United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, MERRIFIELD
PROCESSING & DISTRIBUTION CENTER,
Merrifield, VA, Employer
__________________________________________

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

Docket No. 21-0736
Issued: December 20, 2021

Case Submitted on the Record

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

JURISDICTION
On April 20, 2021 appellant filed a timely appeal from a March 23, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 23, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a lower back
condition causally related to the accepted January 29, 2021 employment incident.
FACTUAL HISTORY
On February 11, 2021 appellant, then a 48-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2021 she injured her lower back when
lifting trays while in the performance of duty. On the reverse side of the claim form, the employing
establishment acknowledged that she was injured in the performance of duty. Appellant stopped
work on January 29, 2021.
In a February 9, 2021 medical report, Dr. Nori Buising, Board-certified in family medicine,
indicated that appellant injured her back while moving parcels. She diagnosed sciatica of the left
side associated with a disorder of the lumbosacral spine and referred appellant to orthopedic
surgery for further evaluation. In a medical note of even date, Dr. Buising opined that appellant
should remain off work until February 13, 2021 and only perform desk work upon her return.
In a February 9, 2021 duty status report (Form CA-17), Dr. Buising noted that appellant
experienced pain in her back when lifting letter trays on January 29, 2021 and submitted work
restrictions for her to follow.
On February 11, 2021 the employing establishment controverted appellant’s claim,
asserting that she submitted medical evidence that suggested that she had a preexisting condition
and that there were inconsistencies in her description of how her injury occurre d.
In a development letter dated February 12, 2021, OWCP informed appellant of the
deficiencies of her claim and advised her of the factual and medical evidence necessary to establish
her claim. It provided a factual questionnaire for her completion. OWCP afforded appellant 30
days to provide the necessary information.
In a February 15, 2021 medical report, Lisa J. Siddall, a nurse practitioner, ordered physical
therapy to treat appellant’s diagnosed degenerative lumbar disc and lumbar radicular pain. In a
medical note of even date, she recommended that appellant only perform light-duty work.
On March 1, 2021 the employing establishment submitted a copy of an offer of modified
assignment (limited duty), consisting of manually casing letters for six hours per day, sitting,
simple grasping, and no lifting over three pounds.
In a March 15, 2021 medical report, Ms. Siddall evaluated appellant for lumbar pain that
began on January 29, 2021. She diagnosed degenerative lumbar disc and lumbar radicular pain
and referred her to physical therapy. In a Form CA-17 of even date, Ms. Siddall reiterated her
diagnoses and also provided work restrictions for appellant.
By decision dated March 23, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted January 29, 2021 employment incident.
2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and mu st be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a lumbar
condition causally related to the accepted January 29, 2021 employment incident.
Dr. Buising, in her February 9, 2021 medical report, indicated that appellant injured her
back while moving parcels and diagnosed sciatica of the left side associated with a disorder of the
lumbar spine. However, she failed to explain, with rationale, how the accepted employment
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

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

5

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

B.P., Docket No. 16-1549 (issued January 18, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

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

3

incident either caused or contributed to her diagnosed lumbar con dition. The Board has held that
a medical opinion should offer a medically-sound and rationalized explanation by the physician of
how the specific employment incident physiologically caused or aggravated the diagnosed
conditions.11 For this reason, Dr. Buising’s February 9, 2021 medical report is insufficient to meet
appellant’s burden of proof.
In her February 9, 2021 Form CA-17, Dr. Buising noted that appellant experienced pain in
her back when lifting letter trays on January 29, 2021. The Board has held, however, that pain is
a symptom and not a compensable medical diagnosis. 12 Moreover, Dr. Buising did not offer an
opinion on causal relationship. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 13 The Form CA-17 is, therefore, insufficient to establish appellant’s claim.
The remaining medical evidence consists of medical reports and notes signed by a nurse
practitioner. However, certain healthcare providers such as physician assistants, nurse
practitioners, and physical therapists are not considered physicians as defined under FECA. 14
Consequently, this evidence will not suffice for purposes of establishing entitlement to FECA
benefits.15
As the medical evidence of record is insufficient to establish causal relationship between a
lumbar condition and the accepted January 29, 2021 employment incident, the Board finds that
she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a lumbar
condition causally related to the accepted January 29, 2021 employment incident.

11

J.D., Docket No. 19-1953 (issued January 11, 2021); see K.W., Docket No. 19-1906 (issued April 1, 2020).

12

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

13

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

Section 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket
No. 19-0221 (issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as
physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
14

15

See M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians under
FECA).

4

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portsmouth, VA, Employer
__________________________________________

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

Docket No. 08-1132
Issued: September 24, 2008

Case Submitted on the Record

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

JURISDICTION
On March 10, 2008 appellant filed a timely appeal from November 16, 2007 and
February 26, 2008 decisions of the Office of Workers’ Compensation Programs that denied his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On August 7, 2007 appellant, then a 40-year-old city carrier, filed an occupational disease
claim alleging that he developed degenerative joint disease in both knees in the performance of
duty. He stated that he first became aware of his condition on January 5, 1996 and related it to
his employment on July 7, 2007. Appellant indicated that climbing and walking on the job had
aggravated his degenerative joint disease. He also noted that he injured his left leg in

