United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.N., Appellant
and
U.S. POSTAL SERVICE, DOWNTOWN POST
OFFICE, Wichita, KS, Employer
__________________________________________

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

Docket No. 21-0070
Issued: March 9, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 22, 2020 appellant, through counsel, filed a timely appeal from an August 21,
2020 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 August 21, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization of
additional surgery.
FACTUAL HISTORY
On October 25, 2014 appellant, then a 36-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that date she twisted her left ankle when she stepped
off of a porch onto grass while in the performance of duty. 4 OWCP accepted the claim for left
ankle sprain. Appellant returned to limited duty and, as of May 12, 2015, worked full-time regular
duty. On June 18, 2015 OWCP accepted an additional condition of left tarsal syndrome. On
June 23, 2015 appellant underwent an OWCP-authorized left tarsal tunnel release with neurolysis
and an additional nonauthorized left partial plantar fascia release which were performed by
Dr. Shawn Morrow, a Board-certified orthopedic foot and ankle surgeon. OWCP paid appropriate
benefits and she returned to full-time work in a limited-duty capacity on August 10, 2015.
On October 27, 2015 appellant saw Dr. Steven Howell, a Board-certified orthopedic
surgeon, specializing in ankle and foot surgery. On November 20, 2015 Dr. Howell requested
authorization for additional surgery involving incision of left foot fascia, decompression of tibial
nerve, partial removal of ankle/heel, and partial removal of foot bone. Additional requests were
submitted on January 5, March 9, and June 15, 2016.
On September 16, 2016 OWCP forwarded appellant’s medical record and a statement of
accepted facts (SOAF) to Dr. William Tontz, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), to determine whether her requested surgery was medically
necessary and causally related to her accepted left ankle sprain and left tarsal tunnel syndrome. In
a September 20, 2016 report, Dr. Tontz opined that there was evidence of a temporal relationship
between the October 25, 2014 employment injury and the proposed incision of foot fascia,
decompression of tibia nerve, partial removal of ankle/heel and partial removal of foot bone, but
there was insufficient evidence in the case record of failed conservative management to support
plantar fascia release. He thereafter concluded that the proposed incision of foot fascia,
decompression of tibia nerve, partial removal of ankle/heel, and partial removal of foot bone were
not medically necessary.
On November 17, 2016 OWCP referred appellant, along with the medical record and a
SOAF, to Dr. Michael J. Johnson, a Board-certified orthopedic surgeon, for a second opinion
evaluation. In a November 22, 2016 report, Dr. Johnson reviewed the medical record and the
SOAF and indicated that appellant had received appropriate conservative treatment since her last
surgical procedure, which had not improved enough to allow her to return to full duty. He opined
that only the decompression of tibia nerve (tarsal tunnel release revision) was medically necessary
and causally related to the accepted left tarsal tunnel syndrome. Dr. Johnson opined that the other
4
At the time of injury, appellant was working with medical restrictions under a traumatic injury under OWCP File
No. xxxxxx267. In that claim, OWCP accepted that her fall on August 13, 2016 resulted in right hand contusion, head
contusion, chondromalacia patellae, right knee, nondisplaced fracture of base of fifth metacarpal bone, right hand, and
carpal tunnel syndrome, right upper limb. It has administratively combined these claims, with OWCP File No.
xxxxxx493 serving as the master file.

2

proposed procedures were not causally related to the employment injury or the accepted
conditions. He indicated that the proposed incision of plantar fascia/plantar fascia release was not
related to the accepted diagnosis or secondary to mechanism of injury, the removal of bone
spur/partial removal of ankle/heel was due degenerative/arthritis and not traumatic injury, and the
partial resection of bone/ossicia excision/partial removal of foot bone was a
congenital/developmental deformity to navicular bone which preexisted the employment injury.
On January 17, 2017 OWCP provided Dr. Morrow a copy of Dr. Johnson’s second opinion
report and requested whether he agreed that only the decompression of tibia nerve surgery was
causally related to the October 25, 2014 employment injury and the accepted left tarsal tunnel
syndrome condition. On February 10, 2017 Dr. Morrow concurred with Dr. Johnson’s opinion.
On March 7, 2017 Dr. Howell disagreed with Dr. Johnson’s opinion on causal relation. He
opined that the increased dorsal impingement of the navicular was due to some loss of arch
secondary to the plantar fascial release, which was secondary to employment-related plantar
fasciitis. In a March 21, 2017 report, Dr. Howell also opined that appellant’s talonavicular
spurring was causally related to the accepted conditions. He explained that she had no pain prior
to her injury which worsened after her surgery, consistent with an os naviculare secundum that
loosened up with her original injury and the subsequent spurring was impinging more following
the slight loss of the arch support after the plantar fascial release. Dr. Howell indicated that this
preexisting condition was worsened by the employment injury.
On March 27, 2017 OWCP found a conflict in medical opinion between Dr. Howell and
Dr. Johnson regarding causal relationship and the medical necessity of the specific proposed
surgical procedures. It referred appellant to Dr. Sami Framjee, a Board-certified orthopedic
surgeon, for an impartial medical evaluation.
However, OWCP found that Dr. Framjee had not answered the questions submitted. On
May 18, 2018 it related that appellant would be referred for a new impartial medical evaluation.
On September 13, 2018 OWCP referred appellant, an updated SOAF and a series of
questions, to Dr. Dale D. Dalenberg, a Board-certified orthopedic surgeon, for an impartial
medical evaluation. The SOAF noted that the accepted conditions were a left ankle sprain and left
tarsal tunnel syndrome, and that on June 23, 2015 appellant underwent a left tarsal tunnel release
with neurolysis and left partial plantar fascia release. In its series of questions, OWCP specifically
inquired as to whether the recommended incision of foot fascia, decompression of tibia nerve,
partial removal of ankle/heel, and partial removal of foot bone were medically necessary for, and
causally related to, the accepted conditions of the accepted left ankle sprain and left tarsal tunnel
syndrome.
In a December 21, 2018 report, Dr. Dalenberg noted that appellant was examined on
October 4, 2018. He advised that the proposed procedures were unlikely to improve her condition
and that failure to address her dorsal foot pain and popping by not addressing the talonavicular
joint problem would leave ongoing complaints. Dr. Dalenberg explained that there was no
evidence that performing another tarsal tunnel release would make any difference and the areas of
numbness did not support that it was just tarsal tunnel syndrome. He opined that the proposed
decompression of the tibial nerve was not medically necessary as it had already been performed,
it did not help or had worsened appellant’s symptoms, and it would not fully address her
3

