United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
DEPARTMENT OF ARICULTURE, FOREST
SERVICE, Ironwood, MI, Employer
__________________________________________

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

Docket No. 14-0995
Issued: July 9, 2015

Case Submitted on the Record

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

JURISDICTION
On March 21, 2014 appellant, through counsel, filed a timely appeal from a January 13,
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 case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation based on the
capacity to earn wages in the selected position of paralegal.
FACTUAL HISTORY
This case was before the Board on a prior appeal.2 As the Board noted, appellant was an
emergency casual firefighter who claimed a left knee injury while climbing a hill in the
1

5 U.S.C. § 8101 et seq.

2

Docket No. 06-1428 (issued November 29, 2006).

performance of duty on July 5, 2002. OWCP initially accepted the claim for left knee internal
derangement and medial meniscus tear. By decision dated January 5, 2005, it found appellant’s
wage-earning capacity was represented by the actual wages earned as an information receptionist
at the employing establishment from November 1, 2004 to February 5, 2005. The Board
affirmed the wage-earning capacity determination, noting that appellant was in a temporary
position at the time of injury. The history of the case as provided by the Board is incorporated
herein by reference.
Appellant received a schedule award for 24 percent left leg impairment by decision dated
February 22, 2005 and received compensation from October 31, 2004 to February 26, 2006. On
June 11, 2009 OWCP accepted the claim for patellofemoral pain syndrome and patellofemoral
compartment osteoarthritis. On July 28, 2009 appellant underwent left knee surgery and began
receiving compensation for wage loss.
OWCP referred appellant for vocational rehabilitation services in February 2011. As part
of his vocational rehabilitation plan, appellant pursued a Senior Paralegal Certificate Program
from the Washington Online Learning Institute and successfully received the certification in
September 2012. In a report dated October 10, 2012, the rehabilitation counselor noted that
appellant’s address was Iron River, Michigan, but noted that he had plans to relocate to a larger
city in central Wisconsin, Green Bay, Wisconsin. In a December 14, 2012 report, she indicated
that appellant had found an apartment in Green Bay, Wisconsin and was seeking employment.
In a report dated December 21, 2012, the attending physician, Dr. Timothy Mologne, a
Board-certified orthopedic surgeon, found that appellant could continue to work with existing
work restrictions. He reported that appellant could lift 40 pounds, with no kneeling on the left
knee, no left leg squatting and no jumping or hopping onto the left leg.
The record contains a status report (OWCP-3) from an OWCP rehabilitation counselor
stating that the position of paralegal was being performed in sufficient numbers within
appellant’s commuting area with weekly wages of $673.07. In the rehabilitation report, the
vocational rehabilitation counselor indicated that appellant had been actively pursuing
employment as a paralegal assistant in Green Bay, Wisconsin. A March 6, 2013 e-mail from
appellant indicated that he was relocating to California from Wisconsin, with the hope that there
might be better opportunity for a job in California. The counselor noted that recent labor market
surveys showed available employment both in his new location in California and his former
location in Green Bay, Wisconsin. As of March 21, 2013 appellant had moved to California. On
March 26, 2013 an OWCP rehabilitation specialist completed a Form 66 job classification for the
position of paralegal. The position was described as a “light” position with 20 pounds occasional
lifting. As to specific vocational preparation (SVP), the specialist stated that appellant “will be
trained to meet the SVP requirement.” With respect to availability, she stated that the job was
available, noting appellant’s willingness to relocate. The report stated that labor market survey
calls and web search showed job listings in Michigan, Green Bay, Wisconsin and California.
The hourly rate was $12.00 to $20.00 and the weekly wage was reported as $480.00 to $800.00.
By letter dated May 13, 2013, OWCP advised appellant that it proposed to reduce his
compensation as he had the capacity to earn wages as a paralegal, Department of Labor’s
Dictionary of Occupational Titles, DOT No. 119.267.026 with wages of $480.00 per week.

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Appellant was advised to submit evidence within 30 days if he disagreed with the proposal.
With respect to the pay rate calculations, OWCP stated that the date of recurrence was
July 28, 2009. It found that appellant had not worked for the employing establishment since
2004, when he worked in the temporary position of information receptionist. According to
OWCP, although the effective date was July 28, 2009, appellant’s pay rate would be determined
based on temporary position beginning November 1, 2004. Based on an hourly wage of $12.79,
it determined that a full-time employee at this rate would earn $513.32 per week. Appellant
testified that in addition to his date-of-injury temporary firefighter position for the employing
establishment, he was also working as a part-time paid firefighter and a heavy automatic
mechanic and tow truck driver in Iron River, Michigan.
By decision dated June 24, 2013, OWCP reduced appellant’s compensation based on
capacity to earn weekly wages of $480.00 as a paralegal. Appellant’s pay rate was found to be
$513.32 per week, his current date-of-injury pay rate $627.71 and his continuing compensation
would be based on a loss of wage-earning capacity of $123.30 per week.
Appellant requested a hearing before an OWCP hearing representative, which was held
on November 25, 2013. At the time of the hearing, he had moved back to Iron River, Michigan.
Appellant argued that the selected position was not reasonably available in his area, that he did
have the vocational qualifications for the position, and that OWCP had incorrectly calculated his
pay rate.
By decision dated January 13, 2014, OWCP hearing representative affirmed the June 24,
2013 decision. She found the evidence was sufficient to meet OWCP’s burden of proof to
reduce appellant’s compensation based on wage-earning capacity.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.3
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or if
the employee has no actual earnings, his or her wage-earning capacity is determined with due
regard to the nature of his or her injury, his or her degree of physical impairment, his or her usual
employment, his or her age, his or her qualifications for other employment, the availability of
suitable employment, and other factors and circumstances which may affect his or her wageearning capacity in his or her disabled condition.4
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
3

Carla Letcher, 46 ECAB 452 (1995).

4

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

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selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.5 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.6
ANALYSIS
In the present case, based upon appellant’s vocational rehabilitation, OWCP selected the
position of paralegal and determined that earnings of $480.00 per week represented his wageearning capacity. The Board finds that OWCP properly reduced appellant’s compensation in this
case.
Appellant did not raise an argument with respect to the medical suitability of the selected
position. The attending physician, Dr. Mologne, indicated that appellant could lift 40 pounds,
with no squatting or kneeling with the left knee or leg. The selected position was limited to 20
pounds lifting and there was no indication the position was outside any work restrictions.
The selected position must also be vocationally suitable and reasonably available in
appellant’s commuting area. In this regard, the evidence indicated that appellant had completed
a certification course for a position as a paralegal assistant. The rehabilitation counselor
confirmed that appellant had sufficient vocational preparation for the paralegal position.
As to reasonable availability of the position in appellant’s commuting area, the record
indicated that appellant initially lived in Iron River, Michigan then in late 2012 had taken an
apartment in Green Bay, Wisconsin while looking for a job. Prior to the completion of the CA66 by the rehabilitation specialist on March 27, 2013, appellant had moved to California. The
rehabilitation counselor looked at job availability in all three locations and found the selected
position was reasonably available in all of these commuting areas.
With respect to wages, the rehabilitation counselor found that entry-level wages began at
$480.00, and no contrary evidence was presented. She indicated that the wage rate was based on
review of job listings and Department of Labor wage statistics. As noted above, OWCP then
determines the loss of wage-earning capacity by applying the established formula set forth at 20
C.F.R. § 10.403. OWCP found the pay rate for compensation purposes as of the July 2009
surgery was $515.13 per week based on full-time work, and the current pay rate for the date-ofinjury job was $627.71. Applying the formula, OWCP found appellant had 78 percent wage-

5

See Dennis D. Owen, 44 ECAB 475 (1993).

