United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER U.S. PACIFIC FLEET,
Bremerton, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0597
Issued: January 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 23, 2015 appellant filed a timely appeal from a January 2, 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 this case.
ISSUE
The issue is whether appellant met his burden of proof to establish hearing loss in the
performance of duty.
FACTUAL HISTORY
On September 25, 2014 appellant, then a 69-year-old retired sheet metal mechanic, filed
an occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss as a
result of noise exposure from his federal employment. He reported that his hearing loss became
progressively worse over the years. As a sheet metal mechanic at the Puget Sound Naval
1

5 U.S.C. § 8101 et seq.

Shipyard, appellant claimed he was exposed to loud prolonged noise from various manual,
electric, pneumatic, and chipping hammers, brakes, pop riveters, drills, saws, gas and air cutters
from welders, rolls, punches, and other sheet metal machinery. He first became aware of his
condition and of its relationship to his employment on January 1, 2004. Appellant retired on
September 1, 2006 and first received medical care for his hearing loss on September 25, 2014.
By letter dated November 19, 2014, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history, when he related his hearing loss to conditions of
employment, and all nonoccupational exposure to noise. OWCP also requested that appellant
provide medical documentation pertaining to any prior treatment he received for ear or hearing
problems. It requested that the employing establishment provide noise survey reports for each
site where appellant worked, the sources and period of noise exposure for each location, and
copies of all medical examinations pertaining to hearing or ear problems.
Audiograms and hearing conservation data dated September 25, 1984 to August 31, 2006
were submitted.
In a September 24, 2014 Department of Labor and Industries Occupational Hearing Loss
Questionnaire, appellant reported that he first noticed his hearing loss approximately 10 years
ago which had gradually worsened. He reported difficulty understanding spoken communication
and the need to raise the volume on the television. Appellant stated that the employing
establishment conducted hearing tests and he had not been examined by any other physician in
the past for hearing loss. He noted a medical history of glaucoma in the left eye for which he
used eye drops daily. Appellant further stated that he had no prior history of ear or hearing
problems. With respect to nonwork noise exposure, he reported that the only noise equipment he
operated was a lawn mower once a week for 10 minutes. Appellant was last exposed to
hazardous noise from his federal employment on September 1, 2006.
In a September 24, 2014 Department of Labor and Industries Employment History
Hearing Loss form, appellant described the types of noise to which he was exposed as a sheet
metal mechanic. He stated that he was exposed to this hazardous noise for seven hours per day
and was provided ear protection in the form of foam earplugs. The employing establishment’s
record reflects that appellant worked as a sheet metal apprentice from June 19, 1967 to
September 6, 1970 when he was promoted to a sheet metal mechanic. Appellant worked as a
sheet metal mechanic from September 6, 1970 until September 1, 2006 when he retired.
In a Department of Labor and Industries Authorization to Release Information Form,
appellant authorized Sound ENT Consultants to release any audiograms or medical reports to the
employing establishment.
On September 25, 2014 the employing establishment referred appellant to Sound ENT
Consultants for a consultation and evaluation of his hearing loss. In a September 25, 2014
consultation report, Dr. Jackson R. Holland, a Board-certified otolaryngologist, reported that
appellant had no prior history of ear or hearing problems and noted a medical history of
glaucoma of the left eye. He noted that appellant began working at Puget Sound Naval Shipyard
in 1975 until he retired in September 2006 where he worked as a sheet metal mechanic and was
exposed to noise from drills, air compressors, air arcs, carbon air arcs, hammers, grinders,

2

chippers, chisels, needle guns, and welders. Sixty percent of appellant’s workplace time was
spent on shipboard and the other forty percent was spent in the land-based fabrication shop.
Audiometric testing performed that same date revealed the following decibel losses at
500, 1,000, 2,000, and 3,000 hertz (Hz): 15, 25, 10, and 10 for the right ear and 10, 30, 15, and
15 for the left ear. Speech reception thresholds were 15 decibels bilaterally and word reception
thresholds were 100 percent bilaterally. Dr. Holland diagnosed presbycusis, stating that
appellant had minimal mid frequency hearing loss at 1,000 cycles in the left ear. He opined that
this was likely a consequence of age-related circumstance plus known linkage of at least one
type of pattern associated with individuals with glaucoma. Dr. Holland noted that high
frequencies were missing the normal acoustic notch seen with hazardous noise injury. He noted
review of appellant’s August 31, 2006 audiogram which showed a single abnormal response in
his left ear at 6,000 cycles which provided a hearing level of 30 decibels and the right ear at
6,000 cycles with response of 35 decibels. Dr. Holland estimated that only one or two percent of
the high frequency threshold shift documented in 2006 would relate to hazardous levels of
workplace noise. He opined that the decline documented since 2006 was wholly and exclusively
due to factors of age mixed with a greater proclivity of neurosensory loss in an individual with
glaucoma. Dr. Holland did not recommend hearing aids.
By letter dated November 25, 2014, the employing establishment reported that it had
submitted appellant’s work history and was also providing the best estimate of the degree and
frequency of exposure to noise which could have been present in appellant’s work environment.
In the employing establishment’s Noise Assessment Worksheet, it noted that appellant
was exposed to noise from June 19, 1967 to September 1, 2006 working as a sheet metal
mechanic. Background ship noise was continuous ranging from 79 to 89 decibels and fell in the
lower frequency range. Background shop noise was continuous ranging from 75 to 85 decibels
and fell in the lower frequency range. Tool use was intermittent ranging from 90 to 110 decibels
and fell in the upper frequency range. An official position description for sheet metal mechanic
was also submitted.
By decision dated January 2, 2015, OWCP denied appellant’s claim on the grounds that
the medical evidence did not support that his hearing loss was causally related to workplace
noise exposure. It noted that the report of Dr. Holland associated his hearing loss to presbycusis.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.3

2

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

3

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

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. Compensation for disability may not be allowed if a claim is not filed within
that time unless: (1) 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; or (2) written notice of injury or death as specified in section 8119
was given within 30 days.4
Appellant has the burden of establishing by weight of the reliable, probative, and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.5 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;8 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.9
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable certainty, and must be
supported by medial rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.10
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish his or her claim, OWCP also has a
responsibility in the development of the evidence.11

4

5 U.S.C. § 8122(a).

5

Stanley K. Takahaski, 35 ECAB 1065 (1984).

6

See John W. Butler, 39 ECAB 852, 858 (1988).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

See Claudia A. Dixon, 47 ECAB 168 (1995).

4

ANALYSIS
It is not disputed that appellant was exposed to hazardous employment-related noise at
the Puget Sound Naval Shipyard. OWCP has also accepted that the claim was timely filed. The
Board has held that a program of annual audiometric examinations conducted by an employing
establishment in conjunction with an employee testing program for hazardous noise exposure is
sufficient to constructively establish actual knowledge of a hearing loss, such as to put the
immediate supervisor on notice of an on-the-job injury.12 As appellant was enrolled in a hearing
conservation program with the employing establishment, and submitted records of annual
audiograms, the employing establishment had actual knowledge of his purported hearing loss.13
The issue is whether he established that he sustained employment-related hearing loss
due to noise exposure during his federal employment. The Board finds that this case is not in
posture for decision.
OWCP procedure manual provides that it is generally accepted that hearing loss may
result from prolonged exposure to noise levels above 85 decibels. Acoustic trauma may,
however, result from decibel levels below 85 decibels if exposure is sufficiently prolonged.
OWCP therefore, does not require that the claimant show exposure to injurious noise in excess of
85 decibels as a condition to approval of the claim.14
The record establishes that appellant was exposed to hazardous workplace noise exposure
as a sheet metal mechanic from 1967 to 2006. Continuous exposure ranged from 75 to 89
decibels while intermittent high frequency exposure ranged from 90 to 110 decibels.
Consequently, regardless of the specific decibel level of exposure, OWCP must consider whether
the employment-related noise exposure was sufficiently prolonged to result in acoustic trauma.15
Such a question is medical in nature and should be resolved by a Board-certified
otolaryngologist.
The only medical report of record is Dr. Holland’s September 25, 2014 report serving as
the employing establishment’s physician. Dr. Holland diagnosed presbycusis stating that
appellant had minimal mid-frequency hearing loss at 1,000 cycles in the left ear. He opined that
this was likely a consequence of age-related circumstance plus known linkage of at least one
type of pattern associated with individuals with glaucoma. Dr. Holland reviewed appellant’s
August 31, 2006 audiogram and estimated that only one or two percent of the high frequency
threshold shift documented in 2006 would relate to hazardous levels of workplace noise. He
concluded that the decline documented since 2006 was wholly and exclusively due to factors of
age mixed with a greater proclivity of neurosensory loss in an individual with glaucoma.
The Board finds that Dr. Holland’s report is insufficient on the issue of causal
relationship. While Dr. Holland noted the various types of noise appellant was exposed to, there
12

G.C., Docket No. 12-1783 (issued January 29, 2013).

