United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ponce, PR, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 18-1617
Issued: February 26, 2019

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 August 21, 2018 appellant filed a timely appeal from an August 3, 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his diagnosed
back conditions are causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On January 18, 2018 appellant, then a 62-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he injured his back when working a mounted route and
enduring bad road conditions while in the performance of duty. He noted that he had previously
injured his back on March 8, 2016 while on his route and that he underwent lumbar surgery on
1

5 U.S.C. § 8101 et seq.

April 11, 2016. Appellant noted that he first became aware of his claimed condition on
February 14, 2016 and realized its relation to his federal employment on March 15, 2016. On the
reverse side of the claim form, a supervisor noted that appellant had not worked since June 2017.
By development letter dated February 5, 2018, OWCP informed appellant that additional
evidence was needed to establish his occupational disease claim. It advised him of the type of
factual and medical evidence needed and provided a questionnaire for his completion. OWCP
afforded appellant 30 days to submit additional evidence.
In support of his claim, appellant submitted largely-illegible progress notes from
Dr. Gilberto Alvarado, an orthopedic surgeon, dated June 14, July 1, and August 28, 2013. He
also submitted numerous diagnostic testing reports. A September 4, 2013 magnetic resonance
imaging (MRI) scan of appellant’s cervical spine demonstrated multilevel degenerative changes
with a disc osteophyte complex more prominent at the C3-C4 and C5-C6 levels, causing mild-tomoderate and moderate-to-severe spinal canal and foramina stenosis. A January 23, 2014 report
of a computerized tomography (CT) scan of appellant’s cervical spine demonstrated that appellant
was status post fusion at C3-C4 and C4-C5 and that the fusion device was intact. A January 25,
2014 report of x-rays of appellant’s cervical spine demonstrated internal fixation with an
orthopedic plate and screws entering the C3 through C6 vertebral bodies anteriorly.
Appellant subsequently submitted additional largely-illegible progress notes dated
September 19, October 31, and November 17, 2014 from Dr. Alvarado. He also submitted an
illegible operative report dated February 4, 2015, along with an undated and illegible prescription
note.
In a preoperative clearance report dated January 16, 2015, Dr. Marta Benitez, specializing
in critical care medicine, noted that appellant had no contraindications to cervical disc disease
surgery and surgery of the left arm at that time, noting trauma to the left elbow.
On November 19, 2015 Dr. Yamil C. Rivera, a Board-certified orthopedic surgeon,
examined appellant for complaints of low back pain, radiating into the left leg. He noted that
appellant had undergone two previous epidural steroid injections with some relief. On
examination Dr. Rivera noted full strength of the lower and upper extremities. He reviewed the
MRI scan of appellant’s lumbar spine, which demonstrated lumbar disc degeneration, a left L5-S1
small disc herniation, and mild stenosis at L4-L5. Dr. Rivera diagnosed appellant with lumbar
spondylosis with radiculopathy and lumbar disc prolapse with radiculopathy. He recommended
that appellant consider an additional epidural steroid injection.
On January 28, 2016 Dr. Rivera evaluated appellant and noted left leg pain. He noted that
appellant had an epidural steroid injection with some relief, but was once again experiencing pain.
On examination Dr. Rivera noted reduced strength of the lower left extremity and a positive
straight leg raise on the left. He noted that a lumbar spine MRI scan demonstrated L5-S1
degenerative disc disease and disc herniation. Dr. Rivera diagnosed lumbosacral spondylosis with
radiculopathy and lumbar disc prolapse with radiculopathy. He recommended that appellant
undergo a left L5-S1.

2

In an operative report dated April 11, 2016, Dr. Rivera noted the diagnosis of lumbar
stenosis and the surgical procedure of a lumbar laminotomy at L5-S1.
In a follow-up report dated April 28, 2016, Dr. Rivera noted full strength of appellant’s
lower and upper extremities. Appellant informed Dr. Rivera that he had improved left leg pain
with mild numbness at the L5 nerve root.
Appellant submitted an additional illegible progress note from Dr. Alvarado dated
October 31, 2016.
In a medical summary dated February 15, 2018, Dr. Alberto Rivera-Sanchez, an internist,
noted that appellant underwent an anterior cervical discectomy on January 8, 2014, after which his
shoulder pain and numbness in his hand persisted.
On July 31, 2014 appellant had an extensor digitorum communis injection. On January 21,
2015 he underwent a left extensor carpi radialis brevis surgery.
An August 19, 2015 MRI scan demonstrated left lateral bulging discs at the L3-L4 and L4L5 levels, encroaching the neural foramen with left foraminal stenosis, left foraminal stenosis at
L5-S1, and loss of normal lumbar lordosis, likely secondary to muscle spasm. Dr. Rivera-Sanchez
diagnosed spinal stenosis of the lumbar region with neurogenic claudication, thoracic or
lumbosacral neuritis or radiculitis, displacement of the cervical intervertebral disc without
myelopathy, postlaminectomy syndrome of the cervical region, and chronic pain syndrome.
Appellant had epidural steroid injections on January 24 and October 1, 2015.
Subsequent to these injections, appellant was reexamined by Dr. Rivera, who updated his
list of diagnoses to include lumbosacral spinal stenosis, lumbar intervertebral disc displacement,
lumbosacral intervertebral disc displacement, and postlaminectomy syndrome. He had a
transforaminal epidural injection on December 10, 2015, and later underwent lumbar spine surgery
on April 11, 2016 with Dr. Rivera. Appellant continued to have neck pain and lower back pain at
subsequent visits, which were treated with medication. On March 7, 2017 he reported a recent fall
for which he had to seek treatment at the emergency room. Dr. Rivera-Sanchez noted that
appellant would be out of work until September 2017. On August 1, 2017 appellant complained
of neck pain and lower back pain, which impaired some of his activities of daily living. Dr. RiveraSanchez noted that his pain was partially relieved with medication. He noted that appellant’s
postlaminectomy syndrome and lumbar spinal stenosis would pose a lifelong problem. Dr. RiveraSanchez noted that his pain impacted activities of daily living and that at some point in the near
future he may require surgical decompression. He noted that appellant should be enrolled in a
sedentary job with a flexible schedule or to remain out of work.
By decision dated April 25, 2018, OWCP denied appellant’s claim, finding that he had not
provided a description of the claimed work activities he believed caused his condition.
On May 7, 2018 appellant requested reconsideration of OWCP’s April 25, 2018 decision.
With his request, he submitted an April 20, 2018 report from Dr. Andres Delanoy, a family
medicine specialist, who noted that he had a spinal condition and was unable to perform duties of
his employment. Appellant also submitted an April 20, 2018 duty status report from Dr. Delanoy,
noting that he had been advised not to resume work. Dr. Delanoy diagnosed thoracic,
3