6

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403 (employee’s wage-earning capacity in terms of percentage is
determined by dividing the employee’s earnings by the current pay rate for the date-of-injury job. The wage-earning
capacity in terms of dollars is computed by multiplying the pay rate for compensation purposes by the percentage of
wage-earning capacity).

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earning capacity and was entitled to a 28-day compensation rate of $351.00. No contrary
evidence was presented.
On appeal, appellant argues that his education was insufficient and did not qualify him
for employment. For the reasons noted above, the Board finds that OWCP properly found the
selected position represented appellant’s wage-earning capacity. The Board notes that OWCP is
not obligated to actually secure employment for appellant.7 Even if the employee is unsuccessful
in obtaining work, this does not in itself establish that the selected position was not reasonably
available.8 Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation based on wageearning capacity in the selected position.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 13, 2014 is affirmed.
Issued: July 9, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7

Dennis D. Owen, 44 ECAB 475 (1993).

8

See Karen L. Lonon-Jones, 50 ECAB 293 (1999); Wilson L. Clow, Jr., 44 ECAB 157 (1992).

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

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1754
Issued: February 8, 2008

Case Submitted on the Record

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

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from a June 11, 2007 decision of the
Office of Workers’ Compensation Programs that denied her schedule award claim and request
for expansion of accepted conditions. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant met her burden of proof in establishing that she was
entitled to a schedule award for permanent partial impairment of the right upper extremity and
bilateral lower extremities; and (2) whether her right shoulder rotator cuff impingement
syndrome, lumbosacral degenerative disc disease, lumbar radiculopathy and left ankle strain are
causally related to her accepted August 21, 2004 traumatic injury.
FACTUAL HISTORY
On August 21, 2004 appellant, then a 50-year-old letter carrier, sustained injury to her
back, neck and face, leg and ankle, shoulder and bilateral arm injuries after being struck by a

moped. She stopped work on August 24, 2004 returned to limited duty on September 29, 2004.
The Office accepted appellant’s claim for lumbar strain, right wrist contusion and right ankle
sprain/strain.
On August 23, 2004 appellant was treated by Jessica Hoch, a physician’s assistant, who
diagnosed sprains and strains of the lumbosacral and thoracic regions, ankle, foot and wrist. In a
report dated the same day, Ms. Hoch noted no gross deformity or soft tissue swelling and
generally normal results on physical examination of appellant’s lumbar spine, right wrist and
bilateral ankles, “all secondary to subjective complaints of pain.” Appellant also provided
August 24 and September 1, 2004 reports from her treating physician, Dr. Robert H. Woodson, a
family practitioner. He diagnosed multiple severe contusions, right thumb and wrist traumatic
synovitis and contusion, left lumbosacral contusion with sprain/strain, left ankle contusion and
sprain, bilateral arm contusions and post-traumatic cephalgia and anxiety. On October 15, 2004
Dr. Woodson advised that appellant sustained multiple sprain/strain and bruising injuries for
which the healing process could be unpredictable and protracted.
On July 10, 2006 appellant filed a schedule award claim.
By decision dated September 26, 2006, the Office denied appellant’s schedule award
claim on the grounds that the medical evidence did not establish that she sustained any
permanent impairment of a schedule member or function of the body.
In an October 23, 2006 x-ray report of appellant’s left and right ankles, Dr. Douglas
Parrillo, a radiologist, diagnosed spurring at the plantar surface of the calcaneal bone at the
attachment of the left Achilles tendon, as well as on the calcaneal bone itself and spurring dorsal
to the first left cuneiform bone suggestive of an old tendon injury but no fractures, dislocations
or soft tissue abnormalities. In an October 24, 2006 lumbar magnetic resonance imaging (MRI)
scan, Dr. Howard C. Hutt, a Board-certified radiologist, diagnosed disc desiccation at L4-5 and
L5-S1 with herniations at both levels, but without stenosis and without increases in the
herniations upon flexion and extension. On November 2, 2006 Dr. Robert Diamond, a Boardcertified diagnostic radiologist, reported that an October 31, 2006 weight bearing resonance scan
of appellant’s right shoulder revealed trace amounts of fluid in the glenohumeral joint,
hypertrophic changes in the acromioclavicular joint, laterally down sloping acromion and
supraspinatus and subscapularis tendinitis.
On January 5, 2007 appellant requested reconsideration of the September 26, 2006
decision. She provided an October 12, 2006 impairment rating from Dr. George Rodriguez, a
Board-certified physiatrist, who noted appellant’s complaints of right wrist, low back and
bilateral ankle pain. Dr. Rodriguez diagnosed lumbosacral sprain/strain, preexisting and
aggravated lumbar degenerative disc disease, lumbar radiculopathy, right hand and wrist
contusions, bilateral ankle strain and right rotator cuff impingement syndrome and found that
appellant reached maximum medical improvement on December 31, 2004. He addressed causal
relationship noting that appellant’s medical records and physical examination were consistent
and that he did not find evidence of symptom magnification and concluded, “my examination of
[appellant], as well as my review of her records, has convinced me that the above-listed
diagnoses are, in fact, attributable to the work-related injuries” of August 21, 2004. Utilizing the

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American Medical Association, Guides to the Evaluation of Permanent Impairment,1 fifth
edition (A.M.A., Guides), Dr. Rodriguez determined that appellant had seven percent right leg
impairment based on four percent for sensory nerve impairment pursuant to Table 15-2,2 Figure
15-13 and Tables 15-154 and 15-185 and three percent impairment for pain pursuant to Chapter
18, section 18.3(d).6 He concluded that appellant had four percent impairment of the right arm,
based on two percent impairment for rotator cuff impairment syndrome pain and two percent
impairment for wrist and hand pain under section 18.3(d).7 Dr. Rodriguez found that appellant
had one percent left leg impairment for ankle pain based on section 18.3(d). Dr. Rodriguez
determined that appellant’s total combined impairment was 12 percent.
The Office requested that a medical adviser address appellant’s impairment rating and
whether to expand acceptance to include lumbar degenerative disc disease, lumbar
radiculopathy, left ankle strain and right shoulder impingement syndrome. In a February 16,
2007 report, the Office medical adviser recommended referring appellant for a second opinion
examination. He noted that Dr. Rodriguez’s impairment rating did not comport with the A.M.A.,
Guides and advised against accepting any new medical conditions.
In reports dated November 7, 2006 to May 15, 2007, Dr. Rodriguez diagnosed
lumbosacral sprain/strain, right hand/wrist contusion, right ankle strain, right rotator cuff
impingement syndrome, right tendinisis/tendinipathy, lumbar herniated nucleus pulposis and
chronic pain. He stated that appellant’s diagnosed conditions were secondary to her August 21,
2004 work injury. He reiterated his opinion on causal relationship in his subsequent reports.
On May 11, 2007 the Office referred appellant, together with a statement of accepted
facts, to Dr. Kevin Hanley, a Board-certified orthopedic surgeon, for a second opinion
examination. In a May 25, 2007 report, Dr. Hanley noted the history of appellant’s work injury
and her ongoing complaints of back, right wrist and right ankle injury. He noted that x-rays
taken at the time of injury indicated that she did not break any bones or sustain any osseous
injuries. Dr. Hanley stated that, although the “findings at the time of the original injury were
relatively minor,” appellant continued to claim residuals three years later. The x-rays taken at
the time of injury showed that appellant had apparently preexisting degenerative disease in the
foot and ankle area. Upon physical examination, Dr. Hanley noted generally normal findings,
full strength and no swelling and “nothing to suggest any significant problem in the right lower
extremity” as well as normal findings other than complaints of discomfort in the right hand and
wrist areas. He also found that appellant’s lumbar spine range of motion was somewhat limited.
1

A.M.A., Guides (5th ed.).

2

Id. at 376, Table 15-2.

3

Id. at 377, Figure 15-1.

4

Id. at 424, Table 15-15.

