United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
U.S. POSTAL SERVICE, MADISON MAIN
POST OFFICE, Madison, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1851
Issued: June 14, 2011

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 July 7, 2010 appellant, through her attorney, filed a timely appeal of the June 8, 2010
merit decision of the Office of Workers’ Compensation Programs which denied modification of
a July 31, 2002 loss of wage-earning capacity determination. Pursuant to the Federal
Employees’ Compensation Act1 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 modification of the Office’s July 31, 2002
wage-earning capacity determination.
On appeal, counsel contends that the Office’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on June 17, 1999 appellant, then a 38-year-old mail processor,
sustained a lumbar strain and left lateral epicondylitis while “tying” out a machine at work.
Appellant’s regular hours prior to her employment injury were 10:30 p.m. to 7:00 a.m. from
Tuesday through Saturday.
Appellant stopped work on the date of injury and returned to part-time work on
February 26, 2001 from 8:30 a.m. to 1:00 p.m., with Saturdays and Sundays off as a modified
distribution clerk based on the restrictions set forth by Dr. Lynda A. Siewert, an attending Boardcertified family practitioner.2 Duties included hand stamping parcels, letters and flats and
repairing damaged mail. Appellant was allowed to change his position every 30 minutes of
sitting and standing.
In a decision dated July 31, 2002, the Office reduced appellant’s compensation benefits,
based on its finding that her actual wages in her limited-duty position fairly and reasonably
represented her wage-earning capacity as she had demonstrated her ability to perform the duties
of that position for more than two months.
On February 24, 2009 the employing establishment offered appellant a modified mail
processor position from 2:00 a.m. to 6:30 a.m. on Tuesday through Saturday. Appellant rejected
the job offer on the same date. Also, on February 24, 2009 the employing establishment
requested that the Office make a suitability determination regarding the offered job.
By letter dated June 4, 2009, the Office advised appellant and the employing
establishment of the grounds needed to establish modification of the July 31, 2002 wage-earning
capacity decision. It further advised that, if appellant believed that her employment-related
conditions had worsened, she should submit a notice of recurrence of disability and a
rationalized medical report from her attending physician in support of her claim.
In a July 13, 2009 letter, the employing establishment terminated appellant’s employment
effective July 14, 2009 due to declining mail volume and her failure to submit a light-duty work
request form. It stated that no productive light-duty work was available within her restrictions
which limited her to day shift work.
Appellant filed claims for wage-loss compensation for the period July 14, 2009 through
January 31, 2010.
In an August 14, 2009 medical report, Dr. Porter noted that appellant had been able to
work four and one-half hours per day from 7:00 a.m. to 3:00 p.m. with permanent restrictions
following her June 17, 1999 employment injuries. He advised that excessive lifting at work was
the direct cause of her fibromyalgia. Dr. Porter did not anticipate any change in her condition.

2

The employing establishment’s job offer for the modified distribution clerk was dated May 18, 2001, but stated
that the offered position was effective February 26, 2001.

2

In an undated prescription, Dr. Siewart ordered a functional capacity evaluation (FCE).
In an October 6, 2009 treatment note, she listed findings on physical examination and diagnosed
ongoing low back and neck pain and left lateral epicondylitis. Dr. Siewart advised that it was
more likely than not that appellant had fibromyalgia due to the diagnosed conditions. She related
that appellant did not believe it was reasonable or possible for her to work in the offered position
since her symptomatology disrupted her multiple daily activities.
In a January 6, 2010 decision, the Office denied appellant’s recurrence claim, finding that
the medical evidence failed to establish that her disability as of July 14, 2009 was causally
related to her June 17, 1999 employment injuries.
On January 11, 2010 appellant, through her attorney, requested a telephone hearing. In a
January 20, 2010 letter, appellant stated that she was unable to perform the duties of her former
modified distribution clerk position and February 24, 2009 offered modified mail processor
position based on the results of an FCE performed on November 23 and 24, 2009.
In an April 5, 2010 report, Dr. Siewart noted appellant’s ongoing problems of generalized
osteoarthritis in her bilateral knees and thumbs, low back and left elbow following her June 17,
1999 employment injuries. She diagnosed left lateral epicondylitis, fibromyalgia and obstructive
sleep apnea. Dr. Siewart agreed with Dr. Porter’s finding that appellant was permanently
disabled due to her generalized osteoarthritis and fibromyalgia.
During the April 8, 2010 telephone hearing, appellant testified that she was advised by
the employing establishment on July 13, 2009 that no more work was available. At the time of
her termination, she had been scanning more than 20 trucks a day for the past two years in
addition to her hand stamp duties. The only available work was from 2:00 a.m. to 6:30 a.m. and
involved different duties from the duties of the February 24, 2009 offered modified position.
Appellant stated that her former position was assigned to another employee. She rejected the
February 24, 2009 job offer based on her physicians’ opinion that she could not perform the
required duties. Appellant contended that she did not stop work due to the employing
establishment’s withdrawal of her employment on July 13, 2009, but rather due to the worsening
of her employment-related conditions as demonstrated by the FCE results. Appellant’s attorney
contended that appellant’s former limited-duty position was a makeshift position that could not
be used as a basis for a wage-earning capacity determination.
In a June 8, 2010 decision, an Office hearing representative affirmed the January 6, 2010
decision. The hearing representative found appellant did not establish that modification of the
July 31, 2002 wage-earning capacity determination was warranted as the newly submitted
medical evidence failed to establish a material worsening of her employment-related conditions.
LEGAL PRECEDENT
Section 8115(a) of the Act provides that the wage-earning capacity of an employee is
determined by her actual earnings if her actual earnings fairly and reasonably represent her
wage-earning capacity.3 The Board has stated, generally, wages actually earned are the best
3

5 U.S.C. § 8115(a).

3

measure of a wage-earning capacity and in the absence of evidence showing that they do not
fairly and reasonably represent the injured employee’s wage-earning capacity, must be accepted
as such measure.4 However, wage-earning capacity may not be based on an odd-lot or makeshift position designed for an employee’s particular needs or a position that is seasonal in an area
where year-round employment is available.5 Office procedures direct that a wage-earning
capacity determination based on actual wages be made following 60 days of employment.6
The Office’s procedure manual provides guidelines for determining wage-earning
capacity based on actual earnings:
“a. Factors considered. To determine whether the claimant’s work fairly and
reasonably represents his or her WEC [wage-earning capacity], the CE [claims
examiner] should consider whether the kind of appointment and tour of duty (see
FECA PM 2.900.3) are at least equivalent to those of the job held on date of
injury. Unless they are, the CE may not consider the work suitable.
“For instance, reemployment of a temporary or casual worker in another
temporary or casual (USPS) position is proper, as long as it will last at least 90
days and reemployment of a term or transitional (USPS) worker in another term
or transitional position is likewise acceptable. However, the reemployment may
not be considered suitable when:-(1) The job is part-time (unless the claimant was a part-time worker at the
time of injury) or sporadic in nature;
(2) The job is seasonal in an area where year-round employment is
available.
(3) The job is temporary where the claimant’s previous job was
permanent.”7
Board precedent and the Office’s procedures provide that once a loss of wage-earning
capacity is determined, a modification of such a determination is not warranted unless there is a
material change in the nature and extent of the employment-related condition, the employee has
been retrained or otherwise vocationally rehabilitated or the original determination was in fact
4

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is
defined in the implementing federal regulations as the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury. 20 C.F.R. § 10.5(f). Once it is determined that the actual
wages of a given position represent a employee’s wage-earning capacity, the Office applies the principles
enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in the employee’s
compensation.
5

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7a(1) (July 1997).
6

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.814.7c (December 1993).

7

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.814.7a (July 1997).

4

erroneous.8 The burden of proof is on the party attempting to show the award should be
modified.9
ANALYSIS
The Office issued a wage-earning capacity determination on July 31, 2002 based on
appellant’s actual earnings as a modified distribution clerk. Appellant filed claims for
compensation commencing July 14, 2009. In a January 6, 2010 decision, the Office denied
appellant’s recurrence claim, finding that the medical evidence failed to establish that her
disability as of July 14, 2009 was causally related to her June 17, 1999 employment injuries.
However, as the July 31, 2002 wage-earning capacity determination was in place on July 14,
2009, the issue is whether the Office should modify the existing wage-earning capacity
determination.10
Appellant argued that the original wage-earning capacity determination was erroneous, in
that the limited-duty position did not reasonably reflect her wage-earning capacity. The Board
finds that the original wage-earning capacity determination was erroneous.
The record indicates that appellant’s date-of-injury job as a mail processor was a fulltime job for at least 40 hours per week. However, the actual earnings in this case were based on
a part-time position, at four and one-half hours per week, as a modified distribution clerk. As the
Office procedure manual indicates, in situations where an employee is working full time when
injured and is reemployed in a part-time position, a formal wage-earning capacity determination
is generally not appropriate. The Board has held that the Office must address the issue and
explain why a part-time position is suitable for a wage-earning capacity determination based on
the specific circumstances of the case.11 The Office did not address this issue in either its
July 31, 2002 or June 8, 2010 decisions. The decisions make a finding that the modified
distribution clerk position represented appellant’s wage-earning capacity, without clearly
explaining why the actual earnings were based on a part-time position where appellant was not a
part-time employee when injured.12 The Board finds that the position does not fairly and
reasonably represent her wage-earning capacity and, thus, the original wage-earning capacity
determination was erroneous. Consequently, appellant has established that the July 31, 2002
wage-earning capacity determination warrants modification.