thoracolumbar, and lumbosacral intervertebral disc displacement and cervical disc disorder with
radiculopathy, and noting low back pain. He checked a box noting that the diagnosed conditions
were due to an employment injury. Appellant also resubmitted the February 15, 2018 medical
summary of Dr. Rivera-Sanchez.
In a statement dated May 2, 2018, appellant explained that his back conditions occurred
due to his mounted route and bad conditions on the road. He alleged that, in August 2013, his
truck fell into a pit and he injured his cervical spine, requiring surgery. Subsequently, appellant
injured his left forearm. On September 12, 2015 he lost control of his truck and hit a gate. On
May 5, 2017 appellant injured his back while on his route.
By letter dated May 17, 2018, OWCP requested that appellant clarify whether he was
claiming a traumatic injury or occupational disease. It afforded him 20 days to respond.
Appellant responded by letter dated May 22, 2018. He clarified that his claim was for an
occupational disease, as he had worked at the employing establishment for 32 years, and that he
had been suffering from back pain for the last 5 years. Appellant attributed his back pain to the
bad conditions on his route and making deliveries outside his vehicle, noting that he performed
these duties six days per week for the last eight years. He stated that he had not returned to work.
By decision dated August 3, 2018, OWCP affirmed as modified its prior decision and
found that appellant had established the factual components of his claim. However, it further
found that he had not submitted sufficient medical evidence to establish causal relationship
between the accepted factors of his federal employment and his diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,2 and that an injury was sustained in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.3 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
2

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.5
Causal relationship is a medical question, which requires rationalized medical opinion
evidence to resolve the issue.6 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.7 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed back conditions are causally related to the accepted factors of his federal employment.
Appellant submitted a medical summary dated February 15, 2018 from Dr. RiveraSanchez, which outlined appellant’s history of medical diagnoses and treatment for cervical,
lumbar, and elbow conditions. Dr. Rivera-Sanchez noted that appellant was either disabled from
work or could only work in a sedentary position, but failed to offer an opinion on the cause of
appellant’s diagnosed conditions. Medical reports from Dr. Rivera dated November 19, 2015
through April 28, 2016, and the January 16, 2015 report of Dr. Benitez also fail to provide an
opinion as to the cause of appellant’s diagnosed conditions. Dr. Alvarado’s notes are largely
illegible, but none provide an opinion on causation. The Board has held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition is of no probative value
on the issue of causal relationship.9 These reports, therefore, are insufficient to establish
appellant’s claim.
In an April 20, 2018 duty status report, Dr. Delanoy diagnosed appellant with thoracic,
thoracolumbar, and lumbosacral intervertebral disc displacement and cervical disc disorder with
radiculopathy, and noting low back pain. He checked a box noting that the diagnosed conditions
were due to an employment injury. The Board has held, however, that when a physician’s opinion
on causal relationship consists only of checking a response to a form question, without explanation
or rationale, that opinion has little probative value and is insufficient to establish a claim.10 As

5

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

See Robert G. Morris, 48 ECAB 238 (1996).

7

Supra note 5.

8

Id.

9

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

10

See M.O., Docket No. 18-1056 (issued November 6, 2018); Deborah L. Beatty, 54 ECAB 3234 (2003).

5

such, the April 20, 2018 duty status report of Dr. Delanoy is insufficient to establish appellant’s
claim.
Appellant also submitted a plethora of diagnostic test results in support of his claim. The
Board has held, however, that diagnostic studies are of limited probative value as they do not
address whether the employment incident caused any of the diagnosed conditions.11 Such
diagnostic reports are therefore insufficient to establish appellant’s claim.
Finally, appellant submitted numerous illegible medical records in support of his claim.
However, a note which contains an illegible signature has no probative value, as it is not
established that the author is a physician.12 Such illegible records therefore lack probative value.
As noted above, appellant bears the burden of proof to establish the essential elements of
his claim. The Board finds that he has not met his burden of proof to provide sufficient medical
evidence to establish that his diagnosed conditions were causally related to the accepted factors of
his federal employment, he has thus not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument as part of a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed back conditions are causally related to the accepted factors of his federal employment.

11

See J.S., Docket No. 17-1039 (issued October 6, 2017).

