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

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

Docket No. 18-0527
Issued: July 29, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 18, 2018 appellant, through counsel, filed a timely appeal from a December 8,
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.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 8, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability, commencing June 1, 2015, causally related to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.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 June 14, 2013 appellant, then a 50-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that on or about May 26, 2012 he sustained a herniated disc (L5) as a
result of driving a mail truck as a duty of his federal employment.5 On July 31, 2013 OWCP
accepted his claim for lumbar intervertebral disc displacement and thoracic or lumbosacral neuritis
or radiculitis. It paid wage-loss compensation benefits on the supplemental rolls beginning
August 1, 2013. On August 20, 2013 appellant accepted a part-time modified letter carrier
position working six hours per day.6 OWCP paid wage-loss compensation for the remaining two
hours per day.
In a June 1, 2015 progress note and duty status report (Form CA-17), Dr. Thomas Martens,
an osteopath specializing in family medicine, related appellant’s complaints of increased lumbar
pain. He indicated that appellant had been working limited duty for six hours per day since
September 2013, but appellant believed that his condition had worsened when the new Postmaster
instructed him to carry his mailbag and dismount with the bag while delivering mail. Dr. Martens
noted examination findings of decreased range of motion of the lumbar spine and positive straight
leg raise testing on the right. He diagnosed displacement of the lumbar intervertebral disc without
myelopathy, thoracic or lumbosacral neuritis or radiculitis, right shoulder internal derangement,
and right knee internal derangement. Dr. Martens recommended that appellant work limited duty
for four hours per day with restrictions of lifting, carrying, simple grasping, and sitting for four
hours per day; fine manipulation for two hours per day; and standing, walking, bending, stooping,
twisting, pushing, pulling, and driving a vehicle for one hour per day.
On June 15, 2015 appellant filed a claim for compensation (Form CA-7) claiming
additional wage-loss for the period May 30 to June 12, 2015. On the accompanying time analysis
form (Form CA-7a) he claimed four hours of daily leave without pay (LWOP) beginning
June 3, 2015. Appellant remarked that the reason for leave use was “working (Limited Duty).”

4

Docket No. 16-1811 (issued May 17, 2017).

5

On April 3, 2013 appellant underwent lumbar surgery.

6

The part-time modified-duty assignment was based on the medical restrictions of Dr. Francisco Batlle, a
neurosurgeon. In an August 12, 2013 duty status report (Form CA-17), Dr. Batlle advised that appellant could return
to work with restrictions of driving up to seven hours, simple grasping up to six hours, standing, walking, climbing,
and fine manipulation up to three hours, sitting, twisting, and reaching above the shoulder up to two hours, bending,
stooping, pushing, and pulling up to one hour, and lifting and carrying up to 20 pounds.

2

He continued to file additional CA-7 forms claiming wage-loss compensation for four hours of
LWOP.
By decision dated July 28, 2015, OWCP denied appellant’s claim for wage-loss
compensation beginning on May 16, 2015 and continuing. By decision dated June 24, 2016, an
OWCP hearing representative affirmed the July 28, 2015 decision in part and denied claim for
recurrent disability and wage-loss compensation beginning June 1, 2015. She found that the
medical evidence of record was insufficient to establish that appellant’s reduction in work hours
was causally related to his accepted lumbar and thoracic conditions.
Appellant filed an appeal to the Board.
By decision dated May 17, 2017, the Board affirmed the June 24, 2016 decision denying
appellant’s recurrence of disability claim.7 The Board determined that the evidence of record was
insufficient to establish a recurrence of disability beginning June 1, 2015 due to a worsening or
change of his accepted conditions.
On June 5, 2017 appellant, through counsel, requested reconsideration. OWCP received
additional evidence regarding the claimed June 1, 2015 recurrence of disability, which included
progress notes and duty status reports (Form CA-17) dated June 27, 2016 to August 17, 2017 by
Dr. Martens. Dr. Martens noted clinical findings and a diagnosis of lumbar disc displacement and
indicated that appellant could work limited duty for four hours per day with restrictions of: lifting
and carrying up to 20 pounds intermittently, sitting, and simple grasping for four hours per day;
fine manipulation for two hours per day; standing, walking, bending, stooping, twisting, pushing,
pulling, reaching above the shoulder, and driving a vehicle for one hour per day; and no operating
of machinery.
In an August 29, 2016 narrative report and letter, Dr. Batlle, a neurosurgeon, described the
May 26, 2012 employment injury and the medical treatment that appellant had received. He
reported that appellant had experienced a resolution of his symptoms until he “returned to work
modified, then my new supervisor changed the routine and I had to do a [park-and-] loop for two
hours delivering mail.” Dr. Batlle noted appellant’s current complaints of primary low back pain
radiating into the bilateral lower extremities, right side greater than left. Upon examination of
appellant’s lumbar spine, he observed decreased range of motion and positive straight leg raise
testing. Dr. Batlle diagnosed recurrent lumbar radiculitis and lumbago, status post lumbar surgery.
He reported that appellant had “recurrent symptomatology beginning May 29, 2015.”
The record also contains several e-mails from the employing establishment regarding
appellant’s modified-duty position. In an e-mail dated December 27, 2016, an OWCP claims
examiner requested information from the employing establishment relative to when appellant
began to work four hours per day and whether there was a limited-duty job offer at that time. It
also requested a copy of the most recent limited-duty job offer.
In a separate e-mail dated February 28, 2017, an OWCP claims examiner again requested
that the employing establishment provide a copy of the last signed job offer. She also requested
7

Supra note 4.

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information regarding appellant’s pay rate and actual earnings. In an e-mail dated April 17, 2017,
a health and resource management specialist for the employing establishment provided his pay
rate and earnings information.
A June 12, 2017 functional capacity evaluation report demonstrated that appellant could
work part time at a light physical demand level.
On July 6, 2017 OWCP received a report from Dr. James E. Butler, III, and a Boardcertified orthopedic surgeon serving as an OWCP second-opinion examiner. In a May 18, 2017
report, Dr. Butler noted appellant’s current complaints of lower back pain radiating down the leg,
knees, neck, and shoulders. Upon examination of appellant’s lumbar spine, he observed tenderness
upon palpation from L4-S1 and restricted range of motion. Dr. Butler diagnosed thoracic or
lumbosacral neuritis or radiculitis and displacement of lumbar intervertebral disc without
myelopathy. He reported that appellant’s work-related conditions had not resolved and that he
remained disabled due to his accepted conditions. In an attached work capacity evaluation form
(OWCP-5c), Dr. Butler indicated that appellant could work with restrictions of: driving up to four
hours; lifting, pushing, or pulling no more than 20 pounds up to two hours; standing and walking
up to two hours; squatting, kneeling, and climbing up to one hour; and no bending, twisting, or
stooping.
In a July 28, 2017 report and work excuse note, Dr. Johnny White, an anesthesiologist,
indicated that appellant worked as a part-time mail carrier and currently complained of neck and
right arm pain. He provided examination findings and diagnosed lumbar radiculopathy and
chronic myofascial pain.
In an August 17, 2017 report, Dr. Clayton Adams, a Board-certified anesthesiologist, noted
appellant’s 2012 work-related injury. Upon examination of appellant’s lumbar spine, he reported
no spasms, tenderness, or trigger points. Dr. Adams diagnosed chronic pain syndrome, lumbar
radiculopathy, postlaminectomy syndrome, and other intervertebral disc degeneration of the
lumbar region.
By decision dated August 29, 2017, OWCP denied modification of the May 17, 2017
decision. It found that the medical evidence of record was insufficient to establish that appellant
was unable to work his part-time limited-duty assignment for six hours per day beginning June 1,
2015 due to the accepted conditions in his claim.
On September 11, 2017 appellant, through counsel, requested reconsideration. Counsel
submitted additional medical reports relative to treatment for appellant’s continued back and neck
symptoms.
OWCP received several reports by Dr. Carl J. D’Agostino, a pain management specialist.
In reports dated August 25, 2016 through September 21, 2017, Dr. D’Agostino conducted an
examination of appellant’s lumbar and cervical spine and diagnosed lumbar displacement, L5
vertebral fracture, annular tear of the L5-S1, left L5-S1 radiculopathy, and cervical displacement
with radiculitis.