13

See D.G., Docket No. 15-0702 (issued August 27, 2015).

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(a)(1) (October 1990).
15

Eufrosino T. Torrado, Docket No. 95-1208 (issued February 14, 1997).

5

is no indication that he was provided information pertaining to noise dosimetry data as he made
no reference to the duration and levels of hazardous noise exposure. This is of particular
importance as appellant was exposed to intermittent high frequency noise ranging up to 110
decibels and continuous low frequency noise ranging up to 89 decibels over the course of 37
years. Moreover, Dr. Holland incorrectly stated that appellant worked as a sheet metal mechanic
from 1975 to 2006 as the employing establishment reported that his employment spanned from
1969 to 2006. Given that he was not provided pertinent information pertaining to appellant’s
hazardous noise exposure, his opinion that presbycusis was the cause of his hearing loss is of
limited probative value.16
The only prior audiogram reviewed was from August 31, 2006. The physician estimated
that only one or two percent of the high frequency threshold shift documented in the 2006
audiogram would relate to hazardous levels of workplace noise. The Board notes that there is no
requirement that the federal employment be the only cause of appellant’s hearing loss. An
employee is not required to prove that occupational factors are the sole cause of his claimed
condition. If work-related exposures caused, aggravated, or accelerated appellant’s condition, he
is entitled to compensation.17 Moreover, Dr. Holland failed to compare appellant’s current
audiological findings with those in the beginning of his career as a sheet metal mechanic. The
record establishes that appellant was exposed to workplace exposure ranging from 75 to 110
decibels from 1969 to 2006 yet Dr. Holland failed to explain why this hazardous noise exposure
did not contribute to appellant’s hearing loss.18 The Board has consistently held that a medical
opinion not fortified by rationale is of limited probative value.19 Because Dr. Holland’s opinion
is equivocal and does not provide a rationalized opinion on the cause of appellant’s hearing loss,
OWCP should not have relied upon his opinion as a basis for denying appellant’s claim for
compensation.20
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares the
responsibility in the development of the evidence.21 In hearing loss cases, OWCP should refer
the claimant for examination by a qualified specialist if the report submitted by the claimant does
not meet all of OWCP’s requirements for adjudication.22 As Dr. Holland’s report was not a

16

Presbycusis is defined as progressive bilaterally symmetrical perceptive hearing loss occurring with advancing
age. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 27th edition (1988).
17

See Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008).

18

M.E., Docket No. 14-1249 (issued October 22, 2014).

19

F.H., Docket No. 14-268 (issued July 2, 2014); A.D., 58 ECAB 149 (2006).

20

Supra note 16. See also W.C., Docket No. 14-633 (issued June 19, 2014).

21

P.K., Docket No. 08-2551 (issued June 2, 2009).

22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Extended Development,
Chapter 2.800.9(a)(1) (June 2011). Some initial claims require full-scale medical development because the nature of
exposure is in question, the diagnosis is not clearly identified, or the relationship of the condition to the exposure is
not obvious. Id.

6

reliable report of record, OWCP failed to properly develop the evidence and refer appellant for a
medical evaluation in accordance with its procedures.23
Thus, the Board finds that this case is not in posture for decision and must be remanded
for further development. On remand, OWCP should make findings of fact concerning the noise
levels in the employing establishment, the types of noise exposure, the length and period of such
exposures, and any other nonoccupational noise exposure. Once it has obtained the pertinent
factual evidence, it should prepare a statement of accepted facts and refer appellant for an
otological and audiological evaluation regarding whether he sustained hearing loss causally
related to the accepted employment exposure.24 After further development as it deems
appropriate, OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the January 2, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.25
Issued: January 27, 2016
Washington, DC

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

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

23

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(b)
(January 2013). See also M.W., Docket No. 10-992 (issued December 9, 2010).
24

C.S., Docket No. 10-2030 (issued June 9, 2011).

25

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE
FEDERAL SQUARE, Newark, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Faye Riva Cohen, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0296
Issued: October 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 12, 2019 appellant, through counsel, filed a timely appeal from a May 15,
2019 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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 15, 2019 decision, OWCP received additional evidence and counsel
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review
of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus,
the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $37,732.20 for the period September 1, 2008
through March 30, 2019, for which she was not at fault, as she concurrently received Social
Security Administration (SSA) age-related retirement benefits and FECA wage-loss compensation
benefits without an appropriate offset; and (2) whether OWCP properly denied waiver of recovery
of the overpayment.
FACTUAL HISTORY
On August 10, 1984 appellant, then a 40-year-old distribution clerk, filed a traumatic injury
claim (Form CA-1) alleging that on June 8, 1984 she hit her right elbow on the skid when lifting
a sack while in the performance of duty. OWCP accepted the conditions of right elbow lateral
epicondylitis and tendinitis of the right shoulder. By decision dated April 2, 1990, it granted
appellant a schedule award for 13 percent permanent impairment of the right upper extremity. The
award ran for 40.56 weeks for the period February 19 through November 29, 1990. Appellant
stopped work on February 25, 1992 and has not returned. The record reflects that OWCP paid her
wage-loss compensation benefits on the periodic rolls as of June 16, 2002.
On March 29, 2019 OWCP received from SSA a March 23, 2019 Federal Employees
Retirement System (FERS)/(SSA) dual benefits calculation form, which indicated that appellant
had been in receipt of SSA age-related retirement benefits since September 2008. The form
showed SSA benefit rates with and without a FERS offset. Beginning September 1, 2008,
appellant’s SSA rate with FERS was $888.00 and without FERS was $622.80; beginning
October 1, 2008, appellant’s SSA rate with FERS was $888.40 and without FERS was $622.80;
beginning December 1, 2008, appellant’s SSA rate with FERS was $940.40 and without FERS
was $658.90; beginning July 1 and December 1, 2009, appellant’s SSA rate with FERS was
$940.00 and without FERS was $658.90; beginning June 1, 2010, appellant’s SSA rate with FERS
was $939.50 and without FERS was $658.90; beginning December 1, 2010, appellant’s SSA rate
with FERS was $940.40 and without FERS was $658.90; beginning December 1, 2011, appellant’s
SSA rate with FERS was $973.90 and without FERS was $682.60; beginning December 2012,
appellant’s SSA rate with FERS was $989.90 and without FERS was $694.10; beginning
December 2013, appellant’s SSA rate with FERS was $1,004.90 and without FERS was $704.40;
beginning December 2014 and December 2015, appellant’s SSA rate with FERS was $1,021.90
and without FERS was $716.30; beginning December 2016, appellant’s SSA rate with FERS was
$1,025.00 and without FERS was $718.50; beginning December 2017, appellant’s SSA rate with
FERS was $1,046.00 and without FERS was $732.70; beginning December 2018, appellant’s SSA
rate with FERS was $1,074.50 and without FERS was $753.20.
An April 2, 2019 FERS offset calculation worksheet indicated that OWCP utilized a 28day FERS offset amount of: $262.29 for September 1 to 30, 2008; $534.12 for October 1 to
November 30, 2008; $1,967.41 for December 1, 2008 to June 30, 2009; $1,417.86 for July 1 to
November 30, 2009; $1,686.60 for December 1, 2009 to May 31, 2010; $1,692.85 for June 1 to
November 30, 2010; $3,387.28 for December 1, 2010 to November 30, 2011; $3,514.81 for
December 1, 2011 to November 30, 2012; $3,559.35 for December 1, 2012 to November 30, 2013;
$3,615.91 for December 1, 2013 to November 30, 2014; $3,677.27 for December 1, 2014 to
November 30, 2015; $3,687.35 for December 1, 2015 to November 30, 2016; $3,688.10 for
2