12

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the August 3, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2019
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
A.C., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, TEMPE SOUTH POST )
OFFICE, Tempe, AZ, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 18-0096
Issued: January 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On October 16, 2017 appellant filed a timely appeal from a September 27, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on May 19, 2017, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the September 27, 2017 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
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On May 20, 2017 appellant, then a 46-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on May 19, 2017, she was unloading a heavy parcel out of her route
hamper and then felt sudden left-sided back pain while in the performance of duty. She indicated
that the May 19, 2017 incident caused a lumbar sacral strain. On the reverse side of the Form CA1, the employing establishment noted that its knowledge of the facts of this claimed injury were in
agreement with appellant’s statement of injury. Appellant did not initially stop work.
OWCP received a duty status report (Form CA-17) dated May 20, 2017 from an
unidentified provider. The report noted that appellant worked as a letter carrier and that she was
lifting a heavy package from a container on May 19, 2017 when she felt pain in her lower back.
They provided work restrictions and noted a diagnosis of lumbar strain/sprain. OWCP also
received a May 20, 2017 attending physician’s report (Form CA-20) on which a care provider with
an illegible signature diagnosed lumbar sacral strain and checked a box marked “yes” that the
condition was caused or aggravated by an employment activity.3
A June 8, 2017 diagnostic report of the lumbosacral spine read by Dr. Andrew M. Pohl, a
Board-certified diagnostic radiologist, revealed: degeneration of the lumbar or lumbosacral
intervertebral disc, other intervertebral disc degeneration, lumbosacral region; low back pain; and
L5-S1 mild-to-moderate degenerative disc disease.
In a June 27, 2017 report, Dr. Georgia L. Tsingine, Board-certified in family medicine,
noted that appellant went to pick up a heavy parcel on the bottom of a hamper and felt a pull in her
left lower back. She reported that appellant’s injury was approximately five weeks and three days
prior, and she reported a worsening of pain. Dr. Tsingine continued appellant on restricted-duty
work and diagnosed sprain of ligaments of lumbar spine and cervical spine.
In a June 29, 2017 narrative report and an accompanying duty status report (Form CA-17),
Dr. William Boyd, a pain management physician, noted that appellant went to pick up a heavy
parcel on the bottom of a hamper and felt a pull in the lower back on the left. He advised that her
chief complaint was pain in the left lower back. Dr. Boyd examined appellant and diagnosed a
sprain of the ligaments of the lumbar spine. He opined that the cause of this diagnosis was related
to work activities. Dr. Boyd placed appellant on restricted duties.
In a July 10, 2017 report, Dr. Michael Chang, a Board-certified orthopedic surgeon, noted
that appellant presented for evaluation of low back pain. He indicated that she explained that on
May 22, 2017 she was picking up a heavy parcel, while working as a mail carrier, and she felt a
twinge in her lower back. Dr. Chang noted that appellant indicated that she continued working,
but that evening she had severe back pain. He indicated that she went to an emergency room and
was diagnosed with a muscle strain and given a muscle relaxant. Dr. Chang opined that appellant’s
symptoms were “likely due to simple mechanical injury of the back.” He explained that part of
the reason that she had not noticed substantial improvement in her symptoms was because she had
a condition known as pyelonephritis. Dr. Chang explained that this personal condition was a
3
OWCP also received a May 20, 2017 discharge report and notes from physician assistants dated June 8 and 21,
2017, in which they diagnosed sprains of the lumbar and cervical areas of the spine.

2

separate issue unrelated to appellant’s employment injury, and that the inflammatory response
from this condition could aggravate her symptoms. He opined that, as a result, it was difficult to
tell how much true progress she had in terms of back pain at that time. Dr. Chang also noted that
appellant denied back pain prior to the event and was otherwise in excellent health and wanted to
get back to work.
In an August 7, 2017 report, Dr. Chang noted that appellant worked as a mail carrier and
had sustained a mechanical injury of the back complicated by pyelonephritis. He advised that he
wanted a magnetic resonance imaging (MRI) scan. Dr. Chang explained that appellant had
indicated that she had improvement in her condition.4
In a development letter dated August 24, 2017, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence needed and
provided a factual questionnaire for her completion, which made specific inquiry into the claimed
mechanism of injury and her preexisting health history. OWCP afforded appellant 30 days to
submit the necessary information. Appellant did not respond to the factual inquiries set forth in
the development letter.5
By decision dated September 27, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that she sustained an injury in the performance of
duty, as alleged. It noted that she had not provided a consistent statement describing a work
incident or factors to which she attributed her back condition and had therefore not established fact
of injury. OWCP therefore found that the requirements had not been met to establish an injury as
defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,7 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

4

OWCP also received a June 21, 2017 report from a physician assistant and physical therapy notes dated June 22,
28, and 29, July 3, 6, 18, 25, and 27, and August 3 and 10, 2017.
5

OWCP subsequently received physical therapy notes dated June 22 and July 25, 2017, a copy of a July 20, 2017
physical therapy prescription and an August 31, 2017 claim for compensation (Form CA-7).
6

Supra note 1.

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

3

employment injury.8 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components, which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.10 The second component is whether the employment incident
caused a personal injury.11
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.12 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether the claim has been established. An employee’s statement
alleging that an injury occurred at a given time and in a given manner is of great probative value
and will stand unless refuted by strong or persuasive evidence.13
ANALYSIS
The Board finds that this case is not in posture for a decision.
In her May 20, 2017 traumatic injury claim (Form CA-1) appellant alleged that, on May 19,
2017, she was unloading a heavy parcel out of her route hamper when she felt a sudden left-sided
back pain while in the performance of duty. The employing establishment acknowledged that its
understanding of the facts of this claimed injury were in agreement with appellant’s statement of
injury. The medical reports of record provided a consistent history of her history of injury due to
bending over to pick up a heavy parcel out of a mail hamper.14 No other mechanism of injury has
been suggested in the record. Although Dr. Chang reported the incident had occurred on May 22,
8
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

R.E., Docket No. 17-0547 (issued November 13, 2018; Elaine Pendleton, 40 ECAB 1143 (1989).

11

D.C., Docket No. 18-1664 (issued April 1, 2019); John J. Carlone, 41 ECAB 354 (1989).

