United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Youngstown, OH, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1462
Issued: February 1, 2012

Case Submitted on the Record

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

JURISDICTION
On June 8, 2011 appellant, through his representative, timely appealed the May 12, 2011
merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied
modification of a wage-earning capacity determination. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established a basis for modifying the September 17, 2001
wage-earning capacity determination.
FACTUAL HISTORY
On July 29, 1998 appellant, then a 48-year-old part-time flexible letter carrier, sustained a
fracture of the lower left leg in the performance of duty. He was loading his mail satchel from
1

5 U.S.C. §§ 8101-8193 (2006).

the rear of his delivery vehicle when a motorist struck him, pinning him between the two
vehicles. Appellant underwent surgery that same day. OWCP accepted the claim for left tibia
compound comminuted mid-shaft fracture and open reduction internal fixation (ORIF) fractured
tibial shaft. Approximately, eight months following his injury, he returned to work in a fulltime, limited-duty capacity. On February 9, 2000 appellant underwent surgery to remove
hardware implanted during his left tibia ORIF. He returned to limited-duty work approximately
one month later.
On February 7, 2001 appellant accepted a rehabilitation job offer as a modified letter
carrier. The position included a combination of office/clerical duties, carrier duties and light
custodial work. His carrier duties included casing mail, preparing delivery point sequence mail
for other carriers, delivering express mail, maintaining/updating change of address cards for
carrier routes, maintaining/updating carrier route books and maintaining carrier case labels. The
office/clerical duties included filing, data input, ordering supplies and stocking the customer
lobby with supplies, generating reports under supervisory direction and answering customer
inquires in person and via telephone. Appellant’s custodial duties included light dusting and
sweeping as directed by his supervisor. All of the above-noted duties and any additionally
assigned duties were to conform to appellant’s physical restrictions, which included no bending,
kneeling, stooping or twisting, intermittent sitting (five to six hours/day), intermittent standing
(one to two hours/day), up to eight hours of intermittent fine manipulation, simple grasping and
reaching above shoulder level. The restrictions also included a 10-pound weight limit on
pushing, pulling, lifting and carrying, which was to be performed intermittently at 5-to 10-minute
intervals over the course of an eight-hour workday.2 The modified letter carrier position paid an
annual salary of $39,426.00 ($758.19 per week). Appellant assumed his new duties on
February 10, 2001.
On July 19, 2001 appellant sustained another employment-related traumatic injury. He
reportedly injured his lower back bending over to remove a tray of mail from a cart. The tray
weighed approximately 15 pounds. OWCP accepted that appellant sustained a lumbar sprain
(xxxxxx962). Appellant was excused from all work through July 30, 2001. He resumed his
modified letter carrier duties on July 31, 2001.
Appellant’s physician, Dr. Kasamias, provided permanent work restrictions on
August 7, 2001. These included eight hours sitting, two to three hours standing, two to three
hours walking, one to two hours stairs, no ladders, occasional bending and no kneeling, stooping
or twisting. Appellant could lift/carry up to 20 pounds and push/pull up to 20 pounds.
Additionally, he was permitted to case mail, but he could not perform any type of mail delivery,
including walking door-to-door, milk stop door-to-door, in vehicle box-to-box and no
express/priority mail delivery.
By decision dated September 17, 2001, OWCP found that appellant’s modified letter
carrier position, which was effective February 10, 2001, fairly and reasonably represented his
wage-earning capacity. It indicated that, since February 10, 2001, he had “continuously” worked
in the position of modified letter carrier “without incident.” Having worked in this position for
2

Although the February 5, 2001 job offer did not specifically identify the medical evidence relied upon, the
identified physical restrictions were derived in part from a March 10, 2000 report from Dr. Athanasios D. Kasamias.

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60 days or more, OWCP concluded that the modified letter carrier position fairly and reasonably
represented appellant’s wage-earning capacity. Because appellant’s earnings as a modified letter
carrier equaled or exceeded the current earnings of his date-of-injury position, he had zero
percent loss of wage-earning capacity.
After providing full-time, limited-duty work for more than nine years, the employing
establishment abolished appellant’s modified letter carrier position pursuant to the national
reassessment process (NRP). Beginning August 7, 2010, the employing establishment offered
him only two hours of limited-duty work per day. Appellant’s new duties as a “carrier
technician” involved casing mail for just two hours each day. On August 13, 2010 he filed a
claim for wage-loss compensation (Form CA-7) beginning August 7, 2010.
By decision dated November 5, 2010, OWCP denied appellant’s claim for wage-loss
compensation because he failed to establish a basis for modifying the September 17, 2001 wageearning capacity determination.
Appellant requested an oral hearing, which was held on March 3, 2011. At the hearing,
appellant’s representative argued that the modified letter carrier position was based on “a
hodgepodge of duties” culled from various crafts within the postal service. He characterized the
February 5, 2001 modified letter carrier position as makeshift, odd-lot and sheltered and noted
that it had been specifically designed to meet appellant’s particular needs.
In a May 12, 2011 decision, the hearing representative found that appellant had not
established a basis for modifying OWCP’s September 17, 2001 wage-earning capacity
determination. Accordingly, the hearing representative affirmed the November 5, 2010 decision.
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.3 Actual wages earned is generally the best measure of wage-earning capacity.4 In the
absence of evidence showing that actual earnings do not fairly and reasonably represent the
injured employee’s wage-earning capacity, such earnings must be accepted as representative of
the individual’s wage-earning capacity.5 A determination regarding whether actual earnings
fairly and reasonably represent wage-earning capacity should be made only after an employee
has worked in a given position for more than 60 days.6
Factors to be considered in determining if a position fairly and reasonably represents the
injured employee’s wage-earning capacity include: (1) whether the kind of appointment and tour
3

5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

4

Hayden C. Ross, 55 ECAB 455, 460 (2004).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (October 2009).

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of duty are at least equivalent to those of the date-of-injury job; (2) whether the job is part time
(unless the employee was a part-time worker at the time of injury) or sporadic in nature;
(3) whether the job is seasonal in an area where year-round employment is available; and
(4) whether the job is temporary where the claimant’s previous job was permanent.7
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was erroneous.8 The burden of proof is on the party
seeking modification of the wage-earning capacity determination.9
A recurrence of disability includes an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his
work-related injury or illness is withdrawn -- except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force (RIF).10 Absent a formal
wage-earning capacity determination and assuming the position was not withdrawn for cause or
because of a RIF, the employee would be entitled to compensation based upon a showing of
continuing injury-related disability for regular duty.11 But when a formal wage-earning capacity
determination is in place, the subsequent withdrawal of a light-duty assignment is not treated like
a recurrence of disability.12 Under those particular circumstances, OWCP shall review the claim
for additional compensation as a request for modification of the wage-earning capacity
determination and apply the above-noted criteria in determining whether modification is
warranted.13
ANALYSIS
Appellant currently argues that the September 17, 2001 wage-earning capacity
determination was erroneous because the February 5, 2001 modified letter carrier position was
an “odd-lot and sheltered position” and also “temporary in nature.” This is essentially the same
argument he presented when his case was pending before the Branch of Hearings & Review.
The Board agrees that the September 17, 2001 wage-earning capacity determination was
erroneous, but for reasons other than those advanced by appellant.
Whether a position fairly and reasonably represents one’s wage-earning capacity is based
on a number of factors. While the procedure manual outlines various factors that focus on the
7

Id. at Chapter 2.814.7(a).