8

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984). See also
Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.814.11 (October 2009).
9

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986); see also Federal (FECA) Procedure Manual, supra note 5 at
Chapter 2.814.11 (October 2009).
10

See K.R., Docket No. 09-415 (issued February 24, 2010).

11

Connie L. Potratz-Watson, 56 ECAB 316 (2005).

12

In the July 31, 2002 decision, the Office briefly noted that appellant was employed in a full-time capacity on
the date of injury and the medical evidence showed appellant was only capable of part-time employment, but it did
not provide any further explanation of why it was appropriate to base appellant’s wage-earning capacity on a parttime position.

5

CONCLUSION
The Board finds that the Office improperly denied modification of its July 31, 2002
wage-earning capacity determination as the evidence establishes the wage-earning capacity was
issued in error.
ORDER
IT IS HEREBY ORDERED THAT the June 8, 2010 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: June 14, 2011
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, HEADQUARTERS,
FIELD INFORMATION SYSTEMS
PROGRAMS, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-659
Issued: August 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2007 appellant filed a timely appeal from an October 30, 2007 merit
decision of the Office of Workers’ Compensation Programs that denied modification of previous
denials of his claim for a recurrence of disability. 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 appellant established that on June 5, 2003 he sustained a recurrence
of a medical condition causally related to his January 3, 1994 work injury.
FACTUAL HISTORY
On January 10, 1994 appellant, then a 42-year-old information systems specialist, filed a
traumatic injury claim stating that he sustained right shoulder, buttocks, and back sprains on
January 3, 1994 when he slipped on a wet spot while exiting a building and landed in the
revolving doors. He did not stop work. In a February 3, 1994 report, Dr. Kevin E. McGovern, a

Board-certified orthopedic surgeon, diagnosed lumbar strain with lumbar radiculopathy and a
right shoulder sprain. He explained that appellant’s injury occurred when he slipped and fell on
January 3, 1994, landing on his back and right side. The Office accepted appellant’s claim for
right shoulder strain and lumbar strain with left radiculopathy. It also accepted appellant’s
claims for thoracic or lumbosacral neuritis or radiculopathy, lumbar sprain/strain, and major
depressive disorder, single episode. The Office paid appropriate benefits.
Appellant continued to undergo treatment for his work injury and resulting symptoms.
On May 19, 1995 Dr. P. Singh Ajrawat, a pain management specialist, explained that appellant
had persistent but improving low back pain and hip pain and noted that appellant was motivated
to work. On June 6, 1995 he reported that appellant had pain in his middle back radiating to his
shoulders. Dr. Ajrawat continued to submit treatment notes from July 25 to November 10, 1995
and received payment for appellant’s treatment during that time. On May 13, 1997 he noted
appellant’s complaints of lower back and bilateral leg pain, as well as depression. On
November 2, 1998 Dr. Ajrawat explained that appellant had undergone a lumbar laminectomy
secondary to his work injury and had developed chronic low back pain. He stated that appellant
was required to stop treatment for a period of time and developed a “severe recurrence” of his
pain and symptoms in his lower back, lower extremity, upper back and shoulder, but did not
provide any additional details. Dr. Ajrawat continued to treat appellant intermittently. In reports
dated December 2, 2002 and January 17, 2003, he again noted appellant’s complaints of right
shoulder, shoulder blade and upper arm pain. On January 24, 2003 appellant reported continuing
left hip, buttock and low back pain.
By correspondence dated June 25, 2003, appellant advised that the employing
establishment had informed him that his claim had been closed.1 He noted that neither he nor his
treating physician had received notice of the closing of his claim. On June 26, 2003 and
February 26, 2004 appellant filed a claim for recurrence of a medical condition beginning on
June 5, 2003. He did not stop work. On December 15, 2003 Dr. Ajrawat explained that he was
treating appellant for continuing lower back, buttocks and bilateral leg pain related to his
January 3, 1994 work injury. He stated that appellant was unable to work full time without
continuing treatment.
On May 13, 2004 the Office referred appellant to Dr. Robert Draper, a Board-certified
orthopedic surgeon, to determine the cause and extent of his current condition. In a May 27,
2004 report, Dr. Draper indicated that the Office had previously accepted appellant’s claim for
sprain and strain of the right shoulder and upper arm, thoracic and lumbosacral neuritis or
radiculopathy, lumbar sprain/strain and major depressive disorder, single episode. He also noted
that appellant had a herniated lumbar disc and a lumbar laminectomy in 1974, which were not
accepted by the Office. Dr. Draper noted appellant’s work injury and his subsequent treatment.
He noted the results of a May 12, 2004 x-ray, which showed rotary levoscoliosis, degenerative
disc disease and osteophyte formation, as well as some mild early osteoarthritis of the medial
joint space of the left hip. Dr. Draper diagnosed degenerative arthritis of the acromioclavicular
1

The record indicates that, after paying for various medical services from 1994 to 1997, the Office closed the
claim on May 27, 2003. On November 9, 1999 it Dr. Ajrawat advised that certain claimed services could not be
paid without medical justification. The record does not indicate that, prior to closing the claim on May 27, 2003, the
Office issued any decision denying any particular claimed benefit.

2

joint, preexisting degenerative lumbar disc disease at L1-2 and L5-S1 with osteophyte formation,
and mild medial compartment osteoarthritis of the left hip. He opined that appellant’s current
condition was degenerative in nature, related to the aging process and not to his January 3, 1994
work injury. Dr. Draper explained that appellant had sustained “soft tissue” injuries more than
10 years prior to his examination, and that his present condition was related to his degenerative
diagnoses which were not related to work. In a May 27, 2004 work capacity evaluation, he
indicated that appellant could work full time without restrictions.
In a June 4, 2004 statement, appellant asserted that his January 3, 1994 work injury
caused permanent disability. He characterized his treatment as “maintenance mode” and
explained that he required continuing medical treatment. Appellant stated that he continued to
work full time. In a June 4, 2004 report, Dr. Ajrawat stated that appellant was being treated for
symptoms of pain arising from his January 3, 1994 work injury. He explained that appellant had
not sustained any other injuries in the time since his work accident and that his current symptoms
were related to his work accident. Dr. Ajrawat diagnosed moderate degenerative joint disease in
the acromioclavicular joint, a rim-rent tear of the rotary cuff, supraspinatus component, and a
juxta-synovial cyst.
By decision dated June 21, 2004, the Office denied appellant’s recurrence claim on the
grounds that the medical evidence did not establish that appellant’s present condition was
causally related to his 1994 work injury.
Appellant requested an oral hearing that was held on December 7, 2004. At the hearing,
he reiterated that his injury had not resolved and recurred, but rather had never resolved.
Appellant explained that filing a recurrence of medical condition claim was the only way to have
his claim reopened. In a December 7, 2004 statement, he explained that he had received pain
medication and treatment of his right shoulder, lumbar and hip pain on a continual basis and
without interruption since his 1994 work injury. Appellant explained that, at the end of
May 2003, his supervisor informed him that his claim had been closed and presented him with
forms for reopening his claim. He stated that the employing establishment advised him that the
only way to have his claim reopened was to file a recurrence claim. Appellant stated that he
understood that “recurrence implies that there was an interruption in treatment” and that there
had been no such interruption in his case, but that filing a claim for recurrence of medical
condition was “the only acceptable way to get the Office to correct their error in closing this case
to begin with.”
In a February 2, 2005 report, Dr. Ajrawat noted that appellant’s accepted conditions
included right shoulder and upper arm sprain/strain, thoracic and lumbar radiculopathy, lumbar
sprain/strain and major depressive disorder. He reported that an orthopedic surgeon had
examined appellant and diagnosed subacromion bursitis, severe right shoulder impingement and
partial/full thickness rotator cuff tear. Dr. Ajrawat stated that the other physician2 found that
appellant’s pain was not related to degenerative changes in his acromioclavicular joint. He
explained that appellant’s condition was not age related, but rather was related to his January 3,
1994 work injury. Dr. Ajrawat diagnosed right rotator cuff tear, right subacromion bursitis, left
2

The report of the other physician is not of record.