12

M.F., Docket No. 18-1162 (issued April 9, 2019).

13

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464 (2007).

14

B.S., Docket No. 19-0524 (issued August 8, 2019).

4

2017, that is a minor discrepancy as he identifies the correct mechanism of injury and this is a date
after appellant had already reported the May 19, 2017 employment incident. In all other aspects,
the reports of Dr. Chang provide a consistent mechanism of injury in accord with the Form CA-1.
Finally, although Dr. Chang noted that appellant had a preexisting medical condition which could
impact her healing from a back strain the Board finds that such a preexisting condition is irrelevant
to the issue of whether the employment incident occurred as alleged.15 Therefore, the Board finds
that appellant has met her burden of proof to establish that the May 19, 2017 employment incident
occurred in the performance of duty, as alleged.
As appellant has established that the May 19, 2017 employment incident factually occurred
in the performance of duty, the question becomes whether this incident caused a personal injury.16
Causal relationship is a medical issue and the evidence required to establish causal relationship is
rationalized medical opinion evidence.17 The Board will, therefore, remand the case for
consideration of the medical evidence. Following this and other such further development as
deemed necessary, OWCP shall issue a de novo decision addressing whether appellant has met her
burden of proof to establish a condition causally related to the accepted May 19, 2017 employment
incident.
CONCLUSION
The Board finds that this case is not in posture for a decision.

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
(the Board has held that in a case where 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).
16

S.W., Docket No. 19-0653 (issued November 21, 2019).

17

M.B., Docket No. 17-1999 (issued November 13, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the September 27, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 21, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, Larado, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1284
Issued: February 3, 2011

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 April 6, 2010 appellant filed a timely appeal from a February 26, 2010 merit decision
of the Office of Workers’ Compensation Programs finding that she received an overpayment of
compensation and denying waiver. She also appealed a March 22, 2010 nonmerit decision
denying her request for a prerecoupment hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,662.54 from April 15 to May 9, 2009 because she received compensation for total
disability when she had earnings from employment; (2) whether the Office properly denied
waiver of the overpayment; and (3) whether the Office properly denied appellant’s request for a
prerecoupment hearing as untimely.

FACTUAL HISTORY
On August 20, 2008 appellant, then a 36-year-old canine officer, filed a claim for an
injury occurring on July 21, 2008 when she twisted her left wrist grabbing her dog’s collar to
prevent a fight. The Office accepted the claim for a left wrist sprain and a closed fracture of the
left ulnar radius.
On October 30, 2008 appellant underwent surgery to repair a torn triangular
fibrocartilage. The Office paid compensation for disability.
On April 1, 2009 the employing establishment informed the Office that appellant had
returned to limited-duty work on March 31, 2009. On April 2, 2009 appellant requested
compensation for leave without pay beginning April 1, 2009. On May 7, 2009 the Office paid
her net compensation of $4,589.27 for the period April 1 through May 9, 2009.
On May 27, 2009 the employing establishment related that appellant worked four hours a
day from April 15 to May 29, 2009, when she was released for full duty.
On June 16, 2009 the Office notified appellant of its preliminary determination that she
received an overpayment of $2,941.84 from April 15 to May 9, 2009 because she received
compensation for disability after she returned to work. It further informed her of its preliminary
finding that she was at fault in creating the overpayment because she should have known that she
was not entitled to compensation after she resumed work. On June 26, 2009 appellant requested
a prerecoupment hearing. She challenged that the overpayment occurred, arguing that she
received $2,941.84 for hours that she was on leave and further contended that the Office had not
paid her from May 10 to 24, 2009. Appellant submitted pay slips showing hours of leave
without pay (LWOP) used. On September 3, 2009 she submitted an overpayment recovery
questionnaire.
Following a preliminary review on November 19, 2009 the Office hearing representative
vacated the preliminary determination of overpayment. She found that the Office incorrectly
calculated the overpayment based on a finding that appellant returned to employment full time
rather than part time. The hearing representative remanded the case for the Office to determine
the amount of compensation it should have paid her from April 15 to May 9, 2009.
Appellant submitted a December 8, 2009 leave analysis. On January 25, 2010 the Office
notified appellant of its preliminary determination that an overpayment of $1,662.54 existed
because she received compensation for total disability from April 15 through May 9, 2009 after
she returned to part-time work. It found that she worked eight hours on April 15 and 16, 2009,
took sick leave on April 17, 2009, and had scheduled off days on April 18 and 19, 2009. The
Office further determined that appellant used 55 hours of LWOP from April 15 to May 9, 2009.
It calculated the overpayment by subtracting the compensation to which she was entitled from
April 1 to May 9, 2009, $2,916.73, from the amount that she received $4,589.27, to find an
overpayment of $1,662.54. The Office further advised appellant of its finding that she was
without fault in creating the overpayment. It requested that she complete the enclosed
overpayment recovery questionnaire and submit supporting financial documents. Additionally,

2

the Office notified appellant that, within 30 days of the date of the letter, she could request a
telephone conference, a final decision based on the written evidence or a prerecoupment hearing.
Appellant did not respond to the preliminary notice of overpayment.
On February 26, 2010 the Office found that she received an overpayment of $1,662.54
from April 15 to May 9, 2009 and that she was not at fault in creating the overpayment. It
denied waiver of the overpayment and found that she should send in a check for the entire
amount of the overpayment as repayment.
On March 5, 2010 appellant requested a prerecoupment hearing and requested waiver.
She contended that the Office still owed her money for days that she took LWOP. By decision
dated March 22, 2010, the Office denied her request for a prerecoupment hearing as untimely.
On appeal, appellant related that she did not receive the preliminary notice of
overpayment until the end of February 2010 and that she submitted the requested information as
soon as she could. She also argued that she was not at fault in creating the overpayment as she
provided information about her employment and did not believe that she had accepted an
incorrect payment. Appellant maintained that the Office owed her compensation for days that
she was on LWOP from May 10 to 24, 2009.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act1 provides that the United
States shall pay compensation for the disability of an employee resulting from personal injury
sustained while in the performance of duty.2 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.3
A claimant is not entitled to receive total disability compensation and actual earnings for
the same period. Office procedures provide that an overpayment in compensation is created
when a claimant returns to work but continues to receive wage-loss compensation.4
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for a left wrist sprain and a closed fracture of the
left ulnar radius. It paid her compensation for total disability beginning October 30, 2008. On
April 15, 2009 appellant returned to work with the employing establishment. She worked full
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102.