8

Tamra McCauley, 51 ECAB 375, 377 (2000).

9

Id.

10

20 C.F.R. § 10.5(x).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7(a)(4) (October 2009).

12

Id. at Chapter 2.1500.7(a)(5).

13

Id.; K.R., Docket No. 09-415 (issued February 24, 2010); K.R., Docket No. 09-28 (issued September 16, 2009).

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type of appointment and whether it is part-time, temporary or seasonal work, it goes without
saying that any limited-duty assignment must also be consistent with the injured employee’s
then-current medical restrictions.14 In this instance, the employing establishment patterned its
February 5, 2001 rehabilitation job offer on medical restrictions that were almost a year old at
the time and arguably stale. Moreover, Dr. Kasamias’ March 10, 2000 restrictions precluded any
type of mail delivery, including express/priority mail. Despite this particular limitation, the
February 5, 2001 modified letter carrier position required that appellant “deliver express mail.”
When Dr. Kasamias updated appellant’s restrictions in August 2001, he continued to preclude
any type of mail delivery, including “EXPRESS/PRIORITY” mail. At the March 3, 2011
hearing, appellant testified that he had in fact delivered express mail as part of his modified letter
carrier duties. The Board finds that the duties outlined in the February 5, 2001 rehabilitation job
offer were not consistent with his then-applicable medical restrictions. As such, appellant’s
February 5, 2001 modified letter carrier position cannot be considered medically suitable.
It is also noteworthy that appellant sustained another employment-related injury on
July 19, 2001, while performing his modified letter carrier duties. OWCP accepted that he
sustained a lumbar sprain while reportedly bending over to remove a tray of mail that weighed
approximately 15 pounds. Appellant missed almost two weeks of work due to his July 19, 2001
employment injury. Accepting that his low back injury occurred as alleged, the work he
performed on July 19, 2001 as a modified letter carrier included medically-restricted activities of
bending and lifting in excess of 10 pounds. OWCP’s September 17, 2001 wage-earning capacity
determination made no mention of appellant’s July 19, 2001 employment-related back injury and
the decision erroneously stated that he performed his modified letter carrier duties
“continuously” since February 10, 2001 “without incident.”
Generally, one’s performance of a limited-duty position in excess of 60 days is
persuasive evidence that the position represents the employee’s wage-earning capacity.15 While
appellant worked as a modified letter carrier for at least 60 days, the analysis does not simply end
there. In its September 17, 2001 wage-earning capacity determination, OWCP failed to
recognize that at least part of his modified letter carrier duties were inconsistent with
Dr. Kasamias’ March 10, 2000 and August 7, 2001 work restrictions and limitations. Second,
OWCP overlooked the fact that appellant injured his lower back on July 19, 2001 while
performing work-related activities in excess of the limitations imposed by his treating physician.
Lastly, it erroneously stated that he had performed his modified letter carrier duties
“continuously” since February 10, 2001 “without incident.”
Based on the above-noted errors, the Board finds that the original September 17, 2001
loss of wage-earning capacity (LWEC) determination was erroneous. Accordingly, appellant has
established a basis for modifying the LWEC determination. As such, the September 17, 2001
decision does not bar an award of wage-loss compensation beginning August 7, 2010 based on
the employer’s NRP-related withdrawal of his previous full-time, limited-duty assignment.

14

See e.g., E.C., 59 ECAB 397, 401-02 (2008).

15

Id. at 402.

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CONCLUSION
Appellant established that the September 17, 2001 wage-earning capacity determination
was erroneous, thereby warranting modification.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 1, 2012
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
A.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0230
Issued: April 4, 2016

Case Submitted on the Record

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

JURISDICTION
On November 19, 2015 appellant, through counsel, filed a timely appeal from an
April 27, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s claim for a recurrence of
disability commencing August 27, 2014 after his wage-loss benefits were terminated for refusal
of suitable work.

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2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the April 27, 2015 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005).

FACTUAL HISTORY
On July 24, 2009 appellant, then a 48-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a bruise and cut on his left elbow as a result of falling
down steps in the performance of duty. He stopped work. OWCP accepted appellant’s claim for
left elbow bursitis and paid compensation.
OWCP referred appellant’s case, along with the medical record and statement of accepted
facts, to Dr. Michael Katz, a Board-certified orthopedic surgeon, for a second opinion
examination to determine whether appellant continued to suffer residuals of his employment
injury and was able to work. In a December 7, 2009 report, Dr. Katz provided an accurate
history of the July 24, 2009 employment injury. Upon examination of appellant’s left elbow, he
observed no erythema, swelling, or induration. Range of motion was normal and Tinel’s sign
was negative. Dr. Katz diagnosed left lateral epicondylitis and opined that this condition was
causally related to the July 24, 2009 employment incident. He reported that appellant had not
reached maximum medical improvement, but was capable of returning to work full time with
restrictions of no lifting greater than 20 pounds.
On February 8, 2010 the employing establishment offered appellant a position as a
modified city carrier, delivering and casing mail. The physical requirements of the position were
lifting not to exceed 20 pounds for one to four hours, and standing, walking, reaching, pulling
limited to one to four hours.
In a letter dated February 12, 2010, OWCP informed appellant that the offered modified
city carrier position was suitable in light of his work restrictions. Appellant was advised that he
had 30 days to accept the position or provide a valid reason for refusing suitable work.
On March 12, 2010 Elizabeth Chan, a human resource specialist for the employing
establishment, informed OWCP that the modified position was still available, but appellant had
neither reported to work, nor provided any explanation as to why he could not perform the job.
She requested that appellant’s compensation be terminated.
In a letter dated March 23, 2010, OWCP advised appellant that he had 15 days to accept
the offered job position and that, if he did not do so, his entitlement to wage-loss and schedule
award compensation benefits would be terminated pursuant to section 8106(c) of FECA.
On June 15, 2010 OWCP terminated appellant’s entitlement to wage-loss and schedule
award compensation benefits, effective June 15, 2010, because he refused suitable work. The
claim remained open for medical benefits.
On April 17, 2015 appellant filed a claim for recurrence of disability (Form CA-2a)
beginning August 27, 2014 as a result of the July 24, 2009 employment injury. He specifically
indicated by checkmark on the claim form that the claim was not for medical treatment, but
rather was for wage-loss compensation benefits. Appellant indicated that the employing
establishment terminated him in September 2010 and that his left elbow worsened to the point
that he needed surgery.
Appellant submitted various physical therapy treatment notes dated April 7 to 17, 2015
from Jennilyn Munda, a physical therapist. Ms. Munda related a diagnosis of left elbow sprain
and recommended appellant continue physical therapy.
2