5

Id. at 424, Table 15-18.

6

Id. at 573, § 18.3(d).

7

Id.

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Dr. Hanley diagnosed contusion and sprain/strain of the right wrist, contusion and sprain/strain
of the right ankle and chronic low back pain. Because his physical examination findings
concerning appellant’s right arm and right leg were normal, Dr. Hanley concluded that there was
no ratable impairment and that Dr. Rodriguez’s impairment rating for those schedule members
did not comport with the A.M.A., Guides. Dr. Hanley explained: “Dr. Rodriguez utilized
mostly Chapter 18, the pain chapter and came up with numerical ratings which are clearly
inappropriate and not allowed for by the A.M.A., Guides. Pain can be utilized to justify an ‘add’
on to an already determined disability up to three percent but in this particular case that is not the
way it was done.” Dr. Hanley also recommended that the “accepted conditions should not be
expanded as I find nothing going on in the shoulder as a consequence of [appellant] injury and
that would not be causally related to her claim at this time.” He concluded that appellant’s
accepted conditions had “fully resolved and I believe that her objective symptomatology is not
validated or supported by objective findings.” In a work capacity evaluation prepared the same
day, he advised that appellant had reached maximum medical improvement and could work her
usual job.
By decision dated June 11, 2007, the Office denied appellant’s schedule award claim and
her request to expand the accepted conditions.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing regulations9 sets forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.10
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet her burden of proof in establishing that she
sustained impairment to the right arm, right leg or left leg due to the accepted injury.
With regard to the right arm, Dr. Rodriguez determined that appellant had a total of four
percent impairment: two percent for right rotator cuff impingement syndrome pain and two
percent for wrist and hand pain, based on section 18.3(d), page 573, of the A.M.A., Guides.11
The Board notes that section 18.3(d) of the A.M.A., Guides instructs a physician to first conduct
a body or organ based impairment rating and determine an impairment percentage, at which
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404 (1999).

10

See id.

11

A.M.A., Guides, 573, § 18.3(d).

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point the additional percentage for pain may be added on at the physician’s discretion.12
However, section 18.3(b), at page 571, states that examiners should not use Chapter 18 to rate
pain-related impairment “for any condition that can be adequately rated on the basis of the body
and organ impairment rating systems given in other chapters of the A.M.A., Guides.”13 The
Board has also recognized that physicians should not use Chapter 18 to rate pain-related
impairments for any condition that can be adequately rated on the basis of the body and organ
impairment systems given in other chapters of the A.M.A., Guides.14 Dr. Rodriguez did not
provide an impairment rating based on either the body or organ systems, but rather based the
rating entirely on pain, against the direction of sections 18.3(b) and (d). His rating of two
percent impairment for right shoulder rotator cuff impingement syndrome pain and wrist and
hand pain does not conform to the A.M.A., Guides or Office protocols. The record reflects that
the Office has not accepted right rotator cuff impingement. The only right arm condition
accepted by the Office was right wrist contusion. Dr. Rodriguez did not adequately explain why
the accepted wrist contusion caused permanent impairment. Although Dr. Rodriguez opined that
the right shoulder rotator cuff impingement syndrome was related to appellant’s work injury, he
did not provide sufficient rationale to establish that appellant’s rotator cuff impingement
syndrome was work related. His opinion is insufficient to establish any employment-related
permanent impairment of the right arm.
With regard to the left leg, the Office did not accept a left ankle condition. The only
lower extremity condition accepted by the Office as employment related was appellant’s right
ankle sprain. Therefore, Dr. Rodriguez’s rating of one percent impairment for left ankle pain is
inappropriate under the A.M.A., Guides.15 As to the right leg, Dr. Rodriguez determined that
appellant had four percent impairment due to sensory deficit, based on Tables 15-2,16 15-1517
and 15-1818 and Figure 15-119 of the A.M.A., Guides and added an additional three percent for
pain under section 18.3(d).20 However, he did not provide a full description of the factors that
12

Id.

13

Id. at 571, § 18.3(b).

14

A.G., 58 ECAB __ (Docket No. 07-677, issued June 21, 2007), citing Frantz Ghassan, 57 ECAB __ (Docket
No. 05-1947, issued February 2, 2006) (appellant’s physician improperly attributed three percent left leg impairment
to Chapter 18 of the A.M.A., Guides but the physician did not explain why this pain-related impairment could not be
adequately rated by applying Chapter 17 of the A.M.A., Guides).
15

See Veronica Williams, 56 ECAB 367 (2005) (where the Board held that the Office properly denied appellant’s
schedule award claim where the condition for which she claimed the schedule award was not accepted as
employment related and appellant had not met her burden of proof in establishing that it was causally related to her
employment or her accepted conditions). Matters pertaining to causal relationship of conditions not accepted by the
Office are further addressed in the issue two analysis.
16

Id. at 376.

17

Id. at 424.

18

Id.

19

Id. at 377.

20

Id. at 573.

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led him to his impairment rating and did not explain how the findings on examination supported
an impairment rating. He noted that appellant’s ankle range of motion was full and complete.
Dr. Rodriguez also included an additional three percent impairment for pain based on section
18.3(d) of the A.M.A., Guides.21 However, he did not explain why appellant’s pain-related
impairment could not be adequately addressed by applying the body and organs impairment
rating methods in other chapters. Moreover, having provided a sensory rating under Chapter 15,
Dr. Rodriguez did not explain why an additional rating for pain under Chapter 18 would be
warranted. In essence, his rating of right leg impairment rated sensory loss (pain) twice.22
The Office referred appellant to Dr. Hanley for a second opinion examination.
Dr. Hanley examined appellant and provided a detailed, rationalized medical report on
May 25, 2007. He noted that appellant did not break any bones or sustain any osseous injuries at
the time of injury. She continued to claim residuals from her strains and contusions more than
three years after the accident. Dr. Hanley found that appellant’s arms and right leg were
generally normal on examination and did not support any impairment rating under the A.M.A.,
Guides. He also explained that the use of Chapter 18 was improper as there was no objective
basis upon which to base an impairment rating and appellant’s examination did not support an
additional impairment rating for pain. Dr. Hanley’s report provides no basis upon which
permanent impairment of a schedule body member may be attributed to the August 21, 2004
employment injury.
LEGAL PRECEDENT -- ISSUE 2
When an employee claims that he or she sustained an injury in the performance of duty,
the employee 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. The employee
must also establish that such event, incident or exposure caused an injury. Once an employee
establishes an injury in the performance of duty, he or she has the burden of proof to establish
that any subsequent medical condition or disability for work, which the employee claims
compensation, is causally related to the accepted injury.23 To meet his or her burden of proof, an
employee must submit a physician’s rationalized medical opinion on the issue of whether the
alleged injury was caused by the employment incident.24 Medical conclusions unsupported by
rationale are of diminished probative value and are insufficient to establish causal relation.25
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained lumbar strain, right wrist contusion and right
ankle sprain/strain at work when she was struck by a moped. She also claimed injuries to her
21

Id.

22

See E.P., 58 ECAB ___ (Docket No. 07-1244, issued September 25, 2007).

23

See Leon Thomas, 52 ECAB 202 (2001).

24

See Gary J. Watling, 52 ECAB 278 (2001).

25

Albert C. Brown, 52 ECAB 152 (2000).

