United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, HYANNIS POST
OFFICE, Hyannis, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Benjamin Zimmerman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0909
Issued: December 22, 2017

Case Submitted on the Record

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

JURISDICTION
On March 20, 2017 appellant, through counsel, filed a timely appeal from a February 3,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to
the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.

1

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

With his appeal request, counsel, submitted a timely request for oral argument pursuant to 20 C.F.R. § 501.5(b).
By order dated July 25, 2017, the Board exercised its discretion and denied the request as appellant’s arguments on
appeal could be adequately addressed in a decision based on a review of the case as submitted on the record. Order
Denying Request for Oral Argument, Docket No. 17-0909 (issued July 25, 2017).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
aggravation of left hip arthritis, left trochanteric bursitis, and left knee arthritis causally related to
accepted factors of his federal employment.
On appeal counsel contends that the second opinion physician’s report establishing only
temporary aggravation of appellant’s left hip arthritis, left trochanteric bursitis, and left knee
arthritis was speculative and entitled to no weight as OWCP posed legally and medically
incorrect questions and as he failed to rely on the statement of accepted facts (SOAF). He also
contends that OWCP should not have found that its medical adviser represented the weight of the
medical evidence in accepting only temporary aggravation of left hip arthritis, left trochanteric
bursitis, and left knee arthritis.
FACTUAL HISTORY
On January 9, 2015 appellant, then a 57-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that his diagnosed left knee and left hip arthritis were
accelerated by his work duties. He described his employment duties beginning in 1989 including
walking more than five miles a day, a work-related avulsion fracture of his right hip,4 and daily
knee soreness. Appellant noted that in 2006 he performed a mounted route which aggravated his
ongoing right knee condition due to driving. In 2010 he performed dismount, curbside, and
apartment deliveries. Appellant underwent surgery for a right knee meniscal tear.
In a November 5, 2014 report, Dr. Byron V. Hartunian, an orthopedic surgeon, noted
reviewing appellant’s position description and the description of his work duties. Appellant
reported a preexisting left knee condition beginning with a ski accident in 1972 which required
anterior cruciate ligament reconstruction and meniscal surgery. He had increasing discomfort at
work in 2010 and received knee injections. Appellant developed left hip pain in 2012 which was
diagnosed as bursitis and early arthritis. A February 19, 2013 magnetic resonance imaging scan
showed bilateral acetabular osteophytes and femoral head osteophytes worse on the right.
Appellant walked without a limp, but could squat to only 50 percent of normal because of
restricted motion at the hips and knees. He had palpable effusion of the left knee with moderate
tenderness to palpation along the medial joint. Appellant had crepitus during range of motion
with flexion of 100 degrees and extension of 0 degrees. Dr. Hartunian examined appellant’s left
hip and found no tenderness, but limited range of motion. He reviewed December 2, 2013 x-rays
and found narrowing of the medial femoral-tibial joint to three millimeters of cartilage in the left
knee and degenerative changes with osteophyte formation in the medial and patellofemoral
compartments. An October 24, 2014 left hip x-ray showed narrowing of the left formalacetabular joint to three millimeters of cartilage with mild degenerative changes.
Dr. Hartunian diagnosed primary left knee joint arthritis and left hip arthritis. He
described arthritis as a failure and loss of articular cartilage surface. Dr. Hartunian opined that
4

Appellant has other claims before OWCP. OWCP File No. xxxxx869 was accepted for subluxation of L5.
OWCP File No. xxxxxx102 was accepted for contusion to the coccyx and OWCP File No. xxxxxx819 was accepted
for lumbar strain. These other claims are not before the Board on the present appeal.

2

impact loading resulting from repeated local stresses accelerated the progression of arthritis
through a process of chronic inflammation. He noted that appellant’s work required constant and
repetitive walking, squatting, stooping, climbing, bending, lifting, carrying, stair climbing, and
twisting. Dr. Hartunian opined that these impact loading activities exerted repeated local stresses
to his left leg resulting in chronic inflammation. He reported, “The inflammation causes a loss of
proteoglycans which are responsible for cartilage resilience and their loss results in a stiffer
material that is more easily damaged by ‘wear and tear.’” Dr. Hartunian concluded that
appellant’s job activities were a significant contributing factor to “the development and
progression of his left lower extremity arthritis.”
On March 20, 2015 OWCP requested that appellant provide additional medical evidence
supporting causal relationship between his diagnosed conditions and his employment. It
afforded him 30 days to respond. Appellant did not respond. By decision dated April 27, 2015,
OWCP denied his occupational disease claim.
On April 30, 3015 OWCP reopened appellant’s claim on its own motion and again
requested additional medical evidence. Counsel responded on May 29, 2015 and submitted
additional evidence. He contended that Dr. Hartunian’s report was sufficient to establish
appellant’s occupational disease claim.
OWCP referred appellant and forwarded a SOAF and a list of questions to a second
opinion examiner, Dr. Christopher B. Geary, a Board-certified orthopedic surgeon. In his
October 19, 2015 report, Dr. Geary indicated that he had reviewed the SOAF and the medical
evidence submitted. He noted appellant’s nonwork-related knee surgery and reported that he had
a right total hip arthroplasty on July 13, 2015. Dr. Geary indicated that appellant currently had a
mildly antalgic gait favoring his right leg. He noted that he felt that appellant’s work activities
caused a temporary traumatic aggravation of his underlying hip and knee arthritis. Dr. Geary
indicated that he believed that the aggravation of appellant’s underlying left hip arthritis, left
trochanteric bursitis, and left knee arthritis was temporary and that he expected the aggravation
to cease within six to eight weeks after appellant’s federal employment ended. He found no
causality or acceleration of appellant’s conditions.
By decision dated October 29, 2015, OWCP accepted appellant’s claim for temporary
aggravations of left hip arthritis, left trochanteric bursitis, and left knee arthritis.
Counsel requested reconsideration on September 12, 2016.
He contended that
Dr. Geary’s report was speculative regarding the time at which the aggravation of appellant’s
right hip arthritis would cease. Counsel further argued that appellant had no plans to stop work
and had ongoing work activities such that his work-related aggravation must be considered
permanent. He noted that Dr. Geary was not provided with the contribution standard of
causation or given the full definition of acceleration as defined by OWCP procedures.
Appellant also submitted a report from Dr. Hartunian dated September 8, 2016.
Dr. Hartunian noted that there was no medically accepted definition of “the ordinary course” or
“natural progression” of osteoarthritis (OA). He asserted that research since the mid-1900’s had
established that “the significant and oftentimes predominant contribution of environmental
factors to the development and progression” of arthritis. Dr. Hartunian also reported that specific

3

ergonomic stresses such as knee bending, kneeling, and squatting may constitute long-term
stresses leading to OA. He opined that, due to the nature of the disease, all aggravations of
arthritis must be permanent. Dr. Hartunian noted that degenerative arthritis was the loss of
articular cartilage and that aggravation of arthritis contributed to the deterioration of the articular
cartilage. He noted that, once lost, articular cartilage could never be regained or revert back to a
decreased level of severity.
OWCP referred the medical record to an OWCP medical adviser on January 20, 2017. In
a report dated January 29, 2017, OWCP’s medical adviser reviewed the SOAF and medical
records. He disagreed with Dr. Hartunian’s findings and conclusions regarding the causal
relationship between heavy work and OA of the hip or bursitis of the hip. The medical adviser
also disagreed that no aggravation of OA could be temporary. He opined that the symptoms of
OA waxed and waned and that in his experience patients could return to their preinjury level of
activity and symptomatology. OWCP’s medical adviser concluded, “The fact that the OA
progresses as the claimant continues his work activities does not in and of itself mean that the
claimant suffered a permanent aggravation of the OA of the affected joint in my opinion.”
By decision dated February 3, 2017, OWCP denied modification of its prior decisions
finding that the medical evidence of record was not sufficiently rationalized to establish
permanent accelerations or aggravations of the work-related conditions of left hip arthritis, left
trochanteric bursitis, and left knee arthritis.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, 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
or specific condition for which compensation is claimed is causally related to the employment
injury.6
OWCP’s regulations define an occupational disease as a condition produced by the work
environment over a period longer than a single workday or shift.7 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit
the following: (1) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated

5

Supra note 3.

