United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 12-141
Issued: July 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERLD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 28, 2011 appellant filed a timely appeal from an October 12, 2011 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 whether: (1) OWCP met its burden of proof to terminate appellant’s
compensation benefits effective February 14, 2010; (2) appellant established that she had
continuing disability or residuals relating to her accepted neck sprain/strain after February 14,
2010; and (3) appellant established that the conditions of memory loss and tension headaches are
causally related to the October 9, 2005 work injury.
FACTUAL HISTORY
On October 9, 2005 appellant, then a 44-year-old practical nurse, claimed sharp radiating
pain from the back of her neck to her left shoulder while pulling up and repositioning a patient.
1

5 U.S.C. §§ 8101-8193.

OWCP accepted the claim for sprain/strain of the neck and paid benefits. Appellant stopped
work on October 10, 2005 and made several short-lived attempts to return to limited duty. She
resigned effective June 2, 2006. The employing establishment was unable to accommodate
appellant’s restrictions and she received wage-loss compensation on the periodic rolls.
Appellant’s treating physicians advised that she remained symptomatic due to the
October 9, 2005 work injury. The medical evidence addresses diagnoses not accepted as
employment related: possible cervical radiculopathy; aggravation of underlying spinal
degenerative joint disease; possible cervical disc herniation; internal derangement of the
shoulder; and tendinosis. In a January 23, 2008 report, Dr. Richard H. Kaplan, a Board-certified
physiatrist, stated that a recent cervical magnetic resonance imagining (MRI) scan showed
multiple disc herniations that accounted for appellant’s symptoms. He stated that she was
symptomatic and remained disabled.
On May 21, 2008 OWCP advised appellant that she was rescheduled to see Dr. Kevin F.
Hanley, a Board-certified orthopedic surgeon, on May 20, 2008.2 In a May 20, 2008 report,
Dr. Hanley provided a history of the October 9, 2005 work injury and described appellant’s
treatment. He opined that the examination was normal and did not support any subjective
symptomatology. Dr. Hanley commented on the diagnostic tests at the time of original injury
but did not have a copy of the most recent cervical MRI scan study. He diagnosed a history of
cervical sprain/strain and found that, at most, appellant had cervical degenerative disease with a
short episode of radicular symptomatology. Dr. Hanley stated that appellant was fit for duty,
needed no further medical treatment and had no work restrictions. He opined that symptom
magnification and secondary gain played a role in her symptoms.
OWCP found a conflict of medical opinion between Drs. Hanley and Kaplan as to
appellant’s ongoing residuals and disability. It referred her to Dr. Scott Rushton, a Boardcertified orthopedic surgeon, for an impartial examination. In an August 7, 2008 report,
Dr. Rushton noted the history of appellant’s work injury and that she had not been actively
treated since March 2008. He provided examination findings, including a description and
measurements of range of motion, strength and neurologic testing. Dr. Rushton commented on
pertinent medical records including a December 19, 2007 cervical MRI scan, which identified
diffuse cervical disease. He could not relate appellant’s ongoing symptoms to the October 9,
2005 cervical strain. Dr. Rushton opined that appellant’s current condition was related to
underlying and preexisting cervical degenerative disc disease. He found that appellant reached
maximum medical improvement for her cervical spine strain diagnosis and needed no further
treatment. Dr. Rushton advised that she could return to full unrestricted activities and that she
was capable of returning to her preinjury work.
On February 13, 2009 OWCP proposed to terminate appellant’s compensation benefits
on the grounds that Dr. Rushton’s opinion established that the injury-related conditions and
disability had ceased. In a March 13, 2009 letter, appellant disagreed with the proposed
termination and submitted a December 21, 2007 cervical MRI scan report and medical treatment
records beginning February 2009.

2

The May 1, 2008 statement of accepted facts did not include information regarding appellant’s work status
following the work injury or describe the physical requirements of appellant’s date-of-injury job.

2

By decision dated March 20, 2009, OWCP terminated appellant’s benefits effective
April 12, 2009.
On April 17, 2009 appellant requested a review of the written record. She provided
arguments and additional documentation of medical treatment.3
In a July 24, 2009 decision, an OWCP hearing representative set aside the March 20,
2009 decision. She noted that Dr. Hanley’s opinion was not sufficiently rationalized to create a
conflict in medical opinion. As such, Dr. Ruston could not be considered an impartial specialist.
The hearing representative found that Dr. Rushton’s opinion was sufficient to create a medical
conflict with Dr. Kaplan as to the extent of any injury-related residuals and disability. The
hearing representative directed OWCP to update the statement of accepted facts and reinstate
appellant’s compensation.
On remand, OWCP updated its statement of accepted facts on January 11, 2010. It
referred appellant to Dr. Donald Mauldin, a Board-certified orthopedic surgeon, for an impartial
medical evaluation. In a February 15, 2010 report, Dr. Mauldin reviewed the history of injury,
the medical records and set forth findings on physical examinations. He provided an impression
of status post cervical strain, development of chronic cervical-type syndrome. Dr. Mauldin
stated that appellant’s diagnosis was established years prior as a cervical strain. Appellant was
found to have primarily multilevel degenerative disc disease that preexisted the cervical strain.
Dr. Mauldin stated that there had not been any clear-cut documentation of a major disc
herniation or major spinal cord compression or neurological symptoms and she had been treated,
for the most part, as a chronic cervical syndrome. Based on his review of the record and
appellant’s prior complaints, Dr. Mauldin found that appellant had a cervical strain that may
have transiently aggravated some exiting nerve roots, but had stabilized well before his
examination. He stated that there was nothing in the record to indicate that the particular
mechanism of injury resulted in major damage to her cervical spine or caused permanent
problems and disability. Dr. Mauldin found that appellant had been capable of returning back to
work status within a two- to three-month period of time following the injury. Based on the
clinical examination and diagnostic studies, there was nothing to support that appellant was
totally disabled secondary to a cervical strain superimposed upon preexisting multilevel cervical
spondylosis. Following a functional capacity evaluation of February 22, 2010, Dr. Mauldin
concluded that appellant could return to work full time.
In a March 1, 2010 decision, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective February 14, 2010 based on Dr. Mauldin’s opinion.
In a March 29, 2010 letter, appellant requested a review of the written record.
By decision dated July 28, 2010, an OWCP hearing representative affirmed the March 1,
2010 decision. The hearing representative found that appellant raised issues as to whether her
conditions of tension headaches and memory loss were work related. The hearing representative
directed OWCP to modify the statement of accepted facts to ensure an adequate factual
background and, if OWCP deemed it warranted, to supply the amended statement of accepted
facts to Dr. Mauldin for a supplemental opinion concerning continuing work-related disability.
3

The evidence included a March 27, 2009 report from Dr. Yanko Yankov, a Board-certified neurologist, who
noted findings and diagnosed cervical spondyloarthrosis, cervical radiculopathy, cervicogenic headaches in possible
combination with migraine headaches, and possible cerebellar arachnoical cyst or cistema magna.