objectively demonstrated numbness. Dr. Dalenberg explained that the proposed excision of the
plantar fascia was not for an accepted condition and was not medically necessary with a
predominant complaint of dorsal pain and foot/ankle popping and pain. He further opined that the
proposed bone removal, particularly removal of the plantar calcaneal spur, was not related to the
accepted conditions and, while it was usually done in conjunction with plantar fascia release, he
opined that it would not appreciably improve appellant’s symptoms. Dr. Dalenberg also advised
that the proposed partial resection of bone/ossicle excision/partial removal of foot bone was not
medically necessary or causally related to the accepted left ankle sprain and left tarsal tunnel
syndrome. He explained that there was evidence of an old dorsal lip avulsion fracture, which was
akin to an ankle sprain, but was never diagnosed or treated. This condition was probably subtly
unstable given her popping complaint, and management was usually c onservative treatment.
Dr. Dalenberg also advised that late surgical treatment was not standard and may be considered
controversial.
By decision dated February 19, 2019, OWCP denied authorization of the requested surgical
procedures. The special weight of the medical evidence was accorded to th e opinion of
Dr. Dalenberg, the impartial medical examiner (IME).
On February 25, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
June 7, 2019.
OWCP received additional evidence, including x-rays of appellant’s left foot dated
October 4, 2018, which noted small plantar spur and mild degenerative spurring along the dorsal
midfoot.
In an April 2, 2019 report, Dr. Howell indicated that the x-rays taken that day of appellant’s
left foot showed prominent spurring with a very small surface area for weight bearing on the
plantar aspect of her heel directly where she was tender on examination. Appellant also had
numbness and tingling on the bottom of her foot consistent with tarsal tunnel syndrome, which he
believed that had not been completely decompressed, and spurring at the dorsum of the
talonavicular joint. Dr. Howell opined that he could help her with the surgery he previously
offered and outlined his proposed approach. He noted that appellant had been evaluated by an
orthopedist who was not a foot/ankle expert. Dr. Howell questioned the opinion that her condition
would not improve as it was not certain that her tarsal tunnel condition had been adequately
released. He noted that appellant would also benefit by a simple removal of the spurring from the
talonavicular joint and disagreed with Dr. Dalenberg that the talonavicular ligaments would be
involved.
By decision dated June 18, 2019, an Office hearing representative set aside OWCP’s
February 19, 2019 decision and remanded the case to OWCP for further development and a de
novo decision. The hearing representative directed OWCP to have Dr. Dalenberg review
Dr. Howell’s April 2, 2019 report.
In a July 1, 2019 letter, OWCP requested that Dr. Dalenberg review Dr. Howell’s April 2,
2019 report and issue a supplemental report.

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In a November 20, 2019 addendum, Dr. Dalenberg reviewed Dr. Howell’s April 2, 2019
report and indicated that his concern was that the results of the tarsal tunnel release were uncertain.
He noted that literature documented worse results with revision release, and that results could be
compromised by adhesive neuritis and intraneural damage, which could be the reason for
appellant’s ongoing symptoms. Dr. Dalenberg explained that appellant had a predominance of
dorsal foot pain and popping during his examination, which was not anatomically related to a tarsal
tunnel syndrome diagnosis, and he believed that performing the same surgery would not be
warranted, as the prior procedure had not been successful, and her current symptoms were not due
to tarsal tunnel syndrome. He noted that he had performed various procedures about the foot and
ankle and indicated that he had similar credentials to Dr. Howell. Dr. Dalenberg also noted that
he was called upon by OWCP to weigh in on whether the proposed surgery was for conditions
specified in the SOAF and whether such treatments were likely to be successful. He reiterated his
concern that, while distal release was an indication for revision tarsal tunnel release, it may not be
successful. Dr. Dalenberg also explained that the basis of his medical opinion was the fact that a
large part of appellant’s symptomatology (dorsal foot pain and popping) had nothing to do with
the accepted tarsal tunnel syndrome. He agreed with Dr. Howell that ligament reconstruction
around the talonavicular joint or fusion was not standard with this clinical presentation and
explained that this was mentioned in his prior report as ideas on how to address the dorsal foot
pain and popping. Dr. Dalenberg agreed with dorsal fragment excision but explained that the
procedure was unrelated to the accepted ankle sprain, and tarsal tunnel syndrome.
By decision dated February 25, 2020, OWCP again denied authorization of the requested
surgical procedures. It accorded the special weight of the medical to the opinion of Dr. Dalenberg,
the IME.
On March 4, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
June 11, 2020.
In a July 2, 2020 report, Dr. Howell indicated that he did not understand Dr. Dalenberg’s
opinion that appellant’s symptoms on the dorsum of the foot were unsubstantiated by her other
complaints. He explained that her dorsal foot pain was consistent with talonavicular spurring and
the numbness on the bottom of her foot was consistent with an incompletely released tarsal tunnel.
Dr. Howell opined that appellant had a reasonable chance of responding satisfactorily to the
proposed surgical procedure.
By decision dated August 21, 2020, OWCP’s hearing representative affirmed the
February 25, 2020 decision.
LEGAL PRECEDENT
Section 8103 of FECA 5 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce

5

Supra note 2 at § 8103.

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the degree, or the period of disability, or aid in lessening the amount of monthly compensation. 6
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided, with the only limitation on OWCP’s authority being that of
reasonableness. 7
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition. 8 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence. 9 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment. 10
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 11
For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.12 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight. 13 If the IME is unable to clarify or elaborate on
his original report, or if his supplemental report is vague, speculative, or lacking in rationale,
OWCP shall refer appellant to a new IME.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for authorization of
additional surgery.
OWCP properly found that a conflict in medical opinion existed between Dr. Howell,
appellant’s attending physician, who recommended incision of foot fascia, decompression of tibia
nerve, partial removal of ankle/heel and partial removal of foot bone, and Dr. Johnson, the second
6

Id., see also N.G., Docket No. 18-1340 (issued March 6, 2019).

7

D.S., Docket No. 19-1698 (issued June 18, 2020); D.W., Docket No. 19-0402 (issued November 13, 2019); see
also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions which are
contrary to both logic, and probable deductions from established facts).
8

See R.M., Docket No. 19-1319 (issued December 10, 2019); Debra S. King, 44 ECAB 203, 209 (1992).

9

Id.; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB 282 (1986).

10

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

11

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; K.C., Docket No. 18-0378 (issued June 18, 2019).

12

Id.

13

J.H., Docket No. 19-0513 (issued September 24, 2019).

14

See C.E., Docket No. 19-1923 (issued March 30, 2021); M.S., Docket No. 18-1228 (issued March 8, 2019); R.H.,
Docket No. 17-1903 (issued July 5, 2018).