4

In reports dated August 28 to October 24, 2017, Dr. White provided examination findings
and diagnosed lumbar radiculopathy and chronic myofascial pain. He completed a September 22,
2017 work excuse note which requested that appellant be excused from work that day.
In reports dated August 17 to October 24, 2017, Dr. Adams noted appellant’s complaints
of worsening low back pain radiating down the bilateral lower extremities. He provided
examination findings and diagnosed lumbar radiculopathy, chronic pain syndrome,
postlaminectomy syndrome, and other intervertebral disc degeneration.
By decision dated December 8, 2017, OWCP denied modification of the August 29, 2017
decision. It found that the medical evidence of record was insufficient to establish that appellant
sustained a recurrence of disability causally related to his accepted conditions such that he was
unable to perform his modified duty six hours per day beginning June 1, 2015.
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.9 For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.10 This burden
of proof requires that a claimant furnish medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that, for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning.11
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.12 The term also means an inability to work because a modified-duty or light-duty
assignment made specifically to accommodate an employee’s physical limitations, and which is
necessary because of a work-related injury or illness, is withdrawn or altered so that the assignment
exceeds the employee’s physical limitations. A recurrence does not occur when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties, or reduction-in-force.13
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
8

Supra note 2.

9

See B.K., Docket No. 18-0386 (issued September 14, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005);
Nathaniel Milton, 37 ECAB 712 (1986).
10

W.H., Docket No. 19-0168 (issued May 10, 2019); see D.G., Docket No. 18-0597 (issued October 3, 2018).

11

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

12

20 C.F.R. § 10.5(x).

13

Id.

5

claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.14
ANALYSIS
The Board finds that this case is not in posture for a decision.
The Board finds that it is unnecessary to consider the evidence appellant submitted prior
to the issuance of OWCP’s June 24, 2016 decision because the Board has already considered this
evidence in its May 17, 2017 decision. Findings made in prior Board decisions are res judicata
absent any further review by OWCP under section 8128 of FECA.15
OWCP accepted appellant’s occupational claim for lumbar intervertebral disc
displacement and thoracic or lumbosacral neuritis or radiculitis. Appellant stopped work and
returned to modified-duty work on August 21, 2013 working six hours per day. OWCP paid wageloss compensation for the remaining two hours per day. On June 1, 2015 appellant began to work
four hours per day and filed various Forms CA-7 claiming compensation for the remaining four
hours of LWOP. In a June 1, 2015 progress note, Dr. Martens related that appellant had been
working limited duty for six hours per day, but recently the new Postmaster had asked appellant
to carry and dismount with his mailbag. He updated appellant’s work restrictions, which included
limiting appellant to working four hours per day. In his August 29, 2016 report, Dr. Batlle
recounted that appellant’s new supervisor had changed his routine and required that he perform
park and loop duties while delivering mail.
The Board finds that factual evidence of record is insufficient to determine whether
appellant is claiming a recurrence of disability due to a change in his light-duty position or because
Dr. Martens increased her work restrictions and limited her to working four hours.16 As noted
above, OWCP’s regulations allow for appellant to establish a recurrence of disability under either
scenario.17 Accordingly, the evidence of record must contain accurate information regarding his
claim in order for the Board to determine whether he sustained a recurrence of disability beginning
June 1, 2015 because of a change in his limited-duty assignment or because of a change and
worsening of his accepted conditions.18
The record indicates that, in e-mails dated December 27, 2016 and February 28, 2017,
OWCP requested information from the employing establishment regarding appellant’s limitedduty assignment. The Board finds, however, that the employing establishment did not respond to
OWCP’s e-mails dated December 27, 2016 and February 28, 2017 when it requested a copy of his
14

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).
15
See K.K., Docket No. 17-1061 (issued July 25, 2018). The Board will, therefore, not review the evidence
addressed in the prior appeal.
16

See A.W., Docket No. 18-0589 (issued May 14, 2019).

17

Supra note 12.

18

See J.G., Docket No. 17-0910 (issued August 28, 2017); M.A., Docket No. 16-1602 (issued May 22, 2017).

6

most recent modified job offer and also sought clarification on when he began to work four hours
per day.
It is well established that, proceedings under FECA are not adversarial in nature and, while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.19 Once OWCP undertook development of the
evidence by requesting additional information from the employing establishment, it had a duty to
secure appropriate information addressing the relevant issues.20 Accurate information regarding
appellant’s work status and whether his limited-duty assignment had changed is essential to
determine whether he sustained a recurrence of disability beginning on June 1, 2015. OWCP must,
therefore, make proper factual findings as to whether appellant’s limited-duty assignment had
changed and resulted in a recurrence of disability beginning June 1, 2015.21 His evidence is of the
character normally obtained by the employing establishment and is more readily accessible to
OWCP than to appellant.22 Upon remand, OWCP should request that the employing establishment
furnish documentation regarding appellant’s work status for the applicable period and also clarify
whether appellant’s modified-duty assignment had changed to include park and loop duties.
The Board further finds that additional development of the medical evidence is also
required. In March 2017, OWCP referred appellant for a second-opinion examination. In a
May 18, 2017 report, Dr. Butler discussed appellant’s history of injury and provided examination
findings. He reported that appellant’s work-related conditions had not resolved and that appellant
remained disabled due to his accepted conditions. In an attached work capacity evaluation form
(OWCP-5c), Dr. Butler indicated that appellant could work with restrictions of: driving up to four
hours, lifting, pushing, or pulling no more than 20 pounds up to two hours; standing and walking
up to two hours; squatting, kneeling, and climbing up to one hour; and no bending, twisting, or
stooping. His second-opinion report related that appellant still had residuals and disability causally
related to his accepted conditions. Furthermore, Dr. Butler provided increased work restrictions
and seemed to suggest that appellant was only capable of working four hours. The Board finds
that his opinion supports that appellant work-related conditions had worsened such that his work
restrictions had changed and he was no longer able to work limited duty for six hours per day.23
As previously noted, OWCP shares responsibility in the development of the evidence.24
Once it undertook development of the evidence by referring appellant to a second opinion
physician, it has a duty to secure an appropriate report addressing the relevant issues.25 While
Dr. Butler’s opinion supports that appellant’s work-related conditions had worsened, he did not
19

Donald R. Gervais, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

20

Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

21

See Y.R., Docket No. 10-1589 (issued May 19, 2011).