December 1, 2016 to November 30, 2017; $3,769.93 for December 1, 2017 to November 30, 2018;
and $1,271.08 for December 1, 2018 to March 30, 2019, for a total overpayment of $37,732.20.
In a letter dated April 4, 2019, OWCP advised appellant that she had been receiving a
prohibited dual benefit. It noted that the SSA had confirmed that a portion of her SSA age-related
retirement benefits were attributed to her years of federal service as an employee under the FERS
retirement program and that portion required an offset of her FECA compensation benefits, in the
amount of $296.58 every 28 days. OWCP indicated that the adjustment of appellant’s FECA
wage-loss compensation benefits to account for her SSA offset would reflect a new net
compensation amount of $2,596.00 beginning March 31, 2019.
On April 12, 2019 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $37,732.20, because she concurrently received
FECA wage-loss compensation benefits and SSA age-related retirement benefits for the period
September 1, 2008 through March 30, 2019. It explained that it had calculated the overpayment
of compensation by determining the difference between appellant’s SSA benefit rate with and
without FERS for each period, and then multiplying that amount by the number of days in each
period. OWCP further found that appellant was without fault in the creation of the overpayment,
as she was not aware, nor could she reasonably have been aware, that it had paid compensation
incorrectly. It requested that she complete an enclosed overpayment recovery questionnaire (Form
OWCP-20) and submit supporting financial documentation. Appellant was advised that failure to
submit the requested information within 30 days would result in the denial of waiver and no further
request would be considered until the requested information was received. Additionally, OWCP
notified her that within 30 days of the date of the letter, she could request a waiver of recovery of
the overpayment based on the written record or a prerecoupment hearing.4 No additional evidence
was received.
By decision dated May 15, 2019, OWCP finalized its preliminary determination that
appellant had received an overpayment of compensation in the amount of $37,732.20 because the
SSA/FERS offset was not applied to FECA wage-loss compensation payments for the period
September 1, 2008 through March 30, 2019. While appellant was without fault in the creation of
the overpayment, it denied waiver of recovery of the overpayment as no evidence was received in
response to the preliminary determination and subsequent request for financial information.
OWCP required recovery of the full amount of the $37,732.20 overpayment within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment.5 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.6 When an overpayment has been made to an
4
Appellant was advised that for hearing requests only, the request should be mailed directly to the Branch of
Hearings and Review at the Office of Workers’ Compensation Programs.
5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

3

individual 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 the individual is entitled.7
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-related benefits that are attributable to federal
service of the employee.8 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $37,732.20, for the period September 1, 2008 through March 30,
2019, as she concurrently received SSA age-related retirement benefits and FECA wage-loss
compensation benefits without an appropriate offset.
As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA
age-related retirement benefits attributable to federal service for the same period.10 The
information provided by SSA accurately indicated that appellant had received SSA age-related
retirement benefits that were attributable to her federal service from September 1, 2008 until
March 30, 2019. Thus, the record establishes that appellant received an overpayment of FECA
wage-loss compensation.11
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. SSA provided appellant’s
SSA rate with FERS and without FERS during the applicable period. OWCP determined that the
difference of the portion of SSA age-related retirement benefits attributed to appellant’s federal
service needed to be offset against her OWCP compensation benefits. Appellant has not contested
the amount of the overpayment and it is concluded that OWCP properly calculated that the
prohibited dual benefit from September 1, 2008 through March 30, 2019 resulted in an
overpayment of compensation in the amount of $37,732.20.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that “Adjustment or recovery [of an overpayment] by
the United States may not be made when incorrect payment has been made to an individual who

7

Id. at § 8129(a).

8

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
9

FECA Bulletin No. 97-09 (February 3, 1997).

10

20 C.F.R. § 10.421(d); see also N.B., Docket No. 18-0795 (issued January 4, 2019); A.C., Docket No. 18-1550
(issued February 21, 2019).
11

See R.R., supra note 8.

4

is without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”12
Section 10.437 of the FECA implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment of compensation 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
Section 10.438 of the implementing regulations provide that the individual who received
the overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery on an
overpayment would defeat the purpose of FECA or be against equity and good conscience. The
information is also used to determine the repayment schedule, if necessary.14 Failure to submit
the requested information within 30 days of the request shall result in denial of waiver.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $37,732.20
overpayment of compensation.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.16 Appellant,
however, had the responsibility to provide the appropriate financial information and
documentation to OWCP.17
In its preliminary determination dated April 12, 2019, OWCP explained the importance of
providing the completed Form OWCP-20 and financial information, including copies of income
tax returns, bank account statements, bills, pay slips, and any other records to support income and
expenses. It advised appellant that it would deny waiver of recovery if she failed to furnish the
requested financial information within 30 days. However, prior to the May 15, 2019 decision, she
did not complete a Form OWCP-20, nor did she submit supporting financial documentation
necessary for OWCP to determine if recovery of the overpayment would defeat the purpose of
FECA or if recovery would be against equity and good conscience. As previously noted, OWCP’s
regulation at 20 C.F.R. § 10.438 provides that failure to submit the requested information within

12

5 U.S.C. § 8129(b).

13

20 C.F.R. § 10.437.

14

Id. at § 10.438(a); see T.B., supra note 8; Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

15

Id. at § 10.438.

16

Id. at § 10.436.

17

Supra note 15.

5

30 days of the request shall result in denial of waiver and no further request for waiver would be
considered until the requested information is furnished.18
Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the
Board finds that OWCP properly denied waiver of recovery of the overpayment, based upon the
evidence of record as of May 15, 2019.19
On appeal counsel contends that appellant was denied her right to a prerecoupment hearing
as she had timely requested waiver and submitted evidence prior to OWCP’s May 15, 2019 final
overpayment determination. Counsel submitted evidence in support of her contention and cited to
Board case law, arguing that since the postmark was not retained for on appellant’s prerecoupment
hearing request, the Board should rely on the date appellant signed the Form OWCP-20, May 6,
2019, and remand the matter so a prerecoupment hearing could be held on the issue of waiver.
The Board notes, however, that the record is devoid of a prerecoupment request or financial
evidence prior to the issuance of OWCP’s May 15, 2019 final overpayment determination.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$37,732.20 for the period September 1, 2008 through March 30, 2019, for which she was not at
fault, as she concurrently received SSA age-related retirement benefits while receiving FECA
wage-loss compensation. The Board also finds that OWCP properly denied waiver of recovery of
the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
18

Supra note 15.

19

See R.R., supra note 8; T.E., Docket No. 19-0348 (issued December 11, 2019).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oak Lawn, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1189
Issued: October 22, 2013

Case Submitted on the Record

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

JURISDICTION
On April 17, 2013 appellant filed a timely appeal from the March 15, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his
reconsideration request. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit decision. Since
more than one year elapsed from the last merit decision on November 6, 2008 to the filing of this
appeal, the Board lacks jurisdiction to review the merits of the case.2
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request on the
grounds that it was untimely filed and failed to establish clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2) (2008).

FACTUAL HISTORY
On the first appeal of this case,3 the Board found that OWCP failed to exercise its
discretion to grant appellant’s untimely hearing request. The Board remanded the case for a
proper exercise of discretion.
The Board noted that on April 24, 2003 appellant, a 67-year-old letter carrier, sustained
an injury in the performance of duty when he was involved in an automobile accident. OWCP
accepted his claim for cervical and left shoulder strains. It also accepted lumbar sprain,
degeneration of lumbar or lumbosacral intervertebral disc and lumbar spinal stenosis. In a
decision dated November 6, 2008, OWCP denied appellant’s claim that he sustained a recurrence
of disability beginning August 27, 2008. The facts of this case as set out in the Board’s prior
decision and in OWCP’s November 6, 2008 decision are hereby incorporated by reference.
OWCP again denied appellant’s untimely hearing request on November 3, 2011. The
Board, on August 13, 2012 however, again found a failure by OWCP to exercise discretion.4 On
September 6, 2012 OWCP exercised its discretion by denying appellant’s untimely hearing
request on the grounds that he could address the issue in his case through an alternative avenue
of appeal. Specifically, it advised that he could request reconsideration and submit evidence not
previously considered establishing that he was totally disabled for modified work or that the
work assignment was changed and no longer met his medically established work restrictions.5
On December 12, 2012 appellant requested reconsideration of OWCP’s denial of
compensation beginning August 27, 2008. He submitted an April 30, 2010 report from
Dr. Mahe T. Nadeem, a Board-certified physiatrist:
“[Appellant] was injured on April 23, 2003 while driving a postal vehicle and was
rear[-]ended. Since then he complained of low back pain. [Appellant] had
another injury on February 5, 2008 when he was lifting a bucket of mail and his
left shoulder snapped. He was seen on June 6, 2008 and was released to light
duty on June 6, 2008. [Appellant’s] low back pain was worsening and eventually
he was taken off work on August 27, 2008 and released to work light duty on
November 20, 2008.”
Appellant submitted Dr. Nadeem’s November 21, 2012 duty status report. He also made
reference to a May 14, 2010 report from Dr. Devesh Ramnath, a Board-certified orthopedic
surgeon:
“This is a letter regarding a patient of mine, [appellant]. [He] is a patient I have
been following for a work[-]related injury to his neck and lower back. I have
been seeing [him] since January 2008. [Appellant] has had intermittent, flare-ups
3

Docket No. 11-879 (issued October 14, 2011).

