United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Washington, DC, Employer
)
__________________________________________ )
A.B., Appellant

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

Docket No. 18-0922
Issued: January 3, 2019

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 March 29, 2018 appellant filed a timely appeal from a February 23, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $5,547.86 for the period February 7 through
March 4, 2017 because he continued to receive monetary compensation after the expiration of a
schedule award; and (2) whether OWCP properly determined that appellant was at fault in the
creation of the $5,547.86 overpayment and, therefore, ineligible for waiver of recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 25, 2016 appellant, then a 48-year-old Deputy United States Marshal, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss as a
result of employment-related noise exposure. By decision dated December 15, 2016, OWCP
accepted the claim for bilateral sensorineural hearing loss.
On December 19, 2016 appellant filed a claim for a schedule award (Form CA-7).
By decision dated January 3, 2017, OWCP granted appellant a schedule award for six
percent binaural hearing loss. The award covered a period of 12 weeks from November 15, 2016
through February 6, 2017. Appellant’s weekly pay was computed at $1,493.65 based on the 75
percent augmented rate for employees with dependents, totaling $5,974.62 in continuing payments
every four weeks.
In a manual adjustment form, OWCP documented that it paid appellant an additional sum
of $5,547.86 for the period February 7 to March 4, 2017 as appellant’s schedule award
compensation should have terminated on February 6, 2017. Copies of fiscal worksheets were
provided.
By notice dated June 5, 2017, OWCP made a preliminary determination that an
overpayment of compensation in the amount of $5,547.86 had been created for the period
February 7 through March 4, 2017 because appellant was overpaid for his schedule award. It
further found that he was at fault in the creation of the overpayment because he accepted a payment
that he knew or reasonably should have known was incorrect. OWCP explained that appellant
received $5,547.86 in error for the period February 7 through March 4, 2017 because his schedule
award expired on February 6, 2017. It informed him of his review rights and instructed him to
complete an enclosed overpayment recovery questionnaire form (Form OWCP-20) and submit
supporting documentation within 30 days.
In a July 28, 2017 overpayment action request, appellant requested a prerecoupment
hearing before an OWCP hearing representative, contesting the overpayment decision and finding
of fault. He argued that he was not at fault for the overpayment as the funds were electronically
deposited into his bank account and he had no knowledge of the transaction until the money
appeared. No financial evidence was submitted.
A hearing was held before an OWCP hearing representative on December 12, 2017.
During the hearing, appellant argued that the overpayment occurred through no fault of his own
because he did not know the total amount he was supposed to receive for his schedule award which
he alleged was not clearly explained on OWCP decision. He further noted that he did not know
when the payments were supposed to be electronically deposited. The record was held open for
30 days.
In a narrative statement received on January 12, 2018, appellant argued that the
overpayment occurred through no fault of his own and that the schedule award determination never
stated the total amount of the award.

2

By decision dated February 23, 2018, an OWCP hearing representative finalized the
preliminary overpayment determination, finding that appellant was overpaid in the amount of
$5,547.86 for the period February 7 through March 4, 2017 because he received continued
schedule award compensation after his schedule award had expired on February 6, 2017. It found
that he was at fault in the creation of the overpayment and thus, not entitled to waiver of recovery
of the overpayment. As no financial information was submitted for consideration, recovery was
directed by submitting the full amount of the overpayment within 30 days.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. Section 20 C.F.R. § 10.404
states that compensation is provided for specified periods of time for the permanent loss or loss of
use of certain members.4
OWCP’s procedures provide that an overpayment is created when a schedule award
expires, but compensation continues to be paid.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $5,547.86 for the period February 7 through March 4, 2017.
The amount of the overpayment is not in dispute.6
OWCP granted appellant a schedule award for six percent binaural hearing loss on
January 3, 2017 for the period November 15, 2016 through February 6, 2017. The evidence of
record establishes that OWCP continued to pay his schedule award compensation after February 6,
2017, the date the award expired. Consequently, the $5,547.86 payment received for the period
February 7 to March 4, 2017 constituted an overpayment of compensation. Appellant has not
contested this amount. The Board accordingly affirms the fact and amount of the overpayment.7

2

Id.

3

20 C.F.R. § 10.404.

4
Id. Effective May 1, 2009, OWCP began using the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009). See E.V., Docket No. 17-2026 (issued July 11, 2018).
5

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(c)
(May 2004).
6

E.V., Docket No. 17-2026 (issued July 11, 2018).

7

R.S., Docket No. 17-1985 (issued March 23, 2018).

3

LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was made
was not at fault in either accepting or creating the overpayment.8 Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she receives
from OWCP are proper.9 The recipient must show good faith and exercise a high degree of care
in regard to receipt of their benefits.10
A recipient who has done any of the following will be found to be at fault with respect to
creating an overpayment: (1) made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or (2) failed to provide information which he or she
knew or should have known to be material; or (3) accepted a payment which the recipient knew or
should have known to be incorrect.11
With respect to whether an individual is without fault, 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.12
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment.
In Tammy Craven,13 the Board explained that an employee who receives payment from
OWCP in the form of a direct deposit may not be at fault for the first incorrect deposit into his or
her account since the acceptance of the overpayment, at the time of receipt of the direct deposit,
lacks requisite knowledge. The Board has recognized that, in the case of electronic fund transfers
(EFTs), an employee would not receive notification of the date and amount of payment until after
the deposit was made and the overpayment created.14 Because fault is defined by what the claimant

8

20 C.F.R. § 10.433(a).

9

Id.

10

Id.

11

Id.

12

Id. at § 10.433(b).

13

Docket No. 05-0249 (issued June 20, 2005), Order Granting Petition for Recon. and Reaffirming Prior Decision
(issued July 24, 2006).
14

See J.H., Docket No. 15-0195 (issued March 17, 2015).

4

knew or should have known at the time of acceptance, one of the consequences of EFTs is that the
claimant lacks the requisite knowledge at the time of the first incorrect payment.15
In this case, appellant received one electronic deposit on March 4, 2017 in the amount of
$5,547.86. OWCP failed to establish that he was at fault in the creation of the overpayment as he
could not avoid the incorrect payment sent by EFT.16 Although appellant accepted the
overpayment at the time it was deposited into his account, OWCP has not shown that he knew or
should have known at the time of the direct deposit on March 4, 2017 that the payment was
incorrect.17 Appellant had no reason to suspect at the time of the direct deposit that OWCP had
issued an incorrect payment since this was the first and only incorrect payment made.18
The Board finds that appellant was not at fault in the creation of the $5,547.86 overpayment
received on March 4, 2017.19 The case must be remanded for OWCP to determine whether he is
entitled to waiver of recovery of the overpayment, followed by an appropriate decision.20
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $5,547.86 for the period February 7 through March 4, 2017.
The Board further finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment.

15

George A. Hirsch, 47 ECAB 520 (1996).

16

J.S., Docket No. 12-1707 (issued June 10, 2013).

17

V.A., Docket No. 12-0637 (issued August 27, 2012).

18

See S.C., Docket No. 14-1730 (issued April 13, 2015).

19

E.T., Docket No. 15-0611 (issued June 2, 2015).