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opinion physician, who opined that only the recommended decompression of the tibia nerve was
medically necessary and causally related to the accepted left tarsal tunnel syndrome.
Consequently, it referred her to Dr. Framjee, an IME, to resolve the conflict in medical opinion
pursuant to 5 U.S.C. § 8123(a). However, Dr. Framjee was unable to clarify or elaborate on his
original report in response to OWCP’s questions and it was unlikely that he would respond to an
additional request for clarification. OWCP, therefore, properly referred appellant to a new IME.15
It referred her to Dr. Dalenberg, serving as the new IME, to resolve the conflict in medical opinion.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Dalenberg, who examined appellant, reviewed the medical evidence, and found that the
authorization of additional surgery regarding decompression of tibial nerve was not medically
necessary and additional surgery involving incision of lef t foot fascia, partial removal of
ankle/heel, and partial removal of foot bone were not medically necessary, or causally related to,
the accepted left ankle sprain and left tarsal tunnel syndrome.
The record reflects that Dr. Dalenberg was provided with a SOAF, which listed the
accepted conditions and noted appellant’s June 23, 2015 surgery involved a left tarsal tunnel
release with neurolysis and left partial plantar fascia release. The left partial plantar fascia release
was not authorized by OWCP and was for a condition which OWCP had not accepted. 16
Dr. Dalenberg also provided a series of questions which specifically requested that he provide
medical rationale to support his opinion on the medical necessity for the proposed surgery
involving incision of foot fascia, decompression of tibia nerve, partial removal of ankle/heel, and
partial removal of foot bone.
In his December 21, 2018 report, Dr. Dalenberg opined that the proposed decompression
of the tibial nerve was not medically necessary as it had already been performed, it did not help or
had worsened appellant’s symptoms, and it would not fully address her objectively demonstrated
numbness. He opined, however, that the proposed incision of the plantar fascia, and the partial
removal of ankle/heel, and foot bone were not medically necessary or causally related to the
accepted left ankle sprain and left tarsal tunnel syndrome. Dr. Dalenberg explained that incision
of the plantar fascia was not medically necessary for a predominant complaint of dorsal pain and
foot/ankle popping and pain and, while removal of plantar calcaneal spurs was usually done in
conjunction with plantar fascia release, it would not appreciably improve appellant’s symptoms.
With regard to the proposed partial resection of bone/ossicle excision/partial removal of foot bone,
he explained that it was not medically necessary as appellant had a dorsal foot sprain which was
probably subtly unstable given her popping complaint and management was usually closed.
In response to Dr. Howell’s April 2, 2019 report, Dr. Dalenberg, in his November 21, 2019
report, reiterated that it was not medically warranted to repeat the tarsal tunnel release. He
explained that the results of the tarsal tunnel release was uncertain, noting literature documented
worse results with revision release, that the original surgery had not been successful, and that the
15

Id.

16

When an employee claims that, a condition not accepted or approved by OWCP was due to an employment
injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury.
See T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K.
Asaramo, 55 ECAB 200 (2004).

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results could be compromised by adhesive neuritis and intraneural damage. Dr. Dalenberg further
indicated that appellant’s symptomatology (dorsal foot pain and popping) were from something
other than tarsal tunnel syndrome and was not anatomically related to the accepted tarsal tunnel
syndrome. The Board further notes that, while he agreed with the dorsal fragment excision and
that such removal was usually done in conjunction with plantar fascia release, he opined that the
procedure was not for a diagnosis in the SOAF and was unrelated to the accepted ankle sprain and
tarsal tunnel syndrome. As previously discussed, OWCP has not accepted an employment-related
plantar fasciitis condition and appellant has failed to meet her burden of proof to establish her
burden of proof.
In situations where the case is referred to an IME for the purpose of resolving a medical
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight. 17 The Board finds that Dr. Dalenberg provided
a well-rationalized opinion based on a complete background, his review of the SOAF, the medical
record, and his examination findings. Thus, Dr. Dalenberg’s opinion that the requested procedures
were not medically warranted for the accepted conditions is entitled to the special weight of the
evidence.18
The Board further finds that Dr. Howell’s reports, are insufficient to overcome the special
weight accorded to Dr. Dalenberg because reports from a physician who was on one side of a
medical conflict resolved by an IME are insufficient to overcome the special weight accorded the
report of the IME or create a new conflict. 19
The only limitation on OWCP’s authority in approving or denying service under FECA is
one of reasonableness. 20 OWCP obtained an impartial medical examination by Dr. Dalenberg who
opined that the requested surgical procedures were not med ically warranted for the accepted
conditions. It, therefore, had sufficient evidence upon to deny surgery and did not abuse its
discretion.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for authorization of
additional surgery.

17

See D.S., Docket No. 19-1698 (issued June 18, 2020); C.W., Docket No. 17-0918 (issued January 5, 2018);
Patricia J. Glenn, 53 ECAB 159 (2001).
18

See D.S., id., P.F., Docket No. 16-0693 (issued October 24, 2016).

19

J.M., Docket No. 18-1387 (issued February 1, 2019); D.M., Docket No. 17-1992 (issued September 12, 2018);
S.F., Docket No. 17-1427 (issued May 16, 2018).
20

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the August 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2022
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Northridge, CA, Employer
__________________________________________

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

Docket No. 10-563
Issued: November 1, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 29, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 20, 2009. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was injured in the performance of duty on
March 20, 2009.
FACTUAL HISTORY
On May 13, 2009 appellant, then a 28-year-old administrative specialist, filed a
traumatic-injury claim (Form CA-1) alleging injury on March 20, 2009. She stated that she was
assaulted at 10:30 p.m., while walking back to her hotel. The injury was described as
depression, insomnia and loss of appetite.
By letter dated May 26, 2009, the Office requested that appellant submit additional
information, including where the assault occurred, what she was doing at that time and whether a

police report was filed. It also sent a May 26, 2009 letter and EN1014 form to the employing
establishment regarding appellant’s travel status on March 20, 2009.1
In a decision dated June 26, 2009, the Office denied the claim for compensation. It found
the factual evidence did not establish an incident occurred as alleged.
By letter dated July 16, 2009, appellant requested reconsideration of her claim and
discussed the March 20, 2009 incident. On that day she was on travel duty and staying at a hotel
in Arlington, Virginia. Appellant left the hotel to buy cigarettes at a convenience store located
two blocks from the hotel and while returning she was sexually assaulted. The employing
establishment submitted the EN1014 form stating that on March 20, 2009 appellant was on travel
duty for training in Arlington, Virginia. In a letter dated July 16, 2009, a supervisor noted
appellant was on official government travel for training at headquarters. The supervisor
indicated appellant did not initially file a police report as she wanted to maintain anonymity, but
she did report the incident to the employer on her return to work on March 23, 2009.
In a decision dated November 20, 2009, the Office denied modification of the June 26,
2009 decision. It found, as follows: “The new factual and medical evidence failed to link any
medical condition or factual situation to the alleged sexual assault on March 20, 2009. The
Office has not received any police report, nor has it received any medical evidence from the time
period or after which discussed the alleged assault.”
LEGAL PRECEDENT
The Federal Employee’s Compensation Act2 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty. The phrase “sustained while in the performance of duty” is regarded as the
equivalent of the coverage formula commonly found in workers’ compensation laws, namely
“arising out of and in the course of employment.”3
With respect to employees on travel duty, the Board has recognized the general criteria
for performance of duty as it relates to travel employees or employees on temporary-duty
assignments as follows:
“Employees whose work entails travel away from the employer’s premises are
held in the majority of jurisdictions to be within the course of their employment
continuously during the trip, except when a distinct departure on a personal errand
is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating
in restaurants away from home are usually held compensable.”4
1

The EN1014 form requests information regarding an employee’s travel status and official duties.