November 2005 on the job and had since placed more weight on the right leg. Appellant did not
stop work.
Appellant provided an October 28, 2005 form report from Dr. Terri G. Lockhart, a
Board-certified internist, who diagnosed degenerative joint disease of the bilateral knees and
chronic knee pain with intermittent exacerbations limiting appellant’s ability to walk or stand for
prolonged periods. Dr. Lockhart noted that appellant experienced monthly or bimonthly
exacerbations which involved three to five days of recovery.
By correspondence dated September 20, 2007, the Office requested additional
information concerning appellant’s claim.
In an October 15, 2007 response, appellant reiterated his belief that his right knee
degenerative joint disease was aggravated by his job duties and by his favoring his knee after
injuring his left knee at work. He explained that he had degenerative joint disease in both knees
at the time he was hired by the employing establishment, his condition became worse after he
injured his left knee and began favoring his right knee. Appellant’s job as a city carrier required
him to walk and climb for significant periods of time, as he worked eight hours per day, six days
per week. He stated that his only hobby outside work was exercising on a stationary bike.
Appellant explained that he controls his right knee pain with pain medication, anti-inflammatory
medication, ice and heat packs, sports creams and braces as needed.
By decision dated November 16, 2007, the Office denied appellant’s occupational disease
claim on the grounds that the record did not contain medical evidence establishing a causal
relationship between appellant’s diagnosed condition and his employment factors.
Subsequent to the Office’s decision, appellant submitted a November 13, 2007 report
from Dr. Felix M. Kirven, a Board-certified orthopedic surgeon, who diagnosed right knee pain
secondary to aggravation of a preexisting degenerative condition related to a January 5, 1996
injury to the left knee. He stated that after appellant injured his left knee on January 5, 1996, he
began to favor the right knee by bearing more weight on the right side, which aggravated his
preexisting degenerative joint disease. Dr. Kirven noted that appellant complained of knee pain
and swelling with walking, standing and bending, as well as difficulty climbing. On physical
examination of the right knee he noted valgus deformity, medial joint line tenderness and some
diminished range of motion. Dr. Kirven related appellant’s aggravation of degenerative joint
disease to his increased right knee weight bearing following his January 5, 1996 injury to the left
knee.
By correspondence dated November 26, 2007, appellant requested a review of the written
record. In a statement accompanying his request, he reiterated his belief that his degenerative
joint disease was aggravated by favoring his right knee after injuring his left knee and by his job
requirements of climbing, walking, bending and standing.
By decision dated February 26, 2008, the hearing representative affirmed the Office’s
denial of appellant’s occupational disease claim, finding that appellant had not submitted
sufficient rationalized medical opinion evidence to establish a causal relationship between his
diagnosed aggravation of right knee degenerative joint disease and his employment factors.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.3
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.4 The test for determining whether
appellant sustained a compensable occupational disease or injury is three pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant 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 factors identified by the claimant.”5
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his or her claimed injury and his
or her employment.6 To establish a causal relationship, appellant must submit a physician’s
report, in which the physician reviews the employment factors identified by appellant as causing
his condition and, taking these factors into consideration as well as findings upon examination of
appellant and his medical history, states whether the employment injury caused or aggravated
appellant’s diagnosed conditions and presents medical rationale in support of his or her opinion.7
ANALYSIS
The Board finds that appellant established that he worked for the employing
establishment and performed physical duties including walking, standing and climbing.
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

D.D., 57 ECAB 734 (2006).

5

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 3.
6

Donald W. Long, 41 ECAB 142 (1989).

7

Id.

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However, he did not provide a medical report explaining, with rationale, precisely how
appellant’s employment factors aggravated his preexisting right knee degenerative joint disease.
In support of his claim, appellant submitted an October 28, 2005 form report from
Dr. Lockhart, who diagnosed degenerative joint disease of the bilateral knees and explained that
appellant’s chronic knee pain limited his ability to stand or walk for prolonged periods of time.
However, she did not identify any specific employment factors, discuss how long appellant
spends standing and walking in the course of a shift or a week or give rationale explaining
precisely how appellant’s employment caused a new condition or aggravated a preexisting
condition. Dr. Lockhart did not address or render an opinion on causal relationship. The Board
has held that medical evidence which does not address causal relationship is of no probative
value on that issue.8 Accordingly, the Board finds that her October 28, 2005 report is
insufficient to establish that appellant’s diagnosed aggravation of degenerative joint disease is
related to his employment.
Appellant also provided a November 13, 2007 report from Dr. Kirven, who noted that
appellant had preexisting bilateral degenerative joint disease in the knees and that he also
sustained an injury to his left knee on January 5, 1996. Dr. Kirven explained that after
appellant’s injury, he favored his right knee, which caused the aggravation of his preexisting
degenerative joint disease. He did not relate appellant’s knee condition to a specific employment
factor, although he did state that appellant had difficulty walking and climbing. Dr. Kirven did
not provide a history of the January 5, 1996 injury or give an explanation with rationale
establishing a clear relationship between appellant’s work activities and his diagnosed condition,
particularly in light of the fact that appellant’s condition was both preexisting and degenerative
in nature. Therefore, the Board finds that Dr. Kirven’s report is insufficient to establish that
appellant’s diagnosed aggravation of preexisting right knee degenerative joint disease is causally
related to his employment. Accordingly, appellant has not met his burden of proof in
establishing that he developed an occupational disease in the performance of duty because he has
not submitted rationalized medical evidence showing causal relationship.9
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
developed an occupational disease in the performance of duty.

8

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
9

On appeal, appellant asserts that his right knee condition is affected by a prior left knee injury. This decision of
the Board does not preclude appellant from pursuing the matter under other claims for injury or disease that he may
have filed with the Office.

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ORDER
IT IS HEREBY ORDERED THAT the February 26, 2008 and November 16, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 24, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S, Appellant
and
U.S. POSTAL SERVICE, SANDY SPRINGS
CARRIER ANNEX, Sandy Springs, GA,
Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1448
Issued: April 12, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 29, 2020 appellant, through counsel, filed a timely appeal from a July 13, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective February 15, 2018 as he no longer had residuals or
disability causally related to his accepted employment injury; and (2) whether appellant has met
his burden of proof to establish continuing employment-related disability or residuals on or after
February 15, 2018 due to his accepted employment injury.
FACTUAL HISTORY
On May 10, 2016 appellant, then a 54-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he experienced pain in his feet, right shoulder, hips, and
right knee causally related to factors of his federal employment including bending, stooping
twisting and prolonged sitting. He first became aware of his condition on February 20, 2016 and
attributed to factors of his federal employment on February 29, 2016. Appellant stopped work on
April 21, 2016. OWCP accepted the claim for bursitis of the right shoulder, right knee instability,
plantar fascial fibromatosis, low back strain, and bilateral hip bursitis. It paid appellant wage-loss
compensation for total disability on the supplemental rolls beginning April 23, 2016 and on the
periodic rolls beginning May 28, 2017.
A March 28, 2016 magnetic resonance imaging (MRI) scan of the right shoulder
demonstrated moderate acromioclavicular arthropathy. An MRI scan of the hips of even date
demonstrated degenerative changes.
In a report dated June 17, 2016, Dr. Jay B. Bender, a Board-certified physiatrist, discussed
appellant’s history of osteoarthritis of the hips, knees, feet, and hands, bilateral carpal tunnel
syndrome, right knee instability, and chronic low back syndrome. He noted that appellant had
experienced pain in his low back, knees, feet, and right shoulder performing the duties of his
employment. Dr. Bender diagnosed right shoulder bursitis, a tear of the lateral meniscus of the
right knee, hip bursitis, bilateral plantar fascial fibromatosis, and lumbar strain. He opined that
appellant’s employment duties had aggravated his bilateral hips, feet, knees, and right shoulder
conditions.
A September 21, 2016 MRI scan of the lumbar spine showed disc desiccation and
degeneration without a loss of disc height from L3 to S1, a central annular herniation at L5-S1,
and facet arthropathy from L3 to S1 bilaterally. MRI scans of appellant’s feet obtained on even
date demonstrated degenerative change at the first metatarsophalangeal joint, mild right foot
bursitis, and a subchondral cyst.
On October 26, 2016 Dr. Bender provided his review of the MRI scans. He requested that
OWCP upgrade the diagnoses to include lumbar intervertebral disc degeneration, lumbar
inflammatory spondylopathy, lumbar intervertebral disc displacement, a tear of the right lateral
meniscus, unilateral primary osteoarthritis of the right knee, juvenile osteochondrosis of the right
tibia and fibula, a right knee subluxation, a left foot contusion, primary osteoarthritis of the left
foot and ankle, bursitis of the right ankle and foot, a bone cyst of the right ankle and foot, tarsal
tunnel syndrome of the lower limb, and primary osteoarthritis of the right ankle. In an