6

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

7

20 C.F.R. § 10.5(q).

4

differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.8 Medical rationale includes a physician’s detailed opinion on
the issue of whether there is causal relationship between the claimant’s diagnosed condition and
the implicated employment activity. The opinion of the physician must be based on a complete
factual and medical background of the claim, 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 specific employment activity or factors identified by the claimant.9 The
belief of a claimant that a condition was caused or aggravated by the employment is insufficient
to establish causal relation.10
OWCP’s procedures define an aggravation as when a preexisting condition is worsened,
either temporarily or permanently, by an injury arising in the course of employment.11 A
temporary aggravation is defined as a condition that involves a limited period of medical
treatment or disability, after which the employee returns to his previous physical status. A
permanent aggravation is defined as a condition that will persist indefinitely due to the effects of
the employment-related injury, or when a condition is materially worsened such that it will not
revert to its previous level of severity. In order to establish that permanent aggravation has
occurred in a physical disability case, there should be objective evidence of a physiological
change in the claimant’s preexisting condition. OWCP procedures define an acceleration as
when an employment-related injury or illness hastens the development of an underlying
condition and the ordinary course of the disease does not account for the speed with which a
condition develops.12
It is well established that, where employment factors cause an aggravation of an
underlying physical condition, the employee is entitled to compensation for periods of disability
related to the aggravation.13 Where the medical evidence supports an aggravation or acceleration
of an underlying condition precipitated by working conditions or injuries, such disability is
compensable.14 However, the normal progression of untreated disease cannot be stated as an
aggravation of a condition merely because the performance of normal work duties reveal the

8

T.F., 58 ECAB 128 (2006).

9

A.D., 58 ECAB 149 (2006).

10

Lourdes Harris, 45 ECAB 545, 547 (1994).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.3.c (June 2015).
12

Id.

13

A.C., Docket No. 08-1453 (issued November 18, 2008); see Thomas N. Martinez, 41 ECAB 1006 (1990);
William D. Bryson, 32 ECAB 860 (1981).
14

A.C., id.; see Grace K. Johnson, 8 ECAB 547 (1956).

5

underlying condition.15 For the conditions of employment to bring about an aggravation of
preexisting disease, the employment must be such as to cause acceleration of the disease or to
precipitate disability.16
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which 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 and resolve the conflict of medical evidence.17 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.18
ANALYSIS
The Board finds that this case is not in posture for a decision.
Appellant’s attending physician, Dr. Hartunian, provided two reports addressing the
impact of appellant’s accepted employment duties on his diagnosed left hip arthritis, left
trochanteric bursitis, and left knee arthritis. In his initial report, he provided a detailed
explanation of the process by which impact loading resulting from repeated local stresses
sustained during appellant’s work duties accelerated the progression of arthritis through a
process of chronic inflammation. Dr. Hartunian opined that these impact loading activities
exerted repeated local stresses to appellant’s left lower extremity resulting in chronic
inflammation. He reported, “The inflammation causes a loss of proteoglycans which are
responsible for cartilage resilience and their loss results in a stiffer material that is more easily
damaged by ‘wear and tear.’” Dr. Hartunian concluded that appellant’s job activities were a
significant contributing factor to the development and progression of his left lower extremity
arthritis. In his second report, he opined that due to the nature of the disease all aggravations of
arthritis must be permanent. Dr. Hartunian noted that degenerative arthritis was the loss of
articular cartilage and that aggravation of arthritis contributed to the deterioration of the articular
cartilage. He pointed out that, once lost, articular cartilage could never be regained or revert
back to a decreased level of severity.
OWCP undertook further development of appellant’s claim by referring him to Dr. Geary
for a second opinion evaluation. Dr. Geary opined that appellant’s work activities caused only a
temporary traumatic aggravation of his underlying left hip and knee arthritis. He expected the
aggravation to have ceased within six to eight weeks after appellant’s federal employment ended.

15

A.C., id.; Glenn C. Chasteen, 42 ECAB 493 (1991); Sylvia E. Loomis, 1 ECAB 18 (1947).

16

A.C., id.; Compare John Watkins, 47 ECAB 597 (1996); Helen Morgan (Willis R. Morgan), 6 ECAB 633
(1954); Jerry Hall, 6 ECAB 522 (1954).
17

Supra note 3 at § 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

18

R.C., 58 ECAB 238 (2006).

6

Dr. Geary provided a conclusory opinion that there was no causality or acceleration of
appellant’s conditions, but provided no explanation or basis for such an opinion.19
On January 29, 2017 OWCP’s medical adviser reviewed the SOAF and medical records.
He noted his disagreement with Dr. Hartunian’s findings and conclusions regarding the causal
relationship between heavy work and OA of the hip or bursitis of the hip, but provided no
medical rationale in support opinion. The medical adviser also disagreed with Dr. Hartunian’s
finding that an aggravation of OA would inherently be permanent in nature. However, he
provided only a conclusory opinion that arthritis could progress as appellant continued his work
activities, but this did not mean that he suffered a permanent aggravation of OA.20
The Board finds that although Dr. Geary and OWCP’s medical adviser provided opinions
regarding causal relationship, neither physician supported his opinion with probative medical
rationale.21 Both physicians provided only conclusory responses with no rationale to support
their opinions that there was no causal relationship between the accepted employment factors
and the diagnosed conditions of left hip arthritis, left trochanteric bursitis, and left knee
arthritis.22 Furthermore, neither physician provided a well-reasoned explanation regarding how a
progressed arthritic condition would be temporary in nature or return to a baseline condition once
aggravated.
It is well established that proceedings under FECA are not adversarial in nature and that
while the employee has the burden of proof to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence in order to see that justice is done.23
Once OWCP undertakes development of the record, it must do a complete job in procuring
medical evidence that will resolve the relevant issues in the case.24 After undertaking
development by scheduling a second opinion examination with Dr. Geary on the issue of causal
relationship, and requesting review of the second opinion report by an OWCP medical adviser,
OWCP was responsible for obtaining rationalized medical opinion evidence as to causal
relationship and the permanency of any work-related condition. As Dr. Geary did not provide
such reasoned opinions, he should be requested to provide probative medical rationale in support
of his opinions. If he is unable or unwilling to do so, a new second opinion examination should

19

J.D., Docket No. 14-2016 (issued February 27, 2015) (A mere conclusory opinion provided by a physician,
without the necessary rationale explaining how and why the work factors were insufficient to result in diagnosed
medical conditions, is insufficient to be granted the weight of the evidence).
20

Id.

21

R.M., Docket No. 16-0147 (issued June 17, 2016).

22

The Board notes that the opinions of Dr. Geary and OWCP’s medical adviser are also of insufficient probative
value to create a conflict in medical opinion.
23

Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

24

See B.C., Docket No. 15-1853 (issued January 19, 2016).

7

be scheduled in accordance with OWCP procedures.25 Following this and any necessary further
development on this issue of causal relationship, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds this case not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the February 3, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this opinion of the Board.
Issued: December 22, 2017
Washington, DC

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

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

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

25

OWCP’s procedures provide that, if a second opinion specialist submits an opinion which is equivocal, lacks
rationale, or fails to address the specified medical issues, the claims examiner should seek clarification or further
rationale from that physician. When OWCP undertakes to develop the evidence by referring the case to an Officeselected physician, it has an obligation to seek clarification from its physician upon receiving a report that did not
adequately address the issues that OWCP sought to develop. As such, the claims examiner should seek clarification
from the referral physician and request a supplemental report to clarify specifically-noted discrepancies or
inadequacies in the initial second opinion report. Only if the second opinion physician does not respond, or does not
provide a sufficient response after being asked, should the claims examiner request scheduling with another
physician. See supra note 11 at Chapter 2.810.9(j) (September 2010).