2

5 U.S.C. §§ 8101-8193.

3

Paul Foster, 56 ECAB 208, 210 (2004).

4

1 A. Larson, The Law of Workers’ Compensation, § 25.01 (2000); see also Lawrence J. Kolodzi, 44 ECAB 818,
822 (1993).

2

ANALYSIS
In the present case, the Office issued a November 20, 2009 merit decision denying
modification of the June 26, 2009 Office decision. While describing the evidence submitted on
reconsideration, the Office failed to properly identify the issue or make adequate findings. The
initial question is whether appellant was in the course of employment at the time of the alleged
assault on March 20, 2009. She described the time and place of the alleged incident while on
official travel duty. No findings were made as to whether appellant was in the course of
employment, with reference to the relevant facts and the general criteria applicable to
performance of duty as it pertains to employees on travel.5 If appellant is found to be in the
course of employment at the time of the March 20, 2009 incident, then the Office should make
findings as to whether she sustained an injury arising out of her employment.6
The case will be remanded to the Office for proper findings and adjudication of the
evidence on the issue presented. After such further development as it deems necessary, it should
issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision on whether appellant sustained
injury on March 20, 2009 while in the performance of duty.

5

See H.S., 58 ECAB 554 (2007).

6

See Bradford N. Reed, 56 ECAB 428 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the November 20 and June 26, 2009 decisions of
the Office of Workers’ Compensation Programs are set aside. The case is remanded for further
action consistent with this decision of the Board.
Issued: November 1, 2010
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 12-1499
Issued: January 14, 2013

Case Submitted on the Record

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

JURISDICTION
On July 3, 2012 appellant, through her representative, filed a timely appeal from the
May 22, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
denied her traumatic injury claim. 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 sustained an injury in the performance of duty on
February 7, 2010.
FACTUAL HISTORY
On April 6, 2010 appellant, a 56-year-old part-time flexible mail handler, filed a
traumatic injury claim alleging that, while pulling a bulk mail container on February 7, 2010, her
1

5 U.S.C. § 8101 et seq.

left foot slipped and her ankle turned, causing her to fall to the floor on her left side. The
container continued to roll over her up to her arm and right shoulder. Appellant told a coworker
she was okay and did not need assistance. She told her supervisor, more than once, that she was
fine. The next day, however, appellant could not move one side of her body after going home. It
did not appear that she stopped work or sought medical attention at that time.
The record indicated that appellant last worked on March 20, 2010. A March 30, 2010
emergency department disability slip, signed by a nurse, asked that appellant be excused from
work beginning March 8, 2010 for “follow up care (injury).”
In a June 8, 2010 decision, OWCP denied appellant’s traumatic injury claim. It found
that the evidence supported that the incident occurred as described; however, the medical
evidence did not provide a diagnosis in connection with the incident. OWCP explained that the
medical evidence must not only contain a diagnosis but establish that a diagnosed medical
condition was causally related to the work incident. Appellant requested a review of the written
record.
A March 30, 2010 emergency room record indicated that appellant’s admitting diagnosis
was sinus tarsi syndrome (STS), side pain, leg cramps and headache. The accident date was
given as February 7, 2010. Appellant complained of her thighs stiffening up on her. Her lower
extremities, however, showed no evidence of trauma. They were nontender and had full range of
motion. Appellant also received a clinical impression of closed head injury. An imaging study,
however, found no acute intracranial process. A May 6, 2010 neurology report stated that
appellant was initially seen for foot pain predominately involving the left foot but currently
presented with very diffuse complaints. A June 1, 2010 state workers’ compensation record
showed a diagnosis of low back pain.
In an October 5, 2010 decision, an OWCP hearing representative affirmed the denial of
appellant’s injury claim. The hearing representative found that she failed to submit medical
evidence from a physician who provided a firm diagnosis causally related to the February 7,
2010 work incident and who supported that conclusion with sound medical reasoning.
On March 18, 2011 Dr. William N. Grant, a Board-certified internist, related that
appellant was trying to pull a heavy cage used for transporting mail when her left knee gave out
and she fell on her knee. He noted that appellant was currently having constant, painful
discomfort in her left knee. Dr. Grant examined her and diagnosed a sprained left lateral
collateral ligament. He stated that appellant’s diagnosis should be explained based on the
opinion of an orthopedic specialist. By letter dated September 21, 2011, appellant requested
reconsideration.
In a May 22, 2012 decision, OWCP reviewed the merits of appellant’s case and denied
modification of its prior decision. It found that the record was devoid of a well-reasoned medical
opinion providing a definitive diagnosis and opinion explaining how any such diagnosis was
related to the events of February 7, 2010.

2

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,5 must be
one of reasonable medical certainty,6 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
ANALYSIS
OWCP accepts that on February 7, 2010 appellant fell while pulling a bulk mail
container, which continued to roll over her. Appellant has therefore established that she
experienced a specific incident occurring at the time, place and in the manner alleged. The
question that remains is whether this incident caused an injury.
OWCP properly explained that the medical evidence must not only provide a diagnosis
but establish that a diagnosed medical condition was causally related to the work incident. The
medical evidence suggested several diagnoses -- STS, leg cramps, headache, closed head injury,
left foot pain, low back pain -- but no doctor discussed whether the February 7, 2010 incident
caused or aggravated any of these conditions.
Dr. Grant, the internist, diagnosed a sprained left lateral collateral ligament, and he
related that appellant’s left knee gave out when she was pulling the bulk mail container. He
stated that she fell on her knee. This history, however, is not consistent with the history
appellant provided when she filed her claim for benefits. Appellant stated that her left foot
slipped and her ankle turned, causing her to fall to the floor on her left side. She did not mention
her left knee giving out. Appellant did not mention falling on her knee. She did mention that
2

5 U.S.C. § 8102(a).

3

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

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

3

she was okay and did not need assistance. Appellant did mention that she told her supervisor,
more than once, that she was fine. Dr. Grant’s history of injury did not accurately reflect what
happened on February 7, 2010. Medical conclusions based on inaccurate or incomplete histories
are of little probative value.8
Further, Dr. Grant offered no discussion of causal relationship. He did not explain from a
medical perspective how the incident caused appellant’s diagnosed condition. Dr. Grant did not
identify the clinical findings or other medical evidence that convinced him, more than a year
after the fact, that appellant had suffered a left lateral collateral ligament sprain on
February 7, 2010. Indeed, the March 30, 2010 emergency room records do not appear to
mention such an injury. Medical conclusions unsupported by rationale are of little probative
value.9
Because the medical evidence fails to establish that the February 7, 2010 work incident
caused any specific medical condition, the Board finds that appellant has not met her burden to
establish that she sustained an injury in the performance of duty. The Board will therefore affirm
OWCP’s May 22, 2012 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she sustained an
injury in the performance of duty on February 7, 2010. The medical opinion evidence does not
establish that the February 7, 2010 work incident caused an injury.