2

accompanying report of even date, Dr. Bender listed the same diagnoses and found that appellant
could perform sedentary work with restrictions.
Dr. Bender continued to submit progress reports throughout 2017 describing his treatment
of appellant and providing the same diagnoses. On January 17, 2017 he found that appellant was
disabled from employment. On February 21, 2017 Dr. Bender again requested that OWCP
upgrade the diagnoses to include the additional diagnosed conditions.
On March 7, 2017 OWCP referred appellant to Dr. Raju Vanapalli, an orthopedic surgeon,
for a second opinion examination to determine the accepted conditions due to the employment
injury. It requested that Dr. Vanapalli review the conditions diagnosed by Dr. Bender on
February 21, 2017 and specify which should be accepted under the current claim. OWCP indicated
that appellant had not complained of an injury to his back.
In a report dated May 4, 2017, Dr. Vanapalli provided his review of appellant’s history of
injury and medical records. On examination he found full strength and sensation of the upper and
lower extremities and no spasms, trigger points, or tenderness in the cervical and lumbar spine.
Dr. Vanapalli further found no loss of motion, swelling, warmth, or tenderness of the hips, and no
signs of tarsal tunnel syndrome. He opined that appellant’s shoulder motion was almost normal
with no tenderness at the subacromial or sub-deltoid region or any evidence of bursitis.
Dr. Vanapalli further found no right knee instability, a negative McMurray’s test, and intact
collateral and cruciate ligaments. He related, “Plantar fascial fibromatosis is also secondary to
flatfeet which are developmental and not work related.” Dr. Vanapalli found that appellant had
no objective evidence of a low back strain, noting that he had no spasm, tenderness, trigger points,
or motion loss. He indicated that he had found symptom magnification but not malingering. In
an accompanying work capacity evaluation (OWCP-5c) form, Dr. Vanapalli advised that appellant
could perform modified employment walking up to three hours per day and occasionally lifting up
to 50 pounds.
On June 8, 2017 OWCP requested that Dr. Bender address appellant’s current
employment-related condition and whether appellant could return to his usual or modified
employment. It noted that he was treating appellant for a degenerative lumbar condition and
requested that he address whether this condition was employment related.
A June 30, 2017 MRI scan of the lumbar spine demonstrated disc desiccation and
degeneration without loss of height from L3 to S1, facet arthropathy at L3-4, L4-5, and L5-S1, a
central annular disc herniation at L5-S1, and a new disc herniation at L4-5 when compared to the
September 21, 2016 MRI scan.
In a July 6, 2017 report, Dr. Bender provided the history of injury and his review of the
diagnostic studies and appellant’s medical treatment. He again diagnosed additional conditions
that he thought should be accepted. Dr. Bender advised that appellant was disabled from
employment.
On July 19, 2017 Dr. Bender again requested that appellant’s diagnoses be upgraded to
include lumbar intervertebral disc degeneration, lumbar inflammatory spondylopathy, lumbar
intervertebral disc displacement, a tear of the right lateral meniscus, unilateral primary

3

osteoarthritis of the right knee, juvenile osteochondrosis of the right tibia and fibula, a right knee
subluxation, a left foot contusion, primary osteoarthritis of the left foot and ankle, bursitis of the
right ankle and foot, a bone cyst of the right ankle and foot, tarsal tunnel syndrome of the lower
limb, and primary osteoarthritis of the right ankle.3 He advised that, based on his review of
appellant’s job duties, the medical records, and physical examination, the “work-related activity
reasonably caused the injury.” Dr. Bender requested that OWCP “add the additional diagnoses to
the listed of accepted conditions….”
OWCP determined that a conflict in medical opinion existed between Dr. Vanapalli and
Dr. Bender regarding the extent of appellant’s disability for employment. It referred appellant to
Dr. Warner Wood, a Board-certified orthopedic surgeon, for an impartial medical examination.
In a report dated November 10, 2017, Dr. Wood provided his review of appellant’s work
history and the medical reports of record, including the results of diagnostic studies. He indicated
that the physical findings included tenderness where there were no joints and an inconsistent
straight leg raise. Dr. Wood related that the “decreased sensation in the lateral foot on the left, and
the slight calf atrophy on the right are not supportive as they are in different legs.” He found
normal ankle and knee reflexes demonstrating no significant nerve root irritation, an essentially
normal examination of the right knee, and normal examination of the right shoulder, bilateral hips,
and bilateral feet. Dr. Wood opined that there was no objective evidence of any of the accepted
conditions, noting that the objective and subjective findings were minimal. He found that appellant
could resume his usual employment without restrictions. Dr. Wood asserted that the objective
findings on examination failed to support his subjective complaints and that the changes on
diagnostic studies were mild and could be due to aging rather than employment. He opined that
appellant should preferably limit lifting to 50 pounds due to his small stature.
On January 11, 2018 OWCP advised appellant of its proposed termination of his wage-loss
compensation and medical benefits as the weight of the evidence established that he no longer had
any employment-related residuals or disability due to his accepted employment injury. It afforded
him 30 day to submit additional evidence or argument if he disagreed with the proposed
termination.
By decision dated February 14, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective February 15, 2018. It found that the opinion of
Dr. Wood represented the special weight of the medical evidence and established that appellant
had no further residuals or disability due to his accepted conditions.
In a March 8, 2018 report, Dr. Kevin McCowan, a surgeon, provided the same history of
injury and diagnoses as Dr. Bender. He submitted similar reports on May 1 and June 5, 2018,
noting that appellant had medically retired.
On June 11, 2018 appellant’s counsel requested reconsideration. He asserted that appellant
was unable to resume his regular employment due to his right knee, right shoulder, lumbar spine,
bilateral feet, and bilateral hip injuries.