8


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

)
)
)
)
)
)
)
)

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

Docket No. 17-0661
Issued: December 14, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 24, 2017 appellant filed a timely appeal from an August 3, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $74, 956.32 because she concurrently received Social Security Administration (SSA)
retirement benefits while receiving FECA benefits for the period May 1, 2006 through
August 22, 2015; (2) whether OWCP properly denied waiver of recovery of the overpayment
because appellant was at fault in the creation of the overpayment; and (3) whether OWCP
properly required repayment of the overpayment by deducting $300.00 every 28 days from
appellant’s continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 20, 1993 appellant, then a 58-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome and
shoulder impingement as a result of her federal employment duties. She stopped work. OWCP
accepted appellant’s claim for bilateral carpal tunnel syndrome and paid wage-loss compensation
and medical benefits. On February 10, 1995 appellant returned to limited duty.2
Appellant worked part-time limited duty from January 22 to October 16, 1997. On
October 17, 1997 she underwent right shoulder surgery and stopped work. On May 10, 1998
appellant returned to part-time limited duty. She stopped work again on July 8, 1999. On
October 31, 2000 appellant returned to part-time limited duty.
OWCP accepted that on August 7, 2001 appellant sustained a recurrence of her
employment injury. Appellant indicated that she worked limited duty and that her medical
condition was worsening. She stopped work. OWCP paid wage-loss compensation and placed
appellant on the periodic rolls effective December 2, 2001.
OWCP received completed and signed EN1032 forms from appellant dated July 6, 2006,
June 20, 2007, June 30, 2008, June 26, 2009, June 21, 2010, June 22, 2011, June 18, 2012,
June 16, 2013, June 20, 2014, and June 23, 2015. Each EN1032 form instructed appellant to
report to OWCP any benefits received from the SSA which she received as part of an annuity
under the Federal Employees Retirement Service (FERS) during the prior 15 months. In the
EN1032 forms dated July 6, 2006, June 20, 2007, June 30, 2008, June 26, 2009, June 22, 2011,
June 18, 2012, and June 16, 2013 appellant wrote “No” under Part 2, Section 2 indicating that
she did not receive benefits from the SSA as part of an annuity for federal service. The
certification section of EN1032 forms also noted that by signing these forms appellant
understood that she must immediately report to OWCP any improvement in her medical
condition, any employment, any change in the status of claimed dependents, any third-party
settlement, and any change in income from federally assisted disability or benefit programs.
In the Form EN1032 dated June 20, 2007, while appellant reported in Part D, Section 2
that she had not received SSA benefits as part of an annuity for federal service from the SSA, she
also wrote in Part D, Section 4 for Other Benefits: “Social Security $955.00”. Appellant also
related that this was not a recurring benefit.
On the Form EN1032 appellant completed on June 21, 2010 she noted “yes” to the
question under Part D, Section 2 that she had received SSA benefits as part of an annuity for
federal service from the SSA. In the Form EN1032 dated June 20, 2014, she indicated under
2

The record reflects that appellant has sustained several other injuries in the performance of her duties, which
have been combined with the current claim as the master file. Under OWCP File No. xxxxxx842, OWCP accepted
her claim for right shoulder impingement syndrome. It paid compensation for the period January 5 to April 20, 1997
and awarded appellant a schedule award of 16 percent permanent impairment of the right upper extremity. Under
OWCP File No. xxxxxx296, appellant’s claim was accepted for left shoulder impingement syndrome. She received
compensation for the period February 26 to November 15, 1997 and received a schedule award of 12 percent
permanent impairment of the left upper extremity. Under OWCP File No. xxxxxx133, OWCP accepted appellant’s
claim for right shoulder and rib sprain.

2

Part D, Section 2 that she had received SSA benefits as part of an annuity for federal service in
the monthly amount of $1,153.00. In the Form EN1032 dated June 23, 2015, appellant noted
under Part D, Section 2 that she had received SSA benefits as part of an annuity for federal
service in the monthly amount of $1,174.00.
On August 5, 2015 OWCP received information from the SSA regarding appellant’s pay
rate with and without FERS benefits for the period May 1, 2006 to August 22, 2015.
On August 19, 2015 OWCP issued a preliminary determination that appellant had
received an overpayment of compensation in the amount of $74,956.32 for the period May 1,
2006 through August 22, 2015. It explained that the overpayment occurred because a portion of
her SSA benefits that she had received during the above-mentioned time period was based on
credits earned while working in the Federal Government, and that this portion of her SSA benefit
was a prohibited dual benefit. OWCP found that appellant was at fault in the creation of the
overpayment because she failed to notify OWCP of her change in SSA benefits effective
May 2006 and therefore she was aware or should have been reasonably aware that the payment
she received for that period was incorrect. The preliminary determination provided an
explanation of the calculation of the overpayment and contained an August 19, 2015 offset
calculation worksheet, which indicated that the FERS offset for the period May 1, 2006 to
August 22, 2015 totaled $74,956.32. OWCP requested that appellant respond and complete an
attached overpayment action request and an overpayment recovery questionnaire form (OWCP
Form 20) within 30 days. Appellant was informed of the required financial documentation and
actions she could take.
By letter dated August 20, 2015, OWCP notified appellant that it would reduce her FECA
benefits effective August 23, 2015 to reflect the contribution from her SSA benefits attributable
to her federal employment. It attached documentation explaining the calculation of the offset.
On October 13, 2015 appellant requested a prerecoupment hearing before an OWCP
hearing representative. She indicated that she wished to contest the overpayment on the issues of
the amount of overpayment and fault.
In a decision dated April 12, 2016, an OWCP hearing representative denied appellant’s
request for a prerecoupment hearing because it was not timely filed within 30 days of its
August 19, 2015 preliminary determination.
In a May 23, 2016 telephone call memorandum (Form CA-110), appellant informed
OWCP that she did not understand how the overpayment was her fault. She explained that in
2005 she went to OWCP to get advice as to how to complete the Form EN1032. Appellant noted
that she had been using that advice as a guide ever since. She related that SSA told her that
when she turned 65 she would stop getting her husband’s SSA and start getting hers. Appellant
alleged that she was not aware that she could not receive both benefits at the same time. She also
noted that it took OWCP 10 years to inform her of the overpayment and that she had reported on
the Forms EN1032 how much money she was getting every year.
By decision dated August 3, 2016, OWCP finalized the preliminary overpayment
determination, finding an overpayment of compensation in the amount of $74,956.32 for the

3

period May 1, 2006 to August 20, 2015. It also finalized the finding that appellant was at fault in
the creation of the overpayment. OWCP determined that it would deduct $300.00 from her
continuing compensation payments beginning August 20, 2016.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, she
may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.4
A FECA beneficiary may not receive wage-loss compensation concurrently with a
federal retirement or survivor annuity.5 To avoid payment of a dual benefit, FECA wage-loss
compensation benefits shall be reduced by the amount of SSA benefits attributable to the
employee’s federal service.6 However, an offset is not required where the employee-beneficiary
is covered under the Civil Service Retirement System and her SSA age-related benefits are
attributable to private sector employment.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained various medical conditions as a result of her
federal employment. It paid her wage-loss compensation and placed her on the periodic rolls,
effective December 2, 2001. On August 5, 2015 the SSA notified OWCP that appellant had
been receiving SSA retirement benefits since May 1, 2006. Because a portion of the SSA
benefits she earned as a federal employee was part of her FERS retirement package, the receipt
of benefits under FECA and federal retirement benefits concurrently constituted a prohibited
dual benefit.8
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, in disability cases, FECA benefits will be reduced by the SSA benefits paid on the basis
of age and attributable to the employee’s federal service.9 It obtains information from SSA on
the amount of the claimant’s SSA benefits beginning with the date of eligibility to FECA
benefits.
SSA will provide the actual amount of SSA benefits received by the
3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

5

See id. at § 8116(a), (d); 20 C.F.R. § 10.421(a).

6

Id. at § 8116(d)(2); Id. at § 10.421(d).

7

K.G., Docket No. 16-553 (issued June 21, 2016).

8

Supra note 5.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (January 1997).

4

claimant/beneficiary. It will also provide a hypothetical SSA benefit computed without the
FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual benefit
to determine the amount of benefits which are attributable to federal service and that amount will
be deducted from FECA benefits to obtain the amount of compensation payable.10
The SSA provided information regarding appellant’s SSA rates, with and without FERS
benefits, and their effective dates. Based on these rates, OWCP was able to calculate the amount
of the prohibited dual benefit she had received from May 1, 2006 through August 22, 2015. It
calculated the amount of overpayment by determining the difference between the SSA amount
with and without FERS for each period and multiplying the daily offset amount by the number of
days in each period, to find a total overpayment of $74,956.32. The Board notes that there is no
contrary evidence of record. Accordingly, the Board finds that OWCP properly found that
appellant received an overpayment of compensation and properly calculated the dual benefits for
the period May 1, 2006 to August 22, 2015 to be $74,956.32.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.11 No waiver of
payment is possible if appellant is with fault in helping to create the overpayment.12
In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
“An individual is with fault in the creation of an overpayment who-Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
Failed to provide information which he or she knew or should have known
to be material; or
“Accepted a payment which he or she knew or should have known to be
incorrect.”13

10

J.R., Docket No. 17-0181 (issued May 22, 2017).