4

Docket No. 12-710 (issued August 13, 2012).

5

On November 30, 2012 the Board granted appellant’s request to withdraw his appeal in order to request
reconsideration from OWCP. Docket No. 12-1963 (issued November 30, 2012).

2

and worsening of his injuries intermittently, which has made it so that he has had
to be out of work. He eventually was taken to surgery and was off of work during
his recuperative phase. [Appellant] reviewed a letter per Dr. Nadeem, which
outlines some specific dates that he was off and I would agree with the dates that
she has listed in her letter that he was unable to work.”
In a decision dated March 15, 2013, OWCP denied appellant’s December 12, 2012
reconsideration request. It found the request untimely. Further, OWCP found that the request
failed to present clear evidence of error in OWCP’s November 6, 2008 decision denying his
recurrence claim. It found a physician’s statement of increased low back pain did not, in and of
itself, constitute objective evidence of a recurrence of disability. Further, the physicians did not
provide rationale or discuss if a material change occurred such that appellant was no longer able
to perform the duties he had been successfully performing. “The evidence is not sufficient to
shift the weight of the evidence nor does it raise a substantial question as to the correctness of
[OWCP’s] decision.”
On appeal, appellant submitted copies of the above reports from Dr. Nadeem and
Dr. Ramnath. He addressed OWCP’s delay in denying his claim and asked that his
compensation be restored in full.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to review an award
for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”6
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of OWCP’s decision for
which review is sought. If submitted by mail, the application will be deemed timely if
postmarked by the U.S. Postal Service within the time period allowed. If there is no such
postmark or it is not legible, other evidence such as (but not limited to) certified mail receipts,
certificate of service and affidavits, may be used to establish the mailing date.7

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.607(a).

3

OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.8
The term “clear evidence of error” is intended to represent a difficult standard.9 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.10
ANALYSIS
On November 6, 2008 OWCP denied appellant’s claim that he sustained a recurrence of
disability beginning August 27, 2008. Appellant had one calendar year or until November 6,
2009, to send any reconsideration request. His December 12, 2012 reconsideration request is
therefore untimely.
To warrant a reopening of his case, appellant’s untimely request must demonstrate clear
evidence of error in OWCP’s November 6, 2008 merit decision. In that decision, OWCP found
that the medical evidence did not support a material worsening of his condition that would
preclude him from engaging in his modified duties. It noted that appellant’s burden included the
furnishing of medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concluded that the disabling condition was causally related to the
employment injury and who supported that conclusion with sound medical reasoning. OWCP
also noted that a medical opinion consisting solely of a conclusory statement regarding disability,
without supporting rationale, was of little probative value.
Dr. Nadeem’s April 30, 2010 report stated that appellant’s low back pain worsened and
eventually he was taken off work on August 27, 2008. Although this is relevant to appellant’s
recurrence claim, it is not sufficient to establish clear evidence of error. As OWCP noted in its
November 6, 2008 decision, Dr. Nadeem’s other reports also stated that he was taken off work
due to the worsening of his back pain. The April 30, 2010 report adds nothing new to the record.
It does not, on its face, demonstrate that OWCP’s November 6, 2008 decision was clearly
erroneous in denying appellant’s claim.
When OWCP denied appellant’s recurrence claim, it indicated that the medical evidence
suffered from certain deficiencies as a physician failed to address how his low back condition
had worsened. The physician did not provide objective clinical findings or clinical studies to
substantiate a material worsening in the accepted employment injury. Appellant’s subjective
complaints of pain are not enough to establish his entitlement to compensation beginning
August 27, 2008. A claimant may not self-certify his disability for work and entitlement to
compensation. There must be objective findings and sound medical reasoning based on a proper
8

Id. at § 10.607(b).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

10

Id., at Chapter 2.1602.3.d(1).

4

factual and medical history. Dr. Nadeem’s April 30, 2010 report stated only that appellant was
taken off work on August 27, 2008 due to worsening low back pain; he did not address the
deficiencies in appellant’s claim or establish clear evidence of error in OWCP’s November 6,
2008 decision. As the Board noted earlier, clear evidence of error is intended to be a difficult
standard. Appellant cannot meet this standard by submitting evidence that is broadly relevant to
his claim.
Dr. Nadeem’s November 21, 2012 duty status report is not relevant to the issue of
recurrence beginning August 27, 2008.
In a May 14, 2010 report, Dr. Ramnath stated that appellant had intermittent flare-ups
and intermittent worsening of his injuries, which made it so that he had to be out of work and
was eventually (on June 30, 2009) taken to surgery. He deferred to Dr. Nadeem’s dates for
disability. Dr. Ramnath failed to provide any objective clinical findings or clinical studies to
document a material worsening of appellant’s accepted work injuries leading up to his work
stoppage on August 27, 2008. The report offered no medical rationale to explain why these
injuries were flaring up or worsening on an intermittent basis. Dr. Ramnath did not demonstrate
his familiarity with the physical demands of appellant’s modified-duty assignment in 2008 and
did not explain how the flare-ups prevented appellant from working his modified duty. His
report does not show that OWCP’s November 6, 2008 decision was clearly erroneous.
Because appellant’s untimely reconsideration request fails to show clear evidence of error
in OWCP’s November 6, 2008 decision, the Board will affirm OWCP’s March 15, 2013 decision
denying that request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s reconsideration request as
untimely filed and failing to establish clear evidence of error.

5

ORDER
IT IS HEREBY ORDERED THAT the March 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 22, 2013
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Brain Howey, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1640
Issued: March 18, 2011

Case Submitted on the Record

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

JURISDICTION
On June 4, 2010 appellant, through counsel, filed a timely appeal of a December 29, 2009
decision of the Office of Workers’ Compensation Programs denying her request for a hearing.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review this issue. Because more than one year elapsed from the most
recent merit decision of November 13, 2002 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of this case.2
ISSUE
The issue is whether the Office properly denied appellant’s request for a hearing on the
grounds that she previously requested reconsideration.
1
2

5 U.S.C. § 8101 et seq.

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2) (2007). For final adverse Office decisions issued on or after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See C.F.R. § 501.3(e).

On appeal, appellant, through counsel, addressed the weight of medical evidence in the
claim.
FACTUAL HISTORY
The Office accepted that on January 12, 1995 appellant, then a 31-year-old letter carrier,
sustained a left sacroiliac joint strain when she lifted trays of mail. Appellant returned to lightduty work. The Office accepted a recurrence of disability from August 18 to 28, 1995. After
appellant returned to work, she remained on light duty through 2000.
In a June 2, 1997 report, Dr. R.A. Hutson, an attending Board-certified orthopedic
surgeon and second opinion specialist, opined that repetitive lifting and bending at work
aggravated preexisting degenerative disc disease.
On August 29, 2000 appellant claimed a schedule award for permanent impairment of the
left lower extremity caused by the accepted sacroiliac joint strain. In a December 12, 2000
decision, the Office denied the claim as the medical evidence did not establish that the accepted
injury caused impairment to a scheduled member of the body.
In a February 8, 2001 letter, appellant requested reconsideration. She submitted a
September 2, 2000 report from Dr. J. Ralph Collip, an attending family practitioner, who advised
that appellant had active residuals of the accepted sacroiliac strain. On March 5, 2001 the Office
referred appellant, the medical record and a statement of accepted facts to Dr. Arthur Lorber, a
Board-certified orthopedic surgeon, who found that appellant’s sacroiliac joint symptoms were
age related and that she no longer had residuals of the accepted injury.
By decision dated May 15, 2001, the Office affirmed its December 2, 2000 decision on
the grounds that the additional evidence submitted did not establish continuing residuals of the
accepted injury.
In an August 28, 2001 letter, appellant requested reconsideration. She submitted a
May 21, 1996 arthrogram showing a rupture of the anterior capsule of the left sacroiliac joint.
By decision dated October 5, 2001, the Office affirmed the prior decisions, finding that
the medical evidence did not establish any ratable impairment.
In an August 26, 2002 letter, appellant again requested reconsideration. In an August 26,
2002 report, Dr. Collip rated 27 percent impairment of the left lower extremity due to rupture of
the interior capsule of the left sacroiliac joint.
By decision dated November 13, 2002, the Office denied modification, finding that the
medical evidence did not establish continuing residuals of the accepted injury.3

3

On November 2, 2007 appellant claimed medical expenses from October 18, 2007 onward related to the
January 12, 1995 injury. The Office advised her by December 10, 2007 letter that her claim was closed as of
May 15, 2001.