22

J.T., Docket No. 15-1133 (issued December 21, 2015); J.S., Docket No. 15-1006 (issued October 9, 2015).

23

See B.B., Docket No. 18-1321 (issued April 5, 2019); J.D., Docket No. 17-1520 (issued February 20, 2018).

24

Supra note 19.

25

Supra note 20.

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address whether appellant sustained a recurrence of disability commencing June 1, 2015.
Accordingly, his report requires clarification regarding whether appellant was unable to work his
part-time limited-duty position for six hours per day, commencing June 1, 2015.26
The Board, therefore, will remand the case for OWCP to obtain a supplemental report from
Dr. Butler addressing appellant’s ability to work and restrictions commencing June 1, 2015. After
such further development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 29, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

26

See B.B., supra note 23.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Larado, TX, Employer
__________________________________________

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

Docket No. 09-264
Issued: August 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 5, 2008 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs dated October 2 and 6, 2008 finding that he received an
overpayment of compensation and denying waiver. 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 an overpayment of compensation in the
amount of $61,510.53 for the period March 30, 2006 through September 1, 2007 because he
received compensation payments for a schedule award after the expiration of the award; and
(2) whether the Office properly denied waiver of the recovery of the overpayment.
FACTUAL HISTORY
On March 16, 2003 appellant, then a 48-year-old canine enforcement officer, injured his
left upper arm, neck and spine when his dog pulled suddenly on the leash. He stopped work on

March 16, 2003 and returned to work with no restrictions on May 19, 2003. The Office accepted
the claim for a left shoulder and upper arm sprain/strain.
By decision dated April 21, 2006, the Office granted appellant a schedule award for a
nine percent permanent impairment of the left upper extremity. The period of the award ran for
28.08 weeks from September 15, 2005 to March 30, 2006. The Office informed appellant that he
would receive $2,328.45 for the period January 31 to March 18, 2006 and then a continuing
payment of $1,394.28 every four weeks until “March 18, 2006.” In another decision issued
April 21, 2006, it again notified him that he was entitled to a schedule award for a nine percent
upper extremity impairment and that the award ran from September 15, 2005 to March 30, 2006.
The Office advised that appellant would receive $20,984.21 for the period September 15, 2005 to
March 18, 2006 and then $3,284.00 every four weeks until the ending date of the award on
“March 18, 2006.” In both decisions, it noted that after expiration of the schedule award he
would be entitled to compensation based on his disability for employment.
The Office paid appellant a supplemental payment of $20,984.21 for the period of the
schedule award from September 15, 2005 to March 18, 2006. It also paid him $3,284.00 on the
periodic rolls for the period September 15, 2005 to March 30, 2006. Compensation payments
logs demonstrate that the Office continued to pay him compensation on the periodic rolls from
March 30, 2006 to September 1, 2007.1
On February 27, 2008 the Office notified appellant of its preliminary determination that
he received an overpayment of $61,510.53 because he received compensation under a schedule
award after the expiration of the award on March 30, 2006. It calculated the amount overpaid
appellant, $1,876.57, from March 19 to April 15, 2006 by multiplying the daily amount of
compensation he received, $117.28, by the number of days left in the period after
March 30, 2006. The Office found that it erroneously made him 12 payments of $3,284.00,
1 payment of $3,410.96 and 5 payments of $3,363.00, or a total overpayment of $61,510.53. It
informed appellant of its preliminary determination that he was at fault in creating the
overpayment because he knew or should have known that he was not entitled to receive
compensation for a schedule award after March 30, 2006. The Office requested that he complete
an enclosed overpayment recovery questionnaire and submit supporting financial documents.
Additionally, it notified appellant that, within 30 days of the date of the letter, he could request a
telephone conference, a final decision based on the written evidence or a prerecoupment hearing.
On March 18, 2008 appellant requested a prerecoupment hearing. He asserted that he
was without fault in creating the overpayment and requested waiver of the recovery of the
overpayment. Appellant submitted an incomplete overpayment recovery questionnaire. At a
telephonic hearing, held on July 8, 2008, he contended that he did not know the total amount that
he was supposed to receive under the schedule award. Appellant maintained that he was unable
to repay the overpayment without severe hardship. The hearing representative explained that he
needed to provide all income and expenses with corroborating documentation to support his
waiver request.
1

On September 6, 2007 a claims examiner noted that appellant received $3,363.00 every 28 days for a schedule
award. She determined that he should have received compensation only until March 30, 2006 and terminated
schedule award payments.

2

On July 21, 2008 appellant asserted that he believed that all the money that he received
was for the schedule award. He submitted pay stubs showing that he and his wife earned
$8,216.84 in net income monthly. Appellant listed monthly expenses of approximately
$6,000.00.2
By decision dated October 2, 2008, the hearing representative finalized the finding that
appellant received a $61,510.53 overpayment of compensation because he received
compensation after the expiration of his schedule award. He found, however, that appellant was
without fault in creating the overpayment. The hearing representative noted that both schedule
award decisions indicated an ending date of the schedule award of either March 18 or 30, 2006
and provided that appellant would be entitled to continuing compensation payments. He found
that as the decisions were confusing appellant was not at fault in creating the overpayment.3 The
hearing representative determined, however, that waiver of recovery of the overpayment was not
possible as his monthly income of $8,901.00 exceeded his monthly expenses of $6,263.89.4 He
noted that, while appellant argued that his salary included overtime, which was not guaranteed,
his salary was reasonably available for his use and thus included in determining his monthly
income. The hearing representative determined that the overpayment was due and payable.
In a decision dated October 6, 2008, the Office found that appellant was without fault in
creating the overpayment and denied waiver of the recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act5 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.6 Section 8129(a) of the Act provides, in
pertinent part, that 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.7 The Office’s

2

Appellant provided monthly expenses as follows: $877.58 for a Texas State Bank Loan, $495.19 for loans from
Citi Bank, $156.00 for a Discover card payment, $460.33 for electricity, $130.74 for water, $111.60 for cable,
$34.67 for trash pickup, $80.34 to AT&T, $112.11 to Sprint, $246.00 for furniture, $15.00 to Dell, $99.00 to Comp
USA, $100.00 for installment payments on a piano, $33.00 to Kohl’s, $269.70 in medical expenses, $68.80 for
yearly vehicle registration, $54.79 to Pennzoil, $584.08 to AmeriCredit, $658.22 to a credit union, $571.00 per year
for a homeowner’s policy, $232.50 for a vehicle and $362.91 in property taxes.
3

See R.W., 60 ECAB ___ (Docket No. 08-2098, issued July 24, 2009).

4

The hearing representative determined appellant’s net monthly income by multiplying the salary he and his wife
received each pay period by 26 and then dividing by 12.
5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8102(a).