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face, neck and right shoulder. The Office found the medical evidence did not support these
injuries.
The Board finds that appellant has not presented sufficient evidence to warrant expansion
of her claim to include right shoulder rotator cuff impingement syndrome, lumbosacral
degenerative disc disease, lumbar radiculopathy or left ankle strain, as accepted conditions. She
provided numerous progress reports from Dr. Rodriguez, who diagnosed right shoulder rotator
cuff impingement syndrome, but did not provide a rationalized medical opinion explaining how
this condition was related to her employment injury on August 21, 2004. Rather, Dr. Rodriguez
simply noted the diagnosis and appellant’s history of injury and discussed physical examination
findings and the course of her treatment. He did not adequately explain the basis for attributing
her additional claimed conditions to the August 21, 2004 accident, nor did he explain why he
believed they were caused by the accepted accident. Dr. Rodriguez’ October 12, 2006 report and
impairment rating merely noted that appellant’s medical records and physical examination were
consistent and that he did not find any evidence of symptom magnification. However, this
statement is insufficient to establish a causal relationship between appellant’s employment injury
and accepted conditions and her claimed right shoulder rotator cuff impingement syndrome,
lumbosacral degenerative disc disease, lumbar radiculopathy or left ankle strain. Dr. Rodriguez
did not discuss these conditions individually and did not provide a full explanation of how and
why appellant’s claimed conditions were caused or contributed to by her accepted injury.
Without further elaboration, his October 12, 2006 report and his progress notes are insufficient to
establish that appellant’s claim should be expanded to include additional diagnoses.
The Office referred appellant to Dr. Hanley for a second opinion. In his May 25, 2007
report, Dr. Hanley explained that his examination findings did not indicate that appellant’s
shoulder condition, additional lumbar conditions or left ankle strain were related to her accepted
employment injury. He opined that “accepted conditions should not be expanded as I find
nothing going on in the shoulder as a consequence of appellant’s injury and that would not be
causally related to her claim at this time.” Dr. Hanley found no basis on which to attribute any
other condition to appellant’s work injury. Accordingly, the medical evidence does not support
expansion of appellant’s claim to include additional diagnoses. She did not meet her burden of
proof in establishing that these additional diagnosed conditions are due to her August 21, 2004
employment injury.
CONCLUSION
The Board finds that appellant did not meet her burden of proof in establishing that she
was entitled to a schedule award for permanent partial impairment of the right arm and legs. It
also finds that she did not meet her burden of proof in establishing that her right shoulder rotator
cuff impingement syndrome, lumbosacral degenerative disc disease, lumbar radiculopathy and
left ankle strain, are causally related to her August 21, 2004 employment injury.

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ORDER
IT IS HEREBY ORDERED THAT the June 11, 2007 and September 26, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 8, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE ARMY, CIVILIAN
PERSONNEL ADVISORY CENTER,
Fort Hood, TX, Employer
__________________________________________

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

Docket No. 12-1063
Issued: November 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 10, 2012 appellant filed a timely appeal from a February 28, 2012 merit
decision of the Office of Workers’ Compensation Programs. 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.2
ISSUE
The issue is whether appellant has established that she sustained an injury in the
performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence with her appeal to the Board. However, the Board
may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On November 29, 2011 appellant, then a 55-year-old management assistant, filed an
occupational disease claim alleging that her carpal tunnel condition was due to her employment
duties. Specifically, she attributed it to using her right hand for scrolling, typing, numbers and
the mouse and being on the keyboard for at least seven hours per day.
Appellant noted that she first became aware of the condition on October 3, 2011, but did
not realize it was employment related until October 30, 2011.
By letter dated December 6, 2011, OWCP informed appellant regarding the medical and
factual evidence to submit to support her claim. It noted that she had not submitted any evidence
with her claim and advised her as to the elements required to support an occupational disease
claim. Appellant was given 30 days to provide the requested evidence.
In response to OWCP’s letter, appellant submitted medical and factual evidence. The
factual evidence consisted of statements from appellant and Diane Papke, her supervisor, and a
position description. The medical evidence consisted of reports from Dr. Heath Henbest, a
treating osteopath, specializing in family medicine.
In a November 4, 2011 duty status report (Form CA-20), appellant was released to
resume work that day with restrictions by Dr. Henbest.
In a November 10, 2011 letter, Dr. Henbest reported seeing appellant on November 4,
2011 for right wrist pain complaints. He opined that appellant’s complaints were due to the
repetitive right wrist and hand use required by her employment duty of typing.
By decision dated February 28, 2012, OWCP denied appellant’s claim as the record
contained no medical evidence containing a diagnosis.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of 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 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 or an occupational disease.5
OWCP regulations define the term occupational disease or illness as a condition
produced by the work environment over a period longer than a single workday or shift.6 To
3

5 U.S.C. § 8101 et seq.

4

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

5

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

6

20 C.F.R. § 10.5(ee). See S.M., Docket No. 09-2290 (issued July 12, 2010); Donald W. Wenzel, 56 ECAB
390 (2005).

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establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit: (1) medical evidence establishing the presence or existence of
the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.7
If a claimant does establish an employment factor, he or she must submit medical
evidence showing that a medical condition was caused by such a factor.8 The medical evidence
required to establish causal relationship is generally rationalized medical opinion evidence from
a physician. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the employee.9
ANALYSIS
OWCP accepted that the occupational exposure occurred as alleged from keyboard use
and using her right hand for scrolling, typing, numbers and the mouse. It found that the evidence
of record was devoid of any medical evidence diagnosing a condition. The issue is whether
appellant has established that she sustained a carpal tunnel condition causally related to the
accepted employment factors. The Board finds that appellant has failed to meet her burden of
proof.
The medical evidence submitted by appellant fails to provide a physician’s opinion with a
firm diagnosis or an opinion explaining how her carpal tunnel condition was caused or
aggravated by the accepted employment factors. In the November 4, 2011 duty status report,
Dr. Henbest noted work restrictions but provided no diagnosis. Similarly, in his November 10,
2011 report, Dr. Henbest provided no diagnosis or mentioned any medical condition. As the
medical evidence of record does not contain any firm diagnosis, rationale or explanation of the
mechanism of injury arising from her accepted employment duties, appellant failed to meet her
burden.10
An award of compensation may not be based on surmise, conjecture or speculation.11
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.12 The fact that a condition manifests itself or worsens during a
7

D.U., Docket No. 10-144 (issued July 27, 2010); Roy L. Humphrey, 57 ECAB 238 (2005); Frankie A. Farinacci,
56 ECAB 723 (2005).
8

C.D., Docket No. 09-1881 (issued April 20, 2010); Effie Morris, 44 ECAB 470 (1993).

9

D.S., Docket No. 09-860 (issued November 2, 2009); I.J., 59 ECAB 408 (2008); B.B., 59 ECAB 234 (2007);
Solomon Polen, 51 ECAB 341 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).
10

Gary M. DeLeo, 56 ECAB 656 (2005); Victor J. Woodhams, supra note 9.

11

E.J., Docket No. 09-1481 (issued February 19, 2010); D.D., 57 ECAB 734 (2006); Paul E. Thams, 56 ECAB
503 (2005).
12

W.D., Docket No. 09-658 (issued October 22, 2009); Sandra D. Pruitt, 57 ECAB 126 (2005).

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period of employment13 or that work activities produce symptoms revelatory of an underlying
condition14 does not raise an inference of causal relationship between a claimed condition and an
employment incident.
Because appellant has not submitted competent medical opinion evidence containing a
firmly diagnosed medical condition or one that soundly explains how the accepted employment
incident caused or aggravated a firmly diagnosed medical condition, the Board finds that
appellant has not established the essential element of a diagnosed medical condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained right carpal tunnel syndrome in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 28, 2012 is affirmed.
Issued: November 20, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

13

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

14

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

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United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
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and
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DEPARTMENT OF THE INTERIOR, NEW
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RIVER GEORGE NATIONAL RIVER,
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Glen Jean, WV, Employer
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___________________________________________ )
M.C., Appellant

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

Docket No. 08-1581
Issued: December 23, 2008

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 May 12, 2008 appellant filed a timely appeal of a February 12, 2008 decision of the
Office of Workers’ Compensation Programs’ hearing representative, who affirmed the denial of
his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury in the performance of duty on December 1, 2005.
FACTUAL HISTORY
On December 18, 2005 appellant, then a 42-year-old park ranger filed a traumatic injury
claim alleging that on December 1, 2005 he sustained a lower back injury during required
physical fitness training in the performance of duty. His supervisor stated that appellant was
engaging in weight training at the time of the claimed injury. Appellant did not stop work.