3

Id. at § 8129(a).

4

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (May 2004).

3

time on April 15 and 16, 2009, used sick leave on April 17, 2009 and had scheduled days off on
April 18 and 19, 2009 and worked full time on April 20, 2009. From April 21 to May 9, 2009
appellant used 55 hours of LWOP. The Office paid compensation for total disability through
May 9, 2009. When an employee has earnings from employment, appellant is not entitled to
receive total disability benefits and actual earnings for the same time period.5 Additionally, if an
employee returns to work and is in a paid leave status, she is not entitled to receive wage-loss
compensation for total disability for the same time period.6 As appellant received compensation
for total disability after she returned to work and for time that she received sick leave from the
employing establishment, she received an overpayment of compensation.
The Office calculated the overpayment by subtracting the compensation to which she was
entitled from April 1 to May 9, 2009, $2,916.73, from the amount that she received $4,589.27, to
find an overpayment of $1,662.54. The Board will affirm the fact and amount of overpayment.7
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act5 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. The Office must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of the Act or would be against equity and good
conscience. 6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of his
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 determined by
the Office from data provided by the Bureau of Labor Statistics.8 An individual’s liquid assets
include but are not limited to case, the value of stocks, bonds, savings accounts, mutual funds
and certificates of deposits.9 Nonliquid assets include but are not limited to the fair market value
of an owner’s equity in property such as a camper, boat, second home and furnishings and
supplies.10

5

Daniel Renard, 51 ECAB 466 (2000); 20 C.F.R. § 10.403(c).

6

20 C.F.R. 10.401(a).

7

The Board notes that $4,589.27 minus $2,916.73 yields $1,672.54.

8

20 C.F.R. § 10.436. Office 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).
9

Id.

10

Id.

4

Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.11 To establish that a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and
that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.12
ANALYSIS -- ISSUE 2
The Office’s January 25, 2010 preliminary notification of the existence of the
overpayment, informed appellant that she needed to explain her reasons for seeking a waiver,
complete the recovery questionnaire form and submit financial documents to support her claimed
income and expenses. The overpayment recovery questionnaire is designed to obtain the
financial information to determine whether adjustment or recovery would defeat the purpose of
the Act. Appellant did not return the overpayment recovery questionnaire provided by the Office
and did not otherwise submit financial evidence or supporting documentation to establish that
recovery of the overpayment would defeat the purpose of the Act. Neither did she submit
evidence to establish that recovery of the overpayment would be against equity and good
conscience because, in reliance on the overpaid compensation, she relinquished a valuable right
or changed her position for the worse. Although appellant is without fault in the creation of the
overpayment, she nevertheless bears responsibility for providing the financial information
necessary to support her request to waive recovery of the overpayment.13 Section 10.438 of the
regulations states that a claimant who received an overpayment is responsible for providing
information about income, expenses and assets to the Office so that it may determine whether
recovery of the overpayment would defeat the purpose of the Act or be against equity and good
conscience.14 Failure to submit the information, which will also be used to determine a
repayment schedule if necessary, without 30 days of a request from the Office will result in a
denial of a waiver of recovery of the overpayment and no further requests for waiver will be
considered until the information is submitted.15
As appellant submitted no evidence in this case to establish that recovery of the
overpayment would defeat the purpose of the Act or be against equity and good conscience, the
Board finds that the Office did not abuse its discretion in refusing to waive recovery of the
overpayment.

11

Id.

12

Id. at § 10.437(b)(1).

13

Madelyn Y. Grant, 57 ECAB 533 (2006); James A. Gray, 54 ECAB 277 (2002).

14

20 C.F.R. § 10.438(a).

15

Id. at § 10.438(b); Robert B. Hutchins, 52 ECAB 344 (2001).

5

On appeal appellant argues that she provided all requested information as soon as she
received the overpayment recovery questionnaire at the end of February 2010. She did not,
however, provide any evidence that she did not receive the questionnaire until the end of
February 2010. The Office mailed the January 25, 2010 preliminary notice of overpayment to
appellant’s address of record; consequently, it is presumed to have arrived in due course.16
Appellant additionally contends that she is not at fault in creating the overpayment as she
promptly reported her employment. The Office, however, did not find that she was at fault in
creating the overpayment but instead, as discussed, denied waiver because she did not timely
submit the requested financial information. Appellant also maintains that the Office did not pay
her compensation for LWOP taken from May 10 to 24, 2010. The Board’s jurisdiction,
however, is limited to review of final decisions of the Office.17
LEGAL PRECEDENT -- ISSUE 3
The Office regulations on the recovery of overpayments provide that before collecting the
overpayment, it must provide the claimant with written notice of the fact and amount of the
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or
finding of fault, and the right to request waiver of the overpayment.18 Its regulations further
provide that a claimant may request a prerecoupment hearing with respect to an overpayment.19
Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right
to a hearing.20 The only right to a review of a final overpayment decision is to the Board.21 The
hearing provisions of 5 U.S.C. § 8124(b) do not apply to a final overpayment decision.22
ANALYSIS -- ISSUE 3
The Office’s January 25, 2010 preliminary determination of overpayment provided
appellant with a right to request a prerecoupment hearing within 30 days. As noted above, if a
claimant does not request a hearing within 30 days, it is considered a waiver of the right to a
hearing. When the final overpayment decision is issued, there is no right to a hearing or a review
of the written record, and the Office does not have discretion to grant such a request. The only
right to appeal is to the Board.23 Appellant requested a precoupment hearing on March 5, 2010,
more than 30 days after the preliminary overpayment finding and after the February 26, 2010
overpayment decision. Once the Office issued the final overpayment decision on February 26,
16

W.P., 59 ECAB 514 (2008).