7

5 U.S.C. § 8129(a).

3

procedure manual identifies various situations when overpayments of compensation may occur,
including when a schedule award expires but compensation continues to be paid.8
ANALYSIS -- ISSUE 1
The Office granted appellant a schedule award for a nine percent permanent impairment
of the upper extremity. The period of the award ran for 28.08 weeks from September 15, 2005 to
March 30, 2006. The Office advised that appellant would receive $20,984.21 for the period
September 15, 2005 to March 18, 2006 and then $3,284.00 every four weeks until the ending
date of the award. Instead of stopping his compensation at the expiration of the schedule award
on March 30, 2006, however, the Office continued to issue him schedule award payments every
four weeks through September 1, 2007. Consequently, appellant received an overpayment of
compensation.
The Office calculated that it paid appellant $61,510.53 in compensation after the
expiration of his schedule award. The record supports the Office’s determination of the amount
of the overpayment and it is not challenged by appellant. The Board will thus affirm the amount
of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act 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.”
Thus, a finding that appellant was without fault does not automatically result in waiver of the
recovery 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. Section 10.434 of the implementing regulations provide that, if the Office
finds the recipient of the overpayment was not at fault, repayment will be required unless
adjustment would defeat the purpose of the Act or be against equity and good conscience.9
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.10 An individual’s liquid assets
include but are not limited to case, the value of stocks, bonds, savings accounts, mutual funds

8

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).
9

20 C.F.R. § 10.434.

10

20 C.F.R. § 10.436. Office procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).

4

and certificates of deposits.11 Nonliquid assets include but are not limited to the fair market
value of an owner’s equity in property such as a camper, boat, second home and furnishings and
supplies.12
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.13 To establish that a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and
that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.14
ANALYSIS -- ISSUE 2
The Office found that appellant was not at fault in creating the overpayment of
compensation. The overpayment cannot be waived, however, unless recovery would defeat the
purpose of the Act or would be against equity and good conscience.15 In order to establish that
repayment of the overpayment would defeat the purpose of the Act, appellant must show that he
requires substantially all of his income to meet current ordinary and necessary living expenses
and that his assets do not exceed the resource base as determined by the Office’s procedures.16
The Office determined that appellant did not require substantially all of his income to
meet ordinary and normal living expenses. He provided documentation establishing that he and
his wife earned approximately $8,901.00 per month and had monthly expenses of approximately
$5,500.00 to $6,000.00 per month. An individual is deemed to need substantially all of his
monthly income to meet current and ordinary living expenses if monthly income does not exceed
monthly expenses by more than $50.00.17 Even without considering whether the listed expenses
were ordinary and necessary within the meaning of the regulations, appellant’s current income
clearly exceeds his current expenses by more than $50.00. Consequently, appellant does not
need substantially all of his income for ordinary and necessary living expenses.
Additionally, the evidence does not demonstrate that recovery of the overpayment would
be against equity and good conscience. Appellant submitted no evidence that he relied upon the
11

Id.

12

Id.

13

20 C.F.R. § 10.436.

14

Id. at § 10.437(b)(1).

15

See Madelyn Y. Grant, 57 ECAB 533 (2006).

16

See supra note 13; see also W.F., 57 ECAB 705 (2006).

17

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1) (October 2004); Desiderio Martinez, 55 ECAB 336 (2004).

5

incorrect payments to his detriment or that he would experience severe financial hardship
attempting to repay the debt. Consequently, the Office properly denied waiver of the recovery of
the overpayment.
On appeal, appellant notes that he was without fault in creating the overpayment. Section
10.435(a) provides, however, that an error by a government entity, including the Office, which
resulted in an overpayment does not relieve a claimant from liability for repayment.18 Appellant
further argues that he is unable to repay the overpayment. Under the provisions of the statute
and regulations, however, he does not meet the criteria for waiver of the recovery of the
overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $61,510.53 for the period March 30, 2006 through September 1, 2007 because he received
payments under a schedule award after the expiration of the award. The Board further finds that
the Office properly denied waiver of the recovery of the overpayment.19

18

20 C.F.R. § 10.435(a); Lawrence J. Dubuque, 55 ECAB 667 (2004).

19

Recovery of the overpayment is not an issue in this case as appellant is not in receipt of continuing
compensation. With respect to recovery of the overpayment, the Board’s jurisdiction is limited to reviewing those
cases where the Office seeks recovery from continuing compensation under the Act. 20 C.F.R. § 10.441; see
Miguel A. Muniz, 54 ECAB 217 (2002).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 6 and 2, 2008 are affirmed.
Issued: August 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1966
Issued: March 6, 2018

Case Submitted on the Record

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

JURISDICTION
On September 21, 2017 appellant, through counsel, filed a timely appeal of a June 13,
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 has met her burden of proof to establish an occupational
disease causally related to factors of her 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
This case has previously been before the Board.3 The facts and circumstances outlined in
the Board’s prior decisions are incorporated herein by reference. The facts relevant to this
appeal are set forth below.
On May 28, 2015 appellant then a 47-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that she developed right arm, hand, shoulder, and upper back pain
and numbness due to repeatedly bending, reaching, pushing, and pulling 450-pound over-theroad (OTR) containers at work. She did not immediately stop work.
Dr. Mark Eskander, a Board-certified orthopedist, treated appellant on May 28, 2015 for
neck pain and numbness radiating into her right hand. Appellant reported a gradual onset of pain
on March 23, 2015 due to pushing metal containers at work which caused her arm and neck pain
to flare-up. Dr. Eskander noted positive findings and diagnosed cervical spondylosis and
cervical disc displacement. A magnetic resonance imaging (MRI) scan of the cervical spine
revealed disc osteophyte protrusion lateralized to the right, mild left neural foraminal narrowing
at C6-7, and broad-based disc osteophyte protrusion with neural foraminal narrowing at C5-6
and C4-5. On June 19, 2015 Dr. Eskander related appellant’s symptoms of radiating neck pain
which began on March 23, 2015. Appellant reported performing repetitive lifting, moving, and
pushing metal carts which weighed 400 pounds while at work. Dr. Eskander noted findings and
diagnosed cervical myopathy stemming from overuse with lifting and pushing heavy carts at
work. He recommended conservative treatment including nerve blocks.
By decision dated July 20, 2015, OWCP denied appellant’s claim because she failed to
establish that she developed a medical condition causally related to the accepted factors of her
federal employment.
On March 9, 2016 counsel requested reconsideration. A June 25, 2015 electromyogram
(EMG) revealed acute moderate-to-severe right C6 radiculopathy and mild bilateral median
nerve entrapment neuropathy across the carpal tunnels.
Appellant continued to be seen by Dr. Eskander. In July 9 and August 20, 2015 reports,
Dr. Eskander diagnosed cervical spondylosis, cervical disc displacement, carpal tunnel
syndrome, and cervical radiculopathy. He noted that conservative treatment failed and
recommended surgical intervention. On August 24, 2015 Dr. Eskander performed a C5 to C7
anterior cervical discectomy and fusion and diagnosed cervical stenosis at C5 to C7. In reports
dated October 2, 2015 and January 7, 2016, he noted that appellant reported improved pain after
the cervical fusion surgery without radiation, numbness, or tingling in the arms. Dr. Eskander
diagnosed intervertebral disc displacement of the lumbar region, cervical disc displacement and
cervical spondylosis and returned appellant to work full-time at light-duty status.
In a report dated April 1, 2016, Dr. Eskander noted appellant’s work duties as a mail
handler involved loading and unloading packages from skids and conveyor belts and pulling and
3

Docket No. 16-1872 (issued February 21, 2017).