8

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

4

ORDER
IT IS HEREBY ORDERED THAT the May 22, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.A., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Denver, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1516
Issued: July 14, 2015

Case Submitted on the Record

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

JURISDICTION
On June 24, 2014 appellant, through counsel, filed a timely appeal from a January 24,
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 to review the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to justify the reduction of
appellant’s wage-loss compensation as he currently has the capacity to earn full-time wages in
the selected position of cashier II.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 37-year-old mail handler, filed a traumatic injury claim alleging that he
injured his right shoulder and neck area on December 5, 1993 while throwing parcels and lifting
sacks.2 OWCP denied his claim.
In April 1994 appellant accepted a part-time light-duty assignment fluffing empty sacks.
Appellant filed a traumatic injury claim alleging that he injured his left shoulder on
July 24, 1994 while fluffing sacks; OWCP File No. xxxxxx565. OWCP denied this claim as
well.
In May 1995, appellant filed an occupational disease claim alleging that his left shoulder
rotator cuff overuse syndrome was a result of fluffing empty sacks at work. He first became
aware of his left shoulder condition on July 24, 1994. Appellant referred OWCP to his traumatic
injury claim of that date; OWCP File No. xxxxxx565.
Also in May 1995 appellant filed an occupational disease claim alleging that his right
shoulder rotator cuff overuse syndrome was a result of pushing equipment as well as lifting and
throwing mail weighing from 2 ounces to 70 pounds from ground level to the top of trailer vans.3
He first became aware of his right shoulder condition on December 5, 1993. Appellant referred
OWCP to his traumatic injury claim of that date.
The record indicates that appellant took disability retirement in August 1996.
OWCP accepted appellant’s occupational disease claim for permanent aggravation of
bilateral rotator cuff tendinitis.4 In 2005 appellant underwent a right shoulder arthroscopic
decompression and acromioclavicular joint resection. In 2009 he underwent a left shoulder
arthroscopic decompression and distal clavicle resection.
Appellant received a schedule award for 11 percent permanent impairment of each upper
extremity.
Dr. Robert P. Mack, a Board-certified orthopedic surgeon and OWCP referral physician,
examined appellant in October 2012. He related appellant’s history and reviewed the medical
record. After describing his findings on physical examination, Dr. Mack found that appellant
had demonstrated excellent results from the surgical procedures and had very minor residuals.
Pain was minimal and range of motion was excellent with no impingement signs evident.
Dr. Mack found that current limitations attributable to the accepted work injury and any
preexisting conditions were lifting heavy weights, particularly above shoulder level or holding
heavy weights out in front of him.

2

OWCP File No. xxxxxx565.

3

OWCP File No. xxxxxx745.

4

OWCP File No. xxxxxx747.

2

Dr. Mack completed a work restriction evaluation indicating that appellant was unable to
work eight hours a day with restrictions. As appellant had not worked for years, he
recommended that appellant start at four hours a day and build to eight.
In an addendum, Dr. Mack clarified that “we are dealing with a man who has not worked
since 1996, with psyche and other medical problems.” He found it difficult to put a timeframe
on when appellant could start working six hours and then eight hours a day. “This project will
require the cooperation and communication between [appellant’s] physician, his employing
establishment and perhaps a [physical therapist]. Progression from four to six to eight hours a
day will be based on his progress and motivation.” Asked what medical consequence he would
anticipate if appellant worked eight hours a day, Dr. Mack identified shoulder muscle soreness
until appellant developed the endurance to work longer hours. “[Appellant] will require
[physical therapy] to assist in developing the strength he has lost after two surgical procedures.”
OWCP claims examiner advised the rehabilitation specialist that based on Dr. Mack’s
comments, “I do not think that we can work [appellant] more than four hours a day at this time. I
believe that we should go ahead with the four hours a day, and at a later date we can schedule
another second [opinion] to see if we can increase his work hours.” The rehabilitation specialist
then advised the rehabilitation counselor that the claims examiner’s comments were right on the
mark and asked her to develop a plan targeting jobs that were available part time and also
appeared to be available full time in anticipation of a future full-time work capability.
The rehabilitation counselor identified the position of cashier II as medically suitable for
appellant, as the physical requirements were light and did not exceed his functional capabilities.
Other considerations included the nature of appellant’s injury, his usual employment, age, degree
of physical impairment and qualification for other employment. Entry-level wages averaged
$8.88 an hour. The rehabilitation counselor recommended an entry-level position, as appellant
clearly possessed the education and quality work history, but did not have sufficient direct
experience to earn higher pay.
After a meeting with the claims examiner, the rehabilitation specialist asked the
rehabilitation counselor to recognize full-time work capacity. He quoted from Dr. Mack’s
addendum and stated: “Earning capacity for compensation reduction should be based on
full[-]time work capabilities.”
The rehabilitation counselor performed a labor market survey for the position of
cashier II. She contacted a significant number of employers who hired individuals such as
appellant for cashier and sales clerk jobs on a part-time and full-time basis. The employing
establishment indicated that appellant’s restrictions could be accommodated. The rehabilitation
counselor found the selected position to be medically suitable, matched the accepted work
restrictions and existed in significant numbers on a part-time and full-time basis such that a
person with appellant’s qualifications could successfully obtain such a job. “Some retail stores
initially hire new employees part time from 20 hours a week and increases to full time once
reliability and ability to perform essential duties are confirmed.” The rehabilitation counselor
confirmed that entry-level wages were $7.75 to $10.00 an hour or $310.00 to $400.00 a week on
a full-time basis.

3

In a decision dated April 23, 2013, OWCP reduced appellant’s wage-loss compensation
to reflect a capacity to earn full-time wages in the selected position of cashier II.
On January 24, 2014 an OWCP hearing representative affirmed. She addressed OWCP’s
decision to reduce compensation on the basis of full-time work:
“Further, after careful review of the second opinion report from Dr. Mack, as well
as his addendum report, I find that he was not actually presenting a physical
reason per se for the claimant’s limitations. While he did note the possibility of
muscle soreness, his report indicated that the claimant’s motivation and
cooperation were the primary issues with regard to his return to full[-]time work.
Hence, I find that [OWCP] properly determined that the claimant was capable of
earning wages at eight hours a day.”
On appeal, counsel argues, among other things, that Dr. Mack restricted appellant to
work starting at four hours a day.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.5 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.6
Section 8115(a) of FECA provides that in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his or her actual earnings,
if his or her actual earnings fairly and reasonably represent his or her wage-earning capacity. If
the actual earnings of the employee do not fairly and reasonably represent his wage-earning
capacity or if the employee has no actual earnings, his wage-earning capacity as appears
reasonable under the circumstances is determined with due regard to the nature of his injury, the
degree of physical impairment, his usual employment, his age, his qualifications for other
employment, the availability of suitable employment and other factors or circumstances which
may affect his wage-earning capacity in his disabled condition.7
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.8 When it makes a medical determination of partial
disability and of the specific work restrictions, it may refer the employee’s case to an OWCP
wage-earning capacity specialist for selection of a position, listed in the Department of Labor’s
Dictionary of Occupational Titles or otherwise available in the open labor market, that fits the
employee’s capabilities in light of his physical limitations, education, age, and prior experience.
5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f).