11

5 U.S.C. § 8129(b).

12

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

13

20 C.F.R. § 10.433(a).

5

ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
she failed to notify OWCP of her SSA retirement benefits and because she was aware or should
have reasonably been aware that the payments she received from May 1, 2006 through
August 22, 2015 were not offset for the dual benefit.
The Board finds initially that appellant was at fault in the creation of the overpayment for
the period May 1, 2006 to June 26, 2009 because she made an incorrect statement as to a
material fact which she knew or should have known to be incorrect.
Appellant received retirement benefits from SSA, which were in part based on her federal
employment, simultaneously while receiving compensation from FECA. She had been advised
in the letters accompanying the EN1032 forms that the information requested in the forms would
be used to determine whether the amount of benefits should be adjusted. Appellant was advised
that benefits could be adjusted if she was in receipt of other federal benefits. With respect to
whether an individual is with fault in the creation of the overpayment, section 10.433(b) of
OWCP’s regulations provides that it depends on the circumstances surrounding the overpayment.
The degree of care expected may vary with the complexity of the circumstances and the
individual’s capacity to realize that he or she is being overpaid. The Board has also noted that, in
applying the tests to determine fault, OWCP should apply a reasonable person test.14 The Board
finds that appellant was at fault in the creation of the overpayment because she failed to provide
information as to a material fact. Appellant had been advised that a person who receives
compensation benefits under FECA is not permitted to receive retirement benefits based on her
federal service concurrently with FECA benefits.15
The EN1032 forms cover the period commencing 15 months prior to the signing of the
form.16 In Forms EN1032 dated July 6, 2006, June 20, 2007, June 30, 2008, June 26, 2009,
June 22, 2011, June 18, 2012, and June 16, 2013, appellant indicated “No” that she had not
received benefits from the SSA as part of an annuity for federal service. Because appellant
received SSA retirement benefits commencing May 1, 2006, knowingly signing a statement
indicating that she was not receiving SSA benefits as part of an annuity for federal service,
constitutes an incorrect statement as to a material fact.17
The Board notes that on the Form EN1032 dated June 20, 2007 appellant noted in Part D,
section 4, that she had received SSA benefits in the amount of $955.00; however, she also
marked “No” that this was not a recurring benefit. Appellant also reported “No” under Part D,
section 2 that she did not receive benefits from SSA as part of an annuity for federal service. She
signed a certification clause on the EN1032 forms, which advised her in explicit language that
she might be subject to civil, administrative or criminal penalties if she knowingly made a false
14

C.D., Docket No. 12-193 (issued August 2, 2013).

15

T.G., Docket No. 16-910 (issued November 23, 2016).

16

B.L., Docket No. 13-1422 (issued June 2, 2014).

17

See supra note 15.

6

statement or misrepresentation or concealed a fact to obtain compensation. By signing the form,
she is deemed to have acknowledged her duty to fill out the form properly. Appellant provided
contradictory information and therefore did not complete the form properly. Also by noting that
she was not receiving recurring SSA benefits she failed to furnish information which she knew
or should have known to be material to OWCP.18 Therefore appellant was also at fault in
creating the overpayment during the 15-month period covered by the June 20, 2007 Form
EN1032.19
Based upon appellant’s inaccurate completion of the EN1032 forms dated July 6, 2006,
June 20, 2007, June 30, 2008, June 26, 2009, June 22, 2011, June 18, 2012, and June 16, 2013,
appellant was at fault in the creation of the overpayment during the periods applicable to these
forms.
The Board also finds, however, that appellant did not make an incorrect statement as to a
material fact in the Forms EN1032 dated June 21, 2010, June 20, 2014 and June 23, 2015 and
accordingly, was not at fault in the creation of the overpayment during the applicable periods. In
EN1032 forms dated June 21, 2010, June 20, 2014, and June 23, 2015, appellant fully disclosed
her receipt of FERS benefits based in part on federal service.20 As OWCP’s finding of fault was
premised upon appellant’s failure to report SSA benefits in her EN1032 forms, the Board finds
that appellant was not at fault in the creation of the overpayment during these periods.
The Board also finds that appellant had not completed a Form EN1032 that pertained to
the period June 23 to August 22, 2015 at the time of OWCP’s August 3, 2016 decision.
Therefore there is no evidence of record that she made an incorrect statement regarding receipt
of SSA disability benefits during the period June 23 to August 22, 2015.
Consequently, the case will be remanded to OWCP to consider whether the overpayment
created during the periods in which appellant was not at fault should be waived.21
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $74,956.32 for the period May 1, 2006 through August 22, 2015 because OWCP failed to
reduce her FECA benefits by her FERS SSA retirement benefit. The Board further finds that she
was at fault in the creation of the overpayment for the period May 1, 2006 to June 26, 2009, and
18

Supra note 15, wherein the Board found that while appellant did indicate in the Form EN1032 signed on
November 27, 2012 that he would begin receiving SSA retirement on December 1, 2012, in another question on the
same form he indicated that he did not receive benefits from SSA in the prior 15 months as part of an annuity for
federal service. He continued to indicate that he did not receive an SSA annuity for federal services in forms signed
on November 18, 2013,
19

See J.N., Docket No. 13-1751 (issued July 1, 2014).

20

See J.K., Docket No. 15-1917 (issued January 29, 2016); see also B.L., Docket No. 13-1422 (issued
June 2, 2014).
21

In view of the Board’s finding that the case must be remanded for OWCP to consider waiver of recovery of the
overpayment, it is premature to address recovery of the overpayment from continuing compensation payments.

7

from June 22, 2010 to June 16, 2013 and was therefore, was not entitled to waiver of recovery of
the overpayment for this period. The Board also finds that appellant was not at fault in the
creation of the overpayment for the period June 27, 2009 to June 21, 2010 and from June 17,
2013 to August 22, 2015, and that, consequently, the case will be remanded to OWCP to
consider waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the August 3, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this decision of the Board.22
Issued: December 14, 2017
Washington, DC

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

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

22

Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lawton, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0411
Issued: September 12, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 18, 2017 appellant filed a timely appeal from a July 19, 2017 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 the claim.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a left shoulder
condition in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The record on appeal includes evidence received after OWCP issued its July 19, 2017 decision. The Board’s
jurisdiction is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing evidence not before OWCP at the time of the July 19, 2017 decision
for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 11, 2017 appellant, then a 59-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed a left shoulder condition as a result of his federal
employment duties. He first became aware of his condition on October 3, 2016 and that it was
caused or aggravated by factors of his federal employment on March 27, 2017. Appellant noted
that he had experienced left shoulder discomfort from time to time, but the shoulder pain was
different after he returned to full-time work in October 2016 following knee surgery.
In an April 12, 2017 report, Dr. J. Arden Blough, a family practitioner, reported that
appellant had worked for the employing establishment as a clerk for 13 years and as a letter carrier
for the past 8 years. He listed appellant’s employment duties and that such duties were performed
approximately five to six hours per day, five days per week over the length of his career.
Dr. Blough stated that appellant had developed severe pain in his left shoulder over time by the
excess strain placed on his upper extremities by the repeated heavy lifting, carrying of mail,
overhead work, and carrying a mailbag while delivering mail. He indicated that appellant initially
presented to his primary care physician at Reynolds Army Community Hospital, Dr. Paul D.
Maltino, an osteopath and Board-certified joint reconstructive specialist, on March 6, 2017.
Dr. Blough noted that the x-rays of the left shoulder revealed degenerative joint disease of the left
acromioclavicular joint and left glenohumeral joint. He also noted that a March 27, 2017 magnetic
resonance imaging (MRI) scan of the left shoulder revealed a partial thickness articular surface
tear of the distal supraspinatus tendon, moderate supraspinatus and infraspinatus tendinosis,
moderate acromioclavicular (AC) arthrosis, and mild biceps long head tenosynovitis. Dr. Blough
noted examination findings and obtained x-rays of the left shoulder. He diagnosed cumulative
trauma to the left shoulder resulting in AC arthrosis, cumulative trauma to the left shoulder
resulting in impingement syndrome, cumulative trauma to the left shoulder resulting in partial
thickness tear of the supraspinatus tendon, cumulative trauma to the left shoulder resulting in
supraspinatus and infraspinatus tendinosis, cumulative trauma to the left shoulder resulting in
biceps long head tenosynovitis, and cumulative trauma to the left shoulder resulting in
glenohumeral degenerative joint disease. Dr. Blough opined that appellant’s conditions were both
caused and accelerated by the continued performance of appellant’s employment duties.
By development letter dated April 27, 2017, OWCP informed appellant that the evidence
of record was insufficient to support his claim for a left shoulder condition. It advised appellant
of the medical and factual evidence needed to establish his claim. OWCP provided a development
questionnaire for appellant’s completion and requested that he submit a response in order to
substantiate the factual basis of his claim. OWCP asked appellant to provide detailed information
concerning the job activities he believed contributed to his shoulder condition and to describe all
activities outside his federal employment. It also asked him to be as precise as possible in
quantifying the amount of time spent engaging in both employment-related and personal activities.
OWCP afforded appellant 30 days to submit the requested evidence. No response was received.
In a separate letter of even date, OWCP requested that the employing establishment provide
further information pertaining to appellant’s occupational disease claim. It afforded appellant and
the employing establishment 30 days for response.