2

moving OTR containers. He noted that she started working for the post office in January 2000 as
a mail handler and that she worked six days a week, six hours a day, and sometimes eight hours a
day on weekends. Dr. Eskander noted that she had to load and unload packages from skids and
the conveyor belt and load them into large Gaylord boxes. He noted that the packages she
unloaded were objects weighing over 20 pounds and some larger items weighed up to 70 pounds.
Dr. Eskander reported that in 2005 she became a sack sorter where she was taking sacks off the
conveyor and putting them onto the roads with overtime work. He observed that sometimes
roads weighed 400 pounds and sometimes 700 pounds when fully loaded. Appellant performed
these duties for a number of years and returned to mail handling work. She also drove a forklift,
but all the time was working in sorting in a repetitive nature with heavy items. Dr. Eskander
noted that she had recently been placed on light duty, basically just walking around sorting the
mail that is too long to go in the machine or around. He opined that she had degenerative
changes that were related to her work duties and became worse with overuse at work and were a
significant factor in the development of her cervical condition. Dr. Eskander noted his opinion
was given to a reasonable degree of medical certainty and that, but for the work duties appellant
would not have developed these particular problems with cervical radiculopathy requiring
anterior cervical discectomy and fusion.
By decision dated June 7, 2016, OWCP denied modification of the prior decision.
Appellant appealed to the Board.4 By decision dated February 21, 2017, the Board affirmed the
June 7, 2016 decision finding that appellant did not meet her burden of proof to establish an
occupational disease causally related to accepted factors of her federal employment.
On March 15, 2017 appellant, through counsel, requested reconsideration and submitted
additional medical evidence. Dr. Eskander, in a February 9, 2017 report, sought to explain the
physiological process of how repetitive duties could cause an aggravation of a cervical condition
leading to stenosis and nerve root compression. He cited excerpts from the Academy of
Orthopaedic Surgeons and North American Spine Society noting “additionally, spine injuries
that result from trauma, repetitive movement or carrying excess weight can hasten a degenerative
process or cause a spontaneous degeneration resulting in structural changes that alter the spine
and further limiting the space within the neural foramen causing it to become narrower so that
the space available for the exiting nerve roots is smaller and therefore causing more compression
and pain down the nerve roots from the neck down into the arms.” Dr. Eskander indicated that
this was physiologically how the process occurred and how repetitive duties could exacerbate a
condition. He noted that “as a mail handler [appellant’s] job duties required repetitive lifting and
carrying of packages frequently in excess of 70 pounds.” Dr. Eskander opined with a reasonable
degree of medical probability that her assigned employment duties caused an aggravation of
appellant’s condition. He further opined with a reasonable degree of medical certainty that the
work injury appellant sustained led to the need for surgery and subsequent disability.
By decision dated June 13, 2017, OWCP denied modification of the June 7, 2016
decision.

4

Id.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim. When an employee claims an injury in the performance of
duty, he or she must submit sufficient evidence to establish that a specific event, incident, or
exposure occurred at the time, place, and in the manner alleged. The employee must also
establish that such event, incident, or exposure caused an injury.6
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.7 To establish fact of injury in an
occupational disease claim, 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
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
Appellant filed an occupational disease claim alleging that she developed right arm, hand,
shoulder, and upper back pain and numbness due to repeatedly bending, reaching, pushing, and
pulling 450-pound OTR containers at work.
The Board finds that this case is not in posture for decision.
It is undisputed that appellant’s duties as a mail handler included bending and reaching
between OTR containers, pulling and moving OTR containers, loading and unloading packages
from skids and conveyor belts, for eight hours a day, five to six days a week, and up to eight

5

Supra note 2.

6

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
7

S.P., 59 ECAB 184, 188 (2007).

8

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

9

Solomon Polen, 51 ECAB 341 (2000).

4

hours per day on the weekends. It is further undisputed that this work required her to lift up to
70 pounds and maneuver OTR containers up to 450 pounds.
Appellant submitted various reports from Dr. Eskander in support of her occupational
disease claim. In a report dated February 9, 2017, Dr. Eskander provided an explanation of the
physiological process of how repetitive employment duties could cause an aggravation of a
cervical condition leading to stenosis and nerve root compression. He noted appellant’s mail
handler duties with specific detail in his prior reports and opined within a reasonable degree of
medical probability that these duties caused an aggravation of her condition and led to the need
for surgery and her subsequent disability. In support of his opinion, Dr. Eskander cited to
excerpts from an Academy of Orthopaedic Surgeons and North American Spine Society text
book including excerpts indicating that “spine injuries that result from trauma, repetitive
movement, or carrying excess weight can hasten a degenerative process or cause a spontaneous
degeneration resulting in structural changes that alter the spine and further limiting the space
within the neural foramen causing it to become narrower so that the space available for the
exiting nerve roots is smaller and therefore causing more compression and pain down the nerve
roots from the neck down to the arms.” The Board concludes that although these reports do not
provide sufficient medical rationale explaining how the undisputed employment duties caused or
contributed to an exacerbation of appellant’s diagnosed medical conditions, when read together
they strongly suggest and support such a relationship.10
The Board finds that, while Dr. Eskander’s reports are not completely rationalized, they
are consistent in indicating that appellant sustained right arm, hand, shoulder, and upper back
pain and numbness.11 Although the reports are insufficient to meet appellant’s burden of proof
to establish her claim, they are sufficient to require OWCP to further develop the medical
evidence.12
It is well-established that proceedings under FECA are not adversarial in nature and
OWCP is not a disinterested arbiter.13 While the claimant has the burden to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and to see that
justice is done.14 Thus, the Board will remand the case to OWCP for further development to
obtain a rationalized medical opinion as to whether appellant’s condition is causally related to
the employment incident and issue a de novo decision on whether she developed an occupational
disease due to the accepted employment factors of her federal employment, as alleged.
10
See L.F., Docket No. 14-1906 (issued August 13, 2015) (the Board determined that while reports by a claimant
s treating physician were not completely rationalized to establish a work-related injury they strongly supported a
relationship between the employment incident and diagnosed condition and remanded the case for OWCP to further
develop the medical evidence)
11

See E.J., Docket No. 09-1481 (issued February 19, 2010).

12

Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone 41 ECAB 354 (1989).

13

See Vanessa Young, 56 ECAB 575 (2004).

14

Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).

5

On appeal appellant, through counsel, disagrees with OWCP’s decision and asserts that
she submitted sufficient evidence to establish her claim. As noted above, the reports submitted
are sufficient to require additional development of her claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 13, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this decision of the Board.
Issued: March 6, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION MASSACHUSETTS PORT
AUTHORITY, East Boston, MA, Employer
__________________________________________