3

Dr. Bender submitted progress reports dated September 6 and October 2, 2017.

4

By decision dated July 31, 2018, OWCP denied modification of its February 14, 2018
decision.
In an initial evaluation dated August 27, 2018, Dr. Victor Osisanya, a Board-certified
physiatrist, obtained a history of appellant injuring his right shoulder, right knee, bilateral hips,
low back, and bilateral feet performing his work duties over time. He provided examination
findings and reviewed the results of diagnostic testing. In addition to the accepted conditions,
Dr. Osisanya listed as upgraded diagnoses right shoulder osteoarthritis, facet arthropathy, lumbar
radiculopathy, lumbar intervertebral disc degeneration and displacement, a lumbar herniated disc
with radiculopathy, bilateral osteoarthritis of the hips, a right knee lateral meniscal tear,
subluxation, osteoarthritis, and a collateral ligament tear, osteoarthritis of the bilateral ankle and
feet, and a right solitary calcaneal cyst. He related:
“In my medical rationale, based on my review of [appellant’s] job duties and
responsibilities and my physical examination and review of the records, [he]
sustained an occupational injury as a direct result of the prolonged and repetitive
standing and walking on the hard concrete floors of the employing establishment
which led to his multiple right knee injuries (those accepted and those submitted
for upgrade) and his bilateral foot/ankle injuries both accepted and those submitted
for upgrade.”
Dr. Osisanya further found that appellant’s job duties accelerated his right shoulder,
lumbar, and bilateral hip conditions, both those already accepted, and those submitted for upgrade.
An MRI scan of the right knee obtained on August 28, 2018 demonstrated a complex lateral
meniscal tear with degenerative changes to the lateral compartment. An MRI scan of the lumbar
spine of even date demonstrated degenerative changes.
Appellant submitted progress reports from Dr. McCowan dated August 2018 describing
appellant’s treatment.
On October 1, 2018 Dr. Osisanya provided the same diagnoses as in his August 2018
report. He indicated that he had reviewed imaging studies which “confirmed again all above
mentioned diagnoses both accepted and those being submitted for upgrade….”4
On January 28, 2019 appellant requested reconsideration.
By decision dated April 26, 2019, OWCP denied modification of its July 31, 2019 decision.
Thereafter, OWCP received a November 3, 2017 determination by the Office of Personnel
Management that appellant was disabled due to bilateral hip osteoarthritis, flat feet, and benign
prostatic hyperplasia. It further received progress reports dated January 30, March 5, April 22,
and May 29, 2019 from Dr. Osisanya containing the same diagnoses and upgraded diagnoses as in
his previous reports.

4

Dr. Osisanya provided a similar reports on November 16 and December 11, 2018 and February 5, 2019.

5

In a report dated March 18, 2020, Dr. Charles D. Fowler, a Board-certified internist, found
that appellant had a history of a repetitive motion injury to his right shoulder from his occupation.
He indicated that appellant had continued right shoulder pain, stiffness, loss of motion, laxity, and
instability. Dr. Fowler recommended continued physical therapy and advised that the condition
was due to appellant’s employment.
On April 24, 2020 appellant, through counsel, requested reconsideration. Counsel noted
that Dr. Vanapalli had found that appellant could work with restrictions, and that the conflict arose
regarding appellant’s work capacity rather than continued employment-related residuals. He
asserted that the opinion of Dr. Wood was conclusory, lacked rationale, and questioned the
relationship of the accepted conditions. Counsel further contended that Dr. Wood had failed to
provide his review of all the medical evidence. He maintained that the statement of accepted facts
did not contain a description of the medical treatment and diagnostic testing that appellant had
received since his injury. Counsel maintained that appellant had sustained additional employmentrelated conditions.
On June 15, 2020 Dr. Fowler advised that appellant had a history of pain and osteoarthritis
of the bilateral hips due to repetitive motion from appellant’s employment. He asserted that
appellant required additional physical therapy for appellant’s condition, which he advised was
“clearly work related.”
By decision dated July 13, 2020, OWCP denied modification of its April 26, 2019 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.8 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.9

5

R.H., Docket No. 19-1064 (issued October 9, 2020); M.M., Docket No. 17-1264 (issued December 3, 2018).

6

A.T., Docket No. 20-0334 (issued October 8, 2020); E.B., Docket No. 18-1060 (issued November 1, 2018).

7

C.R., Docket No. 19-1132 (issued October 1, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018).

8

L.W., Docket No. 18-1372 (issued February 27, 2019).

9

R.P., Docket No. 18-0900 (issued February 5, 2019).

6

Section 8123(a) 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.10 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective February 15, 2018.
In a report dated October 26, 2016, Dr. Bender reviewed the MRI scans and requested that
OWCP upgrade the accepted conditions to include lumbar intervertebral disc degeneration, lumbar
inflammatory spondylopathy, lumbar intervertebral disc displacement, a tear of the right lateral
meniscus, unilateral primary osteoarthritis of the right knee, juvenile osteochondrosis of the right
tibia and fibula, a right knee subluxation, a left foot contusion, primary osteoarthritis of the left
foot and ankle, bursitis of the right ankle and foot, a bone cyst of the right ankle and foot, tarsal
tunnel syndrome of the lower limb, and primary osteoarthritis of the right ankle. In an
accompanying report of even date, he provided the same diagnoses and found that appellant could
perform sedentary work with restrictions. On January 17, 2017 Dr. Bender opined that appellant
was disabled from employment.
OWCP referred appellant to Dr. Vanapalli for a second opinion examination. It requested
that he review Dr. Bender’s report and identify the employment-related conditions. OWCP further
indicated that appellant had not complained of an injury to his back; however, it accepted low back
strain as employment related.
On May 4, 2017 Dr. Vanapalli diagnosed as employment related bursitis of the right
shoulder and bilateral hips, instability of the right knee, low back strain, and plantar fibromatosis.
He found that appellant had no objective evidence of bursitis, tarsal tunnel syndrome, a right knee
condition, low back strain, or a hip condition. Dr. Vanapalli further opined that his plantar fascial
fibromatosis resulted from flat feet and were unrelated to employment. He provided work
restrictions. Dr. Vanapalli, however, did not directly address whether the acceptance of appellant’s
claim should be expanded to include the additional conditions diagnosed by Dr. Bender.
OWCP determined that a conflict in medical opinion arose between Dr. Vanapalli, an
OWCP referral physician, and Dr. Bender, appellant’s physician, regarding appellant’s current
employment-related disability. It referred appellant to Dr. Wood for an impartial medical
examination and, based on Dr. Wood’s opinion, terminated appellant’s compensation and
entitlement to medical treatment. OWCP did not, however, resolve the issue of claim expansion
prior to terminating appellant’s compensation benefits.