20

See generally P.D., Docket No. 18-0442 (issued July 11, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this decision of the Board.
Issued: January 3, 2019
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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 16-0278
Issued: March 21, 2016

Case Submitted on the Record

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

JURISDICTION
On December 1, 2015 appellant filed a timely appeal of a July 24, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merit decision in the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an occupational
disease in the performance of duty.
FACTUAL HISTORY
On March 20, 2015 appellant then a 26-year-old city carrier, filed an occupational disease
claim (Form CA-2), alleging that he developed bilateral knee pain as a result of repeatedly
climbing stairs while carrying packages and pushing heavy carts while in the performance of
1

5 U.S.C. § 8101 et seq.

duty. He first became aware of his condition on February 5, 2015 and realized that it was
causally related to his employment on February 28, 2015. Appellant did not stop work.
Appellant submitted a narrative statement dated April 4, 2015 and explained that his
bilateral knee pain began on February 5, 2015. He noted that his position required the use of a
pushcart to deliver his mail route and repetitive climbing in and out of his mail truck with
packages weighing up to 10 pounds. Appellant believed that his work duties caused his bilateral
knee pain. He noted never having a prior knee injury.
Appellant submitted a treatment report from Dr. Muhammad Shahid, a Board-certified
internist, dated February 23, 2015, who treated him in the emergency room. Dr. Shahid provided
restrictions of limited lifting of heavy packages and pushing heavy carts for three days. He noted
appellant’s current medications and referred him for physical therapy. Appellant submitted a
note from Dr. Sewon Lee, a Board-certified physiatrist, dated March 10, 2015, who provided a
summary of appellant’s current medications. Dr. Lee recommended physical therapy for four
weeks. In an undated referral form he diagnosed right knee pain and referred appellant for
physical therapy. Appellant submitted a report from Dr. Dustin Pardo, a Board-certified
internist, dated February 13, 2015 who diagnosed right knee pain. Dr. Pardo recommended an
oral analgesic and physical therapy. Appellant submitted an undated referral form from
Dr. Pardo for physical therapy. He was treated by Dr. Daniel Tsukanov, a Board-certified
internist, on April 7, 2015, for a knee condition. Dr. Tsukanov noted that appellant would
require physical therapy.
By letter dated June 10, 2015, OWCP advised appellant of the type of evidence needed to
establish his claim, particularly requesting that he submit a physician’s reasoned opinion
addressing the relationship of his claimed condition and specific employment factors.
By questionnaire dated June 18, 2015, appellant noted performing work activities six
days a week for 8 to 14 hours. He noted that he was not involved in any activities or sports.
Appellant was treated by an unidentified health care provider on June 9, 2015 for a right knee
condition. The health care provider diagnosed bilateral patellofemoral syndrome, possible right
quadriceps tendinopathy, knee pain, asthma, and allergic rhinitis. Appellant was referred for
physical therapy and injections into the knee joint. In an undated report, the unidentified health
care provider noted evaluating appellant on March 10, April 7, and June 9 and 15, 2015 for
bilateral knee pain. He noted that appellant was treated with physical therapy and injections in
the knee joint. Appellant was instructed to avoid strenuous activity such as prolonged kneeling
and continuous stair negotiation until his symptoms improve. The health care provider
diagnosed patellofemoral pain syndrome, knee pain, asthma, and allergic rhinitis.
In a decision dated July 24, 2015, OWCP denied the claim because the medical evidence
was insufficient to establish that a medical condition was diagnosed in connection with the
claimed event or work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim. When an employee claims that he or she sustained an injury in

2

the performance of duty, he or she must submit sufficient evidence to establish that he or she
experienced a specific event, incident or exposure occurring at the time, place, and in the manner
alleged. Appellant must also establish that such event, incident or exposure caused an injury.2
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) 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 differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition, and the specific employment factors
identified by the claimant.3
ANALYSIS
It is not disputed that appellant’s work duties as a city carrier included repetitively
climbing stairs with packages and pushing carts. It is also not disputed that he was diagnosed
with bilateral patellofemoral syndrome, possible right quadriceps tendinopathy, and right knee
pain. However, appellant has not submitted sufficient medical evidence to establish that his
diagnosed medical conditions were causally related to the employment factors. On June 10,
2015 OWCP advised him of the type of medical evidence needed to establish his claim.
However, appellant has not submitted sufficient medical evidence to establish that any of these
conditions are causally related to specific employment factors or conditions.
Appellant submitted a report from Dr. Shahid dated February 23, 2015, who
recommended restrictions of limited lifting of heavy packages and pushing heavy carts for three
days. Dr. Shahid referred appellant for physical therapy. On March 10, 2015 Dr. Lee provided a
summary of appellant’s current medications and recommended physical therapy and diagnosed
right knee pain. Similarly, a February 13, 2015 note from Dr. Pardo diagnosed right knee pain,
recommended an oral analgesic, and referred appellant for physical therapy. Likewise, in an
April 7, 2015 report, Dr. Tsukanov noted treating appellant for a knee condition which would
require physical therapy. However, these reports are insufficient to establish the claim as they do

2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
3

Solomon Polen, 51 ECAB 341 (2000).

3

not provide a history of injury4 or specifically address whether appellant’s employment activities
had caused or aggravated the diagnosed medical conditions.5
Appellant was treated by an unidentified health care provider on June 9, 2015, March 10,
April 7, June 9, and 15, 2015 for bilateral knee pain. There is no evidence that these reports
from unidentified health care providers are signed by a physician. Medical documents not
signed by a physician and lacking proper identification are not probative medical evidence and
are not sufficient to establish appellant’s claim. The Board has held that medical reports lacking
proper identification do not constitute probative medical evidence.6
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
claimed condition was causally related to his employment.

4

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
5

A.D., 58 ECAB 149 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).
6

See R.M., 59 ECAB 690 (2008); Bradford L. Sullivan, 33 ECAB 1568 (1982) (where the Board held that a
medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a “physician” as defined in FECA).

4

ORDER
IT IS HEREBY ORDERED THAT the July 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 21, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy 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
__________________________________________
L.A., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Denver, CO,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-168
Issued: September 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 23, 2007 appellant filed a timely appeal of a September 7, 2007 merit
decision of the Office of Workers’ Compensation Programs finding that he had not established a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office properly determined that the issue presented was whether
appellant sustained a recurrence of disability on April 11, 2006.
FACTUAL HISTORY
On January 2, 2001 appellant, then a 54-year-old mine inspector, filed a traumatic injury
claim for a December 26, 2000 lower back injury. The Office accepted the claim for aggravation
of cervical spondylosis with cervical fusion and aggravation of lumbar spondylosis with lumbar

fusion. Appellant returned to a light-duty position on July 1, 2004, working four hours per day,
three days per week.
By decision dated July 20, 2005, the Office determined that appellant’s actual earnings in
the light-duty position since July 1, 2004 fairly and reasonably represented his wage-earning
capacity. It reduced his monetary benefits based on his actual earnings in the light-duty position.
On April 12, 2006 appellant informed the Office that, due to a regression of his condition,
his work schedule would need to be reduced to three hours per day, three days per week. He
requested that his compensation benefits be modified to reflect his increased disability. In an
April 11, 2006 report, Dr. Carvil Jackson, a treating physician, stated that appellant was severely
limited in his work capacity, and was capable of working only three hours per day, every other
day, for a total of nine hours per week. Appellant reduced his schedule according to
Dr. Jackson’s recommended restrictions and asked the Office to modify his compensation
payments accordingly.
In a letter dated May 2, 2006, the Office informed appellant that the decrease in his work
schedule might constitute a recurrence of disability. Appellant was advised to explain why he
believed the increase in his disability was related to his original injury, and to provide a medical
report containing a diagnosis and an opinion as to the cause of his disabling condition.
On May 22, 2006 appellant submitted a notice of recurrence. He alleged that his
condition had regressed neurologically due to the nature of his original injury.
By decision dated August 1, 2006, the Office denied appellant’s claim for a recurrence
of disability. It found that the evidence did not support a worsening of his condition which
rendered him incapable of working in the limited-duty position.
On July 26, 2007 appellant requested reconsideration of the August 1, 2006 decision. He
submitted reports dated September 7 and November 9, 2006 from Dr. Jackson, who found that
appellant had severe restrictions in cervical and lumbar range of motion and reiterated his
recommendation that appellant’s work schedule be reduced to three hours per day, three days per
week. In a report dated July 13, 2007, Dr. Jackson stated that appellant’s condition had been
exacerbated by performing prolonged light-duty work activities, noting nerve root irritation and
inflammation in the lumbar and cervical spine regions, with associated radicular
symptomatology of the cervical and lumbar roots. He opined that it was medically justifiable to
reduce appellant’s schedule to three hours per day, three days per week. In an accompanying
work capacity evaluation, Dr. Jackson provided additional restrictions, including pushing,
pulling and lifting no more than 10 pounds and 15-minute breaks every two hours. On July 24,
2007 Dr. Jackson diagnosed cervical spondylosis and stenosis, status post decompression
laminectomy, discectomy and fusion; lumbar and cervical strain; chronic pain and deconditioned
state; and poor balance secondary to lumbar stenosis. He reiterated his previous restrictions and
opined that appellant’s diagnosed conditions were causally related to the accepted December 26,
2000 work injury.
Appellant submitted a November 28, 2006 report from Dr. Richard Ruskin, a treating
physician, who diagnosed chronic pain syndrome; cervical and lumbar degenerative disc disease