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

Docket No. 16-0635
Issued: November 7, 2016

Case Submitted on the Record

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

JURISDICTION
On February 18, 2016 appellant, through counsel, filed a timely appeal of a December 18,
2015 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 this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury on
August 14, 2012 causally related to the accepted employment incident.
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 argues the decision is contrary to law and fact.
FACTUAL HISTORY
This case has previously been before the Board.
On August 15, 2012 appellant, then a 59-year transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on August 14, 2012 he sustained a chest hernia
and experienced pain in his lower back, radiating up to his neck when he attempted to grab a
beer keg that had fallen off a cart at work. OWCP accepted that the August 14, 2012 incident
occurred as alleged, but by decision dated May 13, 2013 denied the claim as it found that the
medical evidence of record was insufficient to establish a back condition causally related to the
August 14, 2012 incident.
By decision dated July 16, 2014, the Board affirmed OWCP decisions dated
November 27, 2013 and January 19, 2014.3 The Board found that appellant failed to submit
rationalized medical opinion evidence addressing whether the diagnosed conditions, work
restrictions, and disability were caused by the August 14, 2012 employment incident. The facts
and circumstances as referred to in the prior Board decisions are incorporated herein by
reference.4
By letter dated December 10, 2014, appellant, through counsel, requested reconsideration
and submitted the additional medical evidence including medical reports from Dr. Polly D.
Fraga, an attending Board-certified internist.
In an October 19, 2010 report, Gail Spellman, nurse practitioner, diagnosed low back
pain due to the lifting of a heavy object. Appellant was lifting a heavy suitcase off the counter
for a routine bag search when he twisted his back and felt a sharp pain. Ms. Spellman released
appellant to return to work with restrictions of no lifting more than 15 pounds.
In a November 6, 2014 report, signed by Ms. Spellman and cosigned by Dr. Fraga, it was
noted that appellant was seen on October 19, 2010 for low back spasms and pain. The report
listed a history that in the prior week, appellant had twisted his back while lifting a heavy
suitcase for a routine bag check. Appellant continued to work despite pain and back spasms. He
was unable to get out of bed a couple days later.
An incomplete form report regarding causal relationship signed by Ms. Spellman on
November 6, 2014 and cosigned by Dr. Fraga on November 13, 2014 concluded that appellant’s
condition was causally related to the employment incident.

3

Docket No. 14-0676 (issued July 16, 2014).

4

The record also indicates that appellant had filed three previous traumatic injury claims. At a hearing held on
September 9, 2013 before an OWCP hearing representative, appellant testified that he sustained a back injury in
October 2010, which caused intermittent days of disability. It appears that the claim was accepted by OWCP.

2

Appellant also submitted an unsigned and undated5 report diagnosing lower back pain,
lumbar neuritis, and lumbar dysfunction. He also submitted findings from a physical
examination and review of a November 4, 2012 magnetic resonance imaging (MRI) scan.
In a January 30, 2014 nonmerit decision, OWCP found that the medical evidence
appellant submitted failed to address whether appellant sustained a back injury causally related
to the August 14, 2012 employment incident and was insufficient to warrant a merit review.
Following the Board’s July 16, 2014 decision, by letter dated June 19, 2015, appellant,
through counsel, requested reconsideration and submitted an April 6, 2015 report from
Dr. Fraga. Dr. Fraga reported that appellant sustained two separate work injuries with the first
occurring on October 10, 2010 and the second occurring on August 14, 2012. She opined that
both work injuries contributed to his disability, physical and objective evidence findings, and
medical conditions. Dr. Fraga provided appellant’s medical treatment history including
treatment and a March 2013 surgery by a neurosurgeon. Physical examination findings were
listed from when she first saw appellant on October 19, 2010 up to April 2015, when he was seen
for his annual physical examination. A review of an October 2014 (MRI) scan revealed mild
acromioclavicular osteoarthritis, some subdeltoid/subacromial bursitis, mild bicipital tendon
tenosynovium and rotator cuff tendinopathy with partial supraspinatus/subscapularis thickness
tears, and infraspinatus fraying. Dr. Fraga opined that the progression of changes shown on the
MRI scans are “consistent with long-term sequela from the initial” October 2010 injury. She
related that the findings from an October 2014 MRI scan of appellant’s left shoulder were
consistent with the August 2012 work incident. Dr. Fraga reported that due to appellant’s back
pain, he needed to have frequent position changes, could not lift more than five pounds, and was
unable to sit or stand for more than 15 minutes. She opined that these findings were consistent
with the type of injury sustained in August 2012. Dr. Fraga opined that the August 2012
employment incident either directly or proximately caused appellant’s lower back, cervical
spine, and shoulder injuries. She concluded that appellant’s L3-4, L4-5 disc bulging and
foraminal narrowing, L5-S1 arthropathy which were consistent with the 2010 injury while the
partial rotator cuff tears were consistent with the August 2012 incident. Dr. Fraga concluded that
there might be other causes for appellant’s medical condition, but the primary causes were the
work accidents and activities described in her report.
By decision dated December 18, 2015, OWCP denied modification. It found that
Dr. Fraga’s April 6, 2015 report was repetitive of appellant’s neurosurgeon’s reports and her
prior medical notes, and was insufficiently rationalized to establish that appellant sustained a
back injury causally related to the accepted August 14, 2012 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of establishing 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
5

There is a fax date of November 14, 2014 noted on the report.

6

5 U.S.C. § 8101 et seq.

3

disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.9
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.10 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 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.13 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.14
ANALYSIS
OWCP accepted that the August 14, 2012 employment incident occurred as alleged. The
issue is whether appellant established that the incident caused a back, neck, and hernia
conditions. By decision dated July 16, 2015, the Board affirmed OWCP’s denial of appellant’s
claim. The Board’s review of the previous medical evidence of record is res judicata.15
Following the Board’s last decision, which affirmed the denial of the claim, appellant
submitted to OWCP a December 10, 2014 request for reconsideration accompanied by medical
evidence. OWCP denied reconsideration by decision dated January 30, 2015 as it found the
7

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

8

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

9

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 7.

10

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

11

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 7.
12

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
13

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006)

14

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

15

See R.L., Docket No. 15-1010 (issued July 21, 2015).
October 15, 2014).

4

See also A.P., Docket No. 14-1228 (issued

medical evidence submitted was repetitive and insufficient to warrant a merit review. By letter
dated June 19, 2014, appellant requested reconsideration and submitted additional evidence in
support of his request. In a December 18, 2015 decision, OWCP denied modification as it found
on merit review the medical evidence of record insufficiently rationalized to establish that
appellant sustained an injury causally related to the August 14, 2012 employment incident.
The issue on appeal is whether appellant established that he sustained an injury as a result
of the August 14, 2012 employment incident. The Board finds that he has failed to submit
sufficient medical evidence to supporting that he sustained an injury causally related to the
August 14, 2012 employment incident.16
Dr. Fraga’s April 6, 2015 report found that both the October 10, 2010 work-related injury
and the August 14, 2012 employment incident contributed to appellant’s disability and neck,
lower back, and shoulder injuries. She provided a summary of medical treatment provided
including treatment provided by appellant’s neurosurgeon from October 2010 to the present.
While Dr. Fraga opined that the August 14, 2012 employment incident also contributed to
appellant’s neck, lower back, and shoulder injuries, she failed to provide a rationalized opinion
explaining how the August 14, 2012 employment incident caused or aggravated the diagnosed
neck, lower back, and shoulder conditions. Dr. Fraga generally opined that the August 14, 2012
incident was a proximate or direct cause of his medical conditions. This general statement fails
to provide a sufficient explanation as to the mechanism of injury pertaining to this traumatic
injury claim, namely, how attempting to grab a beer keg that had fallen off a cart at work would
cause or aggravate appellant’s neck, lower back, and shoulder conditions.17 Without explaining
physiologically how the movements involved in the employment incident caused or contributed
to the diagnosed conditions, Dr. Fraga’s opinion that attempting to grab a beer keg was a direct
or proximate cause of appellant’s injuries is equivocal in nature and of limited probative value.18
The remaining medical evidence is also insufficient to support appellant’s claim. The
undated and unsigned report diagnosing lower back pain, lumbar neuritis, and lumbar
dysfunction is of no probative value. Reports that are unsigned or bear illegible signature and
lack proper identification cannot be considered probative medical evidence.19 Additionally, the
October 19, 2010 report signed by Ms. Spellman, a nurse practitioner, has no probative value as
a nurse practitioner is not a physician as defined under FECA.20
The November 6, 2014 report signed by Ms. Spellman and cosigned by Dr. Fraga, and an
incomplete form report regarding causal relationship signed by Ms. Spellman on November 6,
2014 and cosigned by Dr. Fraga on November 13, 2014 are insufficient to support appellant’s
claim as neither report addressed whether appellant’s disability, work restrictions, and diagnosed

16

See Robert Broome, 55 ECAB 339 (2004).