7

5 U.S.C. § 8115(a).

8

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

4

Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service. Finally, application of the principles set forth in Albert C. Shadrick will result in the
percentage of the employee’s loss of wage-earning capacity.9
ANALYSIS
Dr. Mack, the orthopedic surgeon and OWCP referral physician, found that appellant was
unable to work eight hours a day with restrictions. After receiving his report and addendum, it
was clear to OWCP that appellant could not currently work more than four hours a day and that
his wage-earning capacity should be based on a part-time job until he could increase his hours.
OWCP’s rehabilitation specialist found that this was “right on the mark” and asked the
rehabilitation counselor to develop a plan accordingly.
The rehabilitation counselor complied, but within days it appeared that OWCP changed
its mind. The rehabilitation specialist indicated that he had a meeting with the claims examiner
and was informed that appellant’s wage-earning capacity should be based on full-time work.
The record contains no other documentation of this meeting.
OWCP thereafter reduced appellant’s wage-loss compensation as he currently had the
capacity to earn full-time wages in the selected position of cashier II. It did not address the parttime/full-time issue in its April 23, 2013 decision. In her January 24, 2014 decision, however,
the hearing representative explained that she had carefully reviewed Dr. Mack’s report and
addendum and she found that he was not “actually” presenting a physical reason “per se” for
appellant’s limitations. In her view, Dr. Mack’s report indicated that it was appellant’s
motivation and cooperation that were the “primary” issues regarding his return to full-time work.
Dr. Mack found that appellant was unable to work eight hours a day with restrictions and
he did not make it clear that appellant’s motivation and cooperation were the primary issues.
Indeed, although he mentioned that progression from four to six to eight hours a day would be
based on appellant’s progress and motivation, Dr. Mack focused on the strength that appellant
had lost after two surgical procedures, the need for physical therapy to develop that strength, and
the shoulder muscle soreness that would result if appellant were to start working eight hours a
day without having developed the endurance to work such hours. In the Board’s view, Dr. Mack
presented a physical reason, causally related to the accepted employment injury, for limiting
appellant to four hours a day until he gained the strength and endurance to work longer hours.
If OWCP questioned whether Dr. Mack was basing the four-hour work restriction on
appellant’s motivation, and not on a lack of strength and endurance resulting from the accepted
work injury, it bore the burden to ask him to resolve the issue before it took official action to
reduce appellant’s compensation. OWCP is responsible for determining whether the medical
evidence establishes that the claimant is able to perform the job, taking into consideration
medical conditions due to the accepted work-related injury or disease and any preexisting
9

Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953) codified at 20 C.F.R.
§ 10.403 (c)-(e).

5

medical conditions. If the medical evidence is not clear and unequivocal, it will seek medical
advice from its medical adviser, treating physician or second opinion specialist as appropriate.10
As Dr. Mack’s opinion does not clearly and unequivocally establish that appellant
currently has the capacity to earn full-time wages in the selected position of cashier II, the Board
finds that OWCP has not met its burden of proof to justify the reduction of his compensation.
Accordingly, the Board will reverse OWCP’s January 24, 2014 decision.
CONCLUSION
The Board finds that OWCP has not met its burden to justify the reduction of appellant’s
wage-loss compensation as he currently has the capacity to earn full-time wages in the selected
position of cashier II.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 14, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10

Federal (FEC) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(d) (October 2009).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, CENTRAL
MASSACHUSETTS PROCESSING &
DISTRIBUTION CENTER, Shrewsbury, MA,
Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 07-2331
Issued: June 19, 2008

Oral Argument March 4, 2008

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

JURISDICTION
On August 28, 2007 appellant filed a timely appeal of a September 5, 2006 merit decision
of the Office of Workers’ Compensation Programs, finding that she did not sustain a left
shoulder injury in the performance of duty on March 3, 2006 and a July 24, 2007 nonmerit
decision, denying her request for an oral hearing as untimely. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that she sustained a left shoulder
injury on March 3, 2006 in the performance of duty, as alleged; and (2) whether the Office
properly denied appellant’s request for an oral hearing as untimely under 5 U.S.C. § 8124.

FACTUAL HISTORY
On July 16, 2006 appellant, then a 58-year-old flat sorter machine clerk, filed a traumatic
injury claim (Form CA-1) assigned number 01-2040602. She alleged that on March 3, 2006 she
reinjured her left shoulder as a result of being forced to repetitively pitch flats in the manual flats
section. Appellant stated that she was required to work outside the restrictions set forth by her
attending physician. By letter dated July 24, 2006, the employing establishment controverted the
claim because it was not filed within 30 days of the alleged injury.
Prior to filing the instant claim, the Board notes that appellant, on November 28, 2005,
filed a CA-1 form assigned number 01-2035689 alleging that she injured her left shoulder on that
date while picking up a flat box with her left hand. By letter dated March 27, 2006, the Office
accepted the claim for sprains of the left shoulder and upper arm.1
By letter dated July 26, 2006, the Office advised appellant that the evidence submitted,
for the alleged March 3, 2006 employment incident, was insufficient to establish her claim. It
addressed the factual and medical evidence she needed to submit.
In a May 15, 2006 report, Dr. Donald H. Hangen, an attending Board-certified orthopedic
surgeon, stated that appellant was being evaluated for a work-related left shoulder injury. He
reviewed a history that she sustained an employment-related right wrist injury on March 18,
20032 and an employment-related left shoulder injury on November 28, 2005. Dr. Hangen stated
that a magnetic resonance imaging (MRI) scan of the shoulder demonstrated supraspinatus
tendinopathy. No rotator cuff tear was noted. Appellant returned to full-duty work although she
believed that light-duty work was more appropriate for her condition. Dr. Hangen stated that on
March 3, 2006 appellant reinjured her left shoulder and had been experiencing increased pain
since that time. On physical examination, he reported good range of motion of the cervical
spine, some diffuse tenderness around the shoulder, full passive and active range of motion and
rotator cuff strength that was fine. There was some subacromial crepitance and pain with
resisted motion and intact sensation and distal motor function. Appellant had a normal vascular
examination. Dr. Hangen opined that appellant continued to have some mild left shoulder
tendinitis and that no instability was detected. He concluded that her left shoulder condition was
due to repetitive motion.
In an August 24, 2006 letter, appellant addressed the difficult process she experienced in
filing her claim. She contended that the claim was timely filed, contending that her work duties
caused a reinjury of her November 28, 2005 employment-related left shoulder condition.

1

On March 16, 2006 appellant filed a claim for an occupational disease alleging that she first became aware of
her sore and aching left shoulder on November 28, 2005. She stated that on March 3, 2006 she first realized that her
injury was caused by factors of her federal employment. On March 17, 2006 appellant filed a claim alleging that
she sustained a recurrence of disability on March 3, 2006 causally related to her November 28, 2005 employmentrelated injury. By letter dated June 27, 2006, the Office advised appellant to file a CA-1 form as it appeared that she
had sustained a new injury on March 3, 2006. Accordingly, appellant filed the instant claim on July 16, 2006.
2

Appellant filed a CA-1 form assigned number 01-2015194 for a right wrist injury she sustained on March 18,
2003 as a result of lifting a flat box at work. The Office accepted the claim for a right wrist sprain.