2

On May 17, 2017 OWCP received the employing establishment’s response to its questions.
The employing establishment stated that appellant was required to lift trays ranging between 10 to
12 pounds, push a hamper with varying weight depending on the amount of parcels his route
received for that day, and carry a mailbag which could weigh up to 70 pounds in addition to the
amount of mail carried in his arm and hand. It added that appellant was also required to lift up to
40 pounds intermittently, twist up to two hours a day, push and pull approximately one hour a day,
reach above shoulder for one hour a day, and drive a motor vehicle up to seven hours a day.
OWCP also received a duplicate copy of Dr. Blough’s April 12, 2017 report, a copy of
Dr. Blough’s April 12, 2017 handwritten notes, and progress notes dated April 21 and June 21,
2017 from Kory Reed, PA-C, a certified physician assistant.
On June 13, 2017 Dr. Maltino reported that appellant had left shoulder pain daily for the
last two or three years, but over time it had increased in severity and intensity. He provided
examination findings and diagnosed a partial-thickness rotator cuff tear, moderate supraspinatus
and infraspinatus tendinosis, moderate AC arthrosis, mild biceps tendinitis, and impingement.
Dr. Maltino performed a steroid injection into the subacromial space and indicated, in a June 13,
2017 work status report, that appellant could return to work that day with no restrictions.
In a June 22, 2017 report, Dr. Maltino noted examination findings and diagnosed left
shoulder impingement syndrome, partial rotator cuff tear, and improved biceps tendinitis status
post steroid injections.
By decision dated July 19, 2017, OWCP denied appellant’s claim as the evidence of record
failed to establish that the occupational exposure occurred. It noted that appellant did not respond
to the questionnaire provided in its April 27, 2017 development letter, which requested that he
describe in detail the employment-related activities which he believed contributed to his condition.
Therefore, the factual component of fact of injury has not been established.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
3

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

4

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

3

employment incident which is alleged to have occurred.5 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left shoulder
condition in the performance of duty.
The Board finds that appellant has not established the factual component of his claim as he
failed to describe the job activities he believed contributed to his shoulder condition and the
duration of such activities. It is appellant’s burden of proof to establish the essential elements of
his claim.7 To establish a claim for compensation in an occupational disease claim, an employee
must submit a statement which identifies the factors of employment believed to have caused his
or her condition.8 Appellant has not provided sufficient detail to establish that an occupational
exposure occurred as alleged. He did not adequately describe the circumstances of his injury, the
duties he was performing which caused his injury, or the mechanism of injury.9
In a development letter dated April 27, 2017, OWCP requested that appellant respond to
its questionnaire and provide detailed information concerning the job activities he believed
contributed to his shoulder condition. While the employing establishment reported appellant’s
employment duties, there is no statement from appellant describing the specific employmentrelated activities, which he believed contributed to his condition and the amount of time he spent
engaging in such activities.10 Absent this evidence, it cannot be determined whether the history of
injury provided in the medical evidence of record corresponds with appellant’s claimed injury.

5

Elaine Pendleton, supra note 3.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

Supra note 3.

8

D.M., Docket No. 18-0335 (issued June 18, 2018).

9

Id.

10

See D.C., Docket No. 18-0082 (issued July 12, 2018).

4

The Board finds that the record lacks sufficient factual evidence to establish the specific
details of how the claimed injury occurred. As appellant has not established the factual aspect of
his claim, the medical evidence regarding causal relationship need not be addressed.11
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 his burden of proof to establish a left shoulder
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 12, 2018
Washington, DC

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

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

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

11

See V.F., 58 ECAB 321, 327 (2007).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION FACILITY, Eugene, OR,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
John E. Goodwin, Esq., for the appellant
No appearance, for the Director

Docket No. 10-1443
Issued: March 4, 2011

Oral Argument December 16, 2010

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

JURISDICTION
On April 30, 2010 appellant, through her attorney, filed a timely appeal of a January 28,
2010 merit decision of the Office of Workers’ Compensation Programs affirming the termination
of her monetary compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s monetary compensation
benefits effective June 19, 2009 on the grounds that she no longer had any disability causally
related to her accepted employment injuries.
On appeal, counsel contends that the Office improperly relied on the medical opinion of
an Office referral physician to terminate appellant’s benefits as it was based on an incomplete
and inaccurate statement of accepted facts. The statement of accepted facts did not include a
description of appellant’s regular work duties as an automation clerk or list adhesive capsulitis as
an accepted employment-related condition.

FACTUAL HISTORY
On January 20, 1995 appellant, then a 31-year-old transitional automation clerk, filed an
occupational disease claim alleging that on January 6, 1995 she first became aware of soreness in
her right wrist, elbow and shoulder and realized that her condition was caused by her federal
employment.1 By letter dated March 22, 1995, the Office accepted her claim for tendinitis of the
right shoulder and elbow. On July 21, 1995 it authorized right shoulder anterior decompression
surgery, which was performed on August 18, 1995.2
In an October 17, 2007 decision, the Office reduced appellant’s compensation effective
that date under 5 U.S.C. § 8115 to reflect her capacity to earn wages in the constructed position
of telemarketer.3 On October 24, 2007 appellant, through counsel, requested an oral hearing
before an Office hearing representative. In an August 6, 2008 decision, a hearing representative
set aside the October 17, 2007 decision, finding that the Office did not meet its burden of proof
in reducing appellant’s wage-loss compensation. The Office hearing representative remanded
the case to the Office for further development of the medical evidence and reinstatement of her
compensation back to October 17, 2007. The Office was instructed to refer appellant, together
with a statement of accepted facts, her medical records and a description of the telemarketer
position, to a Board-certified physician for an opinion regarding her work capabilities.
On January 13, 2009 the Office referred appellant to Dr. Stephen J. Thomas, Jr., a Boardcertified orthopedic surgeon, for a second opinion medical examination. In a January 29, 2009
medical report, Dr. Thomas reviewed her medical record and listed his findings on physical
examination. He diagnosed right shoulder impingement syndrome and mild ulnar neuropathy of
the right elbow. Dr. Thomas stated that appellant was status post subacromial decompression,
three times. He advised that she was not physically capable of returning to work as a transitional
distribution clerk as her right arm pain dominated her life. Dr. Thomas further advised that
appellant’s physical restrictions were directly related to her accepted employment injuries. He
stated that he was not provided with descriptions of the identified constructed positions,
including the telemarketer position. Dr. Thomas advised that it was doubtful that appellant could
return to work in any of the constructed positions.
By letter dated March 2, 2009, the Office advised Dr. Thomas that his report required
clarification. It requested that he submit a rationalized medical opinion based on his review of
appellant’s medical record including the employing establishment’s investigative digital video
disc (DVD) which showed her physical activities.