10

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309,
317 (1994).
11

D.B., Docket No. 19-0663 (issued August 27, 2020).

7

Once OWCP undertakes development of the medical evidence, it has the responsibility to
do so in a manner that will resolve the relevant issues in the case.12 It failed to fully develop the
issue of claim expansion to determine whether it should expand acceptance of the claim to include
the additional conditions diagnosed by Dr. Bender and whether, if established, these conditions
resulted in continuing disability from employment or the need for medical treatment.13
For the above-stated reasons, OWCP has not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits.14
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective February 15, 2018.15

12

See R.B., Docket No. 20-0109 (issued June 25, 2020); B.W., Docket No. 19-0965 (issued December 3, 2019).

13

See B.W., Docket No. 20-1033 (issued November 30, 2020); J.T., Docket No. 19-1723 (issued August 24, 2020).

14

J.T., id.

15

In view of the Board’s disposition of issue 1, issue 2 is moot.

8

ORDER
IT IS HEREBY ORDERED THAT the July 13, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 12, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 11-1467
Issued: December 14, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 8, 2011 appellant filed an appeal from a February 15, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
psychiatric condition as a consequence of her accepted employment injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant’s July 28, 1998 traumatic injury claim (File No. xxxxxx889) was accepted for
lumbar and left shoulder strain and rotator cuff sprain.2 She returned to part-time light-duty
work on November 2, 2010. The current appeal concerns OWCP’s denial of appellant’s request
to expand her claim to include an emotional condition as a consequence of her accepted injury.
This is the fourth time this case has been before the Board. On February 14, 2006 the
Board set aside OWCP’s August 10, 2005 decision denying appellant’s request for
reconsideration of an April 19, 2004 denial of a wage-loss request as untimely and remanded the
case for a determination of the date that reconsideration was requested.3 By decision dated
December 26, 2006, the Board set aside OWCP’s May 1, 2006 decision denying her request for
reconsideration as untimely and failing to present clear evidence of error, finding that the request
was timely filed.4 In an order dated November 30, 2007, the Board remanded the case for
consolidation of appellant’s claims.5
Appellant submitted an August 6, 2010 report from Larry Washington, a licensed
professional counselor, who diagnosed chronic pain disorder and major depression, which he
opined were causally related to her accepted conditions. Mr. Washington referred appellant to
Dr. Manoochahr Khatami, a Board-certified psychiatrist, for treatment.
In an October 27, 2010 report, Dr. Khatami provided a history of injury and examination
findings. He noted that appellant had experienced chronic back and shoulder pain since
sustaining her accepted injury. On examination, appellant exhibited signs and symptoms of
depression. A depression test revealed a score of 10. Dr. Khatami diagnosed chronic pain
syndrome and major depressive disorder, which he opined were secondary to her accepted
injury.
OWCP referred appellant to Dr. Tarakumar Reddy, a Board-certified psychiatrist, for a
second opinion examination and an opinion as to whether her current psychiatric condition was
caused, worsened, precipitated or accelerated by her employment. In a November 17, 2010
report, Dr. Reddy provided a medical history that included arthritis, obesity, chronic pain
syndrome, bilateral carpal tunnel syndrome and hypertension. He noted appellant’s report that
she had been depressed for over a year due to her life situation. On examination, appellant’s
mood was depressed, her recent memory was impaired and concentration was poor. Dr. Reddy
diagnosed major depression, single severe chronic and chronic pain syndrome and opined that
her depression was secondary to her situation of lack of funds and medical conditions. Noting
2

Appellant’s March 21, 2001 occupational disease claim (File No. xxxxxx995) was accepted for temporary
aggravation of lumbar strain. Her February 23, 2004 claim (File No. xxxxxx765) was accepted for bilateral carpal
tunnel syndrome. These cases were consolidated with File No. xxxxxx889 and File No. xxxxxx889 serving as the
master file.
3

Docket No. 05-1857 (issued February 14, 2006).

4

Docket No. 06-1825 (issued December 26, 2006).

5

Docket No. 07-1469 (issued November 30, 2007).

2

that appellant had injuries “way back in 2001 and 2004,” he stated, “I do not believe that the
employment factors were contributing factors for her depression.”
OWCP found a conflict in medical opinion between Dr. Reddy and Dr. Khatami and
referred appellant, together with the medical record and a statement of accepted facts to
Dr. Andrew Brylowski, a Board-certified psychiatrist, to resolve the conflict. Dr. Brylowski was
asked to provide a current psychiatric diagnosis and an opinion as to whether the condition was
caused worsened, precipitated or accelerated by employment factors. He was also asked to opine
as to whether other factors were responsible for her psychiatric condition. In a February 5, 2011
report, Dr. Brylowski provided a history of injury, examination findings and test results. Beck
Depression and Anxiety Inventories revealed moderate depression or multiple other possibilities.
Clinical syndromes included anxiety, somatoform issues, dysthymia and severe clinical
syndromes included major depression. Temperament was woeful, hostile and apathetic. Internal
representations were immature, vexatious and pernicious consistent with significant internal
conflict with lack of capacity to evolve mental-emotional resolution. Dr. Brylowski stated that
appellant’s current psychiatric diagnosis was “global assessment of functioning indeterminate.”
He opined that “in reasonable medical probability, any psychiatric conditions were not caused
by, worsened by or precipitated by any factors of employment.” Noting that appellant had
experienced various relatively benign musculoskeletal sprain/strains, Dr. Brylowski indicated
that objective neuropsychiatric measures were consistent with significant symptom overreporting of somatic complaints and psychiatric complaints. He also stated that there appeared to
be significant family issues that may be responsible for her emotional illness.
By decision dated February 15, 2011, OWCP denied appellant’s request to expand her
claim, finding that “nothing was received to support that the consequential condition of
depression and chronic pain was related to the accepted condition.”
LEGAL PRECEDENT
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.6
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.7 The Board has stated that, where an injury is sustained as a consequence of an
impairment residual to an employment injury, the new or second injury, even though
nonemployment related, is deemed, because of the chain of causation to arise out of and in the
course of employment and is compensable.8
Proceedings under FECA are not adversarial in nature; nor is FECA a disinterested
arbiter.9 While the claimant has the burden to establish entitlement to compensation, OWCP
6

Albert F. Ranieri, 55 ECAB 598 (2004).