3

hip medial compartment osteoarthritis, myofascial pain disorder, lumbosacral neuritis and
depression related to chronic pain. He opined that appellant’s diagnosed conditions were directly
related to continuing and chronic pain arising from his 1994 work injury.
By decision dated March 28, 2005, the hearing representative affirmed the June 21, 2004
decision on the grounds that the medical evidence was insufficient to establish that appellant’s
current condition was related to his accepted 1994 work injury.
On March 21, 2006 appellant requested reconsideration. In support of his reconsideration
request, he submitted a February 14, 2006 report from Dr. Jeffrey D. Gaber, a Board-certified
internist, who noted appellant’s history of injury on January 3, 1994 and explained that appellant
was asymptomatic prior to his injury and had experienced chronic pain since. Dr. Gaber stated
that appellant’s current condition was related to his work injury based on the fact that he was
asymptomatic prior to his injury and had required continuing treatment since. He disagreed with
Dr. Draper’s assessment that appellant’s 1994 work injury was a “soft tissue” injury, noting that
appellant had since developed arthritis, lumbosacral radiculopathy and subacromial bursitis.
By decision dated October 5, 2006, the Office denied modification of its previous denials
of appellant’s recurrence claim.
On August 21, 2007 appellant requested reconsideration. In support of his request, he
submitted an August 20, 2007 report from Dr. Robert W. Macht, a Board-certified surgeon, who
diagnosed right shoulder strain and lumbar strain with left radiculopathy. Dr. Macht noted
appellant’s history of a prior back injury, from which appellant claimed he fully recovered and
several motor vehicle accidents in which appellant stated he was not injured. He concluded that
appellant’s condition was related to his 1994 work injury because appellant had undergone
continuous care since 1994 for his back, legs and right shoulder conditions.
By decision dated October 30, 2007, the Office denied modification of its previous
denials of appellant’s claim.
LEGAL PRECEDENT
A claimant seeking compensation under the Federal Employees’ Compensation Act3 has
the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence.4 In this case, appellant has the burden of establishing that he
sustained a recurrence of a medical condition5 on June 5, 2003 causally related to his January 3,
1994 employment injury. This burden includes the necessity of furnishing medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
3

5 U.S.C. §§ 8101-8193.

4

Edward W. Spohr, 54 ECAB 806 (2003).

5

Recurrence of a medical condition means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuing treatment
for the original condition or injury is not considered a “need for further medical treatment,” nor is an examination
without treatment. 20 C.F.R. § 10.5(y) (2002).

4

concludes that the condition is causally related to the employment injury and supports that
conclusion with sound medical rationale.6 Where no such rationale is present, the medical
evidence is of diminished probative value.7
ANALYSIS
The Office accepted appellant’s claim for right shoulder strain, lumbar strain with left
radiculopathy, lumbosacral neuritis, and major depressive disorder, single episode in connection
with his January 3, 1994 traumatic injury. Appellant sought treatment from Dr. Ajrawat, who
provided continuing treatment of appellant’s chronic pain symptoms from 1994 until the filing of
appellant’s recurrence of disability claims in 2003 and 2004. He filed a claim alleging that he
sustained a recurrence of a medical condition on June 5, 2003. Appellant did not stop work. He
explained that the Office closed his claim and that the “only appropriate way” to have his claim
reopened was to file a recurrence claim. Appellant stated that he understood that a recurrence
implied that the injury resolved and then recurred, whereas his injury had simply never resolved.
In June 4, 2004 and February 2, 2005 reports, Dr. Ajrawat, appellant’s treating physician, also
stated that appellant’s injury had never resolved, but rather that he had experienced chronic pain
and continuing symptoms, requiring treatment without interruption. As noted above, a need for
continuing medical treatment does not establish a recurrence of a medical condition.8
Furthermore, the weight of the medical evidence does not establish that appellant’s
continuing treatment is necessitated by his January 3, 1994 employment injury. Dr. Ajrawat has
submitted several reports asserting that appellant’s continuing condition and need for treatment
are due to his employment injury. However, he has not provided medical rationale to support his
opinion on causal relationship. For example, Dr. Ajrawat referenced the report of another
physician, which is not of record, in support of his opinion but he did not provide his own
opinion in which he explained the medical reasons by which appellant’s accepted conditions
would persist since 1994 nor did he explain why appellant’s continuing need for treatment would
not be the result of appellant’s several degenerative conditions which were not accepted as being
employment related. As noted, part of a claimant’s burden of proof to establish includes the
submission of rationalized medical evidence supporting that the continuing condition is causally
related to the employment injury.9 Dr. Gaber’s report is also insufficient to establish the claim as
the only reasoning he provided in support of causal relationship was that appellant was
asymptomatic prior to his injury and required treatment afterward. However, the Board has held
that the opinion of a physician that a condition is causally related to an employment injury
because the employee was asymptomatic before the employment injury is insufficient, without
supporting medical rationale, to establish causal relationship.10 Similarly, Dr. Macht’s report is
also insufficient as he also supported causal relationship on the basis that appellant had
6

Mary A. Ceglia, 55 ECAB 626 (2004).

7

Id.; Albert C. Brown, 52 ECAB 218 (2000).

8

Supra note 5.

9

See supra notes 6, 7.

10

Thomas R. Horsfall, 48 ECAB 180 (1996).

5

undergone continuous care since 1994 for his back, legs and right shoulder. He provided no
other reasoning or rationale to explain his opinion.
Dr. Draper, however, opined in his May 27, 2004 report that appellant’s current condition
was caused by degenerative changes relating to the aging process, not by the work injury. He
conducted a thorough examination, reviewed the record and found no basis on which to attribute
any medical condition or work restriction to the original 1994 employment injury. Dr. Draper
noted that appellant’s original injury was a soft tissue injury and that his current conditions were
degenerative in nature and due to the aging process. He stated that appellant may occasionally
need some pain medication or other pain management treatment to alleviate his symptoms, but
that the symptoms in question were not work related.
Accordingly, the Board finds that appellant has not met his burden of proof in
establishing that he sustained a recurrence of his medical condition in June 2003, causally related
to his January 3, 1994 work injury.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of a
medical condition causally related to his January 3, 1994 work-related injury.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, PROVIDENCE
PROCESSING & DISTRIBUTION CENTER,
Providence, RI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
John L. Whitehouse, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-888
Issued: August 3, 2007

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 February 12, 2007 appellant filed a timely appeal from a December 6, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs that denied her request for
reconsideration. Because more than one year has elapsed between the most recent merit decision
dated November 21, 2005 and the filing of this appeal on February 12, 2007 the Board lacks
jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without conducting a merit review.
FACTUAL HISTORY
On February 20, 2004 appellant, then a 43-year-old mail handler, filed an occupational
disease claim alleging that she developed right carpal tunnel syndrome in the performance of

duty.1 She stated that she first became aware of her condition on September 5, 2003 and first
related it to her employment on February 20, 2004. Appellant claimed that she experienced
“severe swelling” of the right wrist while “traying” mail, a task involving repetitive wrist
movement. She did not stop.
In support of her claim, appellant submitted a February 20, 2004 prescription note from
Dr. Stanley M. Leitzes, an orthopedic surgeon, who prescribed a wrist splint.
On March 16, 2004 the Office requested additional information concerning appellant’s
claim. In response, appellant provided a February 20, 2004 narrative report from Dr. Leitzes
who diagnosed carpal tunnel syndrome and noted that appellant worked for the employing
establishment but did not articulate an opinion on causal relationship. She also submitted the
fourth page of a September 5, 2003 diagnostic testing report from Dr. Albert A. Ackil, a
neurologist, who found “electrophysiologic evidence of a mild right carpal tunnel syndrome.”
In an April 10, 2004 statement, appellant explained the etiology of her claimed carpal
tunnel syndrome. She stated that she was injured at work on December 13, 2000 and that her
corresponding traumatic injury claim was accepted for neck, back and shoulder subluxation and
she was placed on limited duty. Appellant stated that, after she returned to full duty in
June 2003, she experienced numbness and tingling in all the fingers of her right hand and on
February 20, 2004 she noticed that her wrist swelled up while she was traying mail, a task which
“requires a lot of lifting and repetitive fine manipulation of the hands and wrists.” She also
provided several reports from Dr. Alvin Marcovici, a Board-certified neurosurgeon, who
discussed appellant’s conditions relating to her December 13, 2000 employment injury.
By decision dated June 1, 2004, the Office denied appellant’s occupational disease claim
because the medical evidence did not establish that her condition resulted from employment
events.
In a February 20, 2004 narrative report, Dr. Leitzes noted that appellant was required to
perform repetitive motion tasks at work. He indicated that she was restricted with regard to the
use of her right hand. Dr. Leitzes explained: “Working on a repetitive basis would only flare-up
[appellant’s] symptoms and, therefore, [she] should be out of work with required use of her right
hand.”
In a September 21, 2004 report, Dr. David M. Boland, a Board-certified orthopedic
surgeon and appellant’s attending physician, opined: “I do feel that, more probably than not,
[appellant’s] carpal tunnel syndrome directly relates to the strenuous and repetitious use of her
hands in the course of her employment.” He explained that she “has no other illnesses that are
associated with entrapment neuropathy such as diabetes, thyroid disease or some of the more rare
illnesses.” Dr. Boland stated that appellant characterized her symptoms as improving after
weekends or other time off and worsening “after an aggressive day in the course of her
employment.” He also noted: “I am familiar with the activities that appellant has to do in the
course of her employment and I would say that they are definitely repetitious and frequently they
1