3

The hearing representative also requested OWCP to determine whether the claim had been
accepted for tension headaches or memory loss and whether additional development was
warranted to determine residual work-related disability due to those conditions.
In a November 6, 2010 letter, appellant requested reconsideration. She provided
arguments and cited to medical information by the physicians of record. Appellant submitted a
March 18, 2010 right lower extremity Doppler venogram and a February 22, 2011 report in
which Dr. Yankov provided an impression of cervical trauma with post-traumatic cervical pain,
into the thoracal region and both upper extremities, low back pain and right knee and right
plantar pain.
On March 30, 2011 OWCP amended the statement of accepted facts.
In an April 4, 2011 decision, OWCP denied modification of its July 28, 2010 decision.
Based on the medical evidence of record, the conditions of tension headaches and memory loss
were not accepted as employment related. Therefore, further development was not necessary.
On September 19, 2011 appellant requested reconsideration. She argued that OWCP
should have requested clarification from Dr. Mauldin when it modified the statement of accepted
facts. Appellant asserted that the record substantiated her residual chronic headaches, cervical
strain/sprain, cervical spondylosis, multiple disc herniation, cervical radiculopathy, neuropathy,
cervicogenic headaches and cervical facet arthropathy. She contended that the evidence was
sufficiently supportive of her claim to warrant further development. Appellant submitted a
March 20, 2010 nerve conduction study/electromyogram report and a June 13, 2011
rehabilitation plan. In a June 13, 2011 report, Dr. Vance Zachary, Board-certified in family
medicine, and Dr. Richard Wilson, a Board-certified physiatrist, noted findings and diagnosed a
cervical disc with radiculopathy; spasm, decreased range of motion and segmental instability of
the cervical spine. Surgery was recommended.
In an August 28, 2011 report, Dr. Stuart J. Glassman, a Board-certified physiatrist,
reviewed a history of the 2005 work injury and opined that appellant sustained a cervical strain
injury with temporary exacerbation of preexisting cervical degenerative disc disease on
October 9, 2005.4 Imaging studies demonstrated that there was cervical spondylosis but no disc
herniations as of January 2010. A physical examination in March 2009 showed no evidence of
any cervical radiculopathy or any abnormal strength, sensation or reflexes. It appeared appellant
had a lumbar strain injury in 2005 but did not receive ongoing regular treatment. She had
ongoing treatment for her neck complaints, but the majority of the treatments recently were for
her underlying cervical degenerative disc disease. Dr. Glassman did not find there was any
aggravation of her preexisting cervical degenerative disc disease due to the events of
October 9, 2005. He opined appellant had five percent impairment based upon the cervical strain
and temporary exacerbation of preexisting degenerative disc disease. Appellant had ongoing
nonverifiable radicular complaints without any objective findings and no alteration of structural
integrity from the work injury itself.

4

Dr. Glassman’s report indicates that he reviewed the medical record but does not indicate that he conducted an
examination of appellant.

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By decision dated October 12, 2011, OWCP denied modification of its April 4, 2011
decision. It also found that the medical evidence of file did not support that the conditions of
memory loss and tension headaches were ever accepted.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.5 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment.6 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.7 The right to
medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.8 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.9
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.10 This is called a referee examination and OWCP will select a
physician who is qualified in the inappropriate specialty and who has no prior connection with
the case.11 When there exists opposing medical reports of virtually equal weight and rationale
and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.12
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a sprain/strain of her neck due to an October 9,
2005 lifting incident at work. Appellant stopped work and was placed on the periodic rolls. In a
decision dated March 20, 2009, OWCP originally terminated her compensation benefits effective
April 12, 2009. On July 24, 2009 an OWCP hearing representative set aside the March 20, 2009
decision finding that Dr. Hanley’s referral opinion was not sufficient to create a medical conflict
5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
7

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

8

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
9

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.

10

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
11

5 U.S.C. § 8123; 20 C.F.R. § 10.321.

12

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

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with Dr. Kaplan. Therefore, Dr. Rushton served as a second opinion examiner and created a
conflict with appellant’s physicians. On remand, OWCP updated its statement of accepted facts
and referred appellant to Dr. Mauldin for an impartial medical evaluation. By decision dated
March 1, 2010, it terminated appellant’s compensation benefits effective February 14, 2010
based on the impartial opinion of Dr. Mauldin.
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits as of February 14, 2010 based on the February 15, 2010 report of
Dr. Mauldin, the impartial specialist, who reviewed appellant’s medical history and a statement
of accepted facts. On examination, Dr. Mauldin found no objective evidence of ongoing
residuals or disability due to the accepted neck sprain/strain. He also found no evidence for
other conditions or residuals related to appellant’s employment. Dr. Mauldin stated that, while
the cervical strain may have temporarily aggravated some exiting nerve roots, the records did not
establish any damage to her cervical spine or permanent residuals. He found that appellant was
not totally disabled. Her symptoms were secondary to preexisting multilevel cervical
spondylosis. Dr. Mauldin also reviewed a February 22, 2010 functional capacity evaluation and
concluded that appellant could return to work full time without restrictions.
The Board finds that Dr. Mauldin’s report represents the weight of the medical evidence.
OWCP properly relied on his report in terminating appellant’s benefits. The Board finds that
Dr. Mauldin had full knowledge of the relevant facts and evaluated the course of appellant’s
condition. He is a specialist in the appropriate field. Dr. Mauldin’s opinion is based on proper
factual and medical history and his report contained a detailed summary of this history. He
addressed the medical records to make his own examination findings to reach a reasoned
conclusion regarding appellant’s condition.13 At the time benefits were terminated, Dr. Mauldin
found no basis on which to attribute any residuals or continued disability to her October 9, 2005
work injury. His opinion as set forth in his February 15, 2010 report is found to be probative
evidence and reliable. The Board finds that Dr. Mauldin’s opinion constitutes the special weight
of the medical evidence and is sufficient to justify OWCP’s termination of benefits for the
accepted condition.
Appellant contends that OWCP erred by not requesting clarification from Dr. Mauldin
after it modified the statement of accepted facts. While OWCP modified its statement of
accepted facts with regard to appellant’s employment history following the work-related injury,
this did not affect Dr. Mauldin’s opinion regarding the nature and extent of her continuing workrelated medical residuals or disability. A review of Dr. Mauldin’s report establishes that he was
aware of the relevant facts and was based on an accurate history. For these reasons, his report
represents the special weight of the medical evidence and establishes that appellant no longer has
residuals of her accepted cervical sprain/strain. Dr. Mauldin found no basis on which to attribute
any other condition to appellant’s employment.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to appellant to establish that she had disability causally related to her accepted
13

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).