2

On December 28, 2007 Dr. Anthony Mimms, an attending Board-certified physiatrist,
opined that appellant had fibrotic scar tissue at the left sacroiliac joint, producing laxity and
ongoing pain.
In a September 30, 2009 letter received on October 6, 2009, appellant requested an oral
hearing before a representative of the Office Branch of Hearings and Review. She asserted that
she continued to have residuals of the accepted injury. Counsel submitted October 2 and 20,
2009 letters asserting a conflict of medical opinion between Dr. Lorber, for the government, and
Dr. Mimms, for appellant.
By decision dated December 29, 2009, the Office denied appellant’s request for a hearing
on the grounds that she had previously requested reconsideration. It further denied her request
for a hearing on the grounds that the issue involved could be addressed equally well by
submitting new, relevant evidence pursuant to a valid request for reconsideration.
LEGAL PRECEDENT
Section 8124(b)(1) of the Act provides that “a claimant for compensation not satisfied
with a decision of the Secretary … is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”4
The Office’s procedures, which require the Office to exercise its discretion to grant or deny a
hearing when the request is untimely or made after reconsideration, are a proper interpretation of
the Act and Board precedent.5 In such a case, it will determine whether a discretionary hearing
should be granted and, if not, will so advise the claimant with reasons.6
ANALYSIS
On September 30, 2009 appellant requested an oral hearing. Because she previously
sought reconsideration under section 8128 of the Act, she was not entitled to a hearing as a
matter of right under section 8124(b)(1). Appellant previously requested reconsideration on
February 8 and August 28, 2001 and August 26, 2002. The Office denied modification in
decisions dated May 15 and October 5, 2001 and November 13, 2002.
The Office exercised its discretion and determined that the issues in the case could be
equally raised through a request for reconsideration and the submission of additional evidence.
An abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.7 The Board finds that the Office properly considered the matter in
relation to the issues involved. It did not abuse its discretion in denying appellant’s request for
an oral hearing in its December 29, 2009 decision.
4

5 U.S.C. § 8124(b)(1).

5

Claudio Vasquez, 52 ECAB 496 (2002).

6

James Smith, 53 ECAB 188 (2001).

7

Samuel R. Johnson, 51 ECAB 612 (2000).

3

On appeal, appellant and counsel addressed the medical aspects of the claim. These
arguments are not relevant to the issue of whether the Office properly denied her request for an
oral hearing. The Board does not have jurisdiction in this appeal to review the medical evidence.
CONCLUSION
The Board further finds that the Office properly denied appellant’s request for an oral
hearing as she previously requested reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 29, 2009 is affirmed.
Issued: March 18, 2011
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Lauderdale, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1422
Issued: March 16, 2015

Case Submitted on the Record

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

JURISDICTION
On June 10, 2014 appellant, through his representative, filed a timely appeal from a
January 15, 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 this claim.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s wage-loss and
medical compensation benefits effective May 4, 2013 on the grounds that an accepted lumbar
strain had ceased without residuals; and (2) whether appellant established that he remained
disabled for work on and after May 4, 2013 due to an accepted lumbar strain.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on February 13, 2012 appellant, then a 47-year-old city letter
carrier, sustained a left-sided lumbar strain when he fell from a chair.2 Appellant stopped work
at the time of injury and did not return. He received compensation for total disability.
Dr. Samy F. Bishai, an attending orthopedic surgeon, followed appellant beginning on
May 1, 2012. He found appellant totally disabled for work due to the accepted February 13,
2012 injury, with lumbar pain and left-sided radiculopathy. Dr. Bishai noted that appellant had
no prior back problems “as far as he knows.”3 In reports from July 11 to October 3, 2012,
Dr. Ramon Berenguer, an attending family practitioner, found appellant disabled for work due to
a lumbosacral strain with lumbar radiculopathy.
On July 23, 2012 OWCP obtained a second opinion report from Dr. Peter Millheiser, a
Board-certified orthopedic surgeon, who reviewed the medical record and a statement of
accepted facts. On examination, Dr. Millheiser found full motion of the lumbar spine, bilaterally
positive supine straight leg raising tests, and negative sitting straight leg raising tests. He
diagnosed a resolved lumbar sprain. Dr. Millheiser opined that appellant had no objective
residuals of the accepted injury.
In a July 30, 2012 letter, OWCP advised appellant that the medical evidence indicated
that his lumbar conditions were degenerative and not traumatic in nature. It requested that he
submit an updated report from his attending physician, explaining how and why the February 13,
2012 injury would cause or aggravate his ongoing lumbar conditions. In response, appellant
submitted an August 22, 2012 report from Dr. Bishai, opining that because appellant’s
degenerative disc disease was asymptomatic prior to the February 13, 2012 injury, his ongoing
back and leg symptoms were related to the “new injury as well as an aggravation of preexisting
problems within his back.”4
In a September 11, 2012 addendum, Dr. Millheiser stated that “[t]he aggravation of the
lumbosacral degenerative disc disease was temporary and would have resolved well in the past.”
In a September 25, 2012 report, Dr. Bishai stated that on May 1, 2012 based on a review
of his medical file and a clinical examination, he concluded that appellant’s “injuries that he
sustained in the accident of February 13, 2012 [were] directly the result of this accident and that
this is a case of aggravation of preexisting conditions.” He noted that, while appellant had
lumbar conditions prior to February 13, 2012, they were asymptomatic before the accepted
2

In a February 13, 2012 report, Dr. Albert Lambert, a physician specializing in emergency medicine, diagnosed
an acute episode of lumbar pain and administered medication. Dr. Carlos Roig, an attending orthopedic surgeon,
followed appellant beginning on February 14, 2012. He diagnosed a lumbar sprain and held appellant off work
through March 2012. April 3, 2012 nerve conduction velocity showed findings consistent with right L5
radiculopathy. Appellant participated in physical therapy from April to November 2012.
3

August 6 and February 16, 2012 lumbar computerized tomography scans showed disc bulges from L3 to S1.

4

A September 19, 2012 MRI scan showed “disc herniation with thecal sac impingement at L5-S1 and disc bulge
with spinal canal stenosis at L4-5.” A nerve conduction study showed evidence of left L4-5 nerve root entrapment.