2

By decision dated September 5, 2006, the Office denied appellant’s claim, finding the
medical evidence of record insufficient to establish that she sustained a left shoulder injury
causally related to the March 3, 2006 employment incident.
On June 25, 2007 appellant requested an oral hearing before an Office hearing
representative regarding the Office’s September 5, 2006 decision.
By decision dated July 24, 2007, the Office denied appellant’s request for a hearing under
5 U.S.C. § 8124 as untimely. It stated that her request was postmarked June 25, 2007, which was
more than 30 days after the issuance of its September 5, 2006 decision, and therefore, she was
not entitled to a hearing as a matter of right. The Office nonetheless considered the matter in
relation to the issue involved and determined that it could be addressed equally well on
reconsideration, by submitting evidence establishing that her claimed medical condition was
caused by the accepted employment incident.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 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 the Act; that the claim was
filed within applicable time limitation; that an injury was sustained while in the performance of
duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.4 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.5
To determine whether an employee actually sustained an injury in the performance of
duty, the Office must determine whether fact of injury has been established. An employee may
establish that the employment incident occurred as alleged, but fail to show that his or her
disability and/or condition relates to the employment incident.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.7
An injury does not have to be confirmed by eyewitnesses in order to establish that an employee
3

5 U.S.C. §§ 8101-8193.

4

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

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 4.
6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

3

sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and the circumstances and his or her subsequent course of action.8 An
employee’s statement regarding the occurrence of an employment incident is of great probative
force and will stand unless refuted by strong or persuasive evidence.9
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.10 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.11 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.12
ANALYSIS -- ISSUE 1
The record supports that on March 3, 2006 appellant pitched flats while working as a flat
sorter machine clerk at the employing establishment. The Board finds that the case is not in
posture for decision as to whether the accepted employment incident caused or aggravated
appellant’s left shoulder condition.
In a May 15, 2006 report, Dr. Hangen reviewed a history of appellant’s November 28,
2005 employment-related left shoulder injury. He stated that an MRI scan of the shoulder
demonstrated supraspinatus tendinopathy. Dr. Hangen indicated that appellant returned to fullduty work although she believed that light-duty work was more appropriate for her condition.
He stated that on March 3, 2006 she reinjured her left shoulder and that she had been
experiencing increased pain since that time. Dr. Hangen’s vascular examination was normal.
On physical examination, he reported his essentially normal findings with the exception of
diffuse tenderness around the shoulder, subacromial crepitance and pain with resisted motion,
and mild left shoulder tendinitis. Dr. Hangen opined that appellant’s left shoulder condition was
due to repetitive motion.
The Board finds that appellant’s allegation that she had ongoing problems with her
November 28, 2005 employment-related left shoulder condition and Dr. Hangen’s
uncontroverted opinion that the accepted March 3, 2006 employment incident aggravated this
employment-related condition are sufficient to require further development of the claim.13

8

See Betty J. Smith, 54 ECAB 174 (2002).

9

Gregory J. Reser, 57 ECAB 277 (2005).

10

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
11

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

12

Charles E. Evans, 48 ECAB 692 (1997).

13

Rebel L. Cantrell, 44 ECAB 660 (1993); John J. Carlone, supra note 10.

4

Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.14 On remand
the Office should double this case file assigned number 01-2040602 with any other injury claim
appellant has filed for the same part of the body, including case file assigned number 012035689.15 It should also prepare a statement of accepted facts and refer appellant for a second
opinion examination to obtain a rationalized opinion as to whether factors of her federal
employment aggravated her preexisting employment-related left shoulder condition. Following
this and any other further development as the Office deems necessary, an appropriate final
decision should be issued on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant
sustained a left shoulder injury on March 3, 2006 in the performance of duty.16
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for proceedings
consistent with this decision.
Issued: June 19, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
14

Claudio Vazquez, 52 ECAB 496 (2001).

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter
2.400.8(c)(1) (February 2000).
16

In light of the Board’s disposition of the first issue, the second issue regarding the Office’s denial of appellant’s
request for an oral hearing is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CONNECTICUT HEALTHCARE SYSTEM,
West Haven, CT, Employer
__________________________________________

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

Docket No. 17-0117
Issued: April 4, 2018

Case Submitted on the Record

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

JURISDICTION
On October 25, 2016 appellant filed a timely appeal from a July 19, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $966.94 for the period November 3 through 15,
2014; and (2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.

FACTUAL HISTORY
On January 17, 2014 appellant, then a 69-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that she felt excruciating, searing pain in her right arm while
opening a drawer at work on January 10, 2014.
The claim was initially administratively handled as it appeared to be a minor injury that
resulted in minimal or no lost time from work. When appellant did not return to work in a fulltime capacity, OWCP formally adjudicated the claim on April 28, 2014 and accepted it for rotator
cuff tear of the right shoulder. Appellant underwent an authorized July 18, 2014 surgical repair of
the right shoulder on July 18, 2014.
In a letter dated September 23, 2014, OWCP notified appellant that she would be receiving
compensation payments on the periodic compensation rolls as of August 29, 2014. To minimize
the possibility of an overpayment of compensation, she was instructed to notify OWCP
immediately when she went back to work. For payments sent by electronic funds transfer (EFT),
a notification of the date and amount of payment appeared on the statement from her financial
institution. Appellant was expected to monitor her EFT deposits carefully, at least every two
weeks. If she worked for any portion of the period for which a deposit was made, she was to
advise OWCP immediately so that the overpayment could be collected. OWCP noted that
appellant’s first payment would be for the period July 18 to August 23, 2014 in the net amount of
$2,703.65.
On November 10, 2014 appellant informed OWCP that she had returned to full-time work
on November 3, 2014.
On November 15, 2014 OWCP paid appellant compensation for the period October 19
through November 15, 2014. In a November 17, 2014 compensation worksheet, it noted that
appellant had returned to full-time limited duty on November 3, 2014. For the period November 3
to 15, 2014, OWCP calculated that she had received compensation in the net amount of $966.94.
This worksheet verified that appellant received gross compensation every 28 days in the amount
of $2,258.27.1 During the 13-day period of overpayment appellant was entitled to gross
compensation of $1,048.49, however, after a health insurance premium in the amount $81.55 was
subtracted, appellant received net compensation in the amount of $966.94.
By letter dated November 26, 2014, OWCP advised appellant of its preliminary
determination that an overpayment of compensation in the amount of $966.94 had been created
during the period November 3 through 15, 2014, as she was paid compensation after her return to
full-duty work on November 3, 2014. It found that she was at fault in creating the overpayment
as she knew or should have known that she was not entitled to receive wage-loss compensation
after returning to full-time work. OWCP informed appellant that she had a right to a
prerecoupment hearing before an OWCP hearing representative. Appellant was also advised to
complete the enclosed Form OWCP-20 overpayment recovery questionnaire and submit

1

Appellant’s daily wage rate was calculated as $80.6525.