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employment injury.14 To establish a causal relationship between the condition, as well as any
disability claimed and the employment injury, appellant must establish by the weight of the
reliable, probative and substantial evidence that she had an employment-related disability, which
continued after termination of compensation benefits.15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continuing residuals of
her work-related neck sprain/strain on or after February 14, 2010.
After OWCP’s termination of her compensation benefits, appellant submitted additional
evidence including diagnostic test reports and a June 13, 2011 rehabilitation plan. These reports
are of limited probative value on the issue of causal relationship as they did not contain a
physician’s opinion addressing whether the conditions were causally related to the accepted work
injury.16 In a November 22, 2011 report, Dr. Yankov set forth diagnoses and in their June 13,
2011 report, Drs. Zachary and Wilson also noted diagnoses and recommendations. These reports
are insufficient as neither Dr. Yankov nor Drs. Zachery and Wilson offered any opinion
regarding the cause of appellant’s conditions or provided an explanation regarding whether
appellant’s conditions were causally related to her accepted October 9, 2005 work injury.
In his August 28, 2011 report, Dr. Glassman reviewed appellant’s file regarding the work
injury. While he opined she had a cervical strain injury and temporary exacerbation of
preexisting cervical degenerative disc disease on October 9, 2005, he found subsequent imaging
studies demonstrated there was cervical spondylosis but found there were no disc herniations as
of January 2010 and there was no evidence of any cervical radiculopathy or any abnormal
strength, sensation or reflexes as of her March 2009 physical examination. Dr. Glassman stated
that appellant’s recent treatments had been for her underlying cervical degenerative disc disease
and specifically opined there was no aggravation related to the October 9, 2005 work injury.
None of the reports submitted by appellant after the termination of benefits included a
rationalized opinion regarding the causal relationship between her current symptoms and her
accepted work-related neck condition. Thus, the Board finds that she did not establish that she
had any employment-related residuals or disability after February 14, 2010.
LEGAL PRECEDENT -- ISSUE 3
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.17 Causal relationship is a
medical issue, and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence.18 Rationalized medical opinion evidence is medical
14

Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001); George Servetas, 43 ECAB
424, 430 (1992).
15

I.J., 59 ECAB 408 (2008).

16

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

17

See Katherine J. Friday, 47 ECAB 591 (1996).

18

John J. Montoya, 54 ECAB 306 (2003).

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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.19 The opinion of the physician must be based on a complete factual and medical
background of the claimant,20 must be one of reasonable medical certainty21 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.22
ANALYSIS -- ISSUE 3
In a July 28, 2010 decision, the hearing representative remanded the case for OWCP to
determine whether the claim had been accepted for tension headaches and memory loss or
whether additional development was warranted.23 In decisions dated April 4 and October 12,
2011, OWCP found that the medical evidence of file did not support that memory loss or tension
headaches were ever accepted, but it did not set forth a discussion of any of the medical evidence
which noted those conditions. Section 8124(a) of FECA provides that OWCP shall determine
and make a finding of fact and make an award for or against payment of compensation.24
OWCP’s regulations at section 10.126 of Title 20 of the Code of Federal Regulations provide
that OWCP’s decision “shall contain findings of fact and a statement of reasons.”25 Moreover,
the procedure manual provides that the reasoning behind OWCP’s evaluation should be clear
enough for the reader to understand the precise defect of the claim and the evidence which would
overcome it.26
OWCP did not discharge its responsibility to clearly set forth findings of fact and a
statement of reasons explaining the disposition so that appellant could understand why the
conditions were not accepted. The case will be returned to OWCP for a proper decision which
includes findings of fact and a precise statement regarding the basis for the decision with regard
to the nonaccepted conditions. Following this and such further development as OWCP deems
necessary, it shall issue a de novo decision on this issue.
CONCLUSION
The Board finds that OWCP met is burden of proof to terminate compensation benefits
and that appellant did not establish that she had any continuing residuals disability related to her
19

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

20

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

21

See Montoya supra note 18.

22

Judy C. Rogers, 54 ECAB 693 (2003).

23

With respect to additional employment-related conditions, the Board notes that Dr. Mauldin, the impartial
medical specialist whom OWCP accorded special weight in terminating appellant’s compensation benefits, was not
asked and did not address the causal relationship of tension headaches or memory loss to her employment injury.
24

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

25

20 C.F.R. § 10.126. See also O.R., 59 ECAB 432 (2008); Teresa A. Ripley, 56 ECAB 528 (2005); M.L.,
Docket No. 09-956 (issued April 15, 2010).
26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(e) (March 1997).

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accepted condition after February 14, 2010. The case is remanded for further development with
regard to whether appellant’s tension headaches and memory loss are employment related.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 12, 2011 is affirmed in part and set aside in part for further action
consistent with this decision.
Issued: July 12, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Casper, WY, Employer
__________________________________________

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

Docket No. 11-782
Issued: September 29, 2011

Case Submitted on the Record

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

JURISDICTION
On February 8, 2011 appellant filed a timely appeal from the October 22, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 left hip injury while in the performance of duty
on December 15, 2009.
FACTUAL HISTORY
On December 18, 2009 appellant, a 72-year-old field representative, filed a traumatic
injury claim alleging that he sustained injuries to his left hip when he slipped and fell on ice on
December 15, 2009 while walking to a trailer in winds gusting up to 35 miles a hour.
1

5 U.S.C. § 8101 et seq.

Appellant submitted physical therapy notes from Dr. Tim Klinker, a treating physician,
for the period December 18, 2009 through April 12, 2010. Dr. Klinker diagnosed “left hip
pain/trauma,” with an onset date of December 15, 2009, prescribed occupational and physical
therapy two to three times a week and ordered an x-ray of the left hip. He noted that on
December 15, 2009 appellant slipped and fell on ice, landing on his left hip. Appellant
complained of some hip pain while sitting; however, Dr. Klinker observed no bruising or
deformity on examination. A December 18, 2009 x-ray of the pelvis and left hip revealed
well-preserved joint space; no significant deformity; no acute fracture or dislocation; and no
radiographic evidence of acute bony injury.
On January 27, 2010 Dr. Klinker prescribed continued physical therapy and the use of a
transcutaneous electrical nerve stimulator unit for pain. On April 12, 2010 he diagnosed left hip
pain and recommended continued physical therapy two to three times a week.
Appellant submitted physical therapy notes dated December 18, 2009 through April 29,
2010, signed by a physical therapist. The December 18, 2009 report of the initial physical
therapy evaluation indicated that he slipped on ice and fell on his left hip on December 15, 2010.
In a letter dated September 13, 2010, OWCP informed appellant that the information
submitted was insufficient to establish his claim and allowed him 30 days to submit additional
information, including a detailed account of the alleged injury and a physician’s report, with a
diagnosis and a rationalized opinion as to the cause of the diagnosed condition.
In a December 18, 2009 attachment to the Form CA-1 claim, appellant noted that, on the
date in question, he slipped and fell on ice under snow as he was walking to a trailer door in
wind gusts up to 30 miles a hour.
Appellant submitted a February 25, 2010 monthly physical therapy reevaluation, signed
by Dr. Klinker, who repeated his diagnosis of left hip pain.
In an August 28, 2010 statement, appellant noted that his left hip was still painful, but
that his condition had improved. He reported that he had received a course of physical therapy,
as prescribed by Dr. Klinker following a left hip x-ray.
By decision dated October 22, 2010, OWCP denied appellant’s claim. It accepted that
the December 15, 2009 work incident occurred as alleged, but found that the medical evidence
provided was insufficient to establish that he had sustained an injury under FECA on
December 15, 2009.
On appeal, appellant states that his claim is based on his being hurt on the job. He
contends that he completed the proper paperwork, followed his physician’s instructions and had
no idea that there was a problem with his claim.