2

at multiple levels, cervical spondylosis and lumbar post laminectomy syndrome. Dr. Ruskin
stated that appellant’s symptoms were worsening and opined that he was capable of working
only three hours per day, three days per week.
By decision dated September 7, 2007, the Office denied modification of the August 1,
2006 decision, finding that the medical evidence did not establish that appellant had sustained a
recurrence of disability on or after April 11, 2006.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.1
The Office’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.3 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.4
ANALYSIS
In this case, the Office developed the evidence and determined that the issue presented
was whether appellant had established a recurrence of disability on April 11, 2006. Under the
circumstances of this case, however, the Board finds that the issue presented was whether the
July 20, 2005 wage-earning capacity determination should be modified.
The record reflects that appellant returned to work at four hours per day, three days per
week. Appellant’s physician, Dr. Jackson, stated in an April 11, 2006 report that appellant was
severely limited in his work capacity and was capable of working only three hours per day, every
other day, for a total of nine hours per week. Appellant contends that he could not work in the
four-hour per day light-duty position, the position that the Office determined had represented his
wage-earning capacity, for the foreseeable future. The Board has held that, when a wage-earning
1

See Sharon C. Clement, 55 ECAB 552 (2004).

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
3

Sue A. Sedgwick, 45 ECAB 211 (1993).

4

Id.

3

capacity determination has been issued and appellant submits evidence with respect to disability
for work, the Office must evaluate the evidence to determine if a modification of his wageearning capacity is warranted.5
As noted, the Office’s procedure manual directs the claims examiner to consider the
criteria for modification when the claimant requests resumption of compensation for “total wage
loss.” This section of the procedure manual covers the situation when a claimant has stopped
working, but the principle is equally applicable to a claim of increased disability. If there is a
claim for increased disability that would prevent a claimant from performing the position that
was the basis for a wage-earning capacity decision, then clearly there is an issue of whether
modification is appropriate. In this case, appellant submitted evidence of an increased partial
disability that prevented him from working in his light-duty position four hours per day, three
days per week. The Board finds that the Office should have considered the issue of modification
of the wage-earning capacity determination.
CONCLUSION
The Board finds that appellant’s claim raised the issue of whether a modification of the
July 20, 2005 wage-earning decision was warranted and the case must be remanded for a proper
decision on the issue presented.

5

See Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, supra note 1. The Board notes that
consideration of the modification issue does not preclude the Office from acceptance of a limited period of
employment-related disability, without a formal modification of the wage-earning capacity determination. Id. at
n.10, slip op. at 5; Cf. Elsie L. Price, 54 ECAB 734 (2003) (acceptance of disability for an extended period was
sufficient to establish that modification of the wage-earning capacity determination was warranted).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 7, 2007 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September19, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
U.S. POSTAL SERVICE, COSTA MESA MAIN
POST OFFICE, Costa Mesa, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0222
Issued: December 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 6, 2019 appellant filed a timely appeal from a May 10, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a low back condition
causally related to the accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the May 10, 2019 decision. 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.

FACTUAL HISTORY
On June 30, 2016 appellant, then a 36-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a low back injury due to factors of her federal
employment, which included repetitive bending and lifting. She noted that she first became aware
of her condition and first realized its relation to factors of her federal employment on
March 3, 2016. On the reverse side of the claim form the employing establishment noted that
appellant had not stopped work. In a March 3, 2016 narrative statement, appellant explained that
her employment duties included casing mail, bending, picking up tubs of mail, and standing for
two to two and a half hours, depending on the mail volume. She noted that her lower back began
to hurt sometime in January of the prior year, and that she was able to manage her work, if she
used her shoulders, but her condition had worsened over the last few months.
In a July 12, 2016 development letter, OWCP informed appellant that additional evidence
was required in support of her claim. It advised her of the type of factual and medical evidence
necessary. OWCP afforded appellant 30 days to submit the requested evidence.
In a letter dated July 12, 2016, the employing establishment controverted the claim. O.A.,
a supervisor, noted that appellant failed to report her illness on March 3 2016 and never had
mentioned her back complaints or asked for help with her delivery route.
A March 30, 2016 magnetic resonance imaging (MRI) scan read by Dr. Shams Sheikh, a
Board-certified diagnostic radiologist, revealed a congenital bony fusion of L1-2, scoliosis of the
upper lumbar spine, disc osteophyte complex with only minor neural foraminal stenosis, L2-3 far
lateral disc bulge at the right exiting L2 nerve, L4-5 moderate neural foraminal stenosis, on the
right, and borderline hepatomegaly.
In an April 20, 2016 report, Dr. Edward Mittleman, a family medicine specialist, noted
appellant’s history of injury and medical treatment. He described her employment duties in detail
and he noted how appellant physically completed her employment duties. Dr. Mittleman noted
appellant’s physical examination findings and diagnosed acceleration of lumbar spondylosis and
lumbar disc protusions, based on review of her MRI scan. He also noted that appellant had no low
back problems prior to her work for the employing establishment. Dr. Mittleman explained that
the physical work factors appellant engaged in, such as heavy lifting and forceful movements, and
bending and twisting, contributed to low back disorders. He referred to several scientific studies
and opined that appellant’s activities at work accelerated the degenerative changes in her lumbar
spine. Dr. Mittleman explained that medical studies have shown that the combination of activities
appellant performed at work requiring flexion, rotation, and compression led to disc pathology.
He also explained that, in addition to the other factors appellant performed at work, carrying a
satchel weighing up to 35 pounds placed significant compressive force on the axial skeletal system
of the spine. Dr. Mittleman concluded that it was “medically reasonable to infer a direct causal
relationship between the activities that [appellant] performs on a daily basis and the development
of the pathology (spondylosis and disc protrusions) noted in her MRI [scan].”