By letter dated February 5, 2007, the Office advised appellant that additional factual and
medical evidence was needed. It explained that a physician’s opinion was crucial to his claim
and allotted 30 days to submit the requested information.
In a February 6, 2007 response, appellant alleged that, on December 1, 2005, he was
lifting weights while on approved government physical fitness time and using government
equipment. While he was doing overhead presses of 115 pounds in a seated position, he felt a
“tweek” in his lower back which caused a sharp pain. Appellant informed Rob Tvran, his
immediate supervisor, who advised that he should file a Form CA-1. He also indicated that the
immediate effects of his injury included extreme lower back pain, which caused difficulty
walking. Appellant indicated that he had not seen a physician, with the exception of having
x-rays taken on November 16, 2006 “for other problems.” He indicated that his x-rays revealed
degenerative changes of the spine.
By decision dated March 21, 2007, the Office found that the evidence supported the
December 1, 2005 incident as alleged, but the medical evidence did not establish that appellant
sustained a diagnosed condition causally related to the incident.
On April 5, 2007 appellant requested a hearing. On November 28, 2007 he requested a
review of the written record. Appellant reiterated that his lower back injury occurred while
weight lifting. He noted that he had since had three occurrences of lower back pain which were
similar to the initial injury but did not seek medical attention.
By decision dated February 12, 2008, the Office hearing representative affirmed the
March 21, 2007 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

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experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
ANALYSIS
Appellant alleged that on December 1, 2005 he sustained a low back injury during
required physical fitness training in the performance of duty. The Office accepted that appellant
was engaged in authorized weight training when the claimed injury occurred. The Board finds
that the December 1, 2005 incident occurred as alleged.
The Board finds, however, that there was no medical evidence submitted to establish that
appellant sustained a low back injury causally related to the incident of December 1, 2005. In a
letter dated February 5, 2007, the Office requested that appellant submit medical evidence in
support of his claim, including a comprehensive medical report from a treating physician which
included a diagnosis and reasoned explanation as to how the incidents caused an injury.
However, no medical evidence was submitted.
Appellant’s burden of proof includes the submission of rationalized medical opinion
evidence, based on a complete factual and medical background, supporting such a causal
relationship between the employment incident and the diagnosed condition. The record contains
no medical evidence. Because appellant has not submitted medical opinion explaining how and
why a diagnosed low back condition was caused by the incident of December 1, 2005, he has not
met his burden of proof. He has failed to establish a prima facie claim for compensation.7
Causal relationship is a medical issue, and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors.
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 his or her condition was caused, precipitated or aggravated by his or her
employment, is sufficient to establish causal relationship.9

5

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

6

Id.

7

Donald Wenzel, 56 ECAB 390 (2005).

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

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CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 12, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 23, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Catlettsburg, KY, Employer
__________________________________________

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

Docket No. 17-1189
Issued: December 27, 2017

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 May 9, 2017 appellant, through counsel, filed a timely appeal from a January 31,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act (FECA)2 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 her burden of proof to establish a traumatic injury
causally related to the accepted May 31, 2016 employment incident.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 8, 2016 appellant, then a 38-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 31, 2016, she pinched a nerve in her left arm as a result of
working nine and a half hours that day. She stopped work on June 4, 2016.
In an accident interview sheet dated May 31, 2016, appellant noted that she did not know
of any specific event that led to her injury. In a root cause analysis worksheet of the same date,
she noted that she had worked nine and a half hours that day.
In a diagnostic report dated June 2, 2016, Dr. Grant Petty, a Board-certified radiologist,
examined the results of computed radiography of appellant’s left shoulder. He stated his
impression of a normal examination of the left shoulder.
In a diagnostic report of the same date, Dr. Donald Lewis, a Board-certified radiologist,
examined the results of computed radiography of appellant’s thoracic spine. He stated his
impression of no acute findings with mild scoliosis. In a diagnostic report dated June 3, 2016,
Dr. Lewis examined the results of a computerized tomography scan of appellant’s cervical spine.
He stated impressions of a right paracentral herniated nucleus pulposus (HNP) at C5-6 with
probable cord impingement and degenerative disc disease at C6-7.
By emergency department note dated June 3, 2016, Dr. Beth Toppins, a Board-certified
family practitioner, noted that appellant presented at urgent care, with shoulder pain complaints,
but that she expressed no known injury.
In a report dated June 4, 2016, Dr. Daniel Whitmore, Board-certified in internal medicine
and pediatrics, examined appellant and diagnosed a bulging disc at C5-6 and cervicalgia. He
noted that she stated that her neck pain began at the same time she “started working a lot” at the
employing establishment.
In a diagnostic report dated June 11, 2016, Dr. Rodger Blake, a Board-certified
radiologist, examined the results of a magnetic resonance imaging (MRI) scan of appellant’s
cervical spine. He stated impressions of degenerative changes to the cervical spine, more
pronounced in the lower cervical spine; congenital spinal canal stenosis of the lower cervical
spine; disc protrusion at C5-6 producing high-grade spinal canal stenosis and possible
impingement on the right C6-7 nerve roots; disc protrusion at C6-7 producing moderate lateral
recess stenosis; and hypertrophy of the posterior longitudinal ligament from C4 to C7.
In a report dated July 12, 2016, Dr. Eric Cooper, a chiropractor, examined appellant and
rendered assessments of sprain of the ligaments of the cervical spine and sprain of the ligaments
of the thoracic spine.
By letter dated July 15, 2016, a supervisor noted that appellant had worked nine and a
half hours on May 31, 2016, after which she worked a few hours in the morning of June 1, 2016.
The supervisor noted that appellant did not report any pain or injury on those dates. Appellant
called off work June 4, 6, and 7, 2016 due to pain in her neck and back. When interviewed upon
her return to work on June 8, 2016, she claimed that she did not know how she was injured or
when, and that there was no specific moment when “something happened.” Appellant claimed
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that, after working on May 31, 2016, she went home sore and woke up the next morning in pain.
She worked June 1, 2016 as scheduled.
By letter dated July 27, 2016, OWCP informed appellant of the evidence needed to
establish her claim. It noted that she had not provided sufficient medical or factual evidence in
support of her claim and requested that she respond to OWCP’s inquiries. OWCP afforded
appellant 30 days to submit additional evidence and to respond to its inquiries.
In a report dated July 29, 2016, Dr. Cooper noted that appellant stated she began to feel
sore after working nine and a half hours on May 31, 2016. Appellant told him that she had
pulled a muscle in the left trapezius area. Dr. Cooper stated an assessment of sprain of the
ligaments of the cervical and thoracic spine.
On August 12, 2016 Dr. Cooper noted that appellant presented to his office on June 6,
2016 with a chief complaint of left cervicothoracic pain, which she related to duties of her
employment. Appellant told him that she was a mail carrier and carried her mail on her left arm.
She stated that on May 31, 2016, she worked for nine and a half hours and found herself sore in
the left cervicothoracic area that evening. The next day, appellant woke up in severe pain with
pain shooting down the left arm with intermittent numbness in her hand. Dr. Cooper wrote, “It is
my professional opinion that the nature of [appellant’s] job created her problems/symptoms.”
In a statement dated August 22, 2016, appellant asserted that on May 31, 2016 her duties
as a mail carrier included casing mail, lifting packages of up to 70 pounds, driving, and walking
to deliver mail and packages. During her routes, she carried a satchel around her neck and held
her flats and mail with her left arm. Appellant noted that she did not know the specific moment
that the injury occurred on May 31, 2016, but that she began to feel soreness between the
shoulder blades on the left side towards the end of the day. The next morning, she woke up with
pain radiating down her left arm. Appellant went into work that day for three hours and the pain
worsened after she came home.
By decision dated August 29, 2016, OWCP denied appellant’s claim for compensation.
It accepted that she worked nine and a half hours on May 31, 2016, however it found that she
had not submitted sufficient evidence to establish that she had sustained an injury causally
related to the accepted May 31, 2016 work incident. OWCP noted that, while Dr. Whitmore had
diagnosed her with bulging disc, impingement, and radiculopathy, he did not offer an opinion as
to the cause of her conditions. It further noted that, while appellant had submitted records from
Dr. Cooper, he had not diagnosed a spinal subluxation by x-ray, therefore, did not qualify as a
physician as defined by FECA.
On September 7, 2016 appellant requested reconsideration of OWCP’s August 29, 2016
decision. On reconsideration, she submitted progress notes from Dr. Cooper dated from June 27,
2016 through August 15, 2016. Appellant also submitted physical therapy notes from various
dates, which were unsigned by a physician.
In a report dated September 6, 2016, Dr. Whitmore diagnosed appellant with a bulging
disc at C5-6. He stated that this diagnosis “occurred while [appellant] was at work” and that her