7

Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

8

Kathy A. Kelley, 55 ECAB 206 (2004).

9

Vanessa Young, 55 ECAB 575 (2004).

3

shares responsibility in the development of the evidence and has the obligation to see that justice
is done.10 Accordingly, once OWCP undertakes to develop the medical evidence further, it has
the responsibility to do so in the proper manner.11
ANALYSIS
Appellant asserts that her diagnosed psychiatric condition developed as a consequence of
chronic pain associated with her accepted condition. The Board finds this case is not in posture
for decision due to an unresolved conflict in medical evidence.
Dr. Khatami, appellant’s treating physician, diagnosed chronic pain syndrome and major
depressive disorder, which he opined were secondary to her accepted injury. Dr. Reddy,
OWCP’s second opinion physician, was asked to provide an opinion as to whether her current
psychiatric condition was caused worsened, precipitated or accelerated by employment factors.
In his November 17, 2010 report, he diagnosed major depression, single severe chronic and
chronic pain syndrome and opined that appellant’s depression was secondary to her situation of
lack of funds and medical conditions. Noting that appellant had injuries “way back in 2001 and
2004,” Dr. Reddy stated, “I do not believe that the employment factors were contributing factors
for her depression.” OWCP found a conflict in medical opinion between Dr. Reddy and
Dr. Khatami as to whether she developed a consequential psychiatric condition as a result of her
accepted back and shoulder injury and referred her to Dr. Brylowski for an impartial medical
opinion in order to resolve the conflict. The Board finds, however, that there was no conflict in
medical opinion between Dr. Reddy and Dr. Khatami on the relevant issue.
Dr. Khatami’s opinion that appellant’s depression was secondary to her accepted injury
and Dr. Reddy’s opinion that her major depression was secondary to her situation of lack of
funds and medical conditions are consistent with, if not identical to, one another. Dr. Reddy also
opined, in response to OWCP’s inquiry, that employment factors did not contribute to
appellant’s depression. The Board notes that the issue of whether an emotional condition is due
to a compensable employment factor is a legal issue, to be determined by OWCP. As there was
no conflict in medical opinion between Dr. Reddy and Dr. Khatami, the Board finds that
Dr. Brylowski’s February 5, 2011 report constitutes a second opinion report.
Dr. Brylowski provided a history of injury, examination findings and testing results,
stating that appellant’s current psychiatric diagnosis was “global assessment of functioning
indeterminate.” He opined that any psychiatric conditions were not caused by, worsened by or
precipitated by any factors of employment or various relatively benign musculoskeletal sprain
and strains she experienced. Dr. Brylowski indicated that objective neuropsychiatric measures
were consistent with significant symptom overreporting of somatic complaints and psychiatric
complaints. He also stated that significant family issues may be responsible for appellant’s
emotional illness. Dr. Brylowski’s diagnosis and opinion are at variance with those of
Dr. Khatami, who diagnosed chronic pain syndrome and major depressive disorder, which he
opined were secondary to appellant’s accepted injury.
10

Richard E. Simpson, 55 ECAB 490 (2004).

11

Melvin James, 55 ECAB 406 (2004).

4

Section 8123(a) of FECA 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. The Board finds that there is
unresolved conflict of opinion between appellant’s attending psychiatrist and that of
Dr. Brylowski, whose report serves as a second opinion report, regarding whether her psychiatric
condition is a consequence of the July 1988 accepted injury.
The case will be remanded to an impartial medical specialist to resolve the conflict. On
remand, OWCP shall provide the impartial specialist as with a statement of accepted facts and
the medical record. Following such other development deemed necessary, it shall issue an
appropriate decision on the issue of whether appellant’s diagnosed emotional condition is
causally related to the accepted employment injury.
CONCLUSION
The case is not in posture for a decision regarding whether appellant’s claimed
psychiatric condition is a consequence of her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: December 14, 2011
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
SECURITY AGENCY, Fort Meade, MD,
Employer
__________________________________________

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

Docket No. 18-1062
Issued: December 4, 2018

Case Submitted on the Record

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

JURISDICTION
On May 1, 2018 appellant filed a timely appeal from a November 7, 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 this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $12,306.43 for the period March 1, 2013 through March 7, 2015; and (2) whether
OWCP properly found that he was at fault in the creation of the overpayment and thus not subject
to waiver of recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board regarding appellant’s entitlement to a
schedule award.2 The facts and circumstances as set forth in the Board’s prior decision are
incorporated herein by reference. The relevant facts are as follows.
On April 4, 1999 appellant, then a 52-year-old security protective officer, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a left shoulder, arm, and low back injury on
April 3, 1999 opening a broken vehicle gate while in the performance of duty. OWCP accepted
the claim for a left elbow strain, left shoulder strain, lumbar strain, and a herniated L5-S1 disc.3
On May 3, 2002 appellant underwent a laminectomy at L5, bilateral foraminotomies at L5-S1, and
a left L5-S1 discectomy.
A March 5, 2002 claim for compensation (Form CA-7) indicated that appellant had
retirement coverage under the Federal Employees Retirement System (FERS).
In a July 11, 2002 Form CA-1049, OWCP notified appellant that he would receive wageloss compensation on the periodic rolls beginning April 29, 2002. It informed him that he had to
report all retirement or disability income from a federal agency. OWCP advised appellant that if
he had FERS retirement it had to deduct from his wage-loss compensation “at least part of any
Social Security Retirement benefits to which you are entitled based on age. This is because a
portion of FERS benefits is included in Social Security Retirement benefits.” It notified appellant
that he must immediately report filing for or receiving benefits from the Social Security
Administration (SSA).
By decision dated June 9, 2003, OWCP reduced appellant’s wage-loss compensation as his
actual earnings as a training instructor effective October 14, 2002 fairly and reasonably
represented his wage-earning capacity. It applied the formula set forth in Albert C. Shadrick4 to
find that he had an 87 percent wage-earning capacity and was entitled to $363.28 in wage-loss
compensation ever four weeks. By decision dated June 15, 2004, OWCP denied appellant’s
request for further merit review of its June 6, 2003 decision under 5 U.S.C. § 8128(a).
Appellant, on an EN1032 form signed on February 4, 2014, indicated that he did not
receive SSA benefits as part of an annuity for federal service. On a February 4, 2015 EN1032
form he advised that he received monthly benefits of $2,300.00 from SSA as part of an annuity for
federal service.
2
Docket No. 08-1803 (issued February 12, 2009). By decision dated February 12, 2009, the Board set aside an
April 21, 2008 OWCP decision finding that appellant had no more than 10 percent permanent impairment of the left
upper extremity and 5 percent permanent impairment of the left lower extremity. The Board found that an unresolved
conflict in medical opinion existed and remanded the case to OWCP for referral for a second impartial medical
examination regarding the extent of any permanent impairment. As the issue on current appeal is unrelated to the
schedule award issue, the Board will not review facts relevant to the schedule award issue.
3