2

By decision dated September 22, 2016, OWCP denied appellant’s claim. It explained that
the medical evidence did not support that the claimed medical condition was caused by established
work-related events and did not address her preexisting spinal condition.
In an October 7, 2016 report, Dr. James T. Tran, a Board-certified neurosurgeon, noted that
OWCP did not review his July 8, 2016 report, which addressed causal relation. He indicated that
he would “resubmit” the report.
In his July 8, 2016 report, Dr. Tran noted appellant’s history of injury and medical
treatment. He explained that she noted that, approximately two years prior, she began to notice
periodic low back pain, saw her physician, and was advised that her x-rays were normal. Dr. Tran
further noted that appellant continued to work and began to notice more severe low back pain a
few months prior to her current evaluation. He indicated that she complained of aching, pinching,
stabbing, and cramping pain in her low back that made it difficult to complete her job duties and
sleep at night. Dr. Tran diagnosed sciatica, spinal stenosis of the lumbar region with neurogenic
claudication, lumbar disc degeneration, connective tissue and disc stenosis of intervertebral
foramina of lumbar region, and osseous stenosis of neural canal of lumbar region. He explained
that appellant worked as a letter carrier for 11 years, casing and delivering mail, lifting 25 to 35
pounds of mail and magazine containers, twisted and turned her low back to lift and case mail,
loaded mail into hampers, pushed hampers weighing up to 300 to 400 pounds, and carried a mail
satchel weighing up to 35 pounds. Dr. Tran opined that appellant’s L1-2, L2-3, L3-4, L4-5 stenosis
from hypertrophy of ligamentum flavum and stimulated growth of bone in facet joints resulted
from her work activities.
On April 24, 2017 appellant requested reconsideration.
By decision dated July 6, 2017, OWCP denied modification. It found that the medical
evidence did not address appellant’s preexisting spinal condition.
On October 25, 2017 appellant requested reconsideration.
OWCP received a January 31, 2013 MRI scan of the lumbar spine read by Dr. Gary E.
Geil, a radiologist. Dr. Geil diagnosed congenital fusion of L1 and L2 vertebral bodies with
associated dysplastic facet joints at L1-2 and a disc bulge at T12-L1.
In an October 18, 2017 report, Dr. Mittleman noted that he had reviewed the January 31,
2013 MRI scan of appellant’s lumbar spine and that no facet hypertrophy was present. However
appellant’s March 30, 2016 MRI scan showed facet hypertrophy at T2-L1, L2-3, L4-5, and L5-S1,
which was consistent with acceleration of spondylosis. Dr. Mittleman again described appellant’s
employment duties in detail. He referred to several medical publications and opined that the
activities appellant performed on a daily basis were consistent with acceleration of the lumbar
physiologic processes from her occupational activities. Dr. Mittleman requested that appellant’s
claim be accepted for acceleration of lumbar spondylosis.
By decision dated January 12, 2018, OWCP denied modification of the July 6, 2017
decision.
On March 16, 2018 appellant requested reconsideration.
3

In a March 8, 2018 report, Dr. Basimah Khulusi, Board-certified in physical medicine and
rehabilitation, noted that the January 31, 2013 and March 30, 2016 MRI scan reports showed that
appellant’s degeneration of the lumbar disc had accelerated between those dates. She explained
that, although the report of Dr. Mittleman was insufficiently rationalized, it was uncontroverted
and sufficient to warrant additional development of the medical evidence.
By decision dated May 31, 2018, OWCP denied appellant’s request for reconsideration. It
found that the evidence submitted was cumulative and substantially similar to evidence or
documentation already contained in the case record and previously considered. OWCP determined
that the reconsideration request neither raised substantive legal questions nor included new and
relevant evidence sufficient to warrant a review of the May 31, 2018 decision.
On January 11, 2019 appellant’s then representative requested reconsideration. She argued
that the March 8, 2018 report of Dr. Khulusi should be considered new evidence, not previously
considered. Dr. Khulusi also noted that additional development was warranted because the
medical evidence was uncontroverted, despite not being sufficiently rationalized to establish
causal relationship.
On February 13, 2019 OWCP referred appellant to Dr. Michael J. Einbund, a Boardcertified orthopedic surgeon, for a second opinion examination to determine causal relationship
between the claimed conditions and accepted factors of appellant’s federal employment.
In an April 23, 2019 report, Dr. Einbund noted appellant’s history of injury and medical
treatment. He also noted the employment duties appellant performed. Dr. Einbund noted that the
January 31, 2013 and March 30, 2016 MRI scans of appellant’s lumbar spine revealed preexisting
conditions which included a congenital bony fusion at L1-L2, a posterior disc bulge at the L2 nerve
and T12-L1, mild degenerative disc disease at L5-S1, and scoliosis of the upper lumbar spine. He
explained that the January 31, 2013 and March 30, 2016 MRI scans were abnormal, revealed a
congenital fusion at L1 and L2, and were “considered within the natural progression of her
underlying degenerative lumbar spine condition.” Dr. Einbund diagnosed congenital fusion at L1L2 level, mild scoliosis of the lumbar spine, and lumbar degenerative disc disease. He opined that
the diagnoses were not causally related to appellant’s work activities and explained that appellant
had a congenital irregularity at the L1-L2 level and multilevel degeneration, which was secondary
to body habitus and natural aging. Dr. Einbund further opined that her condition “remained
chronic secondary to her underlying lumbar spine condition with no specific change associated
with work activities.”
By decision dated May 10, 2019, OWCP denied modification of the January 12, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
3

Supra note 1.

4

limitation of FECA,4 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.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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 identified employment factors.7
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
Section 8123(a) of FECA provides, in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
4
See R.S., Docket No. 19-1939 (issued May 6, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

Y.G., Docket No. 20-0688 (issued November 13, 2020); T.H., Docket No. 18-1736 (issued March 13, 2019); R.C.,
59 ECAB 427 (2008).
6

C.H., Docket No. 19-1781 (issued November 13, 2020); T.E., Docket No. 18-1595 (issued March 13, 2019);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.D., Docket No. 20-0921 (issued November 12, 2020); M.S., Docket No. 18-1554 (issued February 8, 2019);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
8
J.F., Docket No. 18-0492 (issued January 16, 2020); L.D., Docket No. 17-1581 (issued January 23, 2018);
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
9

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

E.W., Docket No. 19-1393 (issued January 29, 2020); Dennis M. Mascarenas, 49 ECAB 215 (1997).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

5

Secretary shall appoint a third physician who shall make an examination.”12 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.13
ANALYSIS
The Board finds that the case is not in posture for decision.
In his April 20, 2016 report, Dr. Mittleman provided a detailed description of appellant’s
employment duties and he explained how she physically completed her employment duties. He
noted appellant’s physical examination findings and diagnosed acceleration of lumbar spondylosis
and lumbar disc protrusions, based on appellant’s MRI scan. Dr. Mittleman explained that the
physical work factors appellant engaged in, such as heavy lifting and forceful movements, bending
and twisting, accelerated the degenerative changes in her lumbar spine. He opined that medical
studies had shown that the combination of activities appellant performed at work requiring flexion,
rotation, and compression led to disc pathology. Dr. Mittleman also explained that, in addition to
the other factors appellant performed at work, carrying a satchel weighing up to 35 pounds placed
significant compressive force on the axial skeletal system of the spine. He concluded that it was
medically reasonable to infer a direct causal relationship between the employment activities
appellant performed on a daily basis and her diagnosed back conditions. In his October 18, 2017
report, Dr. Mittleman noted that he had reviewed the January 31, 2013 MRI scan of appellant’s
lumbar spine, that no facet hypertrophy was present, but that appellant’s March 30, 2016 MRI scan
showed facet hypertrophy at T2-L1, L2-3, L4-5, and L5-S1, which was consistent with
acceleration of spondylosis. The Board finds that Dr. Mittleman did address appellant’s
preexisting lumbar condition and concluded that her employment activities caused an acceleration
of her diagnosed condition.
The Board therefore finds that Dr. Mittleman’s reports are in conflict with the report of
Dr. Einbund, OWCP’s second opinion physician.
In his April 23, 2019 report, Dr. Einbund reviewed appellant’s medical records, history of
injury and treatment, and her employment duties. He conducted a physical examination and
reviewed appellant’s January 31, 2013 and March 30, 2016 MRI scans. Dr. Einbund diagnosed
congenital fusion at the L1-L2 level, mild scoliosis of the lumbar spine, and lumbar degenerative
disc disease. He found that the MRI scans were “considered within the natural progression of her
underlying degenerative lumbar spine condition.” Dr. Einbund opined that appellant’s condition
“remained chronic secondary to her underlying lumbar spine condition with no specific change
associated with work activities.”
As noted above, if there is a disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint a referee physician or impartial medical specialist who shall

12

5 U.S.C. § 8123(a).

13

S.S., Docket No. 19-1658 (issued November 12, 2020); C.W., Docket No. 18-1536 (issued June 24, 2019).