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symptoms “all started when [appellant] was at work.” Dr. Whitmore requested that appellant
return to the clinic if her condition worsened or new symptoms arose.
By letter dated September 12, 2016, Dr. Dwight Saulle, a neurosurgeon, stated that
appellant had been under his care since August 17, 2016, when she was diagnosed with cervical
stenosis at C5-6 and C6-7 with cervical radiculopathy. He wrote, “Although this generally a
condition that develops over time, certainly [appellant’s] job as a mail carrier has aggravated this
condition due to the repetitive lifting and pulling of the neck, shoulder, and arm muscles with her
work requirements.” Dr. Saulle noted that he had performed an anterior cervical discectomy and
fusion on September 1, 2016.
By decision dated September 28, 2016, OWCP reviewed the merits of appellant’s claim
and denied modification of its prior decision of August 29, 2016. It noted that her physicians
had not indicated how working nine and a half hours on May 31, 2016 caused her diagnosed
cervical stenosis with cervical radiculopathy and bulging disc. OWCP stated that, because
Dr. Saulle had indicated in his September 12, 2016 medical note that duties of her federal
employment may have resulted in her diagnosed conditions over time, it was unclear whether
appellant was claiming an occupational disease or a traumatic injury.
In a letter from Dr. Whitmore dated October 6, 2016, he stated, “[I]n my medical opinion,
[appellant’s] injuries are related to her work that occurred while she was at work.”
On January 9, 2017 appellant, through counsel, requested reconsideration of OWCP’s
September 28, 2016 decision. With her request, appellant attached a December 29, 2016 letter
from Dr. Whitmore, in which he noted that, while working at the employing establishment,
appellant started having neck pain that worsened over time and developed a cervical disc bulge
at C5-6. Dr. Whitmore diagnosed appellant with cervical disc disease. He signed a statement
that read, “In my medical opinion, the facts of injury are the direct and proximate cause of the
diagnosis that I cited above. This is based on reasonable medical probability. There may be
other causes for this medical problem, but one of the causes is clearly the activities of work
described [appellant] and described above.”
By decision dated January 31, 2017, OWCP reviewed the merits of appellant’s claim, but
denied modification of its prior decision. It explained that, while Dr. Whitmore’s December 29,
2016 letter did contain a medical opinion, it was insufficiently rationalized because it did not
specifically discuss how working a nine-and-a-half-hour shift on May 31, 2016 caused her
diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA, that an injury was sustained in the performance of

3

Id.

4

duty as alleged, and that any disability or medical condition for which compensation is claimed
is causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged,
but fail to show that his or her condition relates to the employment incident.5
The claimant has the burden of proof to establish by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
Appellant alleged that on May 31, 2016 she sustained injury as a result of working nine
and a half hours on that date.
4

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

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

6

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

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

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

10

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

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The Board finds that appellant has not submitted sufficient rationalized medical evidence
to establish that the incident of May 31, 2016 caused or aggravated her diagnosed cervical and
thoracic conditions.
Appellant initially submitted a June 3, 2016 report from Dr. Toppins, who noted that
appellant had been evaluated in the emergency department with shoulder pain complaints, but
that appellant had expressed no known injury. The Board notes that pain is a symptom and not a
compensable medical diagnosis.11 As this report from Dr. Toppins offered no description of the
May 31, 2016 incident, no diagnosis, and no opinion regarding causal relationship, this report
was not based upon a complete factual and medical background, and is of limited probative
value.12
OWCP also received a number of diagnostic reports dated from June 2 to 11, 2016, from
Drs. Petty, Lewis, and Blake. Diagnostic test reports are however of limited probative value as
they do not specifically address whether appellant’s diagnosed conditions are causally related to
the May 31, 2016 work incident.13
OWCP also received reports from Dr. Cooper, a chiropractor. Chiropractors are not
considered physicians under FECA unless it is established that there is a spinal subluxation as
demonstrated by x-ray to exist.14 Dr. Cooper did not diagnose subluxation based on the results
of an x-ray.15 Therefore, his reports have no probative value.16
In a report dated September 6, 2016, Dr. Whitmore diagnosed appellant with a bulging
disc at C5-6. He stated that this diagnosis “occurred while [appellant] was at work” and that her
symptoms “all started when [appellant] was at work.” In a letter dated October 6, 2016,
Dr. Whitmore stated, “[I]n my medical opinion, [appellant’s] injuries are related to her work that
occurred while she was at work.” In a December 29, 2016 letter, he noted that, while working at
the employing establishment, appellant started having neck pain that worsened over time and
developed a cervical disc bulge at C5-6. Dr. Whitmore diagnosed her with cervical disc disease.
He signed a statement that read, “In my medical opinion, the facts of injury are the direct and
proximate cause of the diagnosis that I cited above. This is based on reasonable medical
probability. There may be other causes for this medical problem, but one of the causes is clearly
the activities of work described [appellant] and described above.” As such, Dr. Whitmore’s
11

See G.C., Docket No. 17-0537 (issued July 20, 2017).

12

Supra note 10.

13

See L.A., Docket No. 16-1352 (issued August 28, 2017).

14

See Kathryn Haggerty, 45 ECAB 383 (1994).

15

5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).
16

D.A., Docket No. 17-0816 (issued July 24, 2017).

6

opinion is merely conclusory in nature. The Board has explained that a medical report is of
limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.17
Medical evidence submitted to support a claim for compensation should reflect a correct
history and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.18
Dr. Whitmore rendered an opinion that appellant’s diagnosed conditions were related to
her work, but he did not support his opinion with a medically sound explanation of how the
incident of May 31, 2016 caused or aggravated her conditions. Neither the mere fact that a
disease or condition manifests itself during a period of employment nor the belief that the disease
or condition was caused or aggravated by employment factors or incidents is sufficient to
establish a causal relationship.19 Without a sufficient explanation of how the accepted May 31,
2016 work incident physiologically caused or aggravated appellant’s conditions, Dr. Whitmore’s
opinion on causal relationship is insufficiently rationalized to establish her claim.20
By letter dated September 12, 2016, Dr. Saulle stated that appellant had been under his
care since August 17, 2016, when she was diagnosed with cervical stenosis at C5-6 and C6-7
with cervical radiculopathy. He wrote, “Although this generally a condition that develops over
time, certainly [appellant’s] job as a mail carrier has aggravated this condition due to the
repetitive lifting and pulling of the neck, shoulder, and arm muscles with her work
requirements.”
Dr. Saulle’s opinion of September 12, 2016 similarly failed to address the accepted work
incident of May 31, 2016. His explanation of appellant’s diagnoses would more appropriately be
analyzed as medical evidence for a claim for occupational disease rather than traumatic injury.21
The Board finds that Dr. Saulle’s opinion on the cause of appellant’s diagnoses is of diminished
probative value, as it does not address the alleged traumatic injury.22
Finally, the Board notes that OWCP also received physical therapy reports. The Board
has held that notes signed by physical therapists are not considered medical evidence as they are

17

See T.M., Docket No. 08-0975 (issued February 6, 2009).