2

LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.2 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.3
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period, that an injury was sustained in the performance of duty as alleged and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 When an employee claims that he sustained a traumatic injury in the
performance of duty, he must establish the fact of injury, consisting of two components, which
must be considered in conjunction with one another. The first is whether the employee actually
experienced the incident that is alleged to have occurred at the time, place and in the manner
alleged. The second is whether the employment incident caused a personal injury and generally
this can be established only by medical evidence.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship.7 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 a causal relationship.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under FECA.9

2

Id. at § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum,
1 ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

See also Tracey P. Spillane, 54 ECAB 608 (2003); Deborah L. Beatty, 54 ECAB 340 (2003). Betty J. Smith, 54
ECAB 174 (2002). The term injury as defined by FECA, refers to a disease proximately caused by the employment.
5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q)(ee).
6

Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Id.

9

20 C.F.R. § 10.303(a).

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.10
ANALYSIS
OWCP accepted that appellant was a federal employee who timely filed his claim for
compensation benefits and that the December 15, 2009 workplace incident occurred as alleged.
The issue is whether appellant submitted sufficient medical evidence to establish that the
employment incident caused an injury. The medical evidence of record does not contain a
rationalized medical opinion explaining how the work incident caused or aggravated a left hip
condition or disability. Therefore, appellant has failed to meet his burden of proof.
On December 18, 2009 Dr. Klinker diagnosed “left hip pain/trauma,” with an onset date
of December 15, 2009, prescribed occupational and physical therapy two to three times a week
and ordered an x-ray of the left hip. He noted that on December 15, 2009 appellant slipped and
fell on ice, landing on his left hip. Dr. Klinker did not provide a definitive diagnosis pertaining
to the left hip condition. The Board has held that pain is generally a symptom, not a firm
medical diagnosis and, without objective physical or diagnostic findings to support a condition
causing the pain, is not compensable under FECA.11 Although Dr. Klinker generally noted that
appellant injured himself when he fell, Dr. Klinker did not provide an opinion as to the cause of
appellant’s condition. Medical evidence which does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value.12 Dr. Klinker did not adequately explain
how the accepted incident caused the claimed left hip injury. Therefore, his reports are of
diminished probative value and insufficient to establish causal relationship.13 In follow-up
reports, Dr. Klinker repeated his diagnosis of left hip pain but did not further provide a
rationalized opinion as to the cause of appellant’s condition.

10

John W. Montoya, 54 ECAB 306 (2003).

11

See Robert Broome, 55 ECAB 493 (2004); John L. Clark, 32 ECAB 1618 (1981).

12

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

13

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

4

Appellant submitted physical therapy notes for the period December 18, 2009 through
April 29, 2010. As physical therapists do not qualify as “physicians” under FECA, the Board
finds that these reports do not constitute probative medical evidence.14
The remaining medical evidence of record, including disability slips, x-rays and test
results that do not contain a diagnosis or an opinion as to the cause of appellant’s condition, is of
limited probative value.
Appellant expressed his belief that his left hip condition resulted from the December 15,
2009 employment incident. The Board has held that the mere fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.15 Neither the fact that the condition became apparent during a period of
employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.16 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, appellant’s belief that his condition was caused by the work-related incident
is not determinative.
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to
submit sufficient medical documentation. He has not met his burden of proof to establish that he
sustained an injury in the performance of duty causally related to the accepted incident of
December 15, 2009.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on December 15, 2009.

14

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides
as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J.
Sills, 39 ECAB 572, 575 (1988).
15

See Joe T. Williams, 44 ECAB 518, 521 (1993).

16

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 29, 2011
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0554
Issued: October 1, 2018

Case Submitted on the Record

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

JURISDICTION
On January 19, 2018 appellant filed a timely appeal from an October 25, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed since the last merit decision, dated January 30, 2008, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.3

1

The Board notes that appellant submitted additional evidence after OWCP rendered its October 25, 2017 decision.
The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§510.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
2

5 U.S.C. § 8101 et seq.

3

20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 2, 2007 appellant, then a 47-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that, on March 28, 2006, she sustained a right knee injury when
her supervisor bumped into her, causing her to stumble backwards.4 She also alleged that a
different supervisor shoved her hand into metal casing, causing her to injure her third right finger
knuckle. Appellant did not stop work.
By letter dated February 7, 2007, the employing establishment controverted the claim and
argued that appellant filed her Form CA-1 eight months after the alleged injury.
By development letter dated March 30, 2007, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. Appellant was advised of the medical and factual
evidence needed to establish her claim. OWCP afforded her 30 days to submit the necessary
evidence.
In a March 9, 2007 narrative statement, appellant reported that on March 28, 2006 her
supervisor came “barreling into her casing,” causing her to stumble backwards and injure her right
knee. She further reported that, on that same date, another supervisor “shoved” her hand into the
metal casing, causing injury to her right finger. Appellant stated that she delayed seeking medical
attention due to an illness and death of a family member.
In an April 5, 2007 narrative statement, appellant responded to OWCP development letter
and reported that she delayed in filing her claim because she was unaware of the process, but had
reported the injury to her supervisor.
In support of her claim, appellant also submitted medical reports dated July 31, 2006
through April 23, 2007.
By decision dated July 16, 2007, OWCP denied appellant’s claim, finding that the evidence
of record failed to establish that the March 28, 2006 employment incident occurred as alleged.

4
On July 1, 2006 appellant filed a Form CA-1 alleging a March 17, 2006 injury when a coworker shot rubber bands
at her and almost knocked her down with his hamper. She also alleged discrimination and harassment, OWCP File
No. xxxxxx736. This claim was denied by OWCP.

On February 2, 2007 appellant filed a Form CA-1 alleging that, on March 18, 2006, she sustained a left calf injury
when a coworker shot her with four rubber bands, leaving marks on her left calf, OWCP File No. xxxxxx760. This
claim was denied by OWCP.
On February 2, 2007 appellant filed another Form CA-1 alleging that, on June 8, 2006, she sustained an injury to
her right knee when a coworker aggressively bumped his hamper into hers, OWCP File No. xxxxxx768. This claim
was also denied by OWCP.

2

On July 30, 2007 appellant requested a hearing before an OWCP hearing representative.
In a statement received on July 27, 2007, appellant alleged that she was fraudulently fired
after she complained of hostile work conditions on June 9, 2006. She alleged fraud on the part of
her supervisors and noted an equal employment opportunity complaint had been filed. Appellant
also discussed filing Form CA-2’s for other work-related injuries.
Appellant submitted various narrative statements previously received addressing
allegations of harassment and a hostile work environment, as well as medical reports dated
April 23 and 26, and June 13, 2006.
A hearing was held on December 12, 2007 during which appellant reiterated her allegations
surrounding the March 28, 2006 incident. She reported that she did not file a timely complaint
because she feared for her job. Appellant further stated that her employment was terminated in
June 2006 based on allegations that she mishandled mail, and she was ﬁghting to get her job back.
She further stated that she delayed ﬁling a claim for beneﬁts because she was unaware of her right
to ﬁle a claim and her employer interfered with handling of the claim forms.
By decision dated January 30, 2008, an OWCP hearing representative affirmed the July 16,
2007 decision, finding that appellant failed to establish that the March 28, 2006 employment
incident occurred as alleged. He noted that it could not accept fact of injury due to inconsistencies
in the evidence casting serious doubt as to whether the specific event or incident occurred at the
time, place, and in the manner alleged.5
By letter dated September 29, 2017, received by OWCP on October 2, 2017, appellant
requested reconsideration. She argued that she was employed as a rural carrier from March 17
through June 8, 2006 and was assaulted and harassed, creating a hostile work environment.
Appellant reported that she was fraudulently terminated after she complained of her hostile work
environment. She noted that on March 18, 2006, she was harassed and injured when a coworker
shot her with rubber bands. Appellant further reported that on March 28, 2006 she was almost
knocked to the ground by her supervisor, causing her to stumble backwards. On that same date,
another supervisor intentionally shoved her hand into the metal casing. Appellant reported that
she was seeking reconsideration for her claims since all of her work-related injury claims had been
denied. She alleged that she continued to suffer from pain and stiffness as a result of her workrelated injury.
By decision dated October 25, 2017, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