By decision dated April 27, 2015, OWCP denied appellant’s recurrence of disability
claim. It found that appellant was not entitled to any monetary compensation due to his July 24,
2009 employment injury because OWCP had terminated his compensation for refusing suitable
work under section 8106 of FECA. OWCP noted that the June 15, 2010 termination decision
stood as a bar to any subsequent monetary compensation arising out of the July 24, 2009 injury.
LEGAL PRECEDENT
OWCP regulations provides that, after termination of compensation under section
8106(c) of FECA a claimant has no further entitlement to compensation under section 8105,
8106, and 8107 of FECA.3 However, the claimant remains entitled to medical benefits as
provided by 5 U.S.C. § 8103.4 Section 8106(c) of FECA serves as a penalty provision, barring
an employee’s future entitlement to compensation for the same injury based on a refusal to
accept a suitable offer of employment.5
OWCP procedures provide that if the claimant does not accept a suitable work offer, the
claims examiner should prepare a formal decision which provides full findings of facts as to why
claimant’s reasons for refusing the job are deemed unacceptable and terminate compensation
under section 8106(c)(2) of FECA as of the end of the roll period. Such a decision should not be
modified even if the claimant’s medical condition later deteriorates and he claims a recurrence of
disability.6
ANALYSIS
OWCP accepted that appellant sustained a left elbow condition due to a July 24, 2009
employment injury. In a decision dated June 15, 2010, it terminated his wage-loss and schedule
award benefits effective June 15, 2010 because he refused an offer of suitable work. On
April 17, 2015 appellant filed a claim for recurrence of disability beginning August 27, 2014 due
to his July 24, 2009 employment injury. By decision dated April 27, 2015, OWCP denied
appellant’s claim on the basis that he was not entitled to compensation due to his prior refusal of
suitable work.
The Board finds that OWCP properly determined that the June 15, 2010 decision
terminating appellant’s compensation for refusing suitable work served as a bar to any
subsequent monetary compensation as a result of the July 24, 2009 work injury.7 Section
8106(c) of FECA provides that an employee who refuses suitable work is not entitled to further
compensation for total disability or permanent impairment.8 Because OWCP terminated
appellant’s compensation due to his refusal of suitable work, he is barred from future entitlement
3

20 C.F.R. § 10.517.

4

Id.

5

See Joan F. Burke, 54 ECAB 406 (2003).

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.6
(June 2013).
7

See C.C., Docket No. 07-2031 (issued April 7, 2008).

8

5 U.S.C. § 8106(c); see also 20 C.F.R. § 10.517(a).

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to wage-loss compensation for his July 24, 2009 employment injury. The Board therefore finds
that appellant’s recurrence claim for disability compensation is precluded by section 8106(c).9
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for recurrence of disability
commencing August 27, 2014 after he refused suitable work.10
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2016
Washington, DC

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

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

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

9

See E.M., Docket No. 9-39 (issued March 3, 2009).

10

Following the April 27, 2015 decision appellant’s counsel alleged that appellant was seeking medical benefits.
The issue of entitlement of medical benefits was not before OWCP at the time of the April 27, 2015 decision, and
therefore will not be reviewed by the Board on appeal. See 20 C.F.R. § 501.2(c).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
CENTRAL CALIFORNIA HEALTH CARE
SYSTEM, Fresno, CA, Employer
__________________________________________

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

Docket No. 20-0507
Issued: March 4, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 6, 2020 appellant, through counsel, filed a timely appeal from an October 28,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left foot condition
causally related to the accepted October 17, 2018 employment incident.
FACTUAL HISTORY
On January 17, 2019 appellant, then a 55-year-old nurse, filed an occupational disease
claim (Form CA-2) alleging that she sustained a fracture of her left foot, immobility, pain, and
swelling due to factors of her federal employment. She noted that, as she was preparing a patient
for transfer to an outpatient facility, a gurney rolled over her foot. Appellant noted that she first
became aware of her condition and realized its relation to her federal employment on
October 23, 2018. She did not initially stop work.
In an October 23, 2018 report, Jessica Huipio, a physician assistant, noted that appellant
was at work trying to move a patient when the rail of the bed hit the top of her foot. Appellant
continued working, and after two 12-hour shifts her foot swelled and was painful. She diagnosed
left foot pain and calcaneal spur of the left foot. Ms. Huipio completed a work status form, also
dated October 23, 2018, advising appellant to return to work on November 3, 2018.
An October 23, 2018 x-ray of appellant’s left foot read by Dr. Te-Chung Hsu, a Boardcertified diagnostic radiologist, revealed degenerative change and no acute fracture or findings.
In a December 10, 2018 report, Dr. Olubukunola M. Oseni-Olalemi, a podiatrist, noted that
appellant denied trauma to the left foot. She indicated that appellant had known medical
comorbidities significant for chronic lower back pain, glaucoma, and obesity. Dr. Oseni-Olalemi
diagnosed left foot pain.
A January 3, 2019 magnetic resonance imaging (MRI) scan of the left foot without
contrast, read by Dr. Mariela Resendes, a Board-certified diagnostic radiologist, revealed an
insufficiency fracture of the medial cuneiform and proximal second metatarsal bone and
degenerative changes at the second metatarsophalangeal joint.
In a January 8, 2019 report, Dr. Oseni-Olalemi noted that appellant was seen for complaints
of left foot pain and that she denied trauma to the painful extremity. She noted that appellant
reported a fall at work a few months earlier. Dr. Oseni-Olalemi diagnosed contusion of fifth toe,
left foot, subsequent encounter.
A January 8, 2019 work status report from a physician with an illegible signature, indicated
that appellant was unable to return to work due to fractures of the left foot. A cam boot was
recommended prior to a return to work.
In a development letter dated February 13, 2019, OWCP informed appellant of the
deficiencies of her claim and advised her of the type of factual and medical evidence necessary to
establish her claim. It provided a questionnaire for her completion regarding the circumstances of
the claimed October 23, 2018 employment injury. OWCP requested that appellant submit a
narrative medical report from her treating physician which provided a diagnosis and the