1

On May 31, 1996 the employing establishment terminated appellant’s employment due to her failure to follow
instructions. Appellant failed to report to work as scheduled and was absent without leave on May 27, 1996.
2

In a December 17, 2003 decision, the Office accepted that appellant sustained a recurrence of disability as of
October 31, 2001 causally related to her accepted employment injuries. It authorized right shoulder arthroscopic
surgery which was performed on February 23, 2004 and May 9, 2005.
3

A vocational rehabilitation counselor also identified the positions of check cashier, hostess and demonstrator as
being within appellant’s physical limitations, vocational skills and commuting area.

2

In an April 16, 2009 report, Dr. Thomas reviewed the investigative DVD and advised that
appellant could perform her regular work duties and the duties of all of the identified constructed
positions based on her ability to lift many objects and move her shoulders well. He stated that
pain did not dominate her life and it was not substantiated by the facts of the case.
On May 8, 2009 the Office issued a notice of proposed termination of appellant’s
monetary compensation benefits based on Dr. Thomas’ medical opinion. Appellant was afforded
30 days to respond to this notice.
In reports dated May 22 and June 5, 2009, Dr. Peter S. Kosek, a Board-certified
anesthesiologist, addressed the treatment of appellant’s right shoulder arthritis.
In a June 17, 2009 decision, the Office terminated appellant’s monetary compensation
benefits effective June 19, 2009 on the grounds that she no longer had any disability causally
related to her accepted employment injuries. The medical evidence appellant submitted was
insufficient to overcome the weight accorded to Dr. Thomas’ opinion. The Office, however,
stated that she remained eligible for further medical treatment of her accepted conditions.
On June 23, 2009 appellant requested an oral hearing before an Office hearing
representative.
In reports dated July 17 to November 3, 2009, Dr. Kosek addressed the treatment of
appellant’s right shoulder arthritis.
In a September 18, 2009 report, Dr. Matthew S. Shapiro, a Board-certified orthopedic
surgeon, listed his findings on physical and x-ray examination of appellant’s right shoulder. He
advised that she was medically stationary and unable to return to her usual and customary work.
Following an October 13, 2009 telephonic hearing, appellant’s attorney contended in an
October 22, 2009 letter, that Dr. Thomas’ April 16, 2009 opinion was deficient as it was not
based on a complete and accurate history. The statement of accepted facts provided to him did
not contain a description of the duties and physical requirements of appellant’s distribution clerk
position as required by Chapter 2.809 of the Office’s procedures. Counsel requested that an
Office hearing representative set aside the June 17, 2009 decision and remand the case to the
Office to prepare an amended statement of accepted facts that included a description of
appellant’s distribution clerk position. He also requested that Dr. Thomas review the job
description and provide a medical opinion regarding appellant’s work capability.
In a January 28, 2010 decision, an Office hearing representative affirmed the June 17,
2009 decision, finding that Dr. Thomas’ opinion constituted the weight of the medical evidence
and established that appellant had no continuing employment-related disability. His opinion was

3

based on a complete and an accurate factual and medical background, review of the case record
and comprehensive examination of appellant.4
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that, an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.5
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
ANALYSIS
The Office relied on the April 16, 2009 medical opinion of Dr. Thomas, an Office referral
physician, in terminating appellant’s monetary compensation. The Board finds, however, that
Dr. Thomas’ opinion is of diminished probative value and is insufficient to represent the weight
of the medical evidence. Dr. Thomas initially found that appellant was not physically capable of
returning to work as a transitional distribution clerk or in the constructed telemarketer position
due to her right arm pain as it dominated her life. In response to the Office’s request for
clarification of his opinion, he reviewed the statement of accepted facts and the employing
establishment’s investigative DVD. Dr. Thomas opined that appellant could perform her regular
job and the constructed telemarketer position. He advised that the DVD demonstrated her ability
to lift many objects and move her shoulders well. Dr. Thomas further advised that pain did not
dominate appellant’s life and it was not substantiated by the facts of the case.
Medical conclusions based on inaccurate or incomplete histories are of little probative
value.7 The Office provided Dr. Thomas with appellant’s case file and a statement of accepted
facts so he could base his opinion on a proper factual and medical history, but the statement of
accepted facts included in the record dated December 10, 2008 does not indicate that her claim
was accepted for right shoulder adhesive capsulitis as she noted on appeal. It stated in its May 8,
2009 proposed termination of monetary compensation benefits and transcript of the October 13,
2009 hearing that her claim was accepted for right shoulder adhesive capsulitis. Moreover, the
statement of accepted facts provided to Dr. Thomas did not describe the physical demands of
appellant’s date-of-injury position. The Board notes that the term “transitional automation clerk”
4

Following the issuance of the Office’s January 29, 2010 decision, the Office received additional evidence. The
Board may not consider evidence for the first time on appeal which was not before the Office at the time it issued
the final decision in the case. 20 C.F.R. § 501.2(c)(1). Appellant can submit this new evidence with a formal,
written request for reconsideration to the Office. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
5

Jason C. Armstrong, 40 ECAB 907 (1989).

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

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

4

was used by her on her occupational disease claim form and the term “transitional distribution
clerk” was used by the Office in the December 10, 2008 statement of accepted facts. It is not
clear whether these positions are the same or different positions with different duties. Office
procedures indicate that accepted conditions must be included in a statement of accepted facts
and further provide that when a second opinion specialist renders a medical opinion based on a
statement of accepted facts which is incomplete or inaccurate or does not use the statement of
accepted facts as the framework in forming his or her opinion, the probative value of the opinion
is diminished.8 Office procedures further indicate that the claims examiner should define the
information needed to form a complete frame of reference for the physician who will review the
medical evidence such as, a description of the physical requirements of the date-of-injury job
which, as in this case, would be relevant to the question of whether appellant may return to
regular-duty work.9
Dr. Thomas did not have a complete statement of accepted facts for review. His opinion
that appellant had no continuing employment-related disability is, therefore, not based on a
proper factual history. Since Dr. Thomas rendered his medical opinion based on an incomplete
factual statement omitting appellant’s accepted condition and description of her transitional
automation clerk position, the probative value of his report is reduced. The Board finds,
therefore, that the Office improperly relied on his opinion to establish that appellant had no
remaining disability from the accepted employment injuries. The Office failed to meet its
burden of proof to terminate her monetary compensation benefits effective June 19, 2009.
CONCLUSION
The Board finds that the Office has not met its burden of proof to justify the termination
of appellant’s monetary compensation benefits effective June 19, 2009.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.3(c)
(September 2009); see also Chapter 2.809.5.c (September 2009).

5

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 4, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF THE NAVY,
NAVAL STATION, Norfolk, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-0068
Issued: October 7, 2015

Case Submitted on the Record

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

JURISDICTION
On October 14, 2014 appellant filed a timely appeal from a July 22, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a medical condition
causally related to factors of her federal employment.
FACTUAL HISTORY
On May 9, 2014 appellant, then a 23-year-old third officer assigned to the USS Whitney,
filed an occupational disease claim (Form CA-2) alleging that after a large staff embarkation of
the North Atlantic Treaty Organization (NATO) on the USS Whitney she sustained
1