17

20 C.F.R. § 501.2(c).

18

Id. at § 10.431.

19

Id. at § 10.432.

20

Id.

21

Id. at § 10.440(b).

22

Id.; see also L.C., 59 ECAB 569 (2008); Philip G. Feland, 48 ECAB 485 (1997).

23

Supra note 21.

6

2010, her only right of appeal was to the Board. The Board thus finds that the Office properly
denied appellant’s March 5, 2010 request for a hearing as she was not entitled to a hearing with
respect to a final overpayment decision.24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,662.54 from April 15 to May 9, 2009 because she received compensation for total
disability when she had earnings from employment. The Board further finds that the Office
properly denied waiver of the overpayment and properly denied her request for a prerecoupment
hearing as untimely.25
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 22 and February 26, 2010 are affirmed.
Issued: February 3, 2011
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

24

Id.

25

With respect to the recovery of the overpayment, the Board’s jurisdiction is limited to those cases where the
Office seeks recovery from continuing compensation benefits. D.R., 59 ECAB 148 (2007); Miguel A. Muniz, 54
ECAB 217 (2002).

7


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

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0611
Issued: August 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 25, 2019 appellant, through counsel, filed a timely appeal from an August 29,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish additional left
shoulder, cervical, and/or lumbar conditions causally related to the accepted February 23, 2015
employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 23, 2015 appellant, then a 63-year-old letter carrier, slipped on ice and fell in
the employing establishment parking lot just prior to her scheduled workday. On her Form CA-1
she claimed to have injured her back, right elbow, and her head due to the work-related fall. In
July 2015, OWCP accepted appellant’s traumatic injury claim for lumbar sprain, right elbow
contusion, back contusion, and neck sprain. However, it repeatedly declined to expand her claim
to include bilateral rotator cuff syndrome, bilateral shoulder impingement, right shoulder rotator
cuff tear and tendinopathy, and cervical and lumbar herniated nucleus pulposus (HNP).
By decision dated April 10, 2017, a hearing representative affirmed the denial of claim for
left rotator cuff syndrome, left shoulder impingement, HNP bulge cervical and lumbar
intervertebral discs, but vacated the prior decision with regard to the claimed right shoulder injury.
On July 6, 2017 OWCP expanded acceptance of the claim to include contusion of the right
shoulder.4
Appellant appealed to the Board. By decision dated May 4, 2018, the Board affirmed
OWCP’s April 10, 2017 decision, finding that appellant had not established that her left rotator
cuff syndrome, left shoulder impingement, and cervical and lumbar HNP were causally related to
the accepted February 23, 2015 employment injury.5
Following the Board’s May 4, 2018 decision, counsel requested reconsideration and
submitted additional medical evidence.
In a May 24, 2018 report, Dr. Nasser Ani, a Board-certified orthopedic surgeon opined that
appellant’s right shoulder injury was “directly and causally related to the injury she sustained on
[February 23, 2015].” He explained that, when appellant slipped and fell on ice, she extended her
right arm out to catch her fall. Dr. Ani related that the most common cause of an acute rotator cuff
3

Docket No. 17-1357 (issued May 4, 2018).

4
By decision dated July 11, 2017, OWCP denied the claim for right rotator cuff syndrome, right shoulder
impingement, right shoulder rotator cuff tear, and tenopathy. Appellant, through counsel, requested a hearing with
regard to the July 11, 2017 denial decision, however the record reflects that the issue of appellant’s additional right
shoulder conditions remains pending before OWCP’s Branch of Hearings and Review and is not presently before the
Board.
5

Supra note 3.

2

tear was a high impact injury or jerking motion and that rotator cuff muscles could be damaged or
torn due to a force of suddenly pushing a heavy object. He reported: “this mechanism of injury
is synonymous with the description the patient provided us.” Dr. Ani indicated that, in order to
prevent further injury, appellant extended her right arm to catch herself and absorb the impact. He
also noted that appellant’s clinical examination and MRI scan findings clearly demonstrated a right
shoulder rotator cuff tear directly related to her fall.
By decision dated August 29, 2018, OWCP denied modification.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish additional left
shoulder, cervical, and/or lumbar conditions causally related to her accepted February 13, 2015
employment injury.
Preliminarily, the Board notes that it is unnecessary to reconsider the evidence appellant
submitted prior to the issuance of OWCP’s April 10, 2017 decision because the Board already
considered this evidence in its May 4, 2018 decision. Findings made in prior Board decisions are
res judicata absent any further review by OWCP under section 8128 of FECA.10
On reconsideration counsel submitted a May 24, 2018 report from Dr. Ani who opined that
appellant’s right shoulder injury was “directly and causally related to the injury she sustained on
[February 23, 2015].” He explained that when appellant slipped and fell on ice, she extended her
6

R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

7

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

10
See E.B., Docket No. 17-1497 (issued March 19, 2019); K.K., Docket No. 17-1061 (issued July 25, 2018). The
Board will, therefore, not review the evidence addressed in the prior appeal.