The record reflects that appellant had previously filed a traumatic injury claim, file number 010380202, which
was accepted for “subluxation of the neck, back and shoulder.”

2

are strenuous.” Dr. Boland did not identify the specific employment factors or tasks to which he
referred.
Appellant also provided a February 28, 2003 report from Dr. Anthony F. Merlino, a
Board-certified orthopedic surgeon, who discussed conditions related to her December 13, 2000
traumatic injury. Dr. Merlino briefly mentioned appellant’s carpal tunnel syndrome, noting that
she had symptoms of carpal tunnel syndrome in both wrists, evidenced by a positive Tinel’s sign
and a positive Phalen’s test which were not connected to her December 13, 2000 traumatic
injury.
By decision dated January 19, 2005, the Office denied modification of its previous denial
of appellant’s occupational disease claim.
Appellant requested reconsideration on August 20, 2005. Through her attorney, appellant
argued that the Office erroneously concluded that Dr. Boland’s September 21, 2004 report did
not establish causal relationship and also noted that Dr. Leitzes’ February 20, 2004 report
supported that repetitive activity would cause her symptoms to “flare up.” Appellant also
provided a February 22, 2005 report from Dr. Boland who opined that, while “there is no way of
proving a causal relationship for this or other similar cases, appellant’s carpal tunnel syndrome
was “more probably than not” caused by her employment. Dr. Boland explained that, after her
December 13, 2000 traumatic injury, appellant reported experiencing numbness and tingling in
the fourth and fifth fingers only “which is almost never due to a carpal tunnel syndrome.”
However, Dr. Boland suggested that appellant developed carpal tunnel syndrome after returning
to work following her December 13, 2000 traumatic injury. He stated: “It is not my job to list
all of [appellant’s] duties, but I do know working for the [employing establishment] requires
strenuous and repetitious use of the hand which historically has been considered a causative
factor for carpal tunnel syndrome.” Dr. Boland also suggested that appellant’s carpal tunnel
syndrome may have been caused by “Double Crush Syndrome,” which he explained “suggests
that there can be entrapment at two sites along the nerve, most particularly in the spine and in the
region of the carpal tunnel.” He also noted that “the presence of degenerative disease in the neck
does not in any way rule out carpal tunnel syndrome and indeed some experts feel that, if you
have problems in the neck you are more likely to get a symptomatic carpal tunnel syndrome.”
By decision dated November 21, 2005, the Office denied modification of its June 1, 2004
decision.
On September 5, 2006 appellant requested reconsideration. She stated that she had
enclosed a list of her job duties, but no such list appears in the record. In an accompanying
February 9, 2006 report, Dr. Boland advised that he was unable to list appellant’s job duties or
specific employment factors contributing to her carpal tunnel syndrome but, that she should
generally avoid all strenuous activity. He stated: “It is my understanding that [appellant] works
as a postal employee and that a good part of this job is both strenuous and repetitious.”
In a December 6, 2006 decision, the Office denied appellant’s reconsideration request
without conducting a merit review finding that Dr. Boland’s February 9, 2006 report essentially
repeated his previous opinion and thus, was insufficient to require review on the merits.

3

LEGAL PRECEDENT
Under section 8128 of the Federal Employees’ Compensation Act, the Office has
discretion to grant a claimant’s request for reconsideration and reopen a case for merit review.
Section 10.606(b)(2) of the implementing federal regulations provides guidance for the Office in
using this discretion.2 The regulations provide that the Office should grant a claimant merit
review when the claimant’s request for reconsideration and all documents in support thereof:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”3
Section 10.608(b) provides that when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.4 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.5
ANALYSIS
The Board finds that the Office properly denied appellant’s reconsideration request
without conducting a merit review as appellant’s request did not meet any of the above listed
regulatory criteria. First, appellant’s September 5, 2006 request did not show that the Office
erroneously applied or interpreted a specific point of law. She did not contest any of the Office’s
legal conclusions. Second, appellant’s request did not advance a new and relevant legal
argument not previously considered by the Office. Third, appellant did not provide relevant and
pertinent new evidence not previously considered by the Office sufficient to require the Office to
reopen her claim for a merit review.
In her September 5, 2006 reconsideration request, appellant stated that she was providing
two additional pieces of evidence: a list of her job duties and Dr. Boland’s February 9, 2006
report. As noted above, the record does not contain a list of appellant’s job duties that
accompanied the reconsideration request. In any event, the underlying issue is medical in nature.
2

20 C.F.R. § 10.606(b)(2) (1999).

3

Id.

4

20 C.F.R. § 10.608(b) (1999).

5

Annette Louise, 54 ECAB 783 (2003).

4

While appellant submitted a new medical report from Dr. Boland dated February 9, 2006 this
report is not relevant as it essentially reiterated Dr. Boland’s previous statements that he was
unable to provide specific examples of tasks or employment factors that he believed to have
caused appellant’s carpal tunnel syndrome and that appellant’s job was repetitive and strenuous.
Dr. Boland’s previous reports were duly considered by the Office in its prior decisions. The
Board has held that medical evidence which merely repeats previous rationale or conclusions is
not a basis for reopening a claim for a merit review upon a request for reconsideration.6
Accordingly, the Board finds that appellant’s reconsideration request and corresponding
evidentiary submissions are insufficient to require the Office to reopen her claim for a review on
the merits.
CONCLUSION
The Board finds that the Office properly denied appellant’s reconsideration request
without conducting a merit review.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 3, 2007
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
6

See Eugene F. Butler, 36 ECAB 393, 398 (1984) (where the Board held that material which is repetitious or which
is duplicative of that already in the case record is of no evidentiary value in establishing a claim and does not constitute
a basis for reopening a case).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palatine, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1489
Issued: June 25, 2019

Case Submitted on the Record

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

JURISDICTION
On July 31, 2018 appellant, through counsel, filed a timely appeal from an April 30, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the April 30, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing January 7, 2017 causally related to her accepted employment-related
conditions.
FACTUAL HISTORY
On February 10, 2006 appellant, then a 47-year-old postage due clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed lower back, bilateral knee, bilateral leg,
and buttocks conditions due to factors of her federal employment. OWCP accepted the claim for
displaced lumbar intervertebral disc and aggravation of sprain/strain of the bilateral knees. It also
authorized an arthroscopic surgery of the right knee on May 11, 2006 and an arthroscopic surgery
of the left knee on July 28, 2006. OWCP placed appellant on the supplemental compensation rolls
effective March 1, 2006 and on the periodic compensation rolls effective August 6, 2006.
Appellant underwent an unauthorized plasma disc decompression herniated lumbar disc
L5-S1 surgery on January 15, 2010.
On February 26, 2013 the employing establishment offered appellant a modified manual
distribution clerk position effective that date. The duties included distributing, weighing,
computing, and processing all classes and types of postage due mail, maintaining accounts and
records, and verifying mail. The physical requirements included lifting and carrying up to 30
pounds for 2 to 4 hours per day, standing and walking intermittently for 6.5 hours per day, bending,
stooping, and twisting intermittently for 4 to 6 hours per day, and simple grasping, fine
manipulation, and reaching above shoulders continuously for 8 hours per day. Appellant accepted
the job offer and returned to work on February 26, 2013.
In an August 31, 2016 report, Dr. Robert James Fink, an orthopedic surgeon, noted that
appellant was seen for follow-up care for both knees. He diagnosed degenerative joint disease of
the bilateral knees and found that x-rays revealed positive tricompartmental degenerative joint
disease of the bilateral knees.
In three form reports -- a work status form, attending physician’s report (Form CA-20) and
duty status report (Form CA-17) -- all dated January 11, 2017, Dr. Fink took appellant off work
beginning January 6, 2017. He also indicated by checking a box marked “yes” on the Form CA-20
that appellant’s arthritis, back pain, and herniated nucleus pulposus (HNP) of the L4-5 and L5-S1
levels were employment related. Dr. Fink explained that she worked on her feet all day and walked
in her capacity as a postage due clerk.
Appellant stopped work on January 7, 2017 and filed claims for wage-loss compensation
(Form CA-7) for the period January 7 to 20 and January 21 to February 3, 2017. She later filed
claims for the periods February 4 to 17 and February 18 to March 3, 2017.
In a February 1, 2016 work status form, Dr. Fink took appellant off work from February 1
to March 6, 2017.
By development letter dated February 9, 2017, OWCP notified appellant that it had
received her claims for compensation and it appeared that she was claiming disability due to a
2