18

D.D., Docket No. 13-1517 (issued April 14, 2014).

19

Supra note 8.

20

See D.B., Docket No. 14-0295 (issued April 25, 2014).

21

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
22

Supra note 7.

7

not considered physicians under FECA.23 Thus, these treatment records are also of no probative
medical value in establishing appellant’s claim.
As appellant has not submitted any sufficiently rationalized medical evidence to support
her allegation that she sustained an injury causally related to working nine and a half hours on
May 31, 2016, she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury causally related to the accepted May 31, 2016 employment incident.

23

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law). See also J.L., Docket No.
17-1006 (issued August 14, 2017) a physical therapist is not a physician under FECA.

8

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 27, 2017
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 21-1025
Issued: March 18, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 21, 2021 appellant filed a timely appeal from a June 1, 2021 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.
ISSUES
The issues are: (1) whether OWCP properly denied waiver of recovery of the $69,177.66
overpayment of compensation which occurred due to his concurrent receipt of Social Security
Administration (SSA) retirement benefits and FECA wage-loss compensation for the period
September 1, 2010 through April 28, 2018; and (2) whether OWCP properly required recovery of
the overpayment by deducting $400.00 from appellant’s continuing compensation payments every
28 days.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 4, 2001 appellant, then a 56-year-old data entry technician, filed a traumatic
injury claim (Form CA-1) alleging that on August 20, 2001 he twisted his right knee when his
knee caught on a black residue under his desk as he rose from his chair while in the performance
of duty. He stopped work on August 29, 2001. OWCP accepted the claim for right knee strain
and right knee medial meniscus tear. The record reflects that OWCP paid appellant wage-loss
compensation on the periodic rolls as of July 14, 2002.
By letter dated July 31, 2002, OWCP explained appellant’s entitlement to compensation
benefits. In an accompanying EN1049 form, it advised him, that, since he was covered under the
Federal Employees Retirement System (FERS), it would have to deduct at least part of his SSA
retirement benefit to which he would be entitled based on age, explaining that a portion of a FERS
benefit was included in SSA retirement benefits. Appellant was, therefore, advised to notify
OWCP immediately after filing for or receiving SSA retirement benefits.
On December 26, 2017 SSA forwarded a completed FERS/SSA dual benefits calculation
form to OWCP, noting appellant’s SSA age-related retirement benefit rates with and without
FERS. It noted that appellant began receiving retirement benefits effective September 2010.
In a FERS offset overpayment calculation form dated May 21, 2018 OWCP documented
its calculation of the total overpayment in the amount of $69,177.66 for the period September 1,
2010 until April 28, 2018.
On June 28, 2018 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $69,177.66 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits that he received from September 1, 2010
through April 28, 2018 was based on credits earned while working for the Federal Government,
and this portion of his SSA was a prohibited dual benefit. OWCP found him at fault in the creation
of the overpayment as he had not reported receipt of SSA retirement benefits on his EN1032 forms.
It informed him of his review rights, via an overpayment action request form, and instructed him
to complete an enclosed overpayment recovery questionnaire Form OWCP-20 and submit
supporting documentation including copies of tax returns, bank account statements, bills and
cancelled checks, pay slips, and other records which supported the income and expenses listed.
OWCP allotted 30 days for him to respond.
On a July 2, 2018 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review. He contested OWCP’s findings regarding the fact and
amount of overpayment, and requested waiver of recovery of the overpayment.

2

Docket No. 19-0334 (issued August 7, 2020).

2

On a Form OWCP-20 dated October 10, 2018, appellant noted total monthly income of
$4,312.22 and total monthly expenses of $3,547.61, with assets of $795.00. He attached financial
information to substantiate his expenses.
A prerecoupment hearing was held on October 10, 2018. By decision dated November 14,
2018, the OWCP hearing representative finalized the preliminary determination, finding that an
overpayment of compensation in the amount of $69,177.66 occurred for the period September 1,
2010 through April 28, 2018 because appellant received FECA benefits and benefits from SSA
without the appropriate offset.3 She further found he was at fault in the creation of the overpayment
because he failed to report his SSA retirement benefits and that recovery of the overpayment,
therefore, could not be waived. The hearing representative found that recovery of the overpayment
would be made by deducting $500.00 every 28 days from appellant’s continuing FECA
compensation payments.
Appellant appealed the November 14, 2018 decision to the Board on November 30, 2018.
By decision dated August 7, 2020,4 the Board affirmed in part and set aside in part the
November 14, 2018 decision. The Board found that OWCP properly determined that an
overpayment in the amount of $69,177.66 had been created because appellant concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation for the period
September 1, 2010 through April 28, 2018. The Board determined, however, that appellant was
without fault in the creation of the overpayment of compensation. The Board remanded the case
for OWCP to consider waiver of recovery of the overpayment.
On remand from the Board’s decision, OWCP provided appellant with another Form
OWCP-20 for his completion, noting that updated financial information was needed for
consideration of waiver of recovery of the overpayment.
In a letter dated February 8, 2021, OWCP’s hearing representative informed appellant that
an oral hearing would be held pursuant to the Board’s remand instructions to consider waiver of
recovery of the overpayment. She requested he complete an updated Form OWCP-20 and provide
supporting financial documentation. Appellant was informed that under 20 C.F.R. § 10.438 the
failure to submit the requested financial information would result in denial of waiver of the
overpayment.
On a Form OWCP-20 dated March 1, 2021, appellant noted monthly income of $2,760.00
from SSA and $144.14 from other benefits, for a total monthly income, without FECA benefits,
of $2,904.14. He listed monthly expenses of $3,490.00, which included $860.00 for rent, $500.00
for food, $100.00 for clothing, $605.00 for utilities, and $225.00 for miscellaneous expenses, he
also noted $1,000 in monthly installment payments to a credit union , and $200.00 in monthly
installment payments to a bank. He listed assets of $4,687.90. He attached numerous financial
documents to substantiate his expenses.

3

The Board notes that the hearing representative incorrectly identified the period of the overpayment as from
September 1, 2010 through December 1, 2017.
4

Supra note 2.

3

A hearing before an OWCP hearing representative was held on March 10, 2021.
By decision June 1, 2021, OWCP’s hearing representative found that, based on the
evidence appellant submitted regarding his income and expenses, his total monthly income was
$4,510.54 and his ordinary and necessary living expenses did not exceed $ 3,886.99. She
determined that recovery of the overpayment would not defeat the purpose of FECA as his monthly
income exceeded his monthly expenses by more than $50.00. The hearing representative further
found that there was no evidence that appellant relinquished a valuable right in reliance on the
additional compensation or changed his position for the worse in reliance on the erroneous
compensation payment such that recovery would be inequitable or against good conscience. The
hearing representative related that recovery of the overpayment would be made by deduction of
$400.00 every 28 days from appellant’s continuing FECA compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8129 of FECA 5 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of the overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 7 An individual’s liquid assets
include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual
funds, and certificates of deposits. 8
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt and when an individual, in reliance on such

5

Supra note 1.

6

J.T., Docket No. 21-0010 (issued September 30, 2021); G.L., Docket No. 19-0297 (issued October 23, 2019).

7

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide those assets must not exceed a resource base of
$6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment
Determinations, Chapter 6.400.4(a)(2) and (3) (September 2020).
8

Id. at Chapter 6.400.4b(3)(a), (b).