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physician’s rationalized medical explanation as to how the alleged employment incident caused
the diagnosed condition. It afforded her 30 days to submit the necessary evidence.
In a letter dated March 12, 2019, appellant indicated that she was resubmitting her medical
reports from a physician assistant, with the cosignature of the supervising/attending physician. She
explained that the injury occurred as she was assisting with the transfer of a patient and she and
the transporters were aligning the gurney next to and parallel to the bed. Appellant noted that
when they began to initiate movement of the patient, the gurney moved from its position and the
wheel rolled over a portion of the top of her left foot. She explained that when she realized what
was happening, her spontaneous reaction was to try to move her foot from the path of the wheel.
Appellant noted that at that point, she jerked her foot to move it and the top of her foot hit the rail
to which the wheel was attached. She explained that since the incident, she experienced consistent
swelling and pain to the left foot. Appellant noted that transferring patients and moving them from
a bed to a gurney was part of her job.
OWCP received a copy of the October 23, 2018 report from Ms. Huipio, which was
cosigned on February 28, 2019 by Dr. Robin R. Linscheid Janzen, a family medicine specialist.
Dr. Linscheid Janzen indicated that appellant was at work moving a patient when the rail of the
bed fell and hit the top of her left foot. She diagnosed left foot pain and a calcaneal spur.
A witness statement dated March 10, 2019, from W.S., a coworker, indicated that he saw
that appellant had injured her left foot and was limping when making the transfer of a patient. He
also noted that he made this statement to J.S., the assistant unit manager. The date of the incident
was not provided.
A witness statement dated March 11, 2019, from M.B., a coworker, advised that he could
verify and attest that he observed that appellant injured her left foot and was in pain and limping,
following transfer of a patient. The date of the incident was not provided.
In a report dated March 14, 2019, Dr. Daniel B. Brubaker, an osteopath Board-certified in
anatomic and clinical pathology, noted that appellant was seen for complaints of pain in her left
foot due to a work injury. He explained that appellant was performing her usual and customary
duties assisting a patient from a bed to a gurney, when the gurney shifted, the wheel rolled on top
of her left foot, she jerked her foot to remove it, and the top of her foot hit a rail to which the wheel
was attached, causing more pain and injury to the foot. Dr. Brubaker noted that appellant related
that her foot had been swollen and painful since the date of injury, which he listed as
October 17, 2018. He indicated that appellant denied any prior work injury, motor vehicle
accident, or sports injury. Dr. Brubaker noted appellant’s history, provided examination finding,
and discussed the diagnostic testing, x-rays, and MRI scan of the left foot. He diagnosed work
injury, left foot pain, and a calcaneal spur of left foot, and referred appellant to an orthopedic
surgeon who specialized in podiatry.
By decision dated April 24, 2019, OWCP denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish causal relationship between appellant’s
medical condition and the accepted employment incident.

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On May 8, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held before an OWCP hearing representative on
August 12, 2019. During the hearing, appellant clarified that her claim was for a traumatic injury,
not an occupational disease. She also explained that the work incident occurred on October 17,
2018, but she was not able to see a physician for initial treatment until October 23, 2018. The
hearing representative advised appellant of the type of medical evidence necessary to establish her
traumatic injury claim and held the case record open for 30 days for the submission of additional
evidence.
OWCP received April 3, 2019 progress notes from Dr. Francis E. Glaser, a Board-certified
orthopedic surgeon, who noted that appellant was seen for complaints of left dorsal mid foot pain
and swelling that began acutely in October 2018, when she was at work and a gurney rolled over
her left foot. Dr. Glaser indicated that the history of injury and diagnostic reports demonstrated
soft tissue swelling, but no fractures and that a follow-up MRI scan revealed a nondisplaced
fracture. He diagnosed “left mid foot pain, etiology undefined,” he further explained that since
there was no evidence on x-ray of a resolving or unresolved fracture, he opined that opined “[t]his
may in fact represent a bone contusion or even arthritis.”
In April 12, 2019 progress notes, Dr. Glaser advised that appellant presented with pain on
the left side and was symptomatically unchanged. He noted that appellant complained of left midfoot pain related to an injury at work when, “A [wheel] rolled over her left foot.” Dr. Glaser
assessed a closed nondisplaced fracture of second metatarsal bone of the left foot with routine
healing, subsequent encounter, and indicated that appellant had a left second metatarsal base and
medial cuneiform fractures healing.
In his August 8, 2019 addendum to first report of injury, Dr. Brubaker noted that he was
provided additional information after he was informed that his initial report was not sufficient to
establish causal relationship. He noted, “Frankly, I think it is pretty clear, but I will lay out my
medical reasoning.” Dr. Brubaker explained that on October 17, 2018, appellant along with two
colleagues was transferring a patient from a bed to a gurney when the gurney rolled over her left
foot causing pain and swelling. He noted that the average weight of a gurney was 100 pounds.
Dr. Brubaker noted that appellant’s first medical appointment was on October 23, 2018, during
which she had related a history that the rail of a bed hit the top of her foot and she kept working
for two days following which the foot swelled. He also noted that while she had denied any trauma
to her foot when she was seen on December 10, 2018 by a foot specialist, he opined that injured
workers could easily be pressured to go outside the work comp system. Dr. Brubaker explained
that he had reviewed the medical reports of record and the description of the incident and opined
that “it was very probable and likely that [appellant] indeed injured her foot by a gurney rolling
over it. The natural inclination to abruptly pull the foot out from under such weight could cause
additional pain as well.” He concluded that a foot injury can cause enormous pain, depending on
the severity of the damage. Excessive walking or other activities which required standing or
moving could exacerbate the injured foot, and certain medical conditions such as diabetes or
arthritis could compound the pain in an injured foot by decreasing blood circulation and healing
time.

4

By decision dated October 28, 2019, OWCP’s hearing representative affirmed the
April 24, 2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
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.6 First,
the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time and place, and in the manner alleged.7 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve.9 The opinion of the physician must be based on a complete factual and
medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment incident identified by the claimant.10

3

See D.P., Docket No. 19-1596 (April 23, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4
C.K., Docket No. 19-1549 (issued June 30, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59
ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
5

T.M., Docket No. 20-0767 (issued January 13, 2021); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7
C.D., Docket No. 20-0762 (issued January 13, 2021); D.S., Docket No. 17-1422 (issued November 9, 2017);
Elaine Pendleton, 40 ECAB 1143 (1989).
8

C.D., id.; B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

5

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left foot
condition causally related to the accepted October 17, 2018 employment incident.
OWCP initially received an October 23, 2018 report from Ms. Huipio, a physician
assistant, which was subsequently countersigned by Dr. Linscheid Janzen.11 This report related a
history that one week prior appellant was moving a patient and the rail of the bed hit the top of her
foot, appellant continued working and after two days her foot developed swelling and pain. The
Board notes that this differs from the accepted employment incident of appellant’s left foot being
run over by a gurney. An inconsistent history of injury limits the probative value of a medical
opinion.12 Regarding the diagnosis of calcaneal spur, the report did not offer any explanation as
to how appellant could have developed a bone spur due to a gurney rolling over her foot, the
accepted incident in this claim. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value regarding the issue
of causal relationship.13
In a December 10, 2018 report, Dr. Oseni-Olalemi noted that appellant had denied any
trauma to her left foot and he related appellant’s complaints of left foot pain. He provided a
January 8, 2019 report in which he diagnosed contusion of fifth toe, left foot; however, he again
related that appellant had denied any trauma to the left foot. As Dr. Oseni-Olalemi did not provide
an opinion that appellant’s diagnosed condition was causally related to the accepted employment
incident, these reports are of no probative value on the issue of causal relationship and are
insufficient to establish appellant’s claim.14
In a report dated March 14, 2019, Dr. Brubaker diagnosed left foot pain and a calcaneal
spur of the left foot. In his August 8, 2019 addendum, Dr. Brubaker opined that “it was very
probable and likely that she indeed injured her foot by a gurney rolling over it. The natural
inclination to abruptly pull the foot out from under such weight could cause additional pain as
well.” The Board has held that medical opinions that are speculative or equivocal are of
diminished probative value.15 Consequently, Dr. Brubaker’s opinion is insufficient to meet
appellant’s burden of proof to establish her claim.
OWCP received April 3, 2019 progress notes from Dr. Glaser noted that appellant’s left
foot had been run over by a gurney in October 2013. Dr. Glaser reviewed appellant’s x-ray and
11
A report from a physician assistant or certified nurse practitioner will be considered medical evidence if
countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013).
12

R.H., Docket No. 18-0021 (issued March 22, 2018); see S.L., Docket No. 16-0222 (issued August 11, 2016).