material change or worsening of her accepted work-related conditions. It noted that she was
“unclear” why she had stopped work on January 7, 2017 and advised her of the factual and medical
deficiencies of her claim. OWCP afforded appellant 30 days to submit additional evidence and
respond to its inquiries.
In response, appellant submitted a January 13, 2017 report from Dr. Fink who related that
appellant’s bilateral knee pain and low back pain had worsened. He diagnosed three-compartment
arthritis, left knee greater than right, and advised that she “may be now in need of total knee
replacement.” Dr. Fink further advised that appellant “may have more intradis[c]al disease in her
low back.”
On February 22, 2017 Dr. Fink reported that appellant had been his patient for several years
and her job required a considerable amount of time walking, standing, lifting, carrying packages,
and pushing and pulling carts. He opined that, because of the amount of repetitive work that was
performed, there was a causal relationship between her low back pain as well as the degenerative
arthritis in both knees. Dr. Fink noted that a magnetic resonance imaging (MRI) scan of the left
knee was positive for a torn anterior crucial ligament as well as medial and lateral menisci and
appellant had a positive MRI scan for HNP at the L5-S1 and L4-5 levels. He recommended a total
left knee replacement and advised that she was not capable of performing her duties of standing,
carrying, twisting, and turning.
In work status forms dated February 27 and March 6, 2017 and a duty status report (Form
CA-17) dated March 20, 2017, Dr. Fink continued to advise that appellant was “off work.”
On February 27, 2017 Dr. Fink reported that an MRI scan of the lumbar spine showed an
extruded lumbar disc at L5-S1 with right-sided spinal stenosis and right lateral recess stenosis at
L4-5.
By decision dated April 7, 2017, OWCP denied appellant’s recurrence claim, finding that
the evidence of record was insufficient to establish a change in the nature and extent of the injuryrelated conditions or a change in the nature and extent of the limited-duty job requirements. It
noted that, if she was alleging a new injury or new work factors, she had the right to file a new
claim.
On April 11, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
In an August 30, 2017 report, Dr. Fink related that appellant was experiencing increased
pain in her low back and left knee, as well as swelling in both legs “possibly due to meloxicam.”
He diagnosed torn cartilage, left knee, and gave her a prescription for physical therapy to her left
knee.
A telephonic hearing was held before an OWCP hearing representative on
October 16, 2017. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
In response, appellant submitted a work status form dated December 4, 2017 from Dr. Fink
who provided work restrictions of no lifting more than 10 pounds, alternate sitting and standing,
minimum walking only, no bending/twisting at the waist, and no squatting/kneeling on knees.
3

By decision dated January 2, 2018, OWCP’s hearing representative affirmed the April 7,
2017 decision, finding that the evidence of record was insufficient to establish a change in the
nature and extent of appellant’s accepted conditions or a change in the nature and extent of her
limited-duty job requirements.
On January 31, 2018 appellant, through counsel, requested reconsideration and submitted
an October 16, 2017 report from Dr. Fink who reiterated his medical opinions and opined that he
could state with “absolute medical certainty that [appellant] has causal relationship with her knee
condition related to the work she did as a postage due clerk, which required considerable amount
of time walking, standing, lifting, and carrying packages as well as pushing and pulling carts.”
By decision dated April 30, 2018, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.4 This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed the established physical
limitations.5
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.6 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that the disabling condition is causally
related to the employment injury. The medical evidence must demonstrate that the claimed
recurrence was caused, precipitated, accelerated, or aggravated by the accepted injury.7
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 The opinion of the physician must be based
4

Id. at § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010).

5

Id.

6

See A.M., Docket No. 09-1895 (issued April 23, 2010).

7

See L.F., Docket No. 14-1817 (issued February 2, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.2 (January 2013).
8

See I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

4

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
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing January 7, 2017 causally related to her accepted employment-related
injuries.
Appellant has not alleged a change in the nature and extent of her light-duty job
requirements. Therefore, she must thus provide medical evidence establishing that she was
disabled due to a worsening of her accepted work-related conditions.10 The Board finds that
appellant did not submit medical evidence to establish that she was disabled due to a worsening of
her accepted work-related conditions commencing January 7, 2017.
In his August 31, 2016 and February 22, 2017 reports, Dr. Fink diagnosed arthritis and
degenerative joint disease of the bilateral knee, recommended a total left knee replacement, and
took appellant off work beginning January 6, 2017. He advised that she was not capable of
performing her duties of standing, carrying, twisting, and turning, and provided work restrictions
of no lifting more than 10 pounds, alternate sitting and standing, minimum walking only, no
bending/twisting at the waist, and no squatting/kneeling on knees as a result of her diagnosed
conditions. However, OWCP did not accept arthritis or degenerative joint disease conditions in
the current claim. Appellant thus has the burden of proof to establish causal relationship.11
Additionally, Dr. Fink did not adequately explain how her disability on or after January 7, 2017
was due to a worsening of her accepted work-related lumbar disc condition and bilateral knee
sprain/strain. Moreover, he did not explain how appellant’s other diagnosed conditions were due
to a worsening of her accepted work-related conditions. Without such an explanation, the reports
of Dr. Fink are insufficient to establish a recurrence of disability.
Dr. Fink did not provide an opinion on causal relationship either in his work status form or
Form CA-17, both dated January 11, 2017. The Board has held that medical evidence that does
not offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship.12 As such, these reports are insufficient to meet
appellant’s burden of proof.
Dr. Fink opined in the January 11, 2017 Form CA-20 that appellant’s arthritis, back pain,
and HNP of the L4-5 and L5-S1 levels were employment related because she stood all day and
walked while performing her employment duties. However, he did not provide sufficient rationale
explaining the pathophysiological process by which the accepted employment factors caused or

9

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

10

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

11

E.M., Docket No. 17-1683 (issued January 4, 2019).

12

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

5

aggravated the back conditions.13 The Board finds that this report is also insufficient to establish
appellant’s recurrence claim.
In his October 16, 2017 report, Dr. Fink opined that he could state with “absolute medical
certainty that [appellant] has causal relationship with her knee condition related to the work she
did as a postage due clerk, which required considerable amount of time walking, standing, lifting,
and carrying packages as well as pushing and pulling carts.” However, he did not explain how
appellant was disabled on or after January 7, 2017 due to a worsening of her accepted work-related
conditions or specifically explain whether she sustained a recurrence of disability.14 Without such
an explanation, this report from Dr. Fink is also insufficient to establish a recurrence of disability,
as alleged.
The Board has held that the issue of disability from work can only be resolved by competent
medical evidence.15 Whether a claimant’s disability is related to an accepted condition is a medical
question which must be established by a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disability is causally related to employment factors
and supports that conclusion with sound medical reasoning.16 The record does not contain a
medical opinion of sufficient rationale to establish a recurrence of disability commencing
January 7, 2017 causally related to appellant’s accepted employment-related conditions.17
Consequently, appellant 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 recurrence of
total disability commencing January 7, 2017 causally related to her accepted employment-related
conditions.

13

See M.W., Docket No. 18-1555 (issued March 20, 2019).

14

E.B., Docket No. 17-1467 (issued July 26, 2018); D.H., Docket No. 18-0129 (issued July 23, 2018); see
S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-0975 (issued February 6, 2009).
15

R.C., 59 ECAB 546 (2008).

16

M.C., Docket No. 18-0919 (issued October 18, 2018); see also Sandra D. Pruitt, 57 ECAB 126 (2005).

17

Supra note 11.