5 U.S.C. § 8101 et seq.

mononucleosis. Appellant explained that she was initially diagnosed with strep throat, but that
her condition worsened and she was diagnosed with mononucleosis. She first became aware of
her claimed condition on May 2, 2014 and of its relationship to her employment on May 6, 2014.
Appellant submitted a form report signed by Susan Gust, a registered nurse, dated
May 12, 2014. Ms. Gust noted that appellant’s illness began with a sore throat, swollen tonsils,
and some fatigue on May 2, 2014. She noted that tests were positive for mononucleosis, and that
appellant had been taken off duty and referred to a physician for further care. Ms. Gust
concluded that appellant had possibly experienced exposure on the ship.
By letter dated May 27, 2014, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim. It noted that appellant had submitted no medical
evidence from a physician providing a medical diagnosis or an opinion as to how the diagnosed
condition was caused by factors of appellant’s employment.
In a statement dated May 28, 2014, appellant noted that she had boarded the USS
Whitney on January 23, 2014 but was forced to depart the ship on May 9, 2014. She noted that
NATO staff had embarked on her vessel in April 2014 and in May 2014 in Gaeta, Italy and
Lisbon, Portugal. Appellant stated that she first noticed her symptoms on May 2, 2014 and that
her exposure might have occurred due to improperly washed silverware or dishes.
Appellant submitted a May 29, 2014 form report signed by Vivian Paskowski, a
registered nurse. In this form report, Ms. Paskowski related that appellant had mononucleosis,
that her liver function was being monitored, and that she continued to have fatigue and malaise.
She also noted that appellant may have experienced exposure while at work on a ship.
On June 3, 2014 appellant requested compensation for leave without pay (Form CA-7)
from May 30 to June 14, 2014.
By letter dated June 10, 2014, OWCP informed appellant that no action could be taken on
her claim for compensation until it had accepted her claim for occupational disease. It noted that
the evidence of record was insufficient to establish her claim and that medical evidence needed
to be from a qualified physician rather than a nurse practitioner.
Appellant submitted another form report signed by Ms. Paskowski on June 10, 2014
wherein she related that appellant had been seen with improved symptoms. She was advised that
she could return to light-duty work.
On June 20, 2014 appellant returned to full-time regular duty with no restrictions.
On June 24, 2014 appellant also requested compensation for leave without pay (Form
CA-7) for the period June 15 to 22, 2014.
By letter dated June 27, 2014, OWCP reiterated that it could take no action on her new
claim for leave without pay until it had accepted her claim for occupational disease. It again
requested medical evidence sufficient to establish her claim. OWCP asked appellant to provide
relevant medical evidence from a qualified physician to support her claim for work-related injury
and periods of disability. No additional information was received.
2

By decision dated July 22, 2014, OWCP denied appellant’s claim. It noted there was no
medical evidence from a physician establishing that any medical condition was caused by factors
of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.3
While injuries occurring to employees at their residences are not generally compensable,
the Board notes that if an employee is required or expected to live in quarters or premises
furnished or made available by his or her employer and is injured during the reasonable use or
occupancy of such premises, such injuries have been held to have occurred in the performance of
duty and to be compensable. This rule has been referred to as the “Bunkhouse rule.”4
To establish that an injury was sustained in an occupational disease claim, an employee
must submit the following: (1) medical evidence establishing the presence or existence of the
disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the employment factors
identified by the employee were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.5
ANALYSIS
Appellant alleged that she sustained mononucleosis during her service on the USS
Whitney when a large NATO contingent embarked her ship. She claimed that she might have
been exposed to mononucleosis on the ship through dirty silverware or dishes at that time. She
claimed disability from May 30 to June 22, 2014. The Board finds that she has failed to submit
sufficient medical evidence from a qualified physician to establish a medical condition causally
related to her employment.

2

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

Michael E. Smith, 50 ECAB 313, 315 (1999).

4

See Edmond B. Wagoner, 39 ECAB 758 (1988); see also Jimmy T. Vest, Docket No. 01-157 (issued
October 25, 2001).
5

Leslie C. Moore, 52 ECAB 132 (2000).

3

In support of her claim, appellant submitted three form reports signed by registered
nurses, dated May 12 and 29, and June 10, 2014. Nurses do not qualify as physicians under
FECA and, therefore, their reports do not qualify as probative medical evidence supportive of a
claim for federal workers’ compensation.6 Therefore, these reports do not constitute probative
medical evidence establishing that appellant had been diagnosed with the claimed medical
condition. Appellant has not established that she sustained an injury as she did not submit any
medical evidence in support of her claim.
The Board finds that appellant has failed to establish that her diagnosed condition
resulted from employment factors.
In a similar case, where an employee was serving aboard a ship and claimed to have
contracted jaundice while being on the ship, the Board affirmed that even where claimants are
required to live on ships, a claimant must first establish causal relationship through evidence that
the illness was caused by conditions of the employment.7 Here, appellant has failed to establish
the connection between conditions of the employment and the mononucleosis.
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 a medical
condition causally related to factors of her federal employment.

6

See 5 U.S.C. § 8101(2); M.B., Docket No. 12-1695 (issued January 29, 2013).

7

See John A. Squashie, 6 ECAB 363 (1953).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 22, 2014 is affirmed.
Issued: October 7, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-56
Issued: March 21, 2013

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 October 10, 2012 appellant filed a timely appeal from the August 20, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation to zero for
failure to cooperate with vocational rehabilitation efforts.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted appellant’s January 27, 1987 occupational disease claim for left knee
sprain, left knee dislocation, left-sided medial meniscus tear, and permanent aggravation and
acceleration of left knee osteoarthritis. He underwent total left knee replacement surgery on
January 6, 1998 and received wage-loss compensation on the periodic rolls since that time.
OWCP referred appellant to Dr. Bruce Abrams, a Board-certified orthopedic surgeon, for
a second opinion examination to ascertain his work capacity. In a June 2, 2009 report,
Dr. Abrams provided left knee examination findings and diagnosed status post left total knee
arthroplasty and apparent degenerative knee arthritis. He noted that appellant was currently
taking nonsteroid anti-inflammatory medication as needed. Dr. Abrams opined that appellant
was “significantly limited” in his ability to work, but that he could perform “sit/stand” optional
work activity. In an accompanying work capacity evaluation, he recommended restrictions that
included less than one-hour standing and no squatting, kneeling, climbing, bending, stooping,
pulling or pushing.
Based on the restrictions outlined by Dr. Abrams, OWCP referred appellant for
vocational rehabilitation services on September 2, 2009. The reports from the vocational
rehabilitation counselor reflect that appellant completed vocational testing on September 30,
2009, but cancelled several meetings with the counselor due to reported illness and did not
follow the vocational rehabilitation counselor’s suggestions to register for computer classes. The
vocational rehabilitation counselor reported that appellant was experiencing increasing low back
pain and would probably have to undergo back surgery.
On December 23, 2009 OWCP advised appellant that he was impeding the initial
vocational rehabilitation services. It informed him of its intent to reduce his compensation under
5 U.S.C. § 8113(b) and the implementing regulations if he failed to show good cause within 30
days for not participating in the rehabilitation effort.
In a January 8, 2010 report, the vocational rehabilitation counselor noted appellant’s
failure to complete preemployment activities, such as registering for free computer classes. On
December 7, 2009 appellant informed the vocational rehabilitation counselor that he was unable
to attend the classes due to his work-related and nonwork-related medical conditions, which
required the use of medications that made him drowsy. On December 19, 2009 he showed the
vocational rehabilitation counselor a report from his treating physician, Dr. Bryan Little, a
Board-certified orthopedic surgeon, indicating that he would be undergoing total left knee
replacement surgery on February 1, 2010. A report from another treating physician, Dr. Elaine
Cassen, a Board-certified internist, reflected that she had been treating appellant for chronic back
pain. Appellant did not provide either of the reports to the vocational rehabilitation counselor.
In a letter dated January 28, 2010, OWCP advised appellant that it would defer formal
sanctions for noncooperation for an additional 30 days in light of information received regarding
the possible surgery scheduled for February 1, 2010. Appellant was asked to provide a medical
report explaining how the proposed surgery was causally related to his accepted condition. The

2

record reflects that he informed OWCP by telephone on February 2, 2010 that he would have to
undergo back surgery before he could undergo the required knee surgery.
By letter dated March 8, 2010, OWCP provided appellant another 20-day extension so
that he could explain his reasons for noncompliance with the vocational rehabilitation process.
In a December 11, 2009 report, Dr. Cassen diagnosed “CBP [chiropractic bio-physics]
DSD [detrusor sphincter dyssynergia] spinal stenosis” and prescribed a “[h]ome TENS
[transcutaneous electrical nerve stimulation] unit” and physical therapy. In a February 25, 2010
report, Dr. Little stated that appellant needed left knee surgery to resurface his patella. He
indicated that the knee surgery would be delayed until Dr. Marilyn Gates, a Board-certified
neurological surgeon, completed a back evaluation.
In a letter dated March 30, 2010, OWCP asked appellant when and if he was scheduled to
undergo knee or back surgery. Appellant was given 30 days to provide the requested
information. He did not respond.
In a decision dated May 5, 2010, OWCP reduced appellant’s compensation for wage loss
to zero effective May 9, 2010 for refusal to participate in vocational rehabilitation. On June 3,
2010 appellant requested an oral hearing.
The record contains reports dated March 26, August 16 and October 4, 2010 from
Dr. Gates. On March 26, 2010 Dr. Gates diagnosed spinal stenosis at two levels. She prescribed
a medical dosepak and had sent appellant to pain management. In follow-up reports, Dr. Gates
prescribed three epidural injections prior to recommending surgery.
At a November 9, 2011 hearing, appellant stated that he was unable to participate in
vocational rehabilitation due to chronic pain. The record was held open for 30 days pending
receipt of supporting medical evidence.
Appellant submitted a December 12, 2011 report from Dr. Gates, who stated that for the
period between May 2010 and May 2011, he was under her care and was on pain medication in
order to allow him to be moderately functional. He was unable to work at that time and stated
that the vocational rehabilitation counselor would have been a “lost cause.” Appellant would
have been unable, due to the pain medication and the degree of pain that he experienced, to pay
attention to any kind of a program that was being offered to him.
In a January 19, 2012 decision, OWCP’s hearing representative set aside the May 5, 2010
decision. The hearing representative found that Dr. Gates’ report, absent any evidence to the
contrary, was sufficient to require further development of the medical evidence in order to
determine whether appellant had a valid reason for failing to participate in vocational
rehabilitation.
In a letter dated January 25, 2012, OWCP asked Dr. Gates for additional information
regarding appellant’s back condition and the medications she prescribed. The record reflects that
Dr. Gates notified OWCP by telephone on February 6, 2012 that she had nothing further to add