6

make an examination.14 The Board finds that there is a conflict in the medical opinions between
Dr. Mittleman and Dr. Einbund regarding whether appellant’s accepted employment factors,
accelerated appellant’s preexisting lumbar spondylosis.
The Board therefore finds that the case must be remanded to OWCP for referral of appellant
to an impartial medical examiner for resolution of the conflict in medical opinion evidence in
accordance with 5 U.S.C. § 8123(a).15 After such further development as OWCP deems necessary,
it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision
ORDER
IT IS HEREBY ORDERED THAT the May 10, 2019 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this decision of the Board.
Issued: December 21, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

14

Supra note 12.

15

S.S., supra note 13; S.M., Docket No. 19-0397 (issued August 7, 2019).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Akron, OH,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-115
Issued: April 3, 2014

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 October 21, 2013 appellant, through his attorney, filed a timely appeal from a
September 6, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his occupational disease claim. 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 sustained a bilateral hand or arm condition causally related
to factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 14, 2012 appellant, then a 60-year-old mail handler, filed an occupational
disease claim alleging that he sustained severe pain in both hands and arms due to factors of his
federal employment. He did not stop work.
By letter dated June 26, 2012, OWCP requested that appellant submit additional factual
and medical information, including a detailed report from his attending physician addressing the
relationship between any diagnosed condition and his work duties.
In a report dated April 7, 2011, received by OWCP on July 24, 2012, Dr. John X. Biondi,
a Board-certified orthopedic surgeon, evaluated appellant for increased symptoms of bilateral
carpal tunnel syndrome. On examination, he found a positive Tinel’s sign and Phalen’s test and
“some tenderness to palpation along the flexor sheath on the right ring finger with obvious
locking and catching with flexion and extension.” Dr. Biondi diagnosed bilateral carpal tunnel
syndrome and flexor tenosynovitis of the right ring finger. He stated that appellant was going to
file for workers’ compensation: “I would agree that it is probably work related. Dr. Biondi has
been working for the [employing establishment] for several years.”
A June 2, 2012 nerve conduction study revealed severe bilateral carpal tunnel syndrome.
On June 18, 2012 Dr. Biondi discussed appellant’s continued symptoms of discomfort in
the hands and catching of the right ring finger.2 He diagnosed carpal tunnel syndrome bilaterally
and tenosynovitis of the right ring finger. Dr. Biondi indicated that he would schedule appellant
for a right carpal tunnel release and tenosynovectomy of the right ring finger after his retirement.
In a report dated June 18, 2012, Dr. Biondi diagnosed bilateral carpal tunnel syndrome
and found that appellant could work without restrictions. He noted that appellant related that he
did not want to file for workers’ compensation. On June 18, 2012 Dr. Biondi found that he
should stop work on June 26, 2012 for surgery scheduled July 17, 2012 and return to work
around August 20, 2012.3
On June 24, 2012 appellant described his employment duties in detail. He experienced
pain in his elbows, biceps and wrists and finger numbness that began on the right side but was
now bilateral. Appellant related that he initially attributed his symptoms to an injury to his head
and neck.
On July 5, 2012 appellant requested compensation for disability beginning June 16, 2012.
By decision dated February 5, 2013, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to establish that he sustained a medical condition causally
related to the accepted work factors.
2

On January 17, 2012 Dr. Stanley R. Anderson, Board-certified in family practice, diagnosed bilateral carpal
tunnel syndrome, worse on the right, acquired trigger finger and actinic keratosis.
3

On August 13, 2012 Dr. Biondi found that appellant could return to work on September 15, 2012 following
surgery on July 31, 2012.

2

On February 11, 2013 appellant, through his attorney, requested a telephone hearing
before an OWCP hearing representative.
On July 17, 2012 appellant underwent a right carpal tunnel release and a flexor
tenosynovectomy of the right ring finger.
On July 26, 2012 Dr. Biondi indicated that appellant was status post right carpal tunnel
release and tenosynovectomy of the right finger. He diagnosed left carpal tunnel syndrome.
Dr. Biondi noted that appellant worked for the employing establishment and related that his
condition was “more than likely secondary to his work.”
On November 29, 2012 Dr. Biondi diagnosed flexor tenosynovitis of the left thumb and
left carpal tunnel syndrome. On December 28, 2012 he performed a left carpal tunnel release
and left flexor tenosynovectomy.
In a progress report dated January 10, 2013, Dr. Biondi found that appellant was doing
well following a left carpal tunnel release and tenosynovectomy of the wrist flexor. On April 29,
2013 he evaluated appellant for left thumb pain. Dr. Biondi diagnosed left trigger thumb and
scheduled a trigger thumb release.
At the telephone hearing held on June 17, 2013, appellant related that he had retired from
work. He described his work duties.
In a report dated July 18, 2013, Dr. Biondi asserted:
“I can state with reasonable medical certainty that [appellant’s] carpal tunnel as
well as the ring finger tenosynovitis is a direct and proximate result of the highly
repetitive activities that he performed at work. I first saw [him] around 2005 and
at that time he was diagnosed as having bilateral carpal tunnel. I then saw
[appellant] back in 2009 and gave him another set of injections. He did pretty
well until I started seeing him again in April 2011.”
Dr. Biondi discussed his treatment of appellant beginning in April 2011 for tenosynotitis
of the right ring finger and carpal tunnel syndrome. He performed bilateral carpal tunnel releases
and a flexor tenosynovectomy of the right finger. Appellant subsequently experienced left
thumb locking. Dr. Biondi stated, “It is my opinion that [appellant] occupation has caused his
problems. Again, his carpal tunnel and tenosynovitis is a direct and proximate result of his
occupation.”
By decision dated September 6, 2013, OWCP’s hearing representative affirmed the
February 5, 2013 decision. She found that Dr. Biondi, in his July 18, 2013 report, did not
specifically describe appellant’s work duties and provided no rationale for his opinion.
On appeal, appellant’s attorney argues that OWCP placed an unreasonable burden of
proof on appellant and that the medical evidence supported causal relationship.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
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;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;8 and (3) medical evidence establishing the
employment 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 employment factors identified by the claimant.9
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.10 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.11
ANALYSIS
Appellant alleged that he sustained a bilateral hand and arm condition as a result of his
work duties. On April 7, 2011 Dr. Biondi diagnosed bilateral carpal tunnel syndrome and flexor
tenosynovitis of the right ring finger. He indicated that the conditions probably arose from
employment. On July 17, 2012 Dr. Biondi performed a right carpal tunnel release and right ring
finger flexor tenosynovectomy. In a report dated July 26, 2012, he diagnosed left carpal tunnel
syndrome and found that appellant’s condition was “more than likely secondary to his work.”
On December 28, 2012 Dr. Biondi performed a left carpal tunnel release and left wrist flexor
4

5 U.S.C. § 8101 et seq.

5

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Ellen L. Noble, 55 ECAB 530 (2004).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

10

See Jimmy A. Hammons, 51 ECAB 219 (1999).