6

ORDER
IT IS HEREBY ORDERED THAT the April 30, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 25, 2019
Washington, DC

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

Janice B. Askin, 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
__________________________________________
A.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1439
Issued: November 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 April 8, 2008 appellant filed a timely appeal from an April 3, 2008 Office of
Workers’ Compensation Programs’ merit decision. Under 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 the Office abused its discretion by denying appellant authorization
for lumbar fusion surgery.
FACTUAL HISTORY
Appellant, a 50-year-old letter carrier, filed a Form CA-2 claim for benefits, alleging that
he developed degenerative disc disease causally related to factors of employment. The Office
accepted the claim for lumbosacral spondylosis. It paid appropriate compensation for temporary
total disability.
In a report dated July 11, 2007, Dr. Michael C. Chabot, an osteopath, stated that appellant
complained of lower lumbar pain radiating into the left lower extremity. He noted that a

discogram revealed positive reproduction of his back pain symptoms with an injection at the
L4-5 level. Dr. Chabot advised that x-rays of the lumbar spine revealed mild disc space
narrowing at L5-S1; in addition, a magnetic resonance imaging (MRI) scan showed evidence of
disc desiccation and degeneration at L4-5 and L5-S1. He indicated that appellant had to decide
whether he wanted to live with his symptoms or consider undergoing surgical intervention in the
hope of relieving them. Dr. Chabot stated that the surgical procedure consisted of either a
posterior decompressive laminectomy and fusion with interbody implants or a transabdominal
anterior interbody fusion with anterior implants. He related that he discussed the risks and
benefits of both procedures with appellant.
By letter dated August 9, 2007, the Office asked Dr. Chabot for additional information
regarding the spinal surgery he had recommended for appellant. It asked Dr. Chabot what
specific surgical procedure he recommended, the specific levels that would be surgically treated
and whether a bone stimulator would be utilized after surgery. The Office also asked whether
the proposed surgical intervention would be likely to cure, give relief, reduce the degree of the
period of disability, or aid in lessening the amount of the monthly compensation.
In a report dated August 16, 2007, Dr. Chabot stated that he had not examined appellant
since his July 11, 2007 report. He essentially reiterated the findings, conclusions and surgical
options he presented to appellant in this previous report. Dr. Chabot advised that he would not
use a bone stimulator, but instead would use bone morphogenic protein in the proposed
procedure. He stated that, according to recent studies, this has the highest likelihood of
achieving a satisfactory fusion at the two anterior and posterior lumbar levels. Dr. Chabot
asserted that the intent of any surgical procedure is to offer medical intervention that would cure,
give relief, or reduce the degree of disability to an individual.
In a report dated September 16, 2007, an Office medical adviser reviewed the medical
record and recommended that the Office deny authorization for the requested two level lumbar
fusion surgery. He stated that the June 19, 2007 discogram was not positive at the L4-5 and L5S1 levels that Dr. Chabot wanted to fuse. The Office medical adviser noted that there were no
medical records indicating that appellant had lumbar instability, one of the “traditional” reasons
for performing lumbar fusion surgery.
In order to determine whether appellant’s two level lumbar fusion surgery was causally
related to his accepted lumbosacral spondylosis condition, the Office referred appellant to
Dr. Jack C. Tippett, Board-certified in orthopedic surgery, for a second opinion examination. In
a report dated October 24, 2007, Dr. Tippett stated that appellant still had residual symptoms of
work-related lumbosacral spondylosis and noted imaging evidence of degenerative changes in
the lower lumbar spine with degenerative disc disease which were present for several years.
When asked whether the recommended operative intervention likely accomplish a cure, relief, or
reduction in the degree or the period of disability, he responded:
“No. The recommended surgery would do just the opposite. It would not cure his
symptoms. Although it might give relief, there is a likelihood that he could have
even more symptoms, which would be harder to control than [those] he has at the
present time. It would increase his period of disability.”

2

The Office found that there was a conflict in the medical evidence between Drs. Chabot
and Tippett regarding whether appellant’s surgery was related to an accepted condition. It
referred appellant to Dr. Marvin R. Mishkin, Board-certified in orthopedic surgery, for an
impartial examination to resolve the conflict.
In a report dated January 7, 2008, Dr. Mishkin noted findings on examination and
reviewed appellant’s history of injury and medical records. He stated:
“It is my opinion within a reasonable degree of medical certainty that this
individual has very mild to minimal degenerative disc disease at L4-5 and L5-S1.
Based on the x-rays taken in this office, there has been no evidence of any
significant structural changes in the lower lumbar spine or disc spaces at L4-5 or
L5-S1. [Appellant] has no clinical evidence of radiculopathy. He has no
evidence of any neurological deficit based on this examination.
“It is my opinion within a reasonable degree of medical certainty that I would not
recommend surgical treatment to the lumbar spine, as indicated in the reports of
Dr. Chabot.
I would not recommend anterior surgical procedure with
decompression or posterior surgical procedure with decompression and fusion.
(Emphasis in the original.)
“It is my opinion that [appellant’s] subjective complaints do not correlate with
the lack of objective evidence. Therefore, he would not be an appropriate
candidate to perform back fusion. Such surgery should be performed if there is
definite clinical evidence of nerve root compression or vertebral instability
resulting in symptoms with objective findings of neurological deficit that has been
documented over a period of time and are getting progressively worse, and which
did not respond to conservative treatment. [Appellant] does not have such a
history and does not have such findings.
“Any surgery performed on this individual, in my opinion, would not be
associated with any work-related injury and, based on the information available to
me, would be related to [appellant’s] subjective complaints of pain with no
significant clinical evidence of radiculopathy or nerve root compression.”
By decision dated April 3, 2008, the Office denied authorization for left shoulder
arthroscopy with rotator cuff repair. It found that the weight of the medical evidence, as
represented by Dr. Mishkin’s impartial medical opinion, indicated that the recommended
surgical intervention was not related to his employment.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act1 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
1

5 U.S.C. § 8101 et seq.

3

considers likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation.2 In interpreting this section of the Act, the
Board has recognized that the Office has broad discretion in approving services provided under
the Act. The Office has the general objective of ensuring that an employee recovers from his
injury to the fullest extent possible in the shortest amount of time. It therefore has broad
administrative discretion in choosing means to achieve this goal. The only limitation on the
Office’s authority is that of reasonableness. Abuse of discretion is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which are
contrary to both logic and probable deductions from established facts. It is not enough to merely
show that the evidence could be construed so as to produce a contrary factual conclusion.3
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.4
ANALYSIS
In this case, the Office accepted that appellant had sustained the condition of lumbosacral
spondylosis. Dr. Chabot stated in his July 11 and August 16, 2007 reports that appellant’s lower
lumbar pain radiating into the left lower extremity. He noted that lumbar spine x-rays revealed
mild disc space narrowing at L5-S1 and that an MRI scan showed evidence of disc desiccation
and degeneration at L4-5 and L5-S1. Dr. Chabot stated that appellant could either live with these
symptoms or consider undergoing surgery to relieve them. He recommended either a posterior
decompressive laminectomy and fusion with interbody implants or a transabdominal anterior
interbody fusion with anterior implants, which had the highest likelihood of achieving a
satisfactory fusion at the two anterior and posterior lumbar levels. However, the Office medical
adviser and Dr. Tippett, the second opinion physician, found that the need for such surgery was
not related to any employment-related incident or activity. Dr. Tippett opined that the
recommended surgery would not cure his symptoms and might even increase them. To resolve
this conflict in the medical evidence, the Office referred appellant to Dr. Mishkin for an impartial
medical examination. As noted above, the only restriction on the Office’s authority to authorize
medical treatment is one of reasonableness. In his January 7, 2008 report, Dr. Mishkin asserted
that he would not recommend the type of lumbar fusion surgery proposed by Dr. Chabot. He
stated that, because appellant’s subjective complaints did not correlate with objective evidence,
he would not be an appropriate candidate for lumbar spine fusion. Dr. Mishkin opined that
without definite clinical evidence of nerve root compression or vertebral instability resulting in
objective, documented findings of a long-term, worsening neurological deficit, appellant should
not undergo the recommended procedure. He concluded that any surgery performed on appellant
would not be associated with any work-related injury.

2

5 U.S.C. § 8103.

3

Dale E. Jones, 48 ECAB 648 (1997); Daniel J. Perea, 42 ECAB 214 (1990).