OWCP’s hearing representative noted that appellant ﬁled a loss of property report on November 28, 2006, eight
months after the March 28, 2006 incident, which represented her ﬁrst report of the alleged incident. Appellant did not
file her Form CA-1 until February 2, 2007. The hearing representative further noted that the medical reports of record
made no mention of a right knee injury until August 28, 2006 and made no mention of a right hand injury until
November 15, 2006. He explained that there was no conﬁrmation of the injury within the factual or medical
documents contemporaneous to the injury, and that the claim was filed long after appellant’s employment was
terminated for reasons unrelated to the injury.
5

3

LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.6
Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the “received date” in the Integrated Federal Employees’ Compensation System.7
The Board has found that the imposition of the one-year limitation does not constitute an abuse of
the discretionary authority granted OWCP under section 8128(a) of FECA.8
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation, if the claimant’s application for review demonstrates clear evidence of error on the part
of OWCP in its most recent merit decision. To demonstrate clear evidence of error, a claimant
must submit evidence relevant to the issue decided by OWCP. The evidence must be positive,
precise, and explicit and it must manifest on its face that OWCP committed an error.9
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.10
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to demonstrate clear evidence of error.11 It is not enough merely to show
that the evidence could be construed so as to produce a contrary conclusion.12 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence demonstrates
clear error on the part of OWCP.13 The Board makes an independent determination as to whether
a claimant has submitted clear evidence of error on the part of OWCP.14
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed within the one-year time limitation period set forth in 20 C.F.R.
§ 10.607. The last merit decision of record in the present claim file was OWCP’s January 30, 2008
6

20 C.F.R. § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (February 2016).

8

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

9

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

10

Annie L. Billingsley, 50 ECAB 210 (1998).

11

Jimmy L. Day, 48 ECAB 652 (1997).

12

Id.

13

Id.

14

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

4

decision. Appellant’s request for reconsideration was received by OWCP on October 2, 2017.
Since the reconsideration request was received more than one year after the January 30, 2008 merit
decision, it was untimely filed. Consequently, appellant must demonstrate clear evidence of error
by OWCP in denying her claim.15
The Board further finds that appellant has failed to demonstrate clear evidence of error on
the part of OWCP in issuing its September 30, 2008 decision.
OWCP denied appellant’s claim as she had not established that the alleged incident
occurred as alleged. In requesting reconsideration, appellant failed to submit any evidence other
than her own statement which repeated her prior account of the March 28, 2006 employment
incident.
Appellant failed to submit the type of positive, precise, and explicit evidence which
manifests on its face that OWCP committed an error in its January 30, 2008 decision.16 She failed
to submit any evidence or argument to raise a substantial question concerning the correctness of
OWCP’s decision.17 The Board notes that clear evidence of error is intended to represent a difficult
standard.18 In the instant case, appellant’s statement requesting reconsideration is insufficient to
establish that OWCP erred in its denial of her claim.19
Appellant did not submit the type of positive, precise, and explicit evidence that manifests
on its face that OWCP committed an error.20 Thus, she did not establish clear evidence of error in
the denial of her traumatic injury claim.21
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

15

See Debra McDavid, 57 ECAB 149 (2005).

16

G.B., Docket No. 13-1557 (issued October 29, 2013).

17

J.J., Docket No. 13-1363 (issued November 6, 2013).

18

Supra note 7 at Chapter 2.1602.5 (February 2016).

19

See W.R., Docket No. 09-2336 (issued June 22, 2010).

20

J.T., Docket No. 10-0313 (issued February 24, 2010).

21

B.B., Docket No. 08-0232 (issued August 7, 2008).

5

ORDER
IT IS HEREBY ORDERED THAT the October 25, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, WAPPINGERS FALLS )
POST OFFICE, Wappingers Falls, NY, Employer )
__________________________________________ )
M.M., Appellant

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

Docket No. 19-1914
Issued: April 9, 2021

Case Submitted on the Record

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

JURISDICTION
On September 16, 2019 appellant filed a timely appeal from an August 26, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $17,634.11 for the period January 1, 2018 through
March 2, 2019, for which he was not at fault, as he concurrently received FECA wage-loss
1
The Board notes that, following the August 26, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

compensation and Social Security Administration (SSA) age-related retirement benefits without
an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly required recovery of the overpayment by deducting $489.84
every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On December 7, 2011 appellant, then a 55-year-old rural letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on that date he injured his lower back when lifting the rear
cargo door of his truck while in the performance of duty. He stopped work on that date. On
December 19, 2011 OWCP accepted appellant’s claim for lumbar sprain. On December 13, 2013
it entered him on the periodic rolls for wage-loss compensation effective January 22, 2012.
On February 8, 2019 OWCP received a completed Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form from SSA, which reported that appellant had been in
receipt of SSA age-related retirement benefits since January 2018. The form indicated that
beginning January 2018 appellant’s SSA benefit rate with FERS was $2,081.10 and without FERS
was $833.00. The form further indicated that beginning December 2018 his SSA rate with FERS
was $2,139.30 and without FERS was $856.30.
In a letter dated March 20, 2019, OWCP advised appellant that he had been receiving a
prohibited dual benefit. It noted that the SSA had confirmed that a portion of his SSA benefits
were attributed to his years of federal service as an employee under the FERS retirement program
and that portion required an offset of his FECA compensation benefits. Specifically, OWCP
indicated:
“According to the Social Security Administration your current monthly benefit
amount is $2,139.30. However, the Social Security Administration has also
determined that, if your Federal service was not included in your [S]ocial [S]ecurity
computation, you would only be entitled to $856.30. Therefore, your Federal
service has increased your monthly [S]ocial [S]ecurity payment by $1,283.00. This
difference of $1,283.00 is the portion of [S]ocial [S]ecurity benefit amount
attributed to Federal services and is the amount that must be offset against your
compensation benefits.” (Emphasis in the original.)
OWCP further indicated:
“Since [S]ocial [S]ecurity benefits are paid monthly (12 payments per year), and
compensation benefits are paid every 28 days (13 payments per year), the monthly
offset amount of $1,283.00 must be adjusted to a 28[-]day payment cycle of
$1,184.31. Accordingly, the offset of your compensation payments in the amount
of $184.3[0] will begin with your payment dated 03/30/2019. Your new net
compensation payment will be $1,509.59.”
On May 22, 2019 OWCP issued a preliminary overpayment determination notifying
appellant that he had received an overpayment of compensation in the amount of $17,634.11
because he received FECA wage-loss compensation benefits concurrently with SSA age-related