3

to appellant’s medical records and that she was leaving her medical practice at the end of that
week.
In a letter dated February 24, 2012, OWCP informed appellant that Dr. Gates declined to
provide additional information. It requested that he provide the name of another physician
within 15 days. In response, appellant authorized Dr. Cassen to release information.
On March 13, 2012 OWCP requested information from Dr. Cassen regarding appellant’s
medical condition during the applicable time period, including the prescribed medications.
The record reflects that OWCP’s March 13, 2012 request was forwarded to, and
processed by the medical records office (MRO), on behalf of Henry Ford Hospital. On April 9,
2012 MRO notified OWCP that it was unable to disclose the medical evidence requested without
a redisclosure statement, signed by appellant. The referenced redisclosure statement was
provided to OWCP for execution by appellant.
By decision dated April 23, 2012, OWCP denied modification of the May 5, 2010
decision. The claims examiner found that the inconsistent actions and requests of the medical
group made it impossible for OWCP to obtain the necessary medical evidence required to further
evaluate modifying the May 5, 2010 decision. OWCP advised appellant that he was welcome to
complete the form provided by MRO and, upon receipt of a completed form, it could pursue
additional medical development as warranted.
On May 10, 2012 appellant requested review of the written record.
In a decision dated August 20, 2012, OWCP’s hearing representative affirmed the
reduction of appellant’s wage-loss compensation to zero, finding that the weight of the medical
evidence was represented by the opinion of Dr. Abrams, the second opinion physician.
LEGAL PRECEDENT
Section 8104(a) of FECA provides that OWCP may direct a permanently disabled
individual whose disability is compensable to undergo vocational rehabilitation. The Secretary
shall provide for furnishing the vocational rehabilitation services.2
Section 8113(b) of FECA provides:
“(b) If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would have probably been his wage-

2

5 U.S.C. § 8104(a).

4

earning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”3

3

Id. at § 8113(b).

5

Section 10.519 of the implementing regulations provides:
“Under 5 U.S.C. § 8104(a), OWCP may direct a permanently disabled employee
to undergo vocational rehabilitation. To ensure that vocational rehabilitation
services are available to all who might be entitled to benefit from them, an injured
employee who has a loss of wage-earning capacity shall be presumed to be
permanently disabled, for purposes of this section only, unless and until the
employee proves that the disability is not permanent. If an employee without
good cause fails or refuses to apply for, undergo, participate in, or continue to
participate in a vocational rehabilitation effort when so directed, OWCP will act
as follows:
(a) Where a suitable job has been identified, OWCP will reduce the
employee’s future monetary compensation based on the amount which
would likely have been his or her wage-earning capacity had he or she
undergone vocational rehabilitation. [It] will determine this amount in
accordance with the job identified through the vocational rehabilitation
planning process, which includes meeting with OWCP nurse and the
employer. The reduction will remain in effect until such time as the
employee acts in good faith to comply with the direction of OWCP.
(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early but necessary stages of a vocational
rehabilitation effort (that is, meetings with OWCP nurse, interviews,
testing, counseling, functional capacity evaluations and work evaluations),
OWCP cannot determine what would have been the employee’s wageearning capacity.
(c) Under the circumstances identified in paragraph (b) of this section, in
the absence of evidence to the contrary, OWCP will assume that the
vocational rehabilitation effort would have resulted in a return to work
with no loss of wage-earning capacity and OWCP will reduce the
employee’s monetary compensation accordingly (that is, to zero). This
reduction will remain in effect until such time as the employee acts in
good faith to comply with the direction of OWCP.”4
Given the variety of reasons which claimants may offer for noncooperation, and the
circumstances in which these reasons may be offered, it is impossible to establish a definitive list
of acceptable and unacceptable reasons for lack of cooperation. In general, however, a claimant
is expected to treat the vocational rehabilitation effort as seriously as employment and reasons
for lack of cooperation should be considered in this light. A situation which would be

4

Id. at § 10.519.

6

considered a valid reason for absence from work (e.g., an illness) may be considered good cause
for failure to cooperate with vocational rehabilitation for a reasonable period of time.5
The United States is required to pay compensation for the disability of an employee
resulting from personal injury sustained while in the performance of duty.6 Once OWCP accepts
a claim, it has the burden of proof to justify termination or modification of compensation
benefits.7
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation to zero under section 8113(b). The Board will therefore reverse the August 20,
2012 decision.
Based on the opinion of its second opinion physician, Dr. Abrams, OWCP found that
appellant was capable of returning to work and referred him for vocational rehabilitation
services. The Board finds, however, that Dr. Abrams did not support referral to vocational
rehabilitation. In a June 2, 2009 report, Dr. Abrams opined that appellant was “significantly
limited” in his ability to work, but that he could perform sit/stand optional work activity. In an
accompanying work capacity evaluation, he recommended restrictions that included less than
one-hour standing and no squatting, kneeling, climbing, bending, stooping, pulling or pushing.
OWCP procedures provide that a claimant should be capable of at least sedentary work, as
defined by the Dictionary of Occupational Titles, including, pushing, pulling and lifting at least
10 pounds, one-third of the workday.8 According to Dr. Abrams, appellant did not meet the
criteria for referral.
The Board also finds that OWCP failed to develop the medical evidence in accordance
with the instructions of OWCP’s hearing representative’s January 19, 2012 decision. The
December 12, 2011 report of Dr. Gates opined that appellant was unable to participate in
vocational rehabilitation due to prescribed pain medication. The hearing representative set aside
the May 5, 2010 decision and remanded the case for further development regarding appellant’s
condition and medications. On remand, however, OWCP failed to fully develop the medical
evidence. As Dr. Gates failed to provide the requested information MRO, the agent processing
the request for Dr. Cassen, requested a redisclosure statement. OWCP determined that it was
impossible to obtain the necessary medical evidence required to evaluate modifying the May 5,
2010 decision. The Board notes that had OWCP obtained appellant’s signature on a redisclosure
statement, it could have obtained Dr. Cassen’s medical records for review.

5

C.C., Docket No. 09-556 (issued October 1, 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Vocational Rehabilitation Services, Chapter 2.813.12.a (November 1996).
6

5 U.S.C. § 8102(a).

7

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

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.5(c)(2) (February 2011).

7

Dr. Abrams stated that appellant was taking nonsteroid anti-inflammatory medications as
needed at that time. OWCP, however, did not ask him for a supplemental opinion on the effect
the prescribed medications might have had on his ability to participate in vocational
rehabilitation. Once OWCP undertakes to develop the medical evidence, it has the responsibility
to do so in the proper manner.9 Dr. Abrams’ opinion did not address this issue, it is of limited
probative value and insufficient to carry the weight of the medical evidence.
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation to zero for
failing to cooperate with vocational rehabilitation efforts.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 21, 2013
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

9

See Melvin James, 55 ECAB 406 (2004). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing
and Evaluating Medical Evidence, Chapter 2.810.9(j) (September 2010) (OWCP has a duty to seek clarification
from a second opinion physician where the second opinion physician does not address the specified medical issues).

8