By decision dated December 3, 1999, OWCP denied appellant’s traumatic injury claim. However, an OWCP
hearing representative reversed the December 3, 1999 decision on March 21, 2000.
4

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

2

On February 19, 2015 OWCP requested that SSA complete a FERS/SSA Dual Benefit
Calculation Form. In a February 24, 2015 response, SSA provided appellant’s SSA rate with
FERS and his SSA rate without FERS from March 2013 to December 2014. With FERS, his SSA
rate was $2,239.60 effective March 2013, $2,273.10 effective December 2013, $2,316.30 effective
January 2014, and $2,355.60 effective December 2014. Without FERS, appellant’s SSA rate was
$1,652.40 effective March 2013, $1,677.10 effective December 2013, $1,699.40 effective
January 2014, and $1,728.30 effective December 2014.
OWCP found that appellant was not entitled to wage-loss compensation based on his loss
of wage-earning capacity (LWEC) effective March 8, 2015 as his offset from SSA due to his
federal service was greater than the amount of his 28-day wage-loss compensation under FECA.
By letter dated March 10, 2015, OWCP informed appellant that it was offsetting the portion
of his SSA benefits attributable to his federal service from his wage-loss compensation. It advised
that the monthly offset for his SSA benefits was $627.30, which it adjusted to $579.05 based on a
28-day payment cycle. OWCP notified appellant that as the amount to be offset exceeded $471.00,
the amount of his 28-day wage-loss compensation based on its LWEC determination, it was
terminating his wage-loss compensation as of March 8, 2015.
OWCP completed a FERS offset calculation form on January 15, 2016. It calculated the
amount that it should have offset from appellant’s wage-loss compensation from March 1, 2013
through December 1, 2014. OWCP found that, effective March 1, 2013, the monthly offset was
$587.20 ($2,239.60-$1,652.40), or $542.03 every 28 days; effective December 1, 2013, the
monthly offset was $596.00 ($2,273.10-$1,677.10), or $550.15 every 28 days; effective January 1,
2014, the monthly offset was $616.90 ($2,316.30-$1,699.40), or $569.45 every 28 days; and
effective December 1, 2014, the monthly offset was $627.30 ($2,355.60-$1,728.30), or $579.05
every 28 days. It divided the 28-day offset amount to find the daily amount, which it multiplied
by the number of days in each period from March 1, 2013 to December 1, 2014, and then added
these amounts to find that it should have offset $14,731.28 from appellant’s wage-loss
compensation.
On March 10, 2017 OWCP advised appellant of its preliminary determination that he
received an overpayment of wage-loss compensation in the amount of $12,306.43 for the period
March 1, 2013 through March 7, 2015 because it failed to offset the portion of the SSA benefits
that he received due to his federal service from his workers’ compensation benefits. It found that
the amount to be offset was greater than the wage-loss compensation that he received based on his
LWEC during that period, and thus determined that he was not entitled to wage-loss compensation
for that period. OWCP found that the total wage-loss compensation that appellant received from
March 1, 2013 through March 7, 2015, $12,306.43, constituted an overpayment of compensation.
It further notified him of its preliminary determination that he was at fault in the creation of the
overpayment as he accepted a payment that he knew or should have known was incorrect. OWCP
based its fault determination on appellant’s receipt of its June 11, 2002 letter explaining that a
portion of his FERS benefits was included in his SSA benefits and must be offset and his
completion of a February 4, 2015 CA-1032 indicating that he received benefits from SSA as part
of an annuity for federal service. OWCP requested that he complete the enclosed overpayment
recovery questionnaire and submit supporting financial documents. Additionally, it informed

3

appellant that, within 30 days of the date of the letter, he could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
Appellant, on April 7, 2017, requested a prerecoupment hearing before an OWCP hearing
representative. He contended that he was without fault in the creation of the overpayment. On an
overpayment recovery questionnaire (Form OWCP-20), appellant provided his monthly income
as $4,635.34 and listed his monthly expenses. He also indicated that he had assets of $358,419.97.
In an accompanying statement, appellant asserted that he was unaware that he had received an
overpayment of compensation, noting that SSA forms indicated that he could work and still receive
SSA benefits. He related that he supported grandchildren and also helped a daughter with health
issues. Appellant advised that he was not informed that his SSA benefits were related to the wageloss compensation that OWCP paid him based on his loss of night differential. He requested
waiver of the overpayment of compensation.
During the hearing, held on August 21, 2017, appellant related that he retired on
September 30, 2015. He contended that he did not know that his payment was incorrect as he was
not sent any paperwork notifying him that he could not receive his FECA compensation and SSA
benefits. Appellant requested waiver of recovery of the overpayment as he needed the money to
help his children and grandchildren. He asserted that he received FECA benefits due to lost night
differential, which he believed was unrelated to his receipt of SSA benefits.
Subsequent to the hearing, appellant submitted financial documentation.5 In a
September 15, 2017 statement, he maintained that he was unaware that he needed to inform OWCP
that he was receiving SSA benefits and that he did not receive forms advising him of the
requirement. Appellant indicated that he received OWCP payments because he moved from the
night shift to the day shift at work.
By decision dated November 7, 2017, OWCP’s hearing representative found that appellant
received a $12,306.43 overpayment of wage-loss compensation from March 1, 2013 to March 7,
2015 as OWCP failed to offset the portion of his SSA benefits attributable to his federal service
from the wage-loss compensation that it paid him based on its LWEC determination. She found
that he was at fault in the creation of the overpayment of wage-loss compensation as he accepted
a payment that he knew or should have known was incorrect. The hearing representative
determined that appellant should submit $200.00 per month to repay the overpayment of wageloss compensation.
On appeal appellant asserts that, after his injury, the employing establishment moved him
from the night shift to day shift and that he consequently received wage-loss compensation from
OWCP for lost night differential. OWCP did not inform him of the overpayment of compensation
until two years after SSA notified OWCP of the overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
5

Members of appellant’s family also submitted letters confirming that he provided financial assistance.