3

right arm forward in order to catch her fall. Dr. Ani reported: “this mechanism of injury is
synonymous with the description the patient provided us.” Although Dr. Ani provided an opinion
relative to causal relationship related to appellant’s right upper extremity, he did not offer an
opinion on whether appellant’s left shoulder rotator cuff and impingement syndrome or her
cervical and lumbar HNP were causally related to the accepted February 23, 2015 employment
injury. As noted, the issue of expansion of the claim regarding appellant’s right upper extremity
condition is currently pending before the Branch of Hearing’s and Review.11 The medical
evidence received since OWCP’s April 10, 2017 decision does not address appellant’s left
shoulder and cervical/lumbar conditions, and therefore, it is insufficient to establish expansion of
appellant’s claim to include additional left shoulder, cervical, and/or lumbar conditions.
Accordingly, the Board finds that appellant has not met her burden of proof to establish causal
relationship between her left shoulder conditions and/or cervical/lumbar HNP and the accepted
February 23, 2015 employment injury.12
On appeal counsel argues that there is an unresolved conflict in medical opinion regarding
whether appellant’s claimed right upper extremity conditions are employment related. As
discussed above, the issue of whether the record supports expansion of the claim with respect to
additional right upper extremity conditions is not currently before the Board.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish additional left
shoulder, cervical, and/or lumbar conditions causally related to the accepted February 23, 2015
employment injury.

11

Supra note 7. The Board and OWCP may not simultaneously exercise jurisdiction over the same issue(s).
20 C.F.R. §§ 501.2(c)(3), 10.626; see, e.g., Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004).
12
See T.F., Docket No. 17-0645 (issued August 15, 2018); see also G.M., Docket No. 16-1764 (issued
March 16, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 9, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.Z., Appellant
and
U.S. POSTAL SERVICE, SOUTH SHORE
ANNEX, Staten Island, NY, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1526
Issued: October 28, 2015

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 July 4, 2015 appellant, through her representative, filed a timely appeal from an
April 1, 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 to review the merits of this case.
ISSUE
The issue is whether appellant was at fault in creating a $33,161.07 overpayment.
FACTUAL HISTORY
This matter has previously been before the Board.2 On December 18, 2012 the Board
affirmed an overpayment decision on the issues of fact and amount of overpayment. The Board
1

5 U.S.C. § 8101 et seq.

2

Docket No. 13-0873 (issued August 23, 2013).

found that appellant had forfeited her right to compensation from September 16, 2009 to
September 3, 2010, because she failed to report all of her earnings during the period, in
particular, the $500.00 she earned on May 6, 2010 for a singing engagement at a birthday party.
However, the Board set aside the December 18, 2012 decision on the issue of fault. The Board
found that OWCP did not apply a proper standard under 20 C.F.R. § 10.433(a).3
On remand of the case, OWCP issued a final decision on September 9, 2013 finding
appellant at fault because she failed to provide information which she knew or reasonably should
have known to be material. The Board found that revising the grounds for fault in a final
decision denied her the right to a prerecoupment hearing.4 As extensive due process rights attach
to any attempt by OWCP to recoup benefits already paid, even if paid in error, the Board set
aside OWCP’s September 9, 2013 decision and remanded the case to OWCP for a proper
opportunity for appellant to respond to the allegation of fault and the right to a prerecoupment
hearing prior to any final decision. The facts of this case, as set forth in the Board’s prior
decisions, are incorporated herein by reference.
On July 1, 2014 OWCP issued a preliminary determination that appellant was at fault in
creating the $33,161.07 overpayment because she failed to provide information which she knew
or should have known to be material. It found that its August 20, 2010 Form EN1032 was
sufficiently specific to indicate to any reasonable person that any monies earned for payment of
any kind must be reported and as appellant failed to provide information which she knew or
should have known to be material, she was at fault in creating the overpayment.
During a telephone hearing on February 13, 2015, appellant testified that music was a
hobby, nothing that she profited from. She was actually spending money to do it. Appellant
received a call one day to perform at a show. She performed and they offered a payment and she
did not say no to it. When appellant filled in the paperwork from OWCP a few months later, the
only income she was able to think of was a small temporary job answering telephones. She
understood this work payment as an income because it was a check. Appellant did not think of
the show as something she had to report. From her perspective the show was something that was
totally outside of work. Appellant stated that there was no deliberate attempt on her part to avoid
reporting the income. She would have reported it if she had realized it was income. Appellant
asked that her ignorance of the situation be taken into account. “It was done unintentionally.”
Appellant’s representative argued that it would be against equity and good conscience to
make appellant accountable for $33,000.00 when her earning was less than her expenses.
Questioning the period of the forfeiture, he argued the amount of the overpayment. Appellant’s
representative also argued that, if something was done improperly the first time, such as OWCP
using the wrong standard for finding fault, it really seemed improper to allow it to be corrected.
He argued that the Board did not remand the case for further action in its August 30, 2013

3

Appellant, a 26-year-old sales and service associate, sustained an occupational injury in the performance of duty
while picking up bags from the workroom floor and hanging them. OWCP accepted her claim for aggravation of
brachial neuritis or radiculitis not otherwise specified, and aggravation of internal derangement of the right shoulder.
4

Docket No. 14-0508 (issued June 6, 2014).