4

5 U.S.C. § 8123(a).

4

The Board finds that the Office properly found that Dr. Mishkin’s referee opinion
negated a causal relationship between appellant’s condition and the proposed two level lumbar
fusion surgery. Dr. Mishkin’s opinion is sufficiently probative, rationalized and based upon a
proper factual background. Therefore, the Office properly accorded Dr. Mishkin’s opinion the
special weight of an impartial medical examiner.5 Accordingly, the Board finds that
Dr. Mishkin’s opinion constituted sufficient medical rationale to support the Office’s April 3,
2008 decision.
Therefore, given the fact that the weight of the medical evidence of record, as represented
by Dr. Mishkin’s referee opinion, indicates that the need for lumbar fusion surgery is not work
related, the Office did not unreasonably deny appellant’s request for surgery to ameliorate his
lumbosacral spondylosis/degenerative disc condition. The Office did not abuse its discretion to
deny appellant authorization for two level lumbar fusion surgery.
CONCLUSION
The Board finds that the Office did not abuse its discretion to deny appellant
authorization for lumbar fusion surgery.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 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

Gary R. Seiber, 46 ECAB 215 (1994).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION HOSPITAL,
Cillicothe, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-2061
Issued: February 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 9, 2013 appellant, through her attorney, filed a timely appeal from the
August 1, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she had disability
from June 28, 2011 to February 21, 2012 due to her December 22, 2004 work injury.
FACTUAL HISTORY
OWCP accepted that on December 22, 2004 appellant, then a 53-year-old food service
worker, sustained a lumbar strain, left shoulder strain and low back contusion due to falling on
1

5 U.S.C. §§ 8101-8193.

an icy sidewalk at work. She performed limited-duty work. Appellant stopped work after
suffering injuries from a nonwork-related motor vehicle accident on May 26, 2008, but later
returned to limited-duty work at the employing establishment.2
Appellant stopped work from March 21 to 27, 2011. She returned to work on March 28,
2011 and filed a notice of recurrence of disability and CA-7 forms claiming wage-loss
compensation due to her December 22, 2004 work injury.
In a decision dated July 1, 2011, OWCP denied appellant’s recurrence of disability claim
starting March 21, 2011, finding that she failed to submit medical evidence establishing that her
claimed disability was due to the accepted work injury. In a January 19, 2012 decision, it
affirmed its July 1, 2011 decision.
Appellant filed a Form CA-7 claiming wage-loss compensation for time missed from
work after June 28, 2011. She later filed additional forms claiming wage loss through
February 21, 2012.
In a June 28, 2011 report, Dr. Carl Otten, an attending Board-certified occupational
medicine physician, listed the date of injury as December 23, 2004 (rather than December 22,
2004) and noted that appellant continued to report having chronic back pain which went down
into her right leg. The pain was constant and sometimes measured as high as 8 out of 10.
Dr. Otten stated that she was mobile with her cane and had a limping, asymmetric gait.
Appellant had a positive straight leg raise when seated. Dr. Otten diagnosed lumbar strain with
aggravation of lumbar degenerative disc disease and substantial aggravation of L4-5
degenerative joint disease (facet arthritis). He stated, “Continue off work (pending disability
retirement). In reports dated August 30, October 4 and November 1, 2011, Dr. Otten provided
similar findings on examination and indicated that appellant should “continue permanent total
disability.”
In a December 13, 2011 report, Dr. Otten reported examination findings and stated that
appellant should “continue permanent total disability.” He noted that her permanent total
disability “does arise from the condition on this claim which arose from the December 23, 2004
injury.”
In a March 16, 2012 decision, OWCP denied appellant’s claim finding that she did not
submit sufficient medical evidence to establish that she was disabled from June 28, 2011 to
February 21, 2012 due to the December 22, 2004 work injury.
Appellant requested a telephone hearing with an OWCP hearing representative. During
the July 17, 2013 hearing, she testified that, in addition to the work injury of December 22, 2004,
she also experienced a more recent injury at work on January 24, 2011 when she tripped over a
rubber mat and caught herself on a table. Appellant alleged this caused an injury to her back and
2

Appellant filed a traumatic injury claim on January 31, 2011 alleging that she sustained an injury at work on
January 24, 2011 when she slipped on a rug and twisted her left knee. It does not appear that the claim has been
formally adjudicated and the question of whether she sustained a medical condition or period of disability due to a
January 24, 2011 work incident is not currently before the Board.

2

left knee and that Dr. Otten treated her for both injuries. She asked that the record remain open
for 30 days for the submission of additional evidence.
Appellant submitted office notes from Dr. Otten, dated July 31 and August 28, 2012,
together with a magnetic resonance imaging (MRI) scan dated September 2, 2011.3 Dr. Otten
reported brief examination findings and noted that she still reported having low back and right
leg pain. He stated that he had received a letter from counsel asking for his opinion on the
impact of the 2011 tripping injury at work on appellant’s condition. A review of the medical
charts revealed appellant’s pain increased in the months prior to the January 24, 2011 injury and
in the months after the January 24, 2011 injury. Although the 2011 incident was listed only for a
left knee strain, prior medical records indicated that her significant back problems caused lost
time from work. Dr. Otten posited that appellant’s condition may have deteriorated even in the
absence of the 2011 injury, but it was probable that the worsening of pain levels noted after the
injury reflected an aggravation of the back condition by the incident of January 24, 2011.
Regarding the chronic back condition stemming from the December 23, 2004 injury, it was his
understanding that she denied any back problems prior to that day. Appellant’s ability to work
deteriorated following the 2011 injury, and this eventually resulted in her being no longer able to
work effective May 4, 2011. Dr. Otten stated, “At any rate, the patient’s ability to work did
deteriorate following the 2011 injury and this eventually resulted in her no longer being able to
work effective May 4, 2011.” On August 28, 2012 he stated, “[appellant] remains on permanent
total disability (disability retirement).”
In an October 12, 2012 decision, OWCP’s hearing representative affirmed the March 16,
2012 decision finding that appellant had not established work-related disability from June 28,
2011 to February 21, 2012. He found that the opinion of Dr. Otten was of limited probative
value.
Appellant submitted follow-up treatment notes from Dr. Otten dated from October 2012
to July 2013, but they did not address whether she was totally disabled. The reports listed the
date of injury as December 23, 2004, contained diagnoses such as lumbar strain and back
contusion and contained the notation “continue permanent total disability.”
In a decision dated August 1, 2013, OWCP affirmed the October 12, 2013 decision,
finding that the additional medical evidence did not establish appellant’s claim for disability
from June 28, 2011 to February 21, 2012.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of appellant 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

3

The September 2, 2011 testing showed degenerative changes in appellant’s back, but it did not identify the cause
of the changes.

3

related to the employment injury.4 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of appellant, 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 appellant.5
Whether a particular employment injury causes disability for employment and the
duration of that disability are medical issues, which must be proved by a preponderance of
reliable, probative and substantial medical evidence.6
ANALYSIS
OWCP accepted that on December 22, 2004 appellant sustained a lumbar strain, left
shoulder strain and low back contusion when she fell on an icy sidewalk at work. Thereafter, she
performed limited-duty work for the employing establishment.7 Appellant filed CA-7 forms
claiming entitlement to wage-loss compensation for time missed from work from June 28, 2011
to February 21, 2012 due to her December 22, 2004 work injury. OWCP denied her claim
finding that she did not submit sufficient medical evidence.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she was disabled from June 28, 2011 to February 21, 2012 due to her December 22, 2004 injury.
Appellant submitted numerous reports from Dr. Otten, an attending Board-certified occupational
medicine physician, who noted generally that she was disabled commencing June 28, 2011, but
the physician did not provide a rationalized opinion on causal relationship.
In a June 28, 2011 report, Dr. Otten listed the date of injury as December 23, 2004 rather
than December 22, 2004. He advised that appellant reported having chronic back pain which
went down into her right leg. Dr. Otten diagnosed lumbar strain with aggravation of lumbar
degenerative disc disease and substantial aggravation of L4-5 degenerative joint disease (facet
arthritis). He stated, “Continue off work (pending disability retirement).” Dr. Otten did not
provide a narrative opinion that the December 2004 work injury caused appellant’s disability for
work. He did not explain how her accepted condition had changed such that she was no longer
able to perform modified duty. Appellant’s claim accepted for soft-tissue injuries and not for
aggravation of lumbar degenerative disc disease. In a December 13, 2011 report, Dr. Otten
stated that she should continue permanent total disability and noted that her permanent total
disability “does arise from the condition on this claim which arose from the December 23, 2004
injury.” However, he did not provide any further explanation for his opinion. Dr. Otten did not
4

J.F., Docket No. 09-1061 (issued November 17, 2009).

5

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

6

W.D., Docket No. 09-658 (issued October 22, 2009).

7

Appellant filed a traumatic injury claim on January 31, 2011 for a January 24, 2011 injury when she slipped on
a rug and twisted her left knee. The question of whether she sustained a medical condition or period of disability
due to a January 24, 2011 work incident is not currently before the Board.