2

injury. Dr. Bishai opined that, “without a doubt, [he had] established the connection and the
cause and effect between the symptoms that [appellant] is having now of back pain and
radiculopathy with the injuries that he suffered on February 13, 2012.”
On October 23, 2012 OWCP found a conflict of medical opinion between Dr. Millheiser,
for the government, and Dr. Bishai, for appellant, regarding the nature and extent of any ongoing
condition related to the accepted lumbar sprain. To resolve the conflict, it selected Dr. Richard
Linn, a Board-certified orthopedic surgeon.
In a November 23, 2012 report, the employing establishment’s Office of the Inspector
General (OIG) advised OWCP that surveillance videos taken from May to October 2012
demonstrated that appellant was physically active at the same time his physicians found him
totally disabled for work. Appellant was observed lifting, bending, driving, stooping, using a
garden hose to clean equipment, unloading vehicles, and carrying a child. OWCP imaged the
investigative report into the case record and included the surveillance video discs as physical
evidence associated with the case record.
In a December 5, 2012 report, Dr. Linn reviewed the complete medical record and a
statement of accepted facts. The statement of accepted facts provided to him noted the presence
of the investigative report and surveillance video in the case record. Dr. Linn also stated that he
reviewed the employing establishment’s investigative report and two hours of surveillance
videos of appellant’s activities obtained between April 20 and October 25, 2012.
On
examination, he found restricted lumbar motion and an antalgic gait favoring the left leg.
Dr. Linn obtained x-rays showing bilateral L5 spondylosis and degenerative facet disease from
L3 to S1 with foraminal narrowing. He diagnosed a lumbar strain with exacerbation of
underlying degenerative disc disease, with left sacroilitis vs. left lumbar radiculitis. Dr. Linn
explained that appellant’s clinical presentation, subjective complaints, and activities as observed
in the surveillance video were inconsistent with objective findings on imaging studies. He noted
that appellant had not sought medical treatment since September 2012, and that “the
exacerbation would have completed as of that date.” Dr. Linn found appellant able to perform
light-duty work, but recommended a functional capacity evaluation to determine precise work
tolerances.
In December 19, 2012 and January 16, 2013 reports, Dr. Berenguer held appellant off
work due to lumbar disc syndrome, lumbar radiculopathy, an L4-5 disc herniation, and
moderate-to-severe central canal stenosis from L3 to S1.
On February 7, 2013 OWCP described activities shown in surveillance videos from
May 1 to October 25, 2012, including bending with one knee on the ground, leaning into a
vehicle to remove a child from a car seat, removing a child from a vehicle while carrying a
shoulder bag, pushing garbage cans to the curb, carrying a child, spraying with a garden hose,
lifting a stroller from a minivan, rinsing equipment with a garden hose, bending, turning, leaning,

3

and carrying groceries from his vehicle to his residence. Appellant had a minor motor vehicle
accident on October 12, 2012, bumping a vehicle in front of him.5
In a February 14, 2013 report, Dr. Bishai noted appellant’s continuing complaints of
bilateral lumbar radiculopathy with numbness in the left lower extremity. He diagnosed
lumbosacral strain, lumbar disc syndrome, herniated lumbar discs, and neuroforaminal stenosis
from L3 to S1 bilaterally.6
By notice dated March 5, 2013, OWCP advised appellant that it proposed to terminate his
wage-loss compensation benefits on the grounds that the accepted lumbar sprain had ceased
without residuals, based on Dr. Linn’s opinion as the weight of the medical evidence. It noted
the presence of the employing establishment’s investigative report and surveillance video in the
case record.
In response, appellant submitted a March 7, 2013 letter requesting a copy of Dr. Linn’s
report. He submitted March 13 and April 10, 2013 reports from Dr. Bishai, noting limited
lumbar motion. A March 20, 2013 magnetic resonance imaging (MRI) scan showed disc bulges
at L4-5 and L5-S1 with significant stenosis. Dr. Bishai noted that appellant’s pain symptoms
had become increasingly severe. He disagreed with Dr. Millheiser’s opinion that appellant had
full lumbar motion, and contended that Dr. Linn misinterpreted the record. Dr. Bishai opined
that appellant remained totally disabled for work due to herniated lumbar discs with severe
radiculopathy. Appellant also submitted physical therapy notes dated from July 2012 to
May 2013.
By decision dated April 25, 2013, OWCP terminated appellant’s wage-loss and medical
benefits effective May 4, 2013 on the grounds that the accepted lumbar sprain and ceased
without residuals, based on Dr. Linn’s opinion as the weight of the medical evidence.
In a May 15, 2013 letter, appellant requested a telephonic oral hearing, held
October 31, 2013. At the hearing, her representative contended that she was entitled to
continuing wage-loss and medical compensation benefits as the accepted condition remained
active and disabling. He also indicated that appellant had not asked the employing establishment
for a copy of the surveillance video.
Appellant submitted additional medical evidence. In reports from March 20 to
December 18, 2013 reports, Dr. Berenguer held her off work due to lumbar disc syndrome,
lumbar stenosis, and lumbar radiculopathy. He held appellant off work. In a July 30, 2013
report, Dr. Bishai found her condition unchanged and repeated prior diagnoses.
By decision dated and finalized January 15, 2014, an OWCP hearing representative
affirmed the April 25, 2013 decision terminating appellant’s wage-loss and medical benefits.
She found that Dr. Linn’s opinion continued to carry the weight of the medical evidence, as he
5

In a February 11, 2013 letter, the employing establishment’s OIG advised OWCP that its surveillance of
appellant’s activities revealed an “active lifestyle, was capable of walking, bending, twisting, turning, leaning,
driving, entering, and existing a vehicle, sitting, standing, … shopping, pushing, pulling, and lifting and carrying
heavy objects, all without incident.”
6

A February 12, 2013 functional capacity evaluation showed restricted lumbar motion in all planes.

4

presented detailed medical rationale explaining that the accepted lumbar sprain had ceased. The
hearing representative found that the additional medical evidence submitted did not support any
ongoing condition causally related to the accepted injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.8
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician (known as
a referee physician or impartial medical specialist) who shall make an examination.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a lumbar strain on February 13, 2012.
Appellant received compensation for total disability based on the opinions of Dr. Bishai, an
attending orthopedic surgeon, and Dr. Berenguer, an attending family practitioner, who found
appellant totally disabled for work from May 1, 2012 onward due to left-sided radiculopathy,
lumbar stenosis, and herniated lumbar discs.
OWCP obtained a second opinion from Dr. Millheiser, a Board-certified orthopedic
surgeon, who submitted July 23 and September 11, 2012 reports opining that the accepted
lumbar strain had resolved without residuals. It then found a conflict between Dr. Bishai, for
appellant, and Dr. Millheiser, for the government, and selected Dr. Linn, a Board-certified
orthopedic surgeon, to resolve it. Dr. Linn provided a December 5, 2012 report reviewing the
medical record and statement of accepted facts. He provided detailed medical reasoning
explaining that the accepted lumbar strain and resolved no later than September 2012, with no
objective effect on underlying degenerative disc disease. Therefore, OWCP terminated
appellant’s wage-loss and medical benefits effective May 4, 2013, based on Dr. Linn’s report as
the weight of the medical evidence.
Dr. Bishai supported a causal relationship between the accepted lumbar strain and
appellant’s ongoing lumbar condition based on the temporal coincidence between the injury and
appellant’s symptoms. He noted both that appellant had no prior back problems and that he had
preexisting problems that were quiescent prior to the injury. Dr. Bishai explained on
September 25, 2012 that this temporal relationship “without a doubt” established “the cause and
effect between” appellant’s ongoing symptoms” and the February 13, 2012 lumbar strain.

7

Bernadine P. Taylor, 54 ECAB 342 (2003).

8

Id.

9

5 U.S.C. § 8123.

5

However, the Board has held that a temporal relationship alone is insufficient to establish causal
relationship.10
Dr. Berenguer found appellant disabled for work from July 11, 2012 onward due to
lumbar radiculopathy, herniated lumbar discs, and central canal stenosis. However, he did not
explain his medical reasoning for supporting a continuing causal relationship between the
accepted lumbar strain and appellant’s ongoing condition. Dr. Berenguer’s opinion is therefore
of diminished probative value.11
Thus, neither Dr. Bishai nor Dr. Berenguer’s reports are sufficiently accurate and
supported by medical rationale to outweigh the opinion of Dr. Linn, whose reports were based on
a complete and accurate factual and medical history and contained extensive medical reasoning
explaining that the accepted lumbar contusion had ceased without residuals prior to May 4, 2013.
The Board therefore finds that OWCP’s January 15, 2014 decision affirming the termination was
proper under the law and facts of the case.
On appeal, appellant’s representative contends that OWCP wrongfully selected
Dr. Millheiser as second opinion physician as he had also served as a second opinion physician
under appellant’s claim in File No. xxxxxx888, examining appellant on May 21, 2012. The
Board notes that Dr. Millheiser did serve in this capacity, as noted in the Board’s decision and
order in appellant’s prior claim.12 However, OWCP’s procedures do not explicitly prohibit a
physician from serving as a second opinion examiner in multiple claims for the same employee.
Its procedures provide, that the “method for selecting second opinion physicians is more flexible,
since a strict rotation of physicians is not required for this type of examination.”13
Appellant’s representative also contended that the employing establishment violated 20
C.F.R. § 10.506 and the Board’s decisions in J.M.,14 and F.S.,15 by showing the surveillance
video to Dr. Linn and not providing a copy to appellant as he requested. The Board notes that
there is no evidence of record that the employing establishment contacted Dr. Linn. Rather, the
employing establishment provided the investigative report and surveillance videos to OWCP.
OWCP followed its procedures for including the investigative report and video in the case record
10

Louis R. Blair, Jr., 54 ECAB 348 (2003).