13

B.W., Docket No. 20-1032 (issued November 17, 2020); S.J., Docket No. 19-0696 (issued August 23, 2019);
M.C., Docket No. 18-0951 (issued January 7, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket
No. 17-1549 (issued July 6, 2018).
14

L.B., Docket No. 19-1907 (issued August 14, 2020).

15

D.S., Docket No. 20-0384 (issued October 8, 2020); H.A., Docket No. 18-1455 (issued August 23, 2019).

6

MRI scan of the left foot and noted that the x-ray did not show evidence of a resolving or resolved
fracture. He then diagnosed “left mid foot pain, etiology undefined” and opined “[t]his may in
fact represent a bone contusion or even arthritis.” In April 12, 2019 progress notes, Dr. Glaser
noted that “A [wheel] rolled over [appellant’s] left foot” and he diagnosed a closed nondisplaced
fracture of second metatarsal bone of the left foot with routine healing, subsequent encounter, and
left second metatarsal base and medial cuneiform fractures healing. While Dr. Glaser noted
appellant’s history regarding the employment incident, he did not offer an opinion regarding causal
relationship. The Board has held that evidence that does not offer an opinion regarding the cause
of an employee’s condition is of no probative value on the issue of causal relationship.16 Thus,
this report is also insufficient to establish the claim.
OWCP also received an October 23, 2018 x-ray and a January 3, 2019 MRI scan of the left
foot. The Board has held that diagnostic studies, standing alone, lack probative value on the issue
of causal relationship, as they do not provide an opinion as to whether the employment incident
caused any of the diagnosed conditions.17 This evidence is therefore insufficient to establish
appellant’s claim.
Appellant also submitted a January 28, 2019 work status report with an illegible signature.
The Board has held that reports that are unsigned or bear an illegible signature cannot be
considered probative medical evidence as the author cannot be identified as a physician.18
Therefore, this report has no probative value and is insufficient to establish the claim.
As the medical evidence of record does not contain a rationalized opinion establishing
causal relationship between appellant’s diagnosed conditions and the accepted October 17, 2018
employment incident, the Board finds that 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 left foot
condition causally related to the accepted October 17, 2018 employment incident.

16

B.W., Docket No. 20-1032 (issued November 17, 2020); S.J., Docket No. 19-0696 (issued August 23, 2019);
M.C., Docket No. 18-0951 (issued January 7, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket
No. 17-1549 (issued July 6, 2018).
17

See C.B., Docket No. 20-0464 (issued July 21, 2020).

18
C.S., Docket No. 20-1354 (issued January 29, 2021); D.T., Docket No. 20-0685 (issued October 8, 2020);
Merton J. Sills, 39 ECAB 572, 575 (1988).

7

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2019 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-522
Issued: June 13, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 11, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated November 5, 2007. Under 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $1,107.39 for the period August 20 through September 1, 2007;
and (2) whether the Office properly found that appellant was at fault in creating the
overpayment.
FACTUAL HISTORY
Appellant, a 59-year-old customs inspector, filed a Form CA-2 claim for benefits,
alleging that he experienced numbness in two of his left fingers and in his left elbow, causally
related to factors of his employment. He stated that he first became aware of this condition on
November 8, 2006. Appellant filed a claim for benefits on November 30, 2006, which the Office

accepted for cubital tunnel, left upper extremity and lesion of the left ulnar nerve. In its May 21,
2007 letter accepting the claim, the Office advised him:
“Once you return to work, or obtain new employment, notify this Office
immediately. Full compensation is payable only while you are unable to perform
the duties of your regular job because of your accepted employment-related
condition. If you receive a compensation check which includes payment for a
period you have worked, return it to us immediately to prevent an overpayment of
compensation.” (Emphasis added).
The Office paid appellant appropriate compensation for total disability. He returned to
full duty in a modified sheet metal mechanic job with the employing establishment on
August 20, 2007.
In a letter to appellant dated August 30, 2007, the Office informed him that his monetary
compensation would be reduced based upon his actual earnings. The Office also notified him
that he would be receiving one last 28-day compensation check, which partially covered a period
following his return to work. Appellant was instructed that to avoid an overpayment of
compensation he should return this check to the Office and another check covering the correct
period would be issued.
Appellant thereafter received a check for temporary total disability compensation through
September 1, 2007, which he cashed.
By letter dated September 4, 2007, the Office made a preliminary determination that an
overpayment of compensation had occurred in the amount of $1,107.39, covering August 20 to
September 1, 2007. The Office found that appellant was at fault in creating the overpayment
because he should have known that he was not entitled to receive compensation payments after
he returned to work. The Office informed appellant that, if he disagreed with the decision, he
could, within 30 days, submit evidence or argument to the Office, or request a prerecoupment
hearing with the Branch of Hearings and Review. On September 13, 2007 appellant responded
to the Office’s letter, stating that he was not at fault for the creation of the overpayment. He
asserted that he received and deposited his compensation check in the bank because his family
needed the money and because he received the Office’s return to work letter on August 30, 2007,
10 days after he returned to work.
On September 24, 2007 the Office called appellant at his home and was advised that he
wished to receive a decision based on the written record.
In a decision dated May 18, 2007, the Office finalized the preliminary determination
regarding the overpayment of $1,107.39. The Office also found that appellant was at fault in
creating the overpayment of compensation in the amount of $1,107.39 for the period August 20
through September 1, 2007. The Office stated that he should have been aware that he was not
entitled to receive compensation checks after he returned to work on August 20, 2007.