4

describe the December 2004 work incident in any detail or explain how it caused disability more
than six years after its occurrence.
In a July 31, 2012 report, Dr. Otten stated that, regarding the chronic back condition
stemming from the December 22, 2004 injury, it was his understanding that appellant denied any
back problems prior to that day. He did not, however, provide a full medical history of her low
back condition or adequately address how the December 22, 2004 work injury caused disability
for any period on or after June 28, 2011.8 The Board has held that the fact that a condition
manifests itself or worsens during a period of employment9 or that work activities produce
symptoms revelatory of an underlying condition10 does not raise an inference of causal relationship
between a claimed condition and employment factors. Appellant submitted follow-up treatment
notes from Dr. Otten but they did not further explain why she was totally disabled commencing
June 28, 2011.
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 had
disability from June 28, 2011 to February 21, 2012 due to her December 22, 2004 work injury.

8

Dr. Otten also suggested that a January 24, 2011 work incident caused disability in mid-2011, but the matter of
disability related to this incident is not currently before the Board.
9

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

10

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

5

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-904
Issued: August 5, 2014

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 13, 2014 appellant filed a timely appeal from a February 6, 2014 overpayment
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 determined that appellant received an
overpayment of compensation from March 27, 2011 to November 16, 2013 in the amount of
$7,085.34 because OWCP did not correctly withhold premiums for basic, optional, or
postretirement basic life insurance; and (2) whether OWCP properly denied waiver of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 10, 2011 appellant, then a 63-year-old general expeditor, filed a traumatic
injury claim alleging that on February 9, 2011 she broke her right leg when she was struck by a
truck that was backing up. She stopped work. OWCP accepted the claim for right foot crushing
injury and right open phalanx or phalanges and paid disability compensation. On June 6, 2011
appellant was placed on the periodic rolls.
In a letter dated June 5, 2012, the Office of Personnel Management (OPM) advised
appellant that under current legislation an OWCP claimant who reached the age of 65 had the
option of continuing his or her Option B and Option C life insurance beyond age 65.
Appellant began to receive retirement benefits effective January 2013.
On May 3, 2013 OWCP received an April 26, 2013 Election of Compensation Benefits
form from OPM. Per OPM’s form, appellant elected to continue Federal Employee’s Group Life
Insurance (FEGLI) basic and optional coverage (Code Z1). The final base salary on which
FEGLI was based was $54,257.00. Appellant’s postretirement election was no reduction and the
commencement date for the postretirement deductions was April 7, 2012. The record reveals
that, since the effective date of appellant’s election, April 7, 2012, OWCP had not withheld
premiums for postretirement basic life insurance.
On November 17, 2013 OWCP adjusted her compensation payments to reflect the correct
deductions for basic, optional and postretirement life insurance.
On December 31, 2013 OWCP issued a preliminary determination that appellant received
an overpayment in compensation in the amount of $7,085.34 because OWCP had not withheld
premiums for basic life insurance, optional life insurance and postretirement life insurance. It
found that she was without fault in the creation of the overpayment and requested that she
provide financial information in order to determine waiver of recovery of the overpayment. An
overpayment worksheet demonstrated that deductions were made for basic life insurance in the
amount of $316.35 rather than the proper amount of $326.12 for an overpayment of $9.77 for
basic life insurance. For optional life insurance, deductions of $6,072.80 were withheld rather
than the proper amount of $10,905.30, which resulted in an overpayment of $4,832.50. For
postretirement basic life insurance, OWCP made no deductions from April 12, 2012 to
November 16, 2013 when the total amount of $2,243.07 should have been withheld. OWCP
calculated the total amount of the overpayment to $7,085.34. Appellant was advised that, if she
failed to complete the Form OWCP-20 and submit financial documents in support of waiver,
within 30 days, pursuant to 20 C.F.R. § 10.438 waiver would be denied. The Form OWCP-20
was not forthcoming.
Appellant submitted various medical reports dated September 10 to November 17, 2013
regarding her right foot injury.
By decision dated February 6, 2014, OWCP finalized its preliminary determination and
found that appellant received a $7,085.34 overpayment. It denied waiver of recovery of the
overpayment because it received no financial documentation or a completed overpayment

2

recovery questionnaire. OWCP determined that it would deduct $280.00 every 28 days from her
continuing compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his or her
duty.2 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.3
Under FEGLI, most civilian employees of the Federal Government are eligible to
participate in basic life insurance and one or more of the options.4 The coverage for basic life
insurance is effective unless waived5 and the premiums for basic and optional life coverage are
withheld from the employee’s pay.6 At separation from the employing establishment, the FEGLI
insurance will either terminate or be continued under compensationer status. If the
compensationer chooses to continue basic and optional life insurance coverage, the schedule of
deductions made while the compensationer was an employee will be used to withhold premiums
from his or her compensation payments.7 When an under withholding of life insurance
premiums occurs, the entire amount is deemed an overpayment because OWCP must pay the full
premium to OPM upon discovery of the error.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $7,085.34 because basic and optional life insurance deductions were improperly deducted
from March 27, 2011 to November 16, 2013 and because postretirement insurance deductions
were not made on her compensation payments from April 12, 2012 to November 16, 2013.
The record reflects that OWCP failed to deduct the proper premium amounts for
appellant’s basic and optional life insurance from compensation payments for the period
March 27, 2011 to November 16, 2013. OWCP found that during this period, the amount of
basic life insurance premium that was deducted was $316.35 rather than the $326.12 that should
have been deducted. For optional life insurance, the amount of premiums that was deducted was

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Id. at § 8702(a).

5

Id. at § 8702(b).

6

Id. at § 8707.

7

Id. at § 8706(b).

8

Id. at § 8707(d). See Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

3

$6,072.80 rather than the $10,905.30 that should have been deducted. This resulted in an
overpayment of $4,842.27 for the period March 27, 2011 to November 16, 2013.
The record also reflects that appellant elected to receive post-retirement basic life
insurance effective April 7, 2012. No deductions were made. OWCP found that during this
period the amount of deductions for postretirement basic life insurance should have been
$2,243.07.
Accordingly, the Board finds that appellant received an overpayment in
compensation in the total amount of $7,085.34.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.9
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for OWCP to
waive the overpayment.10 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, pursuant to the guidelines provided in the implementing federal regulations.11
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including
compensation benefits, to meet current ordinary and necessary living expenses, and the
beneficiary’s assets do not exceed a specified amount as determined by OWCP.12 Additionally
recovery of an overpayment is considered to be against equity and good conscience when any
individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when any individual, in reliance on such payment or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.13
The individual who received the overpayment is responsible for providing information
about income, expenses, and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be

9

Id. at § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436 and 10.437.

10

James Lloyd Otte, supra note 8; see William J. Murphy, 40 ECAB 569 (1989).

11

20 C.F.R. §§ 10.434 and 10.437.

12

Id. at § 10.436(a)(b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1)(b) (June 2009).
13

Id. at § 10.437(a)(b).

4

against equity and good conscience.
repayment schedule, if necessary.14

This information will also be used to determine the

When an overpayment has been made to an individual who is entitled to further payments
and no refund is made, OWCP shall decrease later payments of compensation, 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.15
ANALYSIS -- ISSUE 2
OWCP advised appellant by a December 31, 2013 notice of its preliminary determination
of the $7,085.34 overpayment and that she was not at fault in the creation of the overpayment.
Although appellant was without fault, she nonetheless bears responsibility for providing the
financial information necessary to support the request for waiver. OWCP properly requested that
she submit information regarding her income, assets, and expenses by completing a
questionnaire and providing supporting documentation. However, appellant did not provide any
of the requested financial information or documentation. In the absence of the information
requested, OWCP could not determine whether or not recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience. Therefore, the Board finds that
OWCP properly denied waiver of recovery.16
On appeal, appellant reiterates that she was not at fault in the creation of the overpayment
and points out that she sent numerous letters to OWCP regarding her FEGLI deductions. As
previously explained, the fact that she was without fault in the creation of the overpayment is
insufficient to warrant waiver of recovery of the overpayment. Appellant must demonstrate that
recovery would defeat the purpose of FECA or would be against equity and good conscience.17
In this case, she failed to provide a Form OWCP-20 or any financial information or
documentation to establish that recovery of her overpayment would defeat the purpose of FECA
or be against equity and good conscience. Accordingly, appellant is not entitled to waiver of
recovery.
CONCLUSION
The Board finds that OWCP properly found that an overpayment of $7,085.34 was
created. The Board also finds that OWCP properly denied waiver of recovery.

14

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

15

Id. at § 10.441(a).

16

See C.A., Docket No. 14-86 (issued April 14, 2014).

17

Supra notes 10 & 11.

5

ORDER
IT IS HEREBY ORDERED THAT the February 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2014
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

6