11

Deborah L. Beatty, 54 ECAB 340 (2003).

12

J.C., Docket No. 13-1200 (issued November 1, 2013) (adjudicating the termination of compensation benefits
pursuant to File No. xxxxxx888, accepted for a July 6, 2011 left medial meniscus tear; this claim is not before the
Board on the present appeal).
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.5.b(2) (July 2011).
14

58 ECAB 478 (2007) (where the Board affirmed OWCP’s termination despite the existence of a surveillance
video. After receiving a copy of the surveillance video appellant provided no evidence was presented to question its
accuracy.
15

Docket No. 11-863 (issued September 26, 2012) (where the Board reversed OWCP’s termination of benefits
because it had relied on medical evidence obtained after the employing establishment investigators had contacted the
physician directly).

6

and statement of accepted facts16 which was provided to Dr. Linn, the impartial referee physician
in the case.17 The present case is therefore distinguishable from J.M., and F.S., where the
employing establishment did contact physicians. Also, there is no evidence of record that
appellant requested a copy of the video prior to the termination of benefits. He requested a copy
of the impartial medical specialist’s report on March 7, 2013, but did not ask for the investigative
report or surveillance video. Therefore, appellant’s representative’s contention that OWCP did
not provide a copy of the video as requested is not supported by the record.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to the claimant. In order to
prevail, the claimant must establish by the weight of reliable, probative and substantial evidence
that he or she had an employment-related disability that continued after termination of
compensation benefits.18
ANALYSIS -- ISSUE 2
As stated above, OWCP properly terminated appellant’s wage-loss and compensation
benefits effective May 4, 2013, based on the opinion of Dr. Linn, who opined that the accepted
lumbar strain ceased without residuals. The burden then shifted to appellant to demonstrate that
he continued to be disabled for work on and after December 31, 2012 due to the accepted
injuries.19
Following the April 25, 2013 decision terminating appellant’s wage-loss and medical
compensation benefits, pursuant to a May 15, 2013 telephonic hearing, appellant submitted
additional medical evidence. Dr. Berenguer provided reports from March 20 to December 18,
2013 finding appellant disabled for work due to lumbar disc syndrome, lumbar stenosis, and
lumbar radiculopathy. In a July 30, 2013 report, Dr. Bishai found appellant’s condition
unchanged and repeated prior diagnoses. However, neither physician explained their reasoning
as to why the accepted February 13, 2012 lumbar strain would continue to disable appellant for
work on and after May 4, 2013. Therefore, the opinions of Dr. Bishai and Dr. Berenguer are of
diminished probative value and are insufficient to meet appellant’s burden of proof.20 OWCP
properly found that Dr. Linn’s report continued to represent the weight of the medical evidence.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.4(a)(1)
(September 2009) (all evidence on which the SOAF is based must be in the case record; investigative reports must
be “subject to examination or rebuttal”).
17

Id. at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.11(c) (September 2010)
(the referee physician should also receive a copy of the entire case record).
18

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101(1992).

19

Id.

20

Deborah L. Beatty, 54 ECAB 340 (2003).

7

The Board finds that OWCP’s January 15, 2014 decision finding that appellant did not
establish that he continued to have residuals of the accepted injuries on and after May 4, 2013 is
appropriate under the law and facts of the case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss and medical
compensation benefits effective May 4, 2013 on the grounds that an accepted lumbar strain had
ceased without residuals. The Board further finds that appellant has not established that he
remained disabled for work on and after May 4, 2013 due to the accepted lumbar strain.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 15, 2014 is affirmed.
Issued: March 16, 2015
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF AGRICULTURE,
INSPECTION OPERATIONS PROGRAM,
Clinton, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-162
Issued: April 7, 2014

Case Submitted on the Record

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

JURISDICTION
On October 24, 2013 appellant filed a timely appeal from a June 18, 2013 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 this case.
ISSUE
The issue is whether appellant established that she sustained a right ankle condition,
consequential to her accepted July 5, 2012 left knee injury.
FACTUAL HISTORY
On July 9, 2012 appellant, then a 47-year-old meat inspector, filed a claim alleging that
she injured her left knee on July 5, 2012 when she slipped on a piece of meat. She stopped work
1

5 U.S.C. § 8101 et seq.

on July 9, 2012. Appellant submitted a July 11, 2012 excuse slip from Dr. David R. Parker, a
specialist in family medicine, placing her off work from July 11 to 24, 2012.
By letter dated August 2, 2012, OWCP advised appellant that it required additional
factual and medical evidence to determine whether she was eligible for compensation benefits.
It had administratively authorized payment for a limited amount of medical expenses and no lost
time. The merits of appellant’s claim were not formally considered. As she had not yet returned
to work in a full-time capacity, OWCP had reopened the claim for consideration. It asked
appellant to submit a comprehensive medical report from a treating physician describing her
symptoms and an opinion as to whether her left knee condition was causally related to the July 5,
2012 work incident.
In a September 5, 2012 decision, OWCP denied appellant’s claim. It found that she failed
to submit sufficient medical evidence to establish her left knee injury was related to the July 5,
2012 incident.
On September 25, 2012 appellant requested an oral hearing, which was held on
February 14, 2013.
In a March 8, 2013 report, Dr. Parker related that appellant had complaints of chronic
knee pain which started on July 5, 2012 when she slipped on a piece of meat and heard a pop
which turned out to be a torn meniscus. On evaluation, appellant’s left knee joint had significant
osteoarthritis. Dr. Parker opined that surgical meniscus repair would likely produce little
improvement of her pain and that she was too young for a total knee replacement. He asserted
that the uneven walk appellant developed to relieve some of her left knee pain caused an
aggravation of arthritis pain in her right ankle, which still had a surgical pin from a 1979 fracture
that had been asymptomatic until recently. X-rays showed that the old pin may have shifted as a
result of the increased stress over the past few months and might have to be surgically removed.
Appellant had largely asymptomatic arthritic changes in her joints before the accident which
caused additional trauma to the left knee joint that was already flawed. This accelerated the
aging process and aggravated the arthritic changes to a painful level. Dr. Parker stated that the
shifted pin in her right ankle, which likely occurred after she started favoring the right leg after
the July 5, 2012 accident, might turn out to be an additional chronic pain problem which he was
currently investigating.
By decision dated April 19, 2013, OWCP’s hearing representative set aside the
September 25, 2012 decision. She noted that Dr. Parker found that the July 5, 2012 incident
resulted in a torn left medical meniscus and had aggravated arthritic changes in her left knee.
The hearing representative remanded the case to OWCP to request the right ankle x-ray report
referenced by Dr. Parker, prepare a statement of accepted facts and refer appellant for a second
opinion examination with a Board-certified orthopedic specialist.
In an April 5, 2013 report, Dr. Seth R. Yarboro, a specialist in orthopedic surgery, stated
that an examination revealed tenderness to palpation along the posterior tibial tendon to insertion
at navicula. He also noted significant tenderness at the subtibular region on the lateral aspect of
the right foot and advised that appellant was unable to perform heel rise on the right side.
Dr. Yarboro stated that radiographic imaging of the right ankle showed mild decrease in joint

