. Gowda simply explained that appellant needed further evaluation for the
condition of left arm radiculopathy and to explain the cause of her chronic pain. He did not
diagnose RSD or explain how appellant continued to suffer residuals of the December 7, 1999
employment injury.
Because appellant has submitted no rationalized medical opinion to support that she
continues to suffer residuals causally related to the December 7, 1999 incident at work, the
Board finds that she has not met her burden of proof. The Board will therefore affirm the Office
hearing representative’s April 3, 2008 decision affirming the termination of compensation for the
accepted medical conditions.

4

Wentworth M. Murray, 7 ECAB 570 (1955) (after a termination of compensation payments, warranted on the
basis of the medical evidence, the burden shifts to the claimant to show by the weight of the reliable, probative and
substantial evidence that, for the period for which he claims compensation, he had a disability causally related to the
employment resulting in a loss of wage-earning capacity); Maurice E. King, 6 ECAB 35 (1953).
5

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

4

CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation. The
weight of medical opinion evidence establishes that she no longer suffers from the accepted
medical conditions. The Board also finds that appellant did not meet her burden to establish
continuing residuals or disability causally related to the December 7, 1999 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2008 and August 27, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 17, 2008
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

5