11

20 C.F.R. § 10.121.

4

tenosynovectomy. In a report dated July 18, 2013, he determined that appellant’s bilateral carpal
tunnel syndrome and right ring finger tenosynovitis were the “direct and proximate result of the
highly repetitive activities that he performed at work.”
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.12 The Board
has reviewed Dr. Biondi’s reports and finds that he provided a clear opinion that appellant
sustained bilateral carpal tunnel syndrome and tenosynovitis causally related to his work duties.
Dr. Biondi discussed appellant’s history of repetitive work duties. His opinion is supportive,
unequivocal, bolstered by objective findings and based on a firm diagnosis and an accurate work
history. Additionally, Dr. Biondi’s opinion is not contradicted by any medical evidence of
record. While the medical evidence from him is insufficiently rationalized to meet appellant’s
burden of proof to establish that he sustained a bilateral hand or arm condition due to factors of
his federal employment, it raises an undisputed inference of causal relationship sufficient to
require further development by OWCP.13 Accordingly, the Board will remand the case to
OWCP. On remand, it should further develop the medical record to determine whether appellant
sustained a bilateral upper extremity condition due to his work duties. Following this and such
further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

See A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004).

13

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the September 6, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: April 3, 2014
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF DEFENSE, MISSILE
DEFENSE AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1649
Issued: November 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On July 22, 2014 appellant filed a timely appeal from May 8 and June 18, 2014 merit
decisions 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
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment of compensation
in the amount of $16,606.33 had been created as appellant received compensation for the period
June 20 to August 25, 2012 after he returned to work, and that an overpayment in compensation
1
2

5 U.S.C. § 8101 et seq.

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

in the amount of $1,322.60 had been created as appellant received compensation for the period
March 3 to 8, 2014 while receiving pay for work and personal leave; (2) whether OWCP
properly denied waiver of the recovery of the overpayments in the amounts of $2,726.41 for the
period June 20 to 30, 2012 and $1,322.60 for the period March 3 to 8, 2014; and (3) whether
OWCP properly found that appellant was at fault in the creation of the overpayment in the
amount of $13,879.92 for the period July 1 to August 25, 2012 and, therefore, ineligible for
waiver of the recovery.
On appeal appellant contends that collection of the debt would be against equity and good
conscience.
FACTUAL HISTORY
This case has previously been before the Board. On May 7, 2010 appellant, then a 43year-old auditor, alleged that on October 11, 2009 while he was in Iraq and performing physical
fitness he felt a pop in his back and his left arm went numb immediately. OWCP accepted the
claim for upper infraspinatus arm and shoulder sprain, neck sprain, and C5-6, C6-7 herniated
discs (left foraminal) large with left C7 cervical radiculopathy and placed appellant on the
periodic rolls for temporary total disability effective July 5, 2011. It authorized cervical surgery,
which was performed on July 27, 2011. Appellant returned to full-duty modified work on
June 20, 2012. On April 8, 2014 the Board affirmed a March 13, 2013 OWCP nonmerit decision
denying his request for a prerecoupment hearing on an overpayment of compensation in the
amount of $16,606.33 for the period June 20 through August 25, 2012 as being untimely filed.3
The facts and the circumstances of the Board’s prior decisions are incorporated herein by
reference. The relevant overpayment evidence from the prior decision is set forth below.
Appellant completed direct deposit election forms on September 21 and October 19, 2011
and the record reflects that his compensation payments were directly deposited into his bank
account.
On May 12, 2013 OWCP informed appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $16,606.33, because he had been
paid in error for the period June 20 through August 25, 2012.4 It noted that he returned to work
on June 20, 2012 with no loss of wages, but continued to receive compensation for total
disability. OWCP found appellant was without fault in the creation of the overpayment in the
amount of $2,726.41 for the period June 20 to 30, 2012, but was at fault in the creation of the
remaining amount of $13,879.92, for the period July 1 to August 25, 2012, because he accepted
payments he knew or should have known were incorrect. It requested that appellant complete
the enclosed overpayment recovery questionnaire and submit supporting financial documents.
Additionally, OWCP notified him that, within 30 days of the date of the letter, he could request a
3

Docket No. 13-1905 (issued April 8, 2014).

4

The record contains a computer printout showing compensation payments for the period June 19, 2011 through
August 25, 2012, a May 15, 2013 pay rate memorandum and an amended computer printout with appellant’s
corrected pay rate showing compensation payments for the period June 19, 2011 through August 25, 2012.

2

telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing. No completed overpayment recovery form was submitted by appellant.
On July 19, 2013 OWCP authorized right shoulder surgery, which occurred on
July 10, 2013.
On August 14, 2013 OWCP placed appellant on the periodic rolls for temporary total
disability effective July 10, 2013.
On February 27, 2014 Dr. Spero Karas, appellant’s treating Board-certified orthopedic
surgeon, released appellant to return to full-duty work on March 4, 2014.
In a March 6, 2014 letter, the employing establishment informed OWCP that appellant
requested leave for March 3, 2014 and returned to work on March 4, 2014.
On March 13, 2014 OWCP informed appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $1,322.60 because he had received
compensation for the period March 3 to 8, 2014 while receiving pay for work and personal leave.
It found that he was without fault in the creation of the overpayment as he could not reasonably
have been aware that his single compensation payment made by direct deposit was incorrect.
OWCP requested that appellant complete the enclosed overpayment recovery questionnaire and
submit supporting financial documents. Additionally, it notified him 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. No completed overpayment recovery form was received
by OWCP.
By decision dated May 8, 2014, OWCP finalized the preliminary determination that an
overpayment of compensation in the amount of $1,322.60 had been created during the period
March 3 to 8, 2014. It denied waiver of recovery of the overpayment as appellant had not
submitted any evidence to justify waiver.
By decision dated June 18, 2014, OWCP finalized the preliminary determination that an
overpayment in the amount of $16,606.33 was created because appellant was paid compensation
through August 25, 2012 after returning to work with no loss of wages on June 20, 2012. It
found him without fault for a portion of the overpayment, in the amount of $2,726.41 for the
period June 20 through 30, 2012, as he could not have been aware on June 30, 2012 that the
initial direct deposit was incorrect. OWCP found appellant with fault for the remaining portion
of the overpayment, in the amount of $13,879.92 for the period July 1 through August 25, 2012,
as he knew or should reasonably have known that the payments he received were incorrect.
With regard to the first portion of the overpayment in the amount of $2,276.41 for the period
June 20 through 30, 2012, it denied waiver of recovery as he did not submit supporting evidence.
With regard to the remaining portion of the overpayment, $13,879.92 for the period July 1
through August 25, 2012, OWCP’s finding of fault precluded waiver of recovery.