4

payments or on notice that such payments would be made, gives up a valuable right or cha nges
her position for the worse. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The Board notes that after it remanded the case to OWCP for consideration of waiver,
OWCP provided appellant with another Form OWCP-20 to complete with updated financial
information. A prerecoupment hearing was held on March 10, 2021.
As appellant was found to be 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. The hearing
representative noted that the financial documentation appellant submitted prior to the hearing
represented his current monthly income and expenses. OWCP considered app ellant’s updated
financial information, as reported on appellant’s Form OWCP 20, to determine if recovery of the
overpayment would defeat the purpose of FECA or if recovery would be against equity and good
conscience.
The evidence of record establishes that appellant has monthly income totaling $4,510.54
and average monthly necessary expenses totaling $3,886.99. Appellant’s monthly income,
therefore, exceeds his monthly expenses by $623.55. As appellant’s monthly income exceeds his
ordinary and necessary living expenses by more than $50.00, he has not established that he needs
substantially all of his income for ordinary and necessary living expenses. 10
Appellant also has not established that recovery of the overpayment would b e against
equity and good conscience. He has not submitted evidence that he would experience severe
financial hardship in attempting to repay the debt, or that in reliance on the overpayment he gave
up a valuable right or changed his position for the worse.11 Therefore, OWCP properly found that
recovery of the overpayment would not defeat the purpose of FECA or be against equity and good
conscience.
LEGAL PRECEDENT -- ISSUE 2
Section 10.441 of OWCP’s regulations provides in pertinent part: “When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,

9

20 C.F.R. § 10.437(b)(1).

10

See G.L., Docket No. 19-0297 (issued October 23, 2019).

11

J.T., supra note 6; L.D., Docket No. 18-1317 (issued August 17, 2019); William J. Murphy, 41 ECAB 569 (1989).

5

taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.”12
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly requested recovery of the overpayment by deducting
$400.00 every 28 days from appellant’s continuing compensation.
In determining whether appellant could repay the overpayment through $400.00
deductions from continuing compensation, OWCP took into account his financial information as
well as factors set forth in 20 C.F.R. § 10.441 and found that this method would minimize resulting
hardship. The Board finds that OWCP gave due regard to the financial information provided,
noting that appellant was not deemed to need substantially all of his monthly income to meet
current and ordinary living expenses as monthly income exceeds monthly expenses by $623.55.
Therefore, the Board finds that OWCP properly required recovery of the overpayment by
deducting $400.00 from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of the overpayment. The
Board also finds that OWCP properly required repayment of the overpayment by deduction of
$400.00 every 28 days from his continuing compensation payments.

12

20 C.F.R. § 10.441(a); J.T., supra note 6; A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler,
39 ECAB 1056, 1062 (1988).

6

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Fallsburg, NY, Employer
__________________________________________

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

Docket No. 07-2040
Issued: March 7, 2008

Case Submitted on the Record

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

JURISDICTION
On July 30, 2007 appellant filed a timely appeal from a May 16, 2007 decision of the
Office of Workers’ Compensation Programs, terminating her wage-loss compensation and
medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated July 18, 2003, the Board
reversed a June 28, 2002 Office decision that terminated appellant’s compensation benefits for

1

See Docket No. 02-2080 (issued July 18, 2003).

refusing an offer of suitable work.2 The facts of this case, as set forth in the prior decision, are
incorporated herein by reference.
On December 27, 1999 appellant, then a 45-year-old distribution/window clerk, filed an
occupational disease claim alleging that she developed bilateral carpal tunnel syndrome due to
the repetitive motion activities required in her job. She underwent hand surgery on August 23
and November 28, 2000. The Office accepted her claim for bilateral carpal tunnel syndrome
sustained on July 1, 1999. Effective September 30, 2000 appellant was placed on the periodic
compensation rolls for temporary total disability.3
In a May 14, 2003 report, Dr. Daniel Perri, an attending Board-certified physiatrist,
provided findings on examination. He diagnosed bilateral carpal tunnel release with minimal
improvement, chronic myofascial pain syndrome and possible fibromyalgia. In a June 4, 2003
report, Dr. Perri diagnosed chronic myofascial pain syndrome. Upper extremity strength, deep
tendon reflexes and sensation were normal. No further reports were received from Dr. Perri.
On August 11, 2006 the Office referred appellant to Dr. Patrick J. Hughes, a neurologist,
together with a statement of accepted facts, a list of medical questions and the case file, to
determine whether appellant had any residuals of her accepted bilateral carpal tunnel syndrome.
In an August 22, 2006 report, Dr. Hughes reviewed the medical history and provided
findings on physical examination. He diagnosed work-related status post open release for
bilateral carpal tunnel syndrome and chronic neck and arm pain due to muscle and ligamentous
strain, not accepted as work related. He stated:
“For the accepted condition of bilateral carpal tunnel [syndrome], this is related to
[appellant’s] employment ... by direct cause. Her occupation demanded repetitive
hand use, which is an accepted cause of bilateral carpal tunnel [syndrome]. It is
permanent. She has reached maximum medical improvement.
“[Appellant] does not require any further treatment for her carpal tunnel
[syndrome]. There is no reason that she cannot work eight hours a day with no
restrictions. This is based on the following facts. She had surgery for bilateral
carpal tunnel [syndrome] and has done well. There is no objective evidence to
support the fact that the ligamentous strain causing myofascial pain is still active.
“[Appellant] has … no objective findings on neurological examination to
substantiate her continuing complaints of disabling pain…. She can work without
restrictions.”
On October 18, 2006 the Office advised appellant of its proposed termination of her
wage-loss compensation and medical benefits on the grounds that the weight of the medical

2

Following the Board’s July 18, 2003 decision, appellant’s wage-loss compensation was reinstated.

3

Appellant has a separate claim accepted for a left shoulder and cervical strain sustained on May 23, 1989.

2

evidence, represented by the opinion of Dr. Hughes, established that she had no residuals from
her accepted bilateral carpal tunnel syndrome.
On May 16, 2007 the Office terminated appellant’s wage-loss compensation and medical
benefits as of June 1, 2007 on the grounds that the weight of the medical evidence established
that she had no residuals from her work-related bilateral carpal tunnel syndrome sustained on
July 1, 1999.4
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.5 The Office may not terminate compensation without
establishing that the disability ceased or that it is no longer related to the employment.6 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.7 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that require further medical treatment.8
ANALYSIS
Appellant’s claim for an injury on July 1, 1999 was accepted for bilateral carpal tunnel
syndrome. Surgery was authorized and performed in 2000.
The Board finds that Dr. Hughes’ thorough and well-rationalized August 22, 2006 report
establishes that appellant has no residuals from her accepted bilateral carpal tunnel syndrome
sustained on July 1, 1999. He reviewed the medical history and provided physical findings on
examination. Dr. Hughes found that there was no objective evidence to support continuing
residuals from appellant’s bilateral carpal tunnel syndrome. He provided medical rationale in
support of his opinion. Dr. Hughes noted that appellant underwent surgery which was
successful. His report establishes that appellant has no continuing disability or medical condition
causally related to her accepted bilateral carpal tunnel syndrome sustained on July 1, 1999. As
noted, no additional medical evidence was submitted to support continuing residuals causing
disability for work. The most recent report of Dr. Perri was in 2003. Therefore, the Office met
its burden of proof in terminating appellant’s wage-loss compensation and medical benefits
effective June 1, 2007 based on the medical opinion of Dr. Hughes.
4

Subsequent to the May 16, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
5

Barry Neutach, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

6

Id.

7

See Del K. Rykert, 40 ECAB 284 (1988).

8

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

3

CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss compensation and medical benefits effective June 1, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2007 is affirmed.
Issued: March 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4