2

retirement benefits for the period January 1, 2018 through March 2, 2019, without an appropriate
offset. It explained that it had calculated the overpayment of compensation by determining the
difference between his SSA amount with and without FERS for each period, and then multiplying
that amount by the number of days in each period. The FERS offset calculation worksheet
indicated that OWCP had utilized a 28-day FERS offset amount of $1,152.09 from January 1
through November 30, 2018, and $1,184.31 from December 1, 2018 through March 2, 2019.
Using these figures, OWCP calculated that the total overpayment amount was $17,634.11. It
further found that appellant was without fault in the creation of the overpayment. OWCP requested
that he complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation. Additionally, it notified appellant that, within 30 days of the
date of the letter, he could request a final decision based on the written record or request a
prerecoupment hearing.
In an overpayment action request form dated June 4, 2019, appellant requested that OWCP
make a decision based on the written evidence, disagreed with the amount of the overpayment,
and requested waiver as he was found without fault. At the bottom of the form appellant indicated
that he received $1,595.00 per month from SSA, not $2,139.30. In support of his contention,
appellant submitted a May 22, 2019 letter from SSA indicating that, beginning December 2018,
his full monthly SSA benefit before any deduction was $1,595.50, and that, because SSA must
round down to the whole dollar, appellant’s regular monthly SSA payment was $1,595.00.
In a completed Form OWCP-20 dated June 9, 2019, appellant indicated that he had total
monthly income of $11,895.00 including his spouse’s income of $9,800.00, SSA benefits of
$1,595.00, and Department of Veterans Affairs (VA) benefits of $500.00. He listed monthly
expenses of $10,745.00, including property tax of $1,250.00, food for $1,000.00, utilities in the
amount of $1,000.00, miscellaneous expenses of $1,000.00, and clothing for $500.00, as well as
college expenses for his children in the amounts of $5,995.00. Appellant indicated that he had
available funds of $4,725.57. He provided financial information including a portion of his 2018
federal income tax return, credit card statements, bank account balances, and tuition bills for his
two children.
On August 26, 2019 OWCP considered the financial information that appellant provided
and completed a worksheet listing his total income of $13,405.19, which included $1,595.50 in
SSA benefits, his spouse’s income of $9,800.00, FECA benefits of $1,509.69, as well as VA
benefits of $500.00. It subtracted his total expenses and determined that he had a monthly excess
of more than $2,000.00.
By decision dated August 26, 2019, OWCP finalized the preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$17,634.11 for the period January 1, 2018 through March 2, 2019 as he had received wage-loss
compensation from OWCP without an appropriate offset for SSA age-related retirement benefits
attributable to FERS. It noted his contention that an incorrect SSA rate was used in the
overpayment calculations. OWCP determined, however, that “the amounts of $2,081[.00] and
$2,139.30 [are] your FERS amounts. These amounts are not your monthly SSA benefit, but rather
the amounts that are offset by your workers’ compensation benefits due to your work in Federal
service.” It found that appellant was without fault in the creation of the overpayment. OWCP
denied waiver of recovery of the overpayment as there was no evidence that recovery would defeat

3

the purpose of FECA, finding he currently had approximately $2,000.00 income over debt each
month, which exceeded the statutory amount of $50.00 and therefore was not against equity and
good conscience. It directed recovery of the overpayment by deducting $489.84 every 28 days
from his continuing compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that fact of overpayment has been established.
The evidence of record indicates that, while appellant was receiving wage-loss
compensation benefits under FECA, he was also receiving SSA age-related retirement benefits
based upon his federal service. As noted above, a claimant cannot receive both FECA
compensation for wage loss and SSA age-related retirement benefits attributable to federal service
for the same period.7 The information provided by SSA indicated that appellant received SSA
age-related retirement benefits that were attributable to federal service during the period January 1,
2018 through March 2, 2019. Consequently, the fact of overpayment has been established.
The Board further finds, however, that the case is not in posture for decision with respect
to the amount of the overpayment. OWCP is required by statute and regulation to make findings

3

Id. at § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
6

FECA Bulletin No. 97-09 (February 3, 1997); N.B., Docket No. 18-0795 (issued January 4, 2019).

7
5 U.S.C. § 8116(d)(2); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued
May 17, 2019).

4

of fact and provide a statement of reasons.8 The Board has held that, in overpayment cases, it is
essential that OWCP provide the recipient of compensation with a clear statement showing how
the overpayment was calculated.9 Although the record establishes that appellant received SSA
age-related retirement benefits which were attributable to his federal service, it is not clear how
the amount of the overpayment was derived.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided the SSA rates with FERS and without FERS for the period
January 1, 2018 through March 2, 2019. OWCP provided its calculations for each relevant period
based on SSA’s worksheet and determined that appellant received an overpayment of
compensation in the amount of $17,634.11. However, appellant submitted documentation from
the SSA indicating that his actual SSA benefit amount differed from the amounts shown on the
SSA/FERS dual benefits calculation form. While OWCP offered an “explanation” for the
discrepancy in the SSA benefit figures used in its calculations, that explanation did insufficiently
clarify the discrepancy and contained no supporting citations to legal authority. Additionally, that
explanation differs from statements made in OWCP’s March 20, 2019 letter to appellant.
For these reasons, the Board finds that the record does not support that the overpayment
was calculated correctly for the period January 1, 2018 through March 2, 2019. Accordingly, the
Board finds that the case must be remanded to OWCP. On remand OWCP shall clarify the
discrepancy between the figures provided by SSA to OWCP and appellant. It shall then determine
the amount of the overpayment of compensation and issue a new preliminary overpayment
determination. Following this, and other such further development as deemed necessary, OWCP
shall issue a de novo decision.10
CONCLUSION
The Board finds that fact of overpayment has been established. The Board further finds
that this case is not in posture for decision regarding the amount of overpayment.

8

5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides that OWCP’s final decision shall contain findings of
fact and a statement of reasons. See also H.B., Docket No. 19-0356 (issued March 20, 2020).
9

J.M., Docket No. 18-1505 (issued June 21, 2019); Teresa A. Ripley, 56 ECAB 528 (2005).

10

In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the August 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. This case is remanded
for further proceedings consistent with this decision of the Board.
Issued: April 9, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 13-1681
Issued: March 26, 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 July 2, 2013 appellant filed a timely appeal from a March 20, 2013 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) which denied reconsideration.
Since more than one year elapsed from the last merit decision of January 7, 2005 to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the case.2
ISSUE
The issue is whether OWCP properly denied appellant’s March 1, 2013 reconsideration
request on the grounds that it was untimely filed and failed to establish clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2).