2

LEGAL PRECEDENT -- ISSUE 1
Compensation for total disability under the Act is payable when the employee starts to
lose pay.1 Compensation for wage loss due to disability is available only for any periods during
which an employee’s work-related medical condition prevents him from earning the wages
earned before the work-related injury.2
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $1,107.39 for the period August 20 through
September 1, 2007. The record shows that appellant received an overpayment during the period
in question because he continued to receive checks for temporary total disability compensation
after returning to full-time work on September 1, 2007. The Office calculated the $1,107.39
overpayment by totaling the amount of temporary total disability compensation appellant
received from August 20 to September 1, 2007 by taking the net compensation he received per
calendar day, $85.184, and multiplying it times 13, the total number of days he received the
overpayment.3 Based on this determination, the Office properly found that appellant received an
overpayment of compensation in the stated amount during that period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act4 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
No waiver of an overpayment is possible if the claimant is not “without fault” in helping to
create the overpayment.5
In determining whether an individual is with fault, section 10.433(a) of the Office’s
regulations provides in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
(1) Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or

1

20 C.F.R. § 10.401(a) (2003).

2

20 C.F.R. § 500(a) (2003).

3

The Office apparently arrived at this figure by taking the net amount of his compensation check for the period
August 5 through September 1, 2007, $2,385.16, and dividing it by 28 days.
4

5 U.S.C. § 8129(a)-(b).

5

Bonnye Mathews, 45 ECAB 657 (1994).

3

(2) Failed to provide information which the individual knew or should
have known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect.”6
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment.
Even if the overpayment resulted from negligence on the part of the Office, this does not
excuse the employee from accepting payment which he knew or should have been expected to
know he was not entitled.7 Appellant returned to full-time employment on August 20, 2007 and
was, therefore, no longer entitled to temporary total wage-loss compensation. He was
specifically advised by letter dated August 30, 2007 that he would receive one more
compensation check for 28 days of temporary total disability compensation, that he was not
entitled to the full amount of this check and that he should return this check to avoid an
overpayment of compensation. Instead, appellant accepted the check and deposited it in the
bank.
For these reasons, the Board finds that, under the circumstances of this case, the Office
properly found that appellant reasonably knew or should have known that the check issued by
the Office on September 1, 2007, which contained an overpayment in the amount of $1,107.39
was in error. As appellant was not without fault under the third standard outlined above,
recovery of the overpayment of compensation in the amount of $1,107.39 may not be waived.
Thus, the November 5, 2007 Office decision is affirmed.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $1,107.39 for the period August 20 through
September 1, 2007. The Board finds that the Office properly found appellant was at fault in
creating the overpayment.

6

20 C.F.R. § 10.433(a).

7

See Russell E. Wageneck, 46 ECAB 653 (1995).

4

ORDER
IT IS HEREBY ORDERED THAT the November 5, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 13, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0219
Issued: February 1, 2017

Case Submitted on the Record

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

JURISDICTION
On November 7, 2016 appellant, through counsel, filed a timely appeal from a May 31,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that counsel submitted additional evidence to the Board that was not of record when OWCP
issued its May 31, 2016 decision. The Board’s jurisdiction is limited to reviewing the evidence that was before
OWCP at the time of its final decision. Therefore, this additional evidence cannot be considered by the Board. 20
C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met his burden of proof to establish a left inguinal hernia
causally related to a December 31, 2014 employment incident.
FACTUAL HISTORY
On January 2, 2015 appellant, then a 45-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) for a groin injury that allegedly occurred on December 31, 2014. He
indicated that he felt a sharp pain “while casing mail.” The injury allegedly occurred at 7:30
a.m. Appellant indicated that he advised one of the supervisors the morning of the injury. He
also stopped work at 7:45 a.m. on the same date. The employing establishment controverted the
claim noting that when appellant left work on December 31, 2014, he stated that he felt ill and
was holding his stomach. However, appellant never reported any groin pain or an injury from
lifting.
Appellant submitted a December 31, 2014 note from the Riverside Medical Group that
indicated that he was disabled from December 31, 2014 to January 7, 2015. No diagnosis was
provided. The author’s signature is illegible. The note also indicated “No heavy lifting until
evaluated by a surgeon.”
In a letter dated January 14, 2015, OWCP requested that appellant submit additional
factual and medical evidence in support of his claim. In another letter dated January 14, 2015, it
requested additional information from the employing establishment.
Appellant submitted a January 9, 2015 duty status report (Form CA-17) from Dr. John
Poole, a general surgeon. The report listed December 31, 2014 as the date of injury, but did not
include a history of injury. Dr. Poole noted “umbilical hernia” under the heading “diagnosis due
to injury.” He noted that appellant needed surgery and advised that he could resume work only if
light duty was available. Dr. Poole noted that appellant could not lift more than 15 pounds.
In a January 15, 2015 Form CA-17, an unidentified nurse practitioner (“NP”) diagnosed
hernia. The report did not identify a date of injury.
In an “initial visit” form report dated January 20, 2015, Dr. Luningning Gatchalian, an
attending Board-certified family practitioner from the Riverside Medical Group, indicated that
appellant reported that on December 31, 2014 he felt sharp groin pain (left side) when lifting a
heavy mail tray. She diagnosed left inguinal hernia and indicated that appellant should be
referred to a surgeon.
In a Form CA-17, completed on January 20, 2015, Dr. Gatchalian did not list a date of
injury or mechanism of injury but identified the “diagnosis due to injury” as left inguinal hernia.
She recommended various work restrictions including no lifting more than 10 pounds.
In an attending physician’s report (Form CA-20), completed on January 20, 2015,
Dr. Gatchalian listed the date of injury as December 31, 2014 and the mechanism of injury as
“[left] groin pain after lifting heavy tray.” She diagnosed left inguinal hernia and checked a box

2

marked “Yes” indicating that the diagnosed condition was caused or aggravated by an
employment activity.
In a January 23, 2015 letter addressed to appellant, an employee of the Riverside Medical
Group, A. Natalie Gutierrez, indicated that appellant was initially seen on December 31, 2014
“shortly after [his] symptoms started.” Ms. Gutierrez described appellant as an employing
establishment “driver who lifts a lot of weight while on his shift.” She further noted that based
on “the physical examination the doctor [believed] that [appellant] might have an inguinal hernia
caused by the weight that [he had] been lifting during his shift.” Lastly, Ms. Gutierrez noted that
appellant had been referred to a general surgeon who would be the one to determine the probable
cause of appellant’s inguinal hernia.
In a decision dated February 20, 2015, OWCP denied appellant’s claim for a workrelated inguinal hernia. It found that appellant had not established the factual component of his
claim, i.e., the fact of injury. OWCP determined that appellant did not adequately identify the
specific work duties that he believed caused an inguinal hernia on December 31, 2014 and that
he did not respond to OWCP’s factual questions so as to establish the factual portion of your
claim.
Appellant submitted additional evidence in support of his claim. In a February 11, 2015
report, Dr. Adam Rosenstock, an attending Board-certified orthopedic surgeon, indicated that
appellant reported that he felt left groin pain while working on December 31, 2014 and that he
had no symptoms prior to this episode. Since then, appellant had daily pain and a bulge in the
left groin. Dr. Rosenstock diagnosed inguinal hernia, without mention of obstruction or
gangrene, and recommended laparoscopic left inguinal hernia repair.
On February 24, 2015 Dr. Rosenstock performed laparoscopic extra-peritoneal repair
surgery of appellant’s left inguinal hernia. The surgery was not authorized by OWCP.
Appellant, through counsel, expressed his disagreement with OWCP’s February 20, 2015
decision and requested a telephone hearing with an OWCP hearing representative. During the
hearing held on October 7, 2015, appellant testified regarding the work duties he performed on
December 31, 2014 and discussed the medical treatment he received for his inguinal hernia
condition. He indicated that he was casing mail on the morning of December 31, 2014 and that,
after he lifted a heavy tray of mail and turned to load it into a truck, he felt a sharp pain in his
groin area. Appellant noted that he then lifted another tray of mail and felt a worse pain in his
groin area.
In a decision dated December 15, 2015, the hearing representative denied appellant’s
claim for a work-related inguinal hernia. He modified OWCP’s February 20, 2015 decision to
reflect that appellant had established the factual aspect of his claim in that he identified work
factors on December 31, 2014, including casing mail and loading trays of mail into his postal
vehicle. The hearing representative further determined, however, that appellant failed to submit
rationalized medical evidence establishing an inguinal hernia due to these work factors.
On March 2, 2016 counsel requested reconsideration. He resubmitted copies of
documents previously submitted to OWCP. Counsel also submitted an October 22, 2015 letter in