4

performance of his duty.6 Section 8129(a) of FECA provides, in pertinent part: “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”7
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.8 Section 8116(a) limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.9
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
employee.10 FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the FERS
portion of SSA benefits because the portion of the SSA benefit earned as a federal employee is
part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.11
Section 404.310 of SSA regulations provides that entitlement to SSA benefits begins at 62
years.12 Section 404.409 of SSA regulations provides that for individuals born from 1943 to 1954,
full retirement age is 66 years.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of wage-loss compensation in the amount of $12,306.43 for the period March 1, 2013 through
March 7, 2015.
OWCP accepted that appellant sustained left elbow and shoulder strains, a lumbar strain,
and a herniated L5-S1 disc due to an April 3, 1999 work injury. A March 5, 2002 CA-7 form
indicated that he had retirement coverage under FERS.

6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8102(a).

9

Id. at § 8116(a).

10

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

11

FECA Bulletin No. 97-09 (issued February 3, 1997); see also G.K., Docket No. 18-0243 (issued
August 17, 2018).
12

20 C.F.R. § 404.310.

13

Id. at § 404.409.

5

By decision dated June 9, 2003, OWCP reduced appellant’s wage-loss compensation as his
actual earnings as a training instructor effective October 14, 2002 fairly and reasonably
represented his wage-earning capacity. Using the Shadrick formula, it found that he had an 87
percent wage-earning capacity and that he was entitled to wage-loss compensation of $363.28
every 28 days. Appellant also received age-related retirement benefits from SSA from March 1,
2013 through March 7, 2015. As noted, the portion of the SSA benefits he earned as part of his
FERS retirement package received concurrently with FECA benefits constituted a prohibited dual
benefit.14 Appellant, consequently, received an overpayment of compensation.
SSA provided appellant’s SSA rate with FERS and his hypothetical SSA rate without
FERS. The difference between the amounts must be deduced from FECA benefits. Based on the
information provided by SSA, OWCP determined that the amount to be offset exceeded the total
amount of wage-loss compensation that it paid him based on its determination of his LWEC. It
thus found that the entire amount of wage-loss compensation paid during the period, $12,306.43,
constituted an overpayment of compensation. The Board has reviewed OWCP’s calculations and
finds that it properly determined that appellant received dual benefits totaling $12,306.43, creating
an overpayment of compensation in that amount.15
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”16 A claimant who is at fault in the creation of the overpayment is not entitled to
waiver.17 On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.18
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.19

14

See G.K., supra note 11.

15

See L.M., Docket No. 16-1035 (issued November 27, 2017).

16

5 U.S.C. § 8129(b).

17

See C.Y., Docket No. 18-0263 (issued September 14, 2018).

18

20 C.F.R. § 10.433(a).

19

Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August 3, 2018).

6

ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment as he
accepted a payment that he knew or should have known was incorrect. It must thus establish that,
at the time he received the compensation in question, he knew or should have known that the
payment was inaccurate.20
The Board finds that appellant was at fault in the creation of the $12,306.43 overpayment
of compensation. On July 11, 2002 OWCP provided him with a Form CA-1049 which advised
him that it was placing him on the periodic rolls and that he had to report any retirement or
disability income from a federal agency. It notified appellant that a recipient of compensation
under FECA covered under FERS was not permitted to receive age-related retirement benefits
from SSA without an appropriate offset.21 Moreover, EN1032 forms dated February 4, 2014 and
2015 asked whether he received SSA retirement benefits as part of an annuity under FERS.
Appellant indicated on the February 4, 2014 CA-1032 form that he did not receive an annuity from
SSA for federal service. In the February 4, 2015 EN1032 form, he advised that he received
$2,300.00 monthly from SSA as part of an annuity for federal service. By signing the forms,
appellant certified that all statements made in response to the questions on the form were true,
complete, and correct to the best of his knowledge and belief.22
Despite being given notice that receipt of SSA benefits would reduce his entitlement to
FECA compensation, appellant continued to accept full wage-loss compensation from OWCP
without an appropriate offset from March 1, 2013 through March 7, 2015.23 The Board, therefore,
finds appellant at fault under the third standard, as he accepted compensation which he knew or
should have known that he was not entitled to receive.24 Consequently, recovery of the
overpayment of compensation in the amount of $12,306.43 may not be waived.25
On appeal appellant requests waiver, maintaining that he did not know that he had received
inaccurate compensation and questioning whether a reasonable person would be aware of OWCP
regulations. As discussed above, however, OWCP notified him that he was not entitled to receive
federal retirement benefits simultaneously with FECA benefits without it affecting his wage-loss
compensation. The Board, therefore, concludes that OWCP properly determined that appellant

20

See G.D., Docket No. 18-0510 (issued August 6, 2018); E.M., Docket No. 17-1987 (issued July 25, 2018).

21

See B.R., Docket No. 16-0567 (issued December 9, 2016) (finding that a Form CA-1049 informing a claimant
that a recipient of FECA compensation was not permitted to receive benefits under other federal programs, including
the Civil Service Retirement program, together with other evidence, supported a finding of fault when she accepted
SSA benefits and FERS compensation without an appropriate offset).
22

See G.D., supra note 20.

23

See J.G., Docket No. 17-0400 (issued January 12, 2018).

24

See T.M., Docket No. 17-1482 (issued May 4, 2018).

25

See J.C., Docket No. 16-1889 (issued May 17, 2017).

7

was at fault in the creation of the overpayment and that waiver of recovery of the overpayment is
therefore precluded.26
Appellant also argues that OWCP delayed notifying him of the overpayment. To the extent
that he is arguing that OWCP made the mistake and that he should not be considered at fault, the
fact that OWCP may have been negligent in issuing the compensation checks does not mitigate
the fault determination.27
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$12,306.43 for the period March 1, 2013 through March 7, 2015. The Board further finds that
OWCP properly found that he was at fault in the creation of the overpayment and thus not subject
to waiver of recovery.

26
With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing compensation benefits under FECA. See R.E., Docket No.
18-1625 (issued July 18, 2018). As appellant was no longer receiving wage-loss compensation, the Board does not
have jurisdiction with respect to recovery of the overpayment under the Debt Collection Act. Id.
27

See D.M., supra note 19.

8

ORDER
IT IS HEREBY ORDERED THAT the November 7, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2018
Washington, DC

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

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

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

9