3

LEGAL PRECEDENT -- ISSUE 1
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, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.5 Section 10.500 of Title 20 of the Code of Federal Regulations provide
that compensation for wage loss due to disability is available only for any periods during which
an employee’s work-related medical condition prevents him or her from earning the wages
earned before the work-related injury.
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $16,606.33 because he was paid compensation in error for the period June 20 through
August 25, 2012. Appellant returned to full-time work on June 20, 2012, but continued to
receive compensation for partial disability from OWCP through August 25, 2012. As he
received regular full-time wages from the employing establishment from June 20 to August 25,
2012, he was not entitled to disability compensation from OWCP for this same period. OWCP
determined that the amount of compensation that appellant received for the period totaled
$16,606.33. Appellant has not challenged the amount and period of the overpayment.
The Board also finds that appellant received an overpayment of compensation in the
amount of $1,322.60 which was created because he received compensation for the period
March 3 to 8, 2014 while receiving pay for work and personal leave. Appellant was released to
return to full-time work by his treating physician on March 3, 2014. He took personal leave for
March 3, 2014 and returned to work on March 4, 2014, but continued to receive compensation
for total disability from OWCP through March 8, 2014. As appellant received pay for work and
personal leave from the employing establishment from March 3 to 8, 2014, he was not entitled to
disability compensation from OWCP for this same period. OWCP determined that the amount
of compensation that he received for the period totaled $1,322.60. Appellant has not challenged
the amount and period of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
According to section 10.436,6 recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current, ordinary, and necessary
living expenses, and also if the beneficiary’s assets do not exceed a specified amount as

5

5 U.S.C. § 8116(a).

6

20 C.F.R. § 10.436.

4

determined by OWCP from data provided by the Bureau of Labor Statistics.7 For waiver under
this standard, appellant must meet the two-pronged test and show that he both needs substantially
all of his current income to meet current ordinary and necessary living expenses,8 and that his
assets do not exceed the resource base.9
The burden is on the claimant to show that the expenses are reasonable and needed for a
legitimate purpose.10 OWCP’s regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [OWCP]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of [FECA] or be against equity and good conscience....
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”11
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in the creation of the overpayment of
$2,726.41 for the period June 20 through 30, 2012, and without fault in the creation of the
overpayment in the amount of $1,322.60 for the period March 3 to 8, 2014 because he received
his wage-loss compensation payments by direct deposit. The Board has held that an employee
who receives payments from OWCP in the form of a direct deposit may not be at fault for the
first incorrect deposit into his or her account since the acceptance of the overpayment, at the time
of receipt of the direct deposit, lacks the requisite knowledge.12 All the amounts noted above
were appellant’s first compensation payments received by direct deposit, OWCP properly found
he was without fault in the creation of overpayment in the amount of $2,726.41 for the period
June 20 through 30, 2012 and an overpayment in the amount of $1,322.60 for the period March 3
to 8, 2014.
7

OWCP procedures provide that assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent, plus $960.00 for each additional dependent. Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
8

An individual is deemed to need substantially all of his or her income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio Martinez, 55
ECAB 245, 250 (2004).
9

See supra note 8. W.F., 57 ECAB 705, 708 (2006).

10

Id.

11

20 C.F.R. § 10.438. See Madelyn Y. Grant, 57 ECAB 533 (2006).

12

See Tammy Craven, 57 ECAB 689 (2006), granting petition for recon. & reaffirming prior Board decision,
Docket No. 05-249 (issued July 24, 2006).

5

OWCP requested in its preliminary notices of overpayment dated May 17, 2013 and
March 13, 2014 that appellant provide financial information and a completed overpayment
recovery questionnaire to support waiver of recovery. Appellant, however, failed to provide any
financial information or a completed overpayment questionnaire for OWCP to determine
whether waiver was appropriate. The burden is on the claimant to show that waiver would
defeat the purpose of FECA. Appellant has not alleged and the evidence does not demonstrate
that he relinquished a valuable right or changed his position for the worse due to the payment of
the erroneous amount of compensation. Because he has not shown that recovery would defeat
the purpose of FECA or would be against equity and good conscience, the Board finds that
OWCP properly denied waiver of recovery of the overpayment.
On appeal appellant argues that collection of the overpayment would be against equity
and good conscience based on his current financial status. The regulations mandate that the
failure to submit requested information results in the denial of waiver of the overpayment.13
Appellant failed to provide OWCP with a completed overpayment recovery questionnaire form
as requested. Thus, OWCP properly denied his request for waiver of recovery of the
overpayments.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of FECA14 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.15
OWCP may consider waiving an overpayment of compensation only if the individual to
whom it was made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure that payments
he or she received from OWCP are proper. The recipient must show good faith and exercise a
high degree of care in reporting events, which may affect entitlement to or the amount of
benefits. A recipient who has done any of the following will be found to be at fault with respect
to creating an overpayment: (1) made an incorrect statement as to a material fact which 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 to be incorrect (this provision applies only to the overpaid individual).16

13

Id.

14

5 U.S.C. § 8129(b).

15

J.K., Docket No. 08-1761 (issued January 8, 2009); Joan Ross, 57 ECAB 694 (2006); Desiderio Martinez,
supra note 8.
16

20 C.F.R. § 10.433(a),

6

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.17
ANALYSIS -- ISSUE 3
OWCP determined that appellant was at fault in the creation of the overpayment of
compensation in the amount of $13,879.92 for the period July 1 to August 25, 2012 because he
accepted payments that he knew or should have known to be incorrect.
Even where OWCP may have been negligent in making incorrect payments, this does not
excuse a claimant from accepting payments he or she knew or should have known to be
incorrect.18 In cases involving a series of incorrect payments, where the requisite knowledge is
by documentation from OWCP or simply with the passage of time and opportunity for discovery,
the claimant will be at fault for accepting the payments subsequently deposited.19 By the time of
the second erroneous direct deposit compensation payment dated July 1, 2012, appellant knew or
should have known that he was no longer entitled to compensation. Accordingly, the Board will
affirm the finding of fault for the period July 1 to August 25, 2012.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $16,606.33 for the period June 20 through August 25, 2012 because he received compensation
from OWCP after he had returned to work, and that he also received an overpayment of
compensation in the amount of $1,322.60 for the period March 3 to 8, 2014, because he received
personal leave and pay for actual work concurrently with OWCP wage-loss compensation. The
Board further finds that OWCP properly determined that appellant was without fault in the
creation of an overpayment of compensation in the amount of $2,726.41 for the period June 20
through 30, 2012 and in the amount of $1,322.60 for the period March 3 to 8, 2014 because
appellant received these initial wage-loss compensation payments by direct deposit. The Board
also finds that OWCP properly denied waiver of recovery for these overpayments. Lastly, the
Board finds that OWCP properly determined that appellant was at fault in the creation of the
overpayment in the amount of $13,879.92 for the period July 1 to August 25, 2012 because he
accepted payments he knew or should have known to be incorrect, thereby precluding waiver of
recovery of the overpayment.

17

Id. at § 10.433(b).

18

See William E. McCarty, 54 ECAB 525 (2003).

19

See J.W., Docket No. 10-1271 (issued February 3, 2011); see also Karen Dixon, 56 ECAB 145 (2004).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 18 and May 8, 2014 are affirmed.20
Issued: November 24, 2015
Washington, DC

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

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

20

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.H., claiming as widow of V.H., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-536
Issued: October 4, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 17, 2009 appellant filed a timely appeal from the merit decision of the
Office of Workers’ Compensation Programs dated July 27, 2009 denying his claim for survivor’s
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that the employee’s
death on February 16, 2009 was related to accepted employment injuries.
FACTUAL HISTORY
The Office accepted that on June 7, 2006 the employee, then a 78-year-old maintenance
worker,1 sustained left median nerve entrapment and left ulnar nerve entrapment due to
1

This position was a temporary seasonal assignment, full time, for the period May to October 2006. The
employee also received retirement payments from a nonfederal employer, Civic Power and Light.