17

S.W., Docket 08-2538 (issued May 21, 2009); Robert Broome, supra note 16.

18

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).
19

R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734 (2006); Richard J. Charot, 43 ECAB 357 (1991).

20

L.D., 59 ECAB 648 (2008); Paul Foster, 56 ECAB 208 (2004).

5

conditions were caused or aggravated by the August 14, 2012 employment incident.21 Thus, the
reports from Dr. Fraga and Ms. Spellman are insufficient to establish appellant’s claim.
On appeal counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds that counsel’s arguments are not
substantiated.
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 his burden of proof to establish that he
sustained an injury on August 14, 2012 causally related to the accepted employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 18, 2015 is affirmed.
Issued: November 7, 2016
Washington, DC

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

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

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

21

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
supra note 12; Jaja K. Asaramo, 55 ECAB 200 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Hampton, GA, Employer
__________________________________________

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

Docket No. 10-1727
Issued: March 7, 2011

Case Submitted on the Record

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

JURISDICTION
On June 15, 2010 appellant filed a timely appeal from the May 12, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs that denied his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of the appeal.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
reconsideration.

FACTUAL HISTORY
This case has previously been before the Board.1 In a November 23, 2009 order
remanding case, the Board found that the Office had not properly adjudicated appellant’s request
for modification of the 1999 wage-earning capacity determination.2 The Office did not evaluate
appellant’s request according to the criteria for modification of a formal wage-earning capacity
determination. The facts of the case as set forth in the Board’s prior decisions and order are
hereby incorporated by reference.
On remand, the Office issued a December 7, 2009 decision denying appellant’s request
for modification of the 1999 wage-earning capacity determination. It found that he had been
self-employed and worked in the capacity of a photographer for over 60 days. The Office denied
appellant’s request, finding that he did not establish that he was not self-employed or that the
wage-earning capacity was in error.
On March 8, 2010 appellant filed a request for reconsideration contending that the 1999
wage-earning capacity decision should be modified. With his request, he submitted the
December 24, 2009 and February 23, 2010 reports of Dr. William H. Biggers, an attending
psychiatrist, and a January 20, 2010 report of Dr. Roger A. Morrero, an attending family
practitioner. Appellant contended that he had never been self-employed as a photographer and
that the medical evidence established a material change in his accepted conditions.
In a May 12, 2010 decision, the Office denied appellant’s request for reconsideration
without merit review. The decision noted that the three medical reports presented on
reconsideration were of limited probative value to show that his medical condition had changed.
The Office also found that appellant’s arguments and the medical evidence was not new or
supported a review of the prior decision.
LEGAL PRECEDENT
It is well established that either a claimant or the Office may seek to modify a formal loss
of wage-earning capacity determination. Once the wage-earning capacity of an injured
employee is determined, a modification of such decision is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was, in fact,

1

Appellant, a former air traffic controller, alleged occupational disease due to his federal employment. His claim
has been accepted for recurrent major depression, malignant hypertension, hypertensive retinopathy, an unspecified
anxiety state, post-traumatic stress disorder, coronary atherosclerosis, atrial fibrillation and erectile dysfunction. On
July 30, 1999 the Office reduced appellant’s wage-loss compensation to reflect his capacity to earn wages as a
studio cameraman. In Docket No. 02-506 (issued July 7, 2003) the Board found that he forfeited compensation for
specific periods by failing to report his self-employment as a photographer. The case was remanded to the Office to
reconsider the amount of the overpayment. In Docket No. 04-379 (issued February 11, 2005) the Board affirmed the
amount of the overpayment for the periods of the forfeiture.
2

Docket No. 09-966 (issued November 23, 2009).

2

erroneous.3 The burden of proof is on the party attempting to show modification is warranted.4
There is no time limit for appellant to submit a request for modification of a wage-earning
capacity determination.5
ANALYSIS
The Office considered appellant’s March 8, 2010 letter as a request for reconsideration
under section 8128(a) and found that he did not submit sufficient evidence or argument to
warrant further merit review. The Board finds that this was error.
Appellant asserted that the 1999 wage-earning capacity decision was erroneously
determined as he did not perform work as a photographer and did not have the ability to do such
employment. He also contended that his accepted conditions have materially changed such that
he was again totally disabled. In support of his contention, appellant submitted medical evidence
from his attending physicians, Dr. Biggers and Dr. Morrero. The May 12, 2010 decision of the
Office addressed the medical evidence submitted by appellant noting that the reports each stated
that he was not capable of performing any work. The claims examiner erred by weighing the
probative value of the medical reports as limited and then finding that appellant failed to meet
any of the three requirements of section 10.606 of the implementing regulations that pertain to
reconsideration.6 As appellant sought review of the 1999 wage-earning capacity and argued that
his accepted conditions had materially changed, his request is not one under 5 U.S.C. § 8128(a).
The Office improperly adjudicated his request as one for reconsideration rather than modification
of the exiting wage-earning capacity determination.
The case will be remanded to the Office for adjudication of appellant’s request under the
appropriate standard of review relevant to modification of a wage-earning capacity. After such
further development as it deems necessary, it shall issue an appropriate decision.7
CONCLUSION
The Board finds that the Office improperly adjudicated appellant’s request for
modification of the 1999 wage-earning capacity as a request for reconsideration.

3

See F.B., 61 ECAB ___ (Docket No. 10-99, issued July 21, 2010). See also Katherine T. Kreger, 55 ECAB 633
(2004); Sharon C. Clement, 55 ECAB 552 (2004); Tamra McCauley, 51 ECAB 375 (2000).
4

See Darletha Coleman, 55 ECAB 142 (2003).

5

See W.W., 61 ECAB ___ (Docket No. 09-1937, issued February 24, 2010); Gary L. Moreland, 54 ECAB
638 (2003).
6

See 20 C.F.R. § 10.606(b)(2).