3

which Dr. Rosenstock described the office visit on February 11, 2015. Dr. Rosenstock noted
that, upon examination, he found that appellant had a left inguinal hernia and he reported that he
later performed a laparoscopic repair on February 24, 2015. Dr. Rosenstock indicated, “As far as
whether this was work related I can only go by what [appellant] told me regarding when this
injury occurred,” but he definitely had a left inguinal hernia when I examined him.
By decision dated May 31, 2016, OWCP denied modification of the hearing
representative’s December 15, 2015 decision denying appellant’s claim for a work-related
inguinal hernia. It found that appellant had established work factors of casing mail and lifting
trays on December 15, 2015, but that he failed to submit rationalized medical evidence
establishing an inguinal hernia due to these work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained 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
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.6 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury
caused by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period
longer than a single workday or work shift. 20 C.F.R. § 10.5(q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
6

Julie B. Hawkins, 38 ECAB 393 (1987).

7

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

8

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

4

ANALYSIS
On January 2, 2015, appellant filed a Form CA-1 alleging that on December 31, 2014 he
sustained a groin injury. He noted that he felt a sharp pain while casing mail. OWCP initially
denied the claim because appellant failed to establish the alleged December 31, 2014
employment incident. However, the hearing representative subsequently accepted work factors
of casing mail, lifting heavy mail trays, and loading the trays into a truck on December 31, 2014.
Although the evidence of record supported that the December 31, 2014 incident occurred as
alleged, and appellant was diagnosed with a left inguinal hernia, OWCP found that appellant
failed to submit rationalized medical evidence establishing a work-related inguinal hernia.
The Board finds that appellant failed to meet his burden of proof to establish a workrelated inguinal hernia on December 31, 2014, as he failed to submit sufficient medical evidence
to establish such an injury on December 31, 2014 due to the accepted work factors.
In a Form CA-20, completed on January 20, 2015, Dr. Gatchalian, an attending
physician, listed the date of injury as December 31, 2014 and the mechanism of injury as “[left]
groin pain after lifting heavy tray.” She diagnosed left inguinal hernia and checked a box
marked “Yes” indicating that the diagnosed condition was caused or aggravated by an
employment activity. The Board has held that when a physician’s opinion on causal relationship
consists only of checking “Yes” to a form question, without more by the way of medical rationale,
that opinion has little probative value and is insufficient to establish causal relationship.
Appellant’s burden includes the necessity of furnishing an affirmative opinion from a physician
who supports his or her conclusion with sound medical reasoning.9 As Dr. Gatchalian did no more
than check “Yes” to a form question, her opinion on causal relationship is of little probative value
and is insufficient to discharge appellant’s burden of proof. She did not discuss appellant’s work
factors in any detail or explain the medical process through which they could have caused an
inguinal hernia. In addition, Dr. Gatchalian did not discuss appellant’s factual and medical history
in any detail and, therefore, it cannot be said that her opinion was based on a complete factual and
medical history.10
In another January 20, 2015 form report, Dr. Gatchalian listed December 31, 2014 as the
date of injury and noted that the “diagnosis due to injury” was inguinal hernia. However, this
report does not contain a rationalized medical opinion relating the diagnosed condition to the
accepted work factors. The Board has held 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.11
In a January 23, 2015 letter addressed to appellant, an employee of the Riverside Medical
Group indicated that appellant was initially seen by the office on December 31, 2014 and that
“the doctor believes that the patient might have an inguinal hernia caused by the weight that the
9

Lillian M. Jones, 34 ECAB 379, 381 (1982).

10

See supra note 8.

11

C.M., Docket No. 14-88 (issued April 18, 2014).

5

patient has been lifting during his shift.” However, this letter does not have probative value on
the issue of medical causation because there is no indication that it was produced by a physician.
Rather, it appears to have been produced by a nonphysician employee of the Riverside Medical
Group.12
In an October 22, 2015 letter, Dr. Rosenstock, an attending physician, noted that he found
that appellant had a left inguinal hernia and he reported that he performed a laparoscopic repair
on February 24, 2015. He indicated, “As far as whether this was work related I can only go by
what [appellant] told me regarding when this injury occurred but he definitely had a left inguinal
hernia when I examined him.” The submission of this report would not establish appellant’s
claim for a work-related inguinal hernia because Dr. Rosenstock did not provide a clear,
unequivocal medical opinion regarding the cause of appellant’s hernia. Rather, Dr. Rosenstock
simply repeated appellant’s belief regarding the cause of the hernia. The Board has held that an
opinion which is equivocal or speculative is of limited probative value regarding the issue of causal
relationship.13
Thus the Board finds that appellant failed to meet his burden of proof to establish a workrelated inguinal hernia on December 31, 2014.14
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 his burden of proof to establish a left inguinal
hernia causally related to a December 31, 2014 employment incident.

12

Under FECA, the report of a nonphysician does not constitute probative medical evidence. See L.L., Docket
No. 13-829 (issued August 20, 2013).
13

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956).

14

The record contains a form entitled “Authorization for Examination and/or Treatment” (Form CA-16), which
was completed on February 3, 2015. The Board notes that where an employing establishment properly executes a
Form CA-16 which authorizes medical treatment as a result of an employee’s claim for an employment-related
injury, the Form CA-16 creates a contractual obligation, which does not involve the employee directly, to pay for the
cost of the examination or treatment regardless of the action taken on the claim. See Tracy P. Spillane, 54 ECAB
608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of
issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c). The record is silent as to whether OWCP
paid for the cost of appellant’s examination or treatment for the period noted on the form. Upon return of the case
record, OWCP should address this issue.