FACTUAL HISTORY
This case was previously before the Board. In a January 7, 2005 decision,3 the Board
found that appellant did not establish that she sustained a new occupational injury or a traumatic
injury to her back on or about February 11, 2000 causally related to her work duties. The Board
further found that OWCP properly declined to reopen her claim for reconsideration of the merits
on May 11, 2004. The facts of the case, as set out in the Board’s prior decision, are hereby
incorporated by reference.
The relevant facts in this case are as follows: on August 21, 2001 appellant, then a 42year-old clerk, filed a traumatic injury claim alleging that on February 11, 2000 she hurt her back
when she picked up some letters to file which had fallen on the floor. She additionally stated
that she sat on a stool which had no back support. Appellant stopped work on February 11, 2000
and did not return. She underwent nonwork-related gynecologic surgery on February 14, 2000
and was disabled from work for a short period of time. Appellant resigned from the employing
establishment on May 31, 2000.
Under claim number xxxxxx9804 OWCP accepted the conditions of bilateral plantar
fasciitis and bilateral heel spurs. Appellant received a schedule award for 19 percent permanent
impairment of each leg. She received compensation through September 23, 2004. The record
reflects that appellant was working a modified position provided by the employing establishment
at the time of her nonwork-related surgery in February 2000 and resignation on May 31, 2000.
She retired from the employing establishment on May 31, 2000 and her resignation was not
related to her accepted conditions in claim number xxxxxx980. When the schedule award
expired, appellant filed a Form CA-7 on June 27, 2006 claiming wage-loss compensation for the
period September 24, 2004 through June 27, 2006, which OWCP denied in several decisions.5
Following the Board’s January 7, 2005 decision, OWCP received a March 1, 2013 letter
from appellant requesting reconsideration under the current claim and claim number xxxxxx980.
Appellant presented several arguments.6 She discussed her claim for plantar fasciitis and heel
spurs under claim number xxxxxx980 and presented several arguments with regards to OWCP’s
decisions under that claim. Appellant addressed the denial of compensation and stated that she
was denied “an election of benefits” since September 2004. She alleged that her light-duty job
was unsuitable and that no light-duty work was offered her after February 11, 2000. Appellant
discussed Dr. Susan Pick’s evaluation and the termination of her benefits and her disagreement
with an overpayment determination. She argued that her light-duty job never considered her
preexisting condition and that she was further injured due to her back, varicose veins, feet,
depression, anxiety and stress.
Appellant asserted a 38-page letter was mailed on

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Docket No. 04-1608 (issued January 7, 2005).

4

The Board notes that this claim does not adjudicate appellant’s claim number xxxxxx980, which pertains to
appellant’s foot condition. The claim is referenced to provide a full factual history.
5

This issue is before the Board under Docket No. 14-233.

6

The issue under claim number xxxxxx980 is being adjudicated in Docket No. 14-233.

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February 11, 2013.7 She contended that OWCP’s decisions contained numerous errors and that
several physicians of record were not acknowledged or discussed. With regard to her back
claim, appellant argued that it should be viewed as an occupational disease rather than a
traumatic injury. She stated that she was out of work for only 10 days after her February 11,
2000 gynecological surgery and that Dr. Rosen’s statement talked about disability because of a
back pain. Appellant asserted that she did not voluntarily resign and that she had additional
consequential medical problems.
No additional medical evidence accompanied her
reconsideration request.
By decision dated March 20, 2013, OWCP denied reconsideration. It found that
appellant’s request was untimely filed and did not present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
The Secretary of Labor may review an award for or against payment of compensation at
any time on his own motion or on application. The Secretary, in accordance with the facts found
on review may -“(1) end, decrease or increase the compensation awarded; or
“(2) award compensation previously refused or discontinued.”8
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of OWCP’s decision for
which review is sought.9
The one-year period begins on the date of the original decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues. This
includes any hearing or review of the written record decision, any denial of modification
following reconsideration, any merit decision by the Board and any merit decision following
action by the Board, but does not include prerecoupment hearing decisions.10
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.11
7

This letter is not in the current record.

8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.607(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.b(1) (January 2004).

11

20 C.F.R. § 10.607(b).

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The term clear evidence of error is intended to represent a difficult standard.12 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.13
ANALYSIS
The most recent decision on the merits in appellant’s case was the Board’s January 7,
2005 decision finding that she did not sustain a new occupational injury or a traumatic injury to
her back on or about February 11, 2000 causally related to her work duties. The Board further
found that OWCP properly declined to reopen her case for reconsideration on May 11, 2004.
Appellant had one year from January 7, 2005 to file a timely reconsideration request with
OWCP. Her March 1, 2013 request is therefore untimely.
Because appellant’s March 1, 2013 reconsideration request is untimely, OWCP will not
reopen the merits of her claim without her establishing clear evidence of error in its decision to
deny her injury claim. Clear evidence of error is a difficult standard. Appellant’s request must
convincingly show, on its face, that OWCP’s decision was wrong.
The Board finds that appellant’s request does not establish clear evidence of error.
Appellant generally expresses her disagreement with OWCP’s prior decisions under claim
number xxxxxx980, which is not at issue or relevant to the present claim. With respect to the
current claim, she contends that her back claim should have been adjudicated as an occupational
disease rather than a traumatic injury as her conditions occurred over a period of years. In the
January 7, 2005 decision, the Board found that appellant failed to meet her burden of proof that
she sustained either a new occupational injury or a traumatic injury on February 11, 2000
causally related to her work duties. Appellant’s argument is repetitious of prior contentions
raised. She did not submit any new argument or additional evidence to support that OWCP’s
decision denying her claim was clearly erroneous. While appellant stated that she submitted a
38-page letter, there is no such letter in the record. Her request did not establish clear evidence
of error on the part of OWCP in denying her claim

12

Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.1602.3.c.

13

Id. at Chapter 2.1602.3.d(1).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s March 1, 2013 reconsideration
request on the grounds that it was untimely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 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

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

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

Docket No. 09-1900
Issued: March 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 20, 2009 appellant filed a timely appeal from a June 29, 2009 decision of the
Office of Workers’ Compensation Programs denying her wage-loss claim for August 27 to
September 8, 2008. 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’s disability from August 27 to September 8, 2008 was
causally related to her accepted upper extremity conditions.
FACTUAL HISTORY
On October 23, 2008 appellant, then a 44-year-old city letter carrier, filed an occupational
disease claim alleging that she sustained bilateral carpal tunnel syndrome due to repetitive
motions required in her job.1 She first became aware of her condition on August 25, 2008.
1

Appellant filed a separate occupational disease claim under OWCP File No. xxxxxx504 that was accepted for
bilateral carpal tunnel syndrome and right lateral epicondylitis after an initial denial on October 16, 2008.