unscrewing a frozen lug nut on a wheel while changing a flat tire. Surgical repair was performed
on August 23, 2006 which was authorized by the Office. The Office paid the employee total
disability compensation beginning October 29, 2006.
The employee received periodic treatment for his work injuries and maximum medical
improvement was attained on December 21, 2006. On August 31, 2007 Dr. Anil K. Agarwal, a
Board-certified orthopedic surgeon serving as an Office referral physician, stated that at the time
of his examination on August 31, 2007 there were continuing mild residuals of the work injuries
as well as nonwork-related conditions such as the normal aging process.
On February 17, 2009 the Office received notification of the employee’s death on
February 16, 2009 and it terminated wage-loss compensation on March 4, 2009. On June 4,
2009 it received a claim for compensation by widow, widower and/or children which was signed
on May 22, 2009 by the employee’s son, on behalf of his mother the surviving spouse. The
record reveals that there were no Department of Veterans Affairs benefits and no federal
retirement benefits.
On February 16, 2009 Dr. James F. Bush, an attending Board-certified internist, wrote on
the certificate of death that the immediate causes of the employee’s death were failure to thrive
and peripheral vascular disease and that other significant conditions were neuropathy and renal
insufficiency. On May 27, 2009 Dr. Bush stated that the employee’s accepted left hand injury
with neuropathy pain contributed to a diagnosis of depression resulting in a “failure to thrive”
and death on February 16, 2009. Other contributory causes were identified as peripheral
vascular disease, neuropathy and renal insufficiency.
In a January 20, 2009 report, Dr. Jill A. Kuhn Ph.D, a clinical psychologist, described her
initial evaluation of the employee on September 26, 2008 for symptoms of depression. She
described mild cognitive impairment, loss of 60 pounds in six to eight months time, loss of
appetite and psychosocial issues at home. The employee had difficulty adjusting to a long-term
care facility with multiple symptoms and was provided with anti-depressant medication until his
hospitalization from November 26 to December 5, 2008. Dr. Kuhn mentioned the June 7, 2006
work injury and indicated that it was plausible that the hand injury and concomitant pain might
have been related to the diagnosed depression. She indicated that previous documentation did
not indicate a prior psychiatric condition.
On June 9, 2009 the Office requested that appellant submit additional factual and medical
evidence in support of the claim for survivor’s benefits. By telephone conference with the
Office, appellant stated that the employee’s general health prior to the work injury was very good
and that he was strong, active and maintained a vibrant outlook on life. After the work injury,
his entire demeanor rapidly declined with significant depression in 2007 and weight loss in 2008.
In a November 9, 2007 report, Dr. Julia Carlson, an attending Board-certified internist,
described examining the employee for difficulty with numbness and pain in his left hand with a
long history of neuropathy to both hands. She opined that the pain disrupted sleep and the sleep
disruption resulted in depression. Dr. Carlson recommended medication and a follow-up
appointment.

2

Emergency room records from November 2, 2007 show an admitting diagnosis of feeling
weak since receiving the flu shot. In a December 4, 2007 report, Dr. William F. Miller, an
attending Board-certified cardiologist, provided diagnoses for atrial fibrillation, dyspnea of
uncertain etiology and possible left atrial thrombosis. Hospital treatment notes show admission
on August 26, 2008 for mild anemia, severe malnutrition, significant weight loss, chronic
abdominal pain and severe peripheral vascular disease. On September 2, 2008 the employee was
released to a full care nursing home.
In a July 27, 2009 decision, the Office denied appellant’s claim finding that she did not
submit sufficient medical evidence to establish that the employee’s death on February 16, 2009
was related to his accepted employment injuries. It noted that the evidence did not establish that
the employee’s depression was a consequence of the pain from the accepted work injuries. Even
if it were established that the depression was work related, it was not shown that the employee’s
death was a consequence of depression.
LEGAL PRECEDENT
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment.2 This
burden includes the necessity of furnishing rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship.3 An award of
compensation may not be based on surmise, conjecture or speculation.4 The mere showing that
an employee was receiving compensation at the time of his death does not establish that his death
was causally related to conditions resulting from the employment.5
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.
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury. With respect to consequential injuries, 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.6 A claimant bears the
burden of proof to establish a claim for a consequential injury. As part of this burden, he must
present rationalized medical opinion evidence.7
2

Carolyn P. Spiewak (Paul Spiewak), 40 ECAB 552, 560 (1989); Lorraine E. Lambert (Arthur R. Lambert), 33
ECAB 1111, 1120 (1982).
3

Martha A. Whitson (Joe E. Whitson), 43 ECAB 1176, 1180 (1992).

4

Myrl Nix (Earl Nix), 15 ECAB 125, 126 (1963).

5

Leonora A. Buco (Guido Buco), 36 ECAB 588, 594 (1985).

6

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008).

7

Charles W. Downey, 54 ECAB 421 (2003).

3

ANALYSIS
The Office accepted that on June 7, 2006 the employee sustained left median nerve
entrapment and left ulnar nerve entrapment due to unscrewing a frozen lug nut on a wheel while
changing a flat tire. Appellant claimed that the employee’s death on February 16, 2009 was
related to his accepted employment injuries, but she did not submit sufficiently rationalized
medical evidence to establish that the accepted conditions contributed to the employee’s death.
On February 16, 2009 Dr. Bush, an attending Board-certified internist, advised that the
immediate causes of the employee’s death were failure to thrive and peripheral vascular disease.
Other significant conditions were neuropathy and renal insufficiency. On May 27, 2009 he
stated that the employee’s accepted left hand injury with neuropathy pain contributed to a
diagnosis of depression resulting in a “failure to thrive” and death on February 16, 2009.
Dr. Bush did not provide sufficient medical rationale to support his opinion that the employee
had depression as a consequence of his left-sided neuropathy. His opinion is not based on a
complete factual and medical history because he did not provide any notable discussion of the
employee’s work-related left arm and hand conditions or explain why they were sufficient to
contribute to depression. Dr. Bush did not provide any review of the employee’s psychiatric
history and he did not adequately explain how the employee’s psychiatric condition was not due
to factors other than his left arm and hand pain. Even if it were accepted that the employee’s
depression was work related, Dr. Bush did not explain how the depression contributed to the
employee’s death, particularly in light of the other medical conditions identified at the time of
death.
In a January 20, 2009 report, Dr. Kuhn, a clinical psychologist, described her initial
evaluation of the employee on September 26, 2008 for symptoms of depression. She noted that
the employee had difficulty adjusting to a long-term care facility with multiple symptoms.
Dr. Kuhn mentioned the June 7, 2006 work injury and stated that it was plausible that the hand
injury and concomitant pain might have been related to the diagnosed depression. However, this
opinion on causal relationship is of limited probative value because it is speculative in nature.
Dr. Kuhn did not provide a complete history of the employee’s work-related left arm and hand
condition or his psychiatric condition. She did not adequately explain what factors contributed
to the diagnosis or whether his placement in a long-term care facility related to the subsequently
diagnosed depression. In a November 9, 2007 report, Dr. Carlson, an attending Board-certified
internist, noted that the employee had left hand pain. She opined that the pain disrupted sleep
and the sleep disruption resulted in depression. Dr. Carlson also did not provide adequate
medical rationale in support of her conclusion on causal relationship. She did not describe any
findings on examination or diagnostic testing that addressed the severity of the employee’s left
arm and hand conditions or explain how other doctors related to the employee’s depression.8
For these reasons, appellant did not show that the employee’s death on February 16, 2009
was a consequence of his accepted employment injuries and the Office properly denied the claim
for survivor’s benefits.
8

On appeal, appellant argued that a consequential chain between the employee’s depression and work factors was
shown by the fact that his mood worsened after he sustained his work injury. However, appellant’s opinion on
medical matters would be of no probative value.

4

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that the
employee’s death on February 16, 2009 was related to his accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 27, 2009 is affirmed.
Issued: October 4, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5