6

ORDER
IT IS HEREBY ORDERED THAT the May 31, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Federal Way, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1949
Issued: April 28, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 8, 2014 appellant filed a timely appeal from a March 25, 2014 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.2
1
2

5 U.S.C. § 8101 et seq.

When filing this appeal before the Board, appellant also noted July 22 and August 14, 2014 as dates of OWCP
decisions being appealed. The Board notes that OWCP’s August 14, 2014 decision approved her request for
reimbursement of expenses for 646 miles of travel to Olympia, Washington on July 8 and 9, 2013. As appellant’s
travel expenses were approved, the appeal of the August 14, 2014 decision is moot. The Board further notes that
there has been no applicable decision by OWCP on July 22, 2014. Appellant filed an appeal of OWCP’s July 22,
2014 advice letter which was informing her of evidence required to obtain authorization for travel expenses beyond
100 miles for her medical appointment on August 4, 2014. The Board notes that the record does not contain a final
decision on appeal as OWCP’s July 22, 2014 advice letter was not a decision. Therefore, the Board does not have
jurisdiction over that issue. The Board has jurisdiction only over appeals from a final decision of OWCP and thus,
no jurisdiction where OWCP has not issued such a decision. 20 C.F.R. § 501.2(c) (the Board has jurisdiction to
consider and decide appeals from final decisions; there shall be no appeal with respect to any interlocutory matter
disposed of during the pendency of the case). On appeal, appellant argues that she was denied travel reimbursement
for treatment with Dr. Kurt Anderson, a Board-certified hand and orthopedic surgeon, because the claims examiner
did not preapprove the travel for the following dates: September 10 and 11; October 21 and 22; December 1 to 3
and 8 and 9, 2013; and February 1 to 3, 2014. As noted above, the record does not contain a final decision with
respect to reimbursement of travel expenses on these dates. Thus, the Board does not have jurisdiction over this
issue. Id.

ISSUES
The issues are: (1) whether appellant is entitled to a schedule award for permanent
impairment of the right and left upper extremities; and (2) whether OWCP properly declined
appellant’s reimbursement of travel expenses to obtain medical treatment.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 12, 2014, the
Board remanded a July 3, 2013 OWCP merit decision, which denied appellant’s claim for
reimbursement of travel expenses for medical treatment during the dates of July 8 and 9, 2013.3
The findings of fact and conclusions of law from the prior decision and order are hereby
incorporated by reference.
On July 11, 2011 appellant, then a 51-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS) and
osteoarthritis in her wrists and fingers as a result of her federal employment duties. OWCP
accepted the claim for bilateral hand osteoarthritis and bilateral trigger finger.
In September 2011, appellant began treatment with Dr. Anderson, who performed various
surgical procedures pertaining to her accepted employment-related conditions which were
approved by OWCP. She continued seeking treatment with him over the course of her treatment.
On February 12, 2014 appellant filed a claim for a schedule award (Form CA-7).
By letter dated February 14, 2014, OWCP requested that appellant submit a report from
her attending physician addressing her work-related conditions, the date of maximum medical
improvement (MMI), objective findings, subjective complaints, and an impairment rating
rendered according to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (6th ed. 2009). It informed her that it was her
responsibility to find a qualified physician who would perform the required examination if her
treating physician declined to do so.
Appellant submitted reports dated July 9 to December 2, 2013 from Dr. Anderson
recommending various surgical procedures.
The only current medical evidence received was Dr. Anderson’s February 3, 2014 report,
which noted that appellant was doing well postoperatively and could return to normal active duty
despite mild complaints of pain.
Dr. Anderson diagnosed successful bilateral thumb
interphalangeal joint arthrodesis, successful bilateral carpometacarpal (CMC) arthroplasty, and
successful left hand index finger A1 pulley release. He concluded that appellant required an
independent medical examination and a disability rating to close her workers’ compensation
claim.
By decision dated March 25, 2014, OWCP denied appellant’s claim for a schedule award
finding that the medical evidence failed to demonstrate a measurable impairment of bilateral
trigger finger and bilateral osteoarthritis of the hands.

3

Docket No. 14-150 (issued May 12, 2014).

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.4 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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 (6th ed. 2009) has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.6 OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of MMI), describes the impairment in sufficient detail so
that it can be visualized on review and computes the percentage of impairment in accordance
with the A.M.A., Guides.7
The sixth edition requires identifying the impairment class for the Class of Diagnosis
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).8 The Net Adjustment Formula is
GMFH - CDX + GMPE - CDX + GMCS - CDX.
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for bilateral hand osteoarthritis and bilateral trigger
finger. On February 12, 2014 appellant filed a claim for a schedule award. By decision dated
March 25, 2014, OWCP denied her schedule award claim finding that she had not submitted an
impairment evaluation to establish that she sustained a permanent impairment resulting from her
work injury.
The Board concludes that appellant has not submitted sufficient evidence to establish
that, as a result of her employment injury, she sustained any permanent impairment to a
scheduled member such that she would be entitled to a schedule award. By letter dated
February 14, 2014, OWCP informed her of the type of evidence necessary to establish her
schedule award claim and specifically requested that she submit an impairment evaluation from
her attending physician in accordance with the sixth edition of the A.M.A., Guides. Appellant
submitted a February 3, 2014 report from Dr. Anderson who noted that she was doing well
postoperatively and could return to normal active duty despite mild complaints of pain.
4

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

5

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
6

Tammy L. Meehan, 53 ECAB 229 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013).
8

A.M.A., Guides 494-531.

3

Dr. Anderson diagnosed successful bilateral thumb interphalangeal joint arthrodesis, successful
bilateral CMC arthroplasty, and successful left hand index finger A1 pulley release. He
concluded that appellant required an independent medical examination and a disability rating to
close her workers’ compensation claim.
The Board finds that Dr. Anderson’s report is insufficient to establish that appellant is
entitled to a schedule award. OWCP procedures provide that MMI must be reached before a
schedule award can be made.9 Dr. Anderson failed to state that MMI had been reached and
provided no impairment rating for the upper extremities.10 Thus, his report is insufficient to
establish that appellant reached MMI and sustained a permanent impairment of her bilateral
trigger finger or bilateral hand osteoarthritis.
The Board notes that it is appellant’s burden of proof to establish that she sustained a
permanent impairment of a scheduled member as a result of an employment injury.11 The
medical evidence must include a description of any physical impairment in sufficient detail so
that the claims examiner and others reviewing the file would be able to clearly visualize the
impairment with its resulting restrictions and limitations.12 Appellant did not submit such
evidence and thus, OWCP properly denied her schedule award claim.13
On appeal, appellant argues that she was not provided enough time to obtain the required
medical evidence. The Board finds this argument without merit as she was provided more than
30 days from the date of the February 14, 2014 development letter to the March 25, 2014
decision denying her claim for a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish entitlement to
a schedule award for permanent impairment.

9

FECA Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (January 2010).

10

E.D., Docket No. 10-967 (issued January 7, 2011).

11

Supra note 6.

12

See A.L., Docket No. 08-1730 (issued March 16, 2009).

13

L.F., Docket No. 10-343 (issued November 29, 2010); V.W., Docket No. 09-2026 (issued February 16, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 28, 2015
Washington, DC

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

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

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

5