2

space on the lateral aspect of the tibiotalar joint. He diagnosed stage 3/4 posterior tibial tendon
dysfunction and opined that the posterior tendinitis and subtibular impingement from the valgus
alignment were contributing to her symptoms.
OWCP referred appellant to Dr. Robert M. Moore, a specialist in orthopedic surgery. In
a June 13, 2013 report, Dr. Moore noted complaints of left knee and right ankle pain. He
reviewed the history of injury and stated that following the July 5, 2012 incident appellant’s left
knee became progressively more painful over the next two days. Dr. Moore advised that a
magnetic resonance imaging (MRI) scan dated July 11, 2012 showed the presence of medial
compartment with marked degenerative changes and a nondisplaced degenerative tear of the
posterior horn of the medial meniscus, with effusion. Appellant related a history of right ankle
fracture in the 1980’s which had caused mild, occasional symptoms of right ankle discomfort
since that time. Dr. Moore advised that approximately three months after her left knee injury she
began to experience numbness in the right foot with increased pain in the right foot and ankle
regions. An x-ray of appellant’s right ankle was obtained and she was told that the surgical pin
in her right ankle had moved as a result of her abnormal walking pattern following the knee
injury. Dr. Moore stated that radiographic test of the right ankle of April 4, 2013 showed a nail
traversing the medial malleolus with posterior prominence, an ossicle at the tip of the medial
malleolus and degenerative changes. He asserted that in addition to pain about the right foot and
ankle with weight-bearing, appellant continued to have some symptoms of partial numbness and
tingling in the right foot, involving the entire foot and all toes.
Dr. Moore advised that x-rays of the left knee showed medial compartment joint cartilage
space narrowing and osteophyte formation, with mild osteophyte formation in the lateral and
patellofemoral compartment and no evidence of fracture or lytic lesion. He diagnosed advanced
osteoarthritis of the left knee, with osteoarthritis and posterior tibia tendon dysfunction of the
right ankle. Dr. Moore opined that the left knee osteoarthritis was preexisting and was
permanently aggravated by the July 5, 2012 work injury; the left knee MRI scan done soon after
her injury showed that degenerative change was already present in the knee. He advised that the
increase in left knee symptoms which developed at the time of injury has been persistent despite
extensive conservative treatment; therefore the aggravation of the left knee condition was
permanent.
Dr. Moore stated that appellant underwent x-rays of the right ankle at the time of his
examination that showed a headed nonthreaded fixation pin present in the medial malleolus,
extending at least one centimeter posterior to the tibial cortex. He advised that cortical
irregularity was present in the medial malleolus and the lateral malleolus, consistent with healed
fractures. Dr. Moore also noted a one centimeter ossicle at the tip of the medial malleolus, which
was un-united, with mild-to-moderate narrowing of the medial tibiotalar joint cartilage space.
He advised that joint cartilage space narrowing and osteophyte formation were also present in the
talonavicular joint, demonstrated on the lateral ankle view. Dr. Moore advised that the x-ray
results showed no evidence of recent fracture.
As to whether the right ankle condition was causally related the July 5, 2012 work
incident, Dr. Moore found appellant’s osteoarthritis and posterior tibial tendon dysfunction to be
a result of an old injury and surgery of the right ankle sustained in the 1980’s. He determined

3

that there was no objective evidence that she sustained any injury to the right ankle on
July 5, 2012. Dr. Moore stated:
“In my opinion it is medically more likely that the residual joint incongruity
(resulting from [appellant’s] original fracture) and protruding hardware in the
medial malleolus are the causes of her current condition of osteoarthritis and
posterior tibial tendon dysfunction. There is considerable posterior prominence of
the fixation pin. In [appellant’s] right ankle, which probably produced some
mechanical damage to the retromalleolar tendons over the scars and has likely
contributed to her posterior tibial tendon dysfunction. However, the position of
this pin, with the head of the pin flush with the anterior medial mallafleolar
surface, suggests that it was placed intentionally in this position at the time of her
original surgery and there is no evidence that the fixation pin in the medial
malleolus has ‘moved’ in any way as a result of her left knee injury or altered
walking pattern.”
On June 18, 2013 OWCP accepted permanent aggravation of appellant’s left knee
osteoarthritis due to the July 5, 2012 incident.
By decision dated June 18, 2013, OWCP found that appellant failed to establish that her
right ankle condition was a consequence of her July 5, 2012 left knee injury. It found that
Dr. Moore’s opinion represented the weight of the medical evidence.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that flows
from the injury is deemed to arise out of the employment, unless it is the result of an independent
intervening cause which is attributable to the employee’s own intentional conduct.2 Regarding the
range of compensable consequences of an employment-related injury, Larson notes that, when the
question is whether compensability should be extended to a subsequent injury or aggravation
related in some way to the primary injury, the rules that come into play are essentially based upon
the concepts of direct and natural results and of the claimant’s own conduct as an independent
intervening cause. The basic rule is that a subsequent injury, whether an aggravation of the
original injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury. Thus, once the work-connected character of any condition is
established, the subsequent progression of that condition remains compensable so long as the
worsening is not shown to have been produced by an independent nonindustrial cause.3
A claimant bears the burden of proof to establish a claim for a consequential injury.4 As
part of this burden, he or she must present rationalized medical opinion evidence, based in a
complete factual and medical background, showing causal relationship. Rationalized medical
2

Mary Poller, 55 ECAB 483 (2004).

3

A. Larson, The Law of Workers’ Compensation § 10.01.

4

William C. Thomas, 45 ECAB 591 (1994).

4

evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.5
ANALYSIS
OWCP accepted the condition of permanent aggravation of left knee osteoarthritis due to
appellant’s July 5, 2012 work incident. The issue is whether her right ankle condition was a
consequence of the accepted left knee injury. The Board finds that appellant did not establish her
right ankle condition was aggravated or a consequence of her left knee injury.
OWCP referred appellant to Dr. Moore, the second opinion physician, who found that her
right ankle condition was preexisting, longstanding and not affected by the July 5, 2012 injury.
Dr. Moore advised that appelant’s right ankle symptoms resulted from an old injury in the 1980’s
and surgery to the right ankle. He reviewed radiographic tests from April 2013 and obtained
additional studies of her right foot and right foot ankle. Dr. Moore advised that there was no
evidence that the fixation pin in the medial malleolus had moved in any way as a result of
appellant’s left knee injury or due to her altered walking pattern. He concluded that there was no
objective evidence that she sustained any injury to the right ankle on July 5, 2012.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.6 The Board finds that OWCP properly found that Dr. Moore’s
opinion represented the weight of the medical evidence and was sufficient to negate any causal
relationship between the July 5, 2012 work incident and the claimed right ankle condition.
Dr. Moore’s report is thorough, well-rationalized and provides a full explanation of why
appellant’s right ankle symptoms were not caused or aggravated by the July 5, 2012 work
incident. The record also contains reports from Dr. Parker and Dr. Yarboro related to treatment
of her right ankle condition. Dr. Parker indicated that the uneven walk she developed to relieve
some of her left knee pain caused an aggravation of arthritis pain in her right ankle, which still
had a surgical pin from a 1979 fracture that had been asymptomatic. He stated that x-rays
demonstrated that the old pin may have shifted as a result of the increased stress over the past
few months and might have to be surgically removed. Dr. Parker stated that the shifted pin in
appellant’s right ankle had probably occurred after she started favoring the right leg after the
July 5, 2012 accident and might turn out to be an additional chronic pain problem, although he
was still investigating this issue.
The opinion of Dr. Parker is of limited probative value as he did not provide sufficient
medical rationale on the issue of causal relationship.7 The weight of medical opinion is
5

Charles W. Downey, 54 ECAB 421 (2003).

6

See Anna C. Leanza, 48 ECAB 115 (1996).

7

William C. Thomas, 45 ECAB 591 (1994).

5

determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated conclusions.8
Dr. Parker’s opinion on causation is of limited probative value for the further reason that it is
generalized in nature and equivocal in that he stated that x-rays demonstrated that the pin in
appellant’s right foot “may” have shifted due to increased stress and “might” turn out to be an
additional chronic pain, an issue which he was still investigating. Dr. Yarboro stated findings on
examination and diagnosed posterior tibial tendon dysfunction but did not provide any opinion as
to whether these findings were causally related to the accepted injury. OWCP properly denied
the right ankle condition based on Dr. Moore’s opinion.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor the
belief that her condition was caused, precipitated or aggravated by her employment is sufficient to
establish causal relationship.9 She did not provide a medical opinion which describes or explains
the medical process through which she would have developed a right ankle condition as a
consequence of her accepted July 5, 2012 left knee injury. OWCP properly denied appellant’s
claim for compensation.
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 failed to establish that she sustained a right ankle
condition as a consequence of her accepted July 5, 2012 left knee injury.

8

See Anna C. Leanza, 48 ECAB 115 (1996).

9

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the June 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2014
Washington, DC

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

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

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

7