7

On appeal, appellant submitted the medical reports referenced herein. The Board may not consider this
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

3

ORDER
IT IS HEREBY ORDERED THAT the May 12, 2010 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Detroit, MI, Employer
__________________________________________

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Appearances:
Gad L. Holland, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0167
Issued: May 7, 2019

Case Submitted on the Record

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

JURISDICTION
On October 30, 2017 appellant, through counsel, filed a timely appeal from a July 13, 2017
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence after OWCP rendered its July 13, 2017 decision.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a lumbar condition
causally related to the accepted March 30, 2017 employment incident.
FACTUAL HISTORY
On March 31, 2017 appellant, then a 37-year-old air conditioning equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that, on March 30, 2017, he injured his lower
back when he was moving a refrigerator while in the performance of duty. He claimed that when
moving the refrigerator on a dolly, the dolly got caught on a door, and he pulled it loose which
caused the feeling of pain to shoot into his hips, legs, and lower back. Appellant stopped work on
that date.
Appellant submitted a report from Dr. Fadi Oska, a Board-certified internist, dated
March 16, 2015. In this report, Dr. Oska diagnosed low back pain.
In a report dated March 30, 2017, Dr. Sudhir Rao, Board-certified in anesthesiology and
pain medicine, diagnosed lumbosacral back pain status post injury. He noted that appellant told
him that he was moving a refrigerator from one room to another on a dolly which got stuck on a
ledge. Appellant pulled the dolly back and forth, after which he felt sharp back pain.
In an incident report dated March 30, 2017, a supervisor noted that appellant had sustained
a sprain/strain of the lower back when he was pulling a refrigerator on a dolly through a doorway
on March 30, 2017.
On March 30, 2017 Dr. Peter Salvia, a Board-certified family practitioner, examined
appellant, diagnosed lumbar radiculopathy, and low back pain. He noted that appellant’s pain
began nine hours previous to the encounter.
In a diagnostic report dated March 30, 2017, Dr. Salvia examined x-rays of appellant’s
lumbosacral spine. He noted no evidence of an acute lumbar spine pathology, with evidence of a
previous spinal intervention at the lumbosacral articulation with a plate and screws. Dr. Salvia
observed no acute process.
A report dated April 27, 2017, from an employing establishment continuation of pay nurse
assigned to appellant’s case, confirmed that he had returned to work on April 18, 2017.
In a report dated May 22, 2017, Dr. Salvia noted that while appellant’s back pain had
gradually resolved from the incident of March 30, 2017, appellant’s pain recurred on
May 20, 2017. He diagnosed low back pain and ordered a computerized tomography (CT) scan
of appellant’s spine.
On May 23, 2017 appellant filed a notice of recurrence (Form CA-2a). He alleged that the
recurrence occurred on May 20, 2017, when he was walking across a lawn, bent down to pick up
trash, and felt pain in his back. Appellant expressed his belief that it was connected to the original
injury based on how soon it occurred after returning to work, and because he never felt as though
he had healed completely.

2

In a development letter dated May 30, 2017, OWCP informed appellant that his claim had
been reopened for consideration because medical bills had exceeded $1,500.00. It informed him
that he had not submitted sufficient medical evidence to establish his claim, as he had not submitted
a medical report containing a medical opinion explaining how his claimed injury was caused or
aggravated by exposure to his work environment. OWCP afforded appellant 30 days to provide
the requested medical evidence.
In a letter dated June 16, 2017, Dr. Salvia noted that appellant had injured his back at work
on March 29, 2017. He noted that appellant’s pain recurred after pulling a refrigerator on a dolly
on May 20, 2017. Dr. Salvia noted that a firm diagnosis would require an electromyogram (EMG)
of the lower extremities and a CT scan of the lumbar region, although his symptoms were
consistent with degenerative disc disease with radiculopathy to the left and L2-3 with radiation to
the left. Dr. Salvia noted that appellant was unable to stand for longer than 15 minutes, and had a
marked limitation in walking, bending, and twisting. He was also unable to push, pull, or lift
greater than five pounds.
In a record of a telephone conversation with an OWCP representative dated July 12, 2017,
appellant was informed that none of the medical reports he had submitted contained a firm
diagnosis, except for the letter of June 16, 2017 which diagnosed degenerative disc disease, but
that it was not a firm diagnosis. The representative further noted that appellant’s physician had
not supplied a description to support the proposition that appellant’s degenerative disc disease was
caused or aggravated by his employment.
By decision dated July 13, 2017, OWCP denied appellant’s claim, finding that he had not
submitted sufficient evidence to establish causal relationship between a diagnosed condition and
the accepted March 30, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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).

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evidence to establish that he or she actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence, generally
only in the form of medical evidence, to establish that the employment incident caused a personal
injury. An employee may establish that the employment incident occurred as alleged, but fail to
establish that his or her condition relates to the employment incident.7
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on whether there is causal
relationship between the employee’s diagnosed condition and compensable employment factors.9
The opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted March 30, 2017 employment incident.
Appellant submitted a report from Dr. Oska, a Board-certified internist, dated
March 16, 2015. This report, however, predates appellant’s date of injury. The Board has held
that medical evidence which predates the date of a traumatic injury has no probative value on the
issue of causal relationship of a current medical condition.11
In a report dated March 30, 2017, Dr. Rao diagnosed lumbosacral back pain status post
injury. He noted that appellant told him that he was moving a refrigerator from one room to
another on a dolly, when the dolly got stuck on a ledge. Appellant pulled the dolly back and forth,
after which he felt sharp back pain. In a report dated May 22, 2017, Dr. Salvia noted that
appellant’s back pain had gradually resolved from the incident of March 30, 2017, but that
appellant’s pain recurred on May 20, 2017. He diagnosed low back pain and ordered a CT scan
of appellant’s spine. The Board has consistently held that pain is a symptom, not a compensable
medical diagnosis.12 These reports of Dr. Rao are therefore insufficient to establish appellant’s
claim.

7

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
9

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

10

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

V.N., Docket No. 16-1427 (issued December 13, 2016).

12

See K.V., Docket No. 18-0723 (issued November 9, 2018); B.P., Docket No. 12-1345 (issued November 13,
2012); C.F., Docket No. 08-1102 (issued October 2008); Robert Broome, 55 ECAB 339 (2004).

4

In a March 30, 2017 report, Dr. Salvia examined appellant and diagnosed lumbar
radiculopathy. He examined x-rays of appellant’s lumbosacral spine and noted no evidence of an
acute lumbar spine pathology, but found evidence of a previous spinal intervention at the
lumbosacral articulation with a plate and screws. Dr. Salvia’s report of March 30, 2017, provides
a firm diagnosis, but it lacks an opinion on the cause of appellant’s lumbar conditions. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.13
In a letter dated June 16, 2017, Dr. Salvia noted that appellant had injured his back at work
on March 29, 2017. He noted that appellant’s pain recurred after pulling a refrigerator on a dolly
on May 20, 2017. Dr. Salvia further noted that a firm diagnosis would require an EMG of the
lower extremities and a CT scan of the lumbar region, although his symptoms were consistent with
degenerative disc disease with radiculopathy to the left and L2-3 with radiation to the left. His
report of June 16, 2017 does not contain a firm diagnosis of a condition, as he himself notes that a
firm diagnosis would require additional testing. Lacking a firm diagnosis and rationalized medical
opinion regarding causal relationship, his report is of no probative value.14
The Board finds that appellant has not submitted sufficient evidence to establish a lumbar
condition causally related to the accepted March 30, 2017 employment incident. As such, he has
not met his burden of proof to establish his traumatic injury claim.
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 his burden of proof to establish a lumbar
condition causally related to the accepted March 30, 2017 employment incident.

13

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

14

See J.L., Docket No. 18-1804 (issued April 12, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the July 13, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 7, 2019
Washington, DC

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

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

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

6