Appellant stopped work on August 25, 2008 and returned to work on September 8, 2008 in a
limited-duty capacity. On October 28 and December 16, 2008 respectively, she underwent right
and left carpal tunnel releases performed by Dr. William R. Bohl, a Board-certified orthopedic
surgeon. On November 10, 2008 the Office accepted appellant’s claim for bilateral carpal tunnel
syndrome and right lateral epicondylitis. On November 19, 2008 appellant filed a claim for
disability between August 27 and September 8, 2008.
In an August 25, 2008 report, Dr. Marc A. Baumgard, a Board-certified specialist in
emergency medicine at the St. John West Shore Hospital, diagnosed right elbow tendinitis
caused by repetitive motions in appellant’s job. X-rays were taken of her right elbow, pelvis and
right hip and right knee due to a history of pain in these areas. A computerized tomography (CT)
brain scan was performed because of a history of headaches.
In an August 28, 2008 duty status report, Dr. Lawrence K. Lief, a family practitioner,
noted that appellant had numbness and pain in her right upper extremity. He diagnosed right
upper extremity neuropathy. Appellant could return to work on September 18, 2008. In a
September 29, 2008 duty status report, Dr. Lief diagnosed right upper extremity neuropathy and
indicated that appellant could return to work on September 30, 2008. In an August 28, 2008
authorization form, he requested electromyography and a nerve conduction study of her right
upper extremity. In August 28 and September 29, 2008 progress notes that are largely illegible,
Dr. Lief provided a minimal history and examination findings and a diagnosis of right upper
extremity neuropathy. In the September 29, 2008 progress report, he noted that appellant was off
work for two weeks due to personal problems and had not yet returned to a light-duty
assignment. Specific dates were not provided.
In an October 23, 2008 report, Dr. Bohl noted the initial denial of appellant’s claim in her
separate claim. He provided findings on physical examination and diagnosed bilateral carpal
tunnel syndrome and right upper extremity epicondylitis. Dr. Bohl attributed her conditions to
repetitive motions in her job. He did not address the period August 27 to September 8, 2008.
By letter dated November 26, 2008, the Office asked appellant to provide comprehensive
medical evidence supporting her claim for disability between August 27 and September 8, 2008,
including examination dates, a definitive diagnosis, examination findings and test results and a
rationalized explanation of why she was completely disabled due to her accepted conditions,
bilateral carpal tunnel syndrome and right lateral epicondylitis.
In a November 26, 2008 letter, Dr. Lief stated that appellant was under his care for a
work-related injury and he instructed her not to work between August 28 and
September 14, 2008. He provided no other information.
By decision dated January 8, 2009, the Office denied appellant’s claim for disability
between August 27 and September 8, 2008 on the grounds that the medical evidence did not
establish that her disability was causally related to her accepted conditions, bilateral carpal tunnel
syndrome and right lateral epicondylitis.
On January 12, 2009 appellant requested an oral hearing that was held on April 20, 2009.
She testified that on August 25, 2008 she awoke with numbness and pain and went to the

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emergency room. On August 28, 2008 Dr. Lief told her to take two weeks off from work. After
two weeks, he released her to limited duty. Appellant did not see Dr. Lief between August 28
and September 15, 2008.
In a June 29, 2009 decision, an Office hearing representative affirmed the January 8,
2009 decision.2
LEGAL PRECEDENT
An employee has the burden of proving by the preponderance of the reliable, probative
and substantial evidence that he or she was disabled for work as the result of an employment
injury.3 Monetary compensation benefits are payable to an employee who has sustained wage
loss due to disability for employment resulting from the employment injury.4 Whether a
particular employment injury causes disability for employment and the duration of that disability
are medical issues which must be proved by a preponderance of reliable, probative and
substantial medical evidence.5
ANALYSIS
On August 25, 2008 Dr. Baumgard diagnosed right elbow tendinitis caused by repetitive
motions in appellant’s job. X-rays were taken of her right elbow, pelvis and right hip and knee
due to a history of pain in these areas. A CT brain scan was performed because of a history of
headaches. Dr. Baumgard did not find appellant disabled from work. Additionally, the
diagnostic tests performed show that appellant was experiencing pain in her pelvis, right hip and
knee and head prior to the claimed period of disability. The Office has not accepted injuries to
these areas of the body in this case. Because Dr. Baumgard did not find appellant disabled
between August 27 and September 8, 2008 due to her accepted bilateral carpal tunnel syndrome
and right lateral epicondylitis, his report is not sufficient to establish that she had a work-related
disability during this period.
In an August 28, 2008 duty status report, Dr. Lief noted numbness and pain in appellant’s
right upper extremity. Appellant could return to work on September 18, 2008. Dr. Lief
diagnosed right upper extremity neuropathy but did not provide a more definitive diagnosis of
the specific nerve condition involved. He did not provide a complete history of injury or explain
how she was disabled for work due to her accepted bilateral carpal tunnel syndrome and right
lateral epicondylitis. An August 28, 2008 authorization request form indicated that Dr. Lief
requested electromyography and a nerve conduction study of appellant’s right upper extremity
but there is no mention of disability. In August 28 and September 29, 2008 progress notes that
2

Subsequent to the June 29, 2009 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

David H. Goss, 32 ECAB 24 (1980).

4

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

5

Edward H. Horten, 41 ECAB 301 (1989).

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are largely illegible, Dr. Lief provided minimal history and examination findings and the general
diagnosis of right upper extremity neuropathy. In the September 29, 2008 progress report, he
noted that appellant was off work for two weeks due to personal problems and had not yet
returned to a light-duty assignment. Specific dates were not provided.
However, the
September 29, 2008 progress notes raises the question of whether appellant was off work
between August 27 and September 8, 2008 due to a personal problem rather than her workrelated upper extremity medical conditions. In a November 26, 2008 letter, Dr. Lief stated that
appellant was under his care for a work-related injury and he instructed her not to work between
August 28 and September 14, 2008. However, he did not identify the accepted upper extremity
conditions or provide medical rationale explaining how she was disabled due to these conditions.
Additionally, these dates do not coincide with the disability period claimed by appellant. For
these reasons, Dr. Lief’s reports are not sufficient to establish that appellant was disabled
between August 27 and September 8, 2008 due to her work-related bilateral carpal tunnel
syndrome and right lateral epicondylitis.
On October 23, 2008 Dr. Bohl provided findings on physical examination and diagnosed
bilateral carpal tunnel syndrome and right upper extremity epicondylitis caused by repetitive
motions in appellant’s job. However, he did not address the issue of whether she was disabled
between August 27 and September 8, 2008 due to her upper extremity conditions. Therefore,
Dr. Bohl’s report is not sufficient to establish that appellant was disabled during that period due
to her accepted bilateral carpal tunnel syndrome and right lateral epicondylitis.
The Office asked appellant to provide comprehensive medical evidence supporting her
claim for disability between August 27 and September 8, 2008 that included examination dates, a
definitive diagnosis, examination findings and test results and an explanation of why she was
disabled due to her accepted conditions, bilateral carpal tunnel syndrome and right lateral
epicondylitis. Appellant did not provide such medical evidence. The Board finds that she has
not met her burden of proof to establish that she was disabled from August 27 to September 8,
2008 due to her accepted upper extremity conditions.
On appeal, appellant contends that the Office’s decision is contrary to fact and law.
However, she provided insufficient medical evidence to establish that her disability between
August 27 and September 8, 2008 was due to her accepted bilateral carpal tunnel syndrome and
right lateral epicondylitis. Therefore, the Office properly denied appellant’s claim.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that her
disability from August 27 to September 8, 20008 was causally related to her accepted upper
extremity conditions.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 29, 2009 is affirmed.
Issued: March 12, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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