2

supporting financial documentation, as this was necessary information on the issues of waiver and
recovery of the overpayment.
On January 8, 2015 OWCP received appellant’s December 26, 2014 overpayment
recovery questionnaire, which listed monthly income, monthly expenses, and additional funds.
Appellant requested a telephonic conference with OWCP on the issues of fault and possible waiver
of recovery of the overpayment. She stated on the overpayment questionnaire as well as in a
December 26, 2014 letter that the overpayment was not her fault as she had made several calls to
OWCP advising that she was going back to work on November 3, 2014 and that OWCP had the
letter from her doctor which also advised that she was going back to work on November 3, 2014.
Appellant stated that, when the deposit was received at her bank, she thought it represented her
earned salary. OWCP received an updated Form OWCP-20 on January 14, 2015. No further
action was taken by OWCP.
The July 18, 2016 scheduled overpayment telephone conference did not take place.2
By decision dated July 19, 2016, OWCP finalized the overpayment determination that an
overpayment of compensation in the amount of $966.94 was created for the period November 3
through 15, 2014 for which appellant was with fault as she had accepted compensation payments
she knew or reasonably should have known she was not entitled. It requested that she repay the
full amount of $966.94 within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.4 Section 10.500 of OWCP regulations provide that compensation for wage loss
due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.5

2
On appeal appellant acknowledges that the telephone conference did not take place because of scheduling
difficulties.
3

5 U.S.C. § 8102(a).

4

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

5

20 C.F.R. § 10.500.

3

ANALYSIS -- ISSUE 1
The Board finds that an overpayment of compensation was created.
OWCP accepted appellant’s claim and paid wage-loss compensation, placing her on the
periodic compensation rolls as of August 29, 2014. The record establishes that appellant returned
to full-time work on November 3, 2014, however, she continued to received FECA wage-loss
compensation through November 15, 2014. Appellant was not entitled to receive FECA wageloss compensation and federal salary for the same time period.6
The record establishes that appellant returned to full-time work on November 3, 2014.
Appellant continued to receive wage-loss compensation until November 15, 2014. The record
reflects that she received wage-loss compensation for the period October 19 through
November 15, 2014 in one direct deposit payment. In a compensation termination worksheet,
OWCP noted appellant’s gross compensation for the 13-day period November 3 to 15, 2014
totaled $1,048.49, and that after the premium for health benefits was subtracted she received a net
overpayment in the amount of $966.94. Appellant has not disputed the fact or amount of
overpayment. The Board finds that an overpayment of compensation in the amount of $966.94
was created in this case.7
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.8 A claimant who is at fault in the creation of the overpayment is not entitled to waiver.9
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at fault if he
or she has done any of the following: (1) made an incorrect statement as to a material fact which
he or she knew or should have known to be incorrect; (2) failed to provide information which he
or she knew or should have known to be material; or (3) accepted a payment which he or she knew
or should have known was incorrect.
The Board has held that an employee who receives payments from OWCP in the form of
direct deposit may not be at fault the first time incorrect funds are deposited into his or her account,
as the acceptance of the resulting overpayment lacks the requisite knowledge.10 The Board has
also held in cases involving a series of incorrect payments, where the requisite knowledge is
established by a letter or telephone call from OWCP or simply with the passage of time and a
greater opportunity for discovery, the claimant will be at fault for accepting the payments
6

Supra note 4.

7

See supra note 4.

8

5 U.S.C. § 8129(b).

9

See Robert W. O Brien, 36 ECAB 541, 547 (1985).

10

See Tammy Craven, 57 ECAB 689 (2006).

4

subsequently deposited.11 Previous cases have held that receiving one or two erroneous direct
deposit payments does not necessarily create the requisite knowledge to find that a claimant was
at fault in the creation of the overpayment.12
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
she accepted payments that she knew or should have known were incorrect. The Board finds,
however, that it failed to establish that she knew or should have known that the initial payment she
received after she resumed work on November 3, 2014 was erroneous.
In cases where a claimant receives compensation through direct deposit, OWCP must
establish that at the time a claimant received the direct deposit in question that he or she knew or
should have known that the payment was incorrect.13 The Board has held that an employee who
receives payments from OWCP in the form of a direct deposit may not be at fault for the first
incorrect deposit into his or her account since the acceptance of the overpayment, at the time of
receipt of the direct deposit, lacks the requisite knowledge.14 Because fault is defined by what the
claimant knew or should have known at the time of acceptance, one of the consequences of EFT
is that the claimant lacks the requisite knowledge at the time of the first incorrect payment.15
Whether or not OWCP determines that an individual is at fault with respect to the creation of an
overpayment depends on the circumstances surrounding the overpayment.16 It is inappropriate,
however, to make a finding that a claimant has accepted an overpayment via direct deposit until
such time as a reasonable person would have been aware that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or
notification from OWCP or where a reasonable period of time has passed during which a claimant
could have reviewed independent confirmation of the incorrect payment.17
OWCP paid appellant compensation by EFT every 28 days. Appellant returned to work
on November 3, 2014. On November 15, 2014 OWCP paid her compensation for the period
October 19 through November 15, 2014. There is no documentation or other evidence to
demonstrate that appellant had clear knowledge at the time the bank received the November 15,
2014 direct deposit that a portion of the payment was incorrect.18 The Board thus finds that
11

Id.

12

V.S., Docket No. 13-1278 (issued October 23, 2015).

13

See C.K., Docket No. 12-0746 (issued May 1, 2012).

14

Supra note 10.

15

Id.

16

Id.; see also K.D., Docket No. 13-0451 (issued April 12, 2013).

17

See V.S., supra note 12.

18
See M.M., Docket No. 15-0265 (issued May 27, 2015); Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).

5

appellant was without fault in accepting the initial direct deposit covering the period of the
overpayment November 3 through 15, 2014.
The Board finds that the case is not in posture for decision regarding the issue of waiver of
recovery of the overpayment for the period November 3 to 15, 2014. The Board will set aside the
July 19, 2016 decision regarding the issue of fault for this period and remand the case for OWCP
to determine whether appellant is entitled to wavier of recovery of the overpayment covering the
period November 3 to 15, 2014.19
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation during the period November 3 to 15, 2014 in the amount of $966.94. The Board
further finds that she was without fault for the period of the overpayment from November 3
to 15, 2014. The case will be remanded for OWCP to consider waiver of recovery of the
overpayment from November 3 to 15, 2014.20

19

The Board does not have jurisdiction to review the recovery of the overpayment as its jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation under FECA. See 20 C.F.R.
§ 10.441(a); Ronald E. Ogden, 56 ECAB 278 (2005).
20

Due to the disposition of this case, appellant’s arguments on appeal will not be addressed.

6

ORDER
IT IS HEREBY ORDERED THAT the July 19, 2016 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings consistent with this opinion of the Board.
Issued: April 4, 2018
Washington, DC

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

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

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

7