2

decision, so setting aside OWCP’s decision on the issue of fault should have ended appellant’s
responsibility at that point.
In a decision dated April 1, 2015, an OWCP hearing representative found that appellant
was at fault in creating the overpayment because she failed to provide information which she
knew or should have known to be material. The information provided on the Form EN1032 was
sufficient to convey to a reasonable person that receipt of any money or payment of any kind
must be reported.
On appeal, appellant’s representative argues over the language of the overpayment
recovery questionnaire. He argues the Board’s August 23, 2013 decision did not remand the
case and did not justify OWCP correcting its grounds for fault, thus putting appellant in double
jeopardy. Appellant’s representative argues that recovery would be against equity and good
conscience, as appellant would suffer severe financial hardship in trying to repay the debt. He
argues that, in 2012, a hearing representative found that appellant’s expenses exceeded her
income. Appellant’s representative argues that appellant did submit all of her financial records.
He argues that OWCP used incorrect information about the website mentioned in the case.
Appellant’s representative takes issue with the Board’s most recent decision which provided
appellant an opportunity to have a prerecoupment hearing.
LEGAL PRECEDENT
When an overpayment of compensation has been made because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled. Section 8129(b) describes the only exception:
“Adjustment or recovery by the United States may not be made when incorrect
payment had 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.”5
Thus, OWCP may consider waiving an overpayment 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
she receives 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.6

5

5 U.S.C. § 8129(b).

6

20 C.F.R. § 10.433(a) (1999).

3

Whether OWCP determines that an individual was at fault with respect to the creation of
an overpayment depends on the circumstances of the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
she is being overpaid.7
ANALYSIS
In its April 1, 2015 decision, OWCP found that appellant was at fault in creating the
$33,161.07 overpayment that arose from the forfeiture of her compensation. It found that she
was at fault under the second standard, namely, she failed to provide information which she
knew or should have known to be material.
On the Form EN1032 she signed on September 3, 2010, appellant failed to provide
information about $500.00 she earned for a singing engagement at a birthday party on
May 6, 2010. She and her representative concede the point with explanation: Appellant did not
provide the information for a reason, they argue. The Board has reviewed the form and can find
no disclosure by her of the money she earned that date. Accordingly, the first part of the fault
standard is established. Appellant failed to provide the required information.
The only question that remains is whether appellant knew or should have known that this
information was material. The form made clear that she was required to report any services
provided in exchange for money, and including any odd jobs. The form asked appellant to read
the section carefully before answering, and in capital letters it warned her that severe penalties
may be applied for failure to report all work activities thoroughly and completely. This is
sufficient to put her on notice that the information requested was material.
The Board finds that a reasonable person in her position should have known that she was
required to report any services she provided in exchange for money or any odd jobs she might
have performed during the period.
Under the circumstances, the Board finds that appellant is at fault in creating the
$33,161.07 overpayment that arose from the forfeiture of her compensation. Accordingly, the
Board will affirm OWCP’s April 1, 2015 decision on the issue of fault. The issues of fact and
amount of overpayment were previously adjudicated by this Board. The Board’s jurisdiction to
review the collection of an overpayment is limited to cases of adjustment, where OWCP
decreases later payments of compensation to which the individual in entitled.8 Because
collection of the overpayment in this case cannot be made by adjusting later payments, as
appellant is not currently receiving compensation for wage loss,9 but must be recovered by other
means, the Board lacks jurisdiction to review the issue of recovery.
The Board has reviewed the arguments presented by appellant’s representative. The
overpayment recovery questionnaire is irrelevant to the issues on this appeal, because appellant
7

Id. at § 10.433(b).

8

5 U.S.C. § 8129; Levon H. Knight, 40 ECAB 658 (1989).

9

Appellant was last paid compensation through September 12, 2011.

4

is at fault, she is not eligible for consideration of waiver. OWCP and the Board therefore have
no occasion to review whether adjustment or recovery of the overpayment would defeat the
purpose of FECA or whether adjustment or recovery of the overpayment would be against equity
and good conscience. Appellant failed to provide information about the money she received for
the singing engagement. The Board’s August 23, 2013 decision found that the case was not in
posture for decision on the issue of fault. That did not mean the matter was closed. It only
meant that the matter could not be decided without further action by OWCP. Any disagreement
appellant’s representative might have with respect to the Board’s most recent decision should
have been presented in a petition for reconsideration filed with the Board within 30 days of the
date of that decision. The Board found in its August 23, 2013 decision that OWCP did not
provide appellant due process and therefore remanded the case for further action.
CONCLUSION
The Board finds that OWCP properly found appellant at fault in creating a $33,161.07
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the April 1, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 28, 2015
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 11-1712
Issued: March 1, 2012

Case Submitted on the Record

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

JURISDICTION
On July 18, 2011 appellant filed a timely appeal from March 3 and June 27, 2011 merit
decisions of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty.
FACTUAL HISTORY
On September 23, 2009 appellant, then a 46-year-old heavy mobile equipment mechanic,
filed an occupational disease claim alleging that he developed neck and shoulder problems due to
repetitive use of heavy equipment. He submitted a job description for his position as a heavy
mobile equipment mechanic.
1

5 U.S.C. § 8101 et seq.

The record contains the last page of a January 12, 2009 report from Dr. Austin W.
Gleason, a Board-certified orthopedic surgeon. Examination revealed good range of motion in
the neck (approximately 60 percent of normal) and “some stiffness-with-the extremes.” Range
of motion in the back was about 50 percent of normal, with some pain with extremes of motion.
Neurological examination reflected 1+ equal and symmetrical reflexes at the triceps, biceps and
brachioradialis bilaterally, with a mild positive Tinel’s sign over the right elbow over the ulnar
nerve. Appellant described numbness down into his right hand that was localized over the
dorsum of the hand. X-rays of the cervical spine and of the upper thoracic revealed some
moderate degenerative disc changes at C5-6. There was no evidence of instability. X-rays of the
thoracic spine appeared to be normal for a 46-year-old. X-rays of the lumbar spine revealed
postoperative changes on the right at L4-5 with grade 1 degenerative spondylolisthesis at that
level and degenerative disc changes at T11-12. An electromyogram/nerve conduction study
(EMG-NCS) performed on that date by Dr. David Adams, a Board-certified physiatrist, revealed
some moderate tardy ulnar nerve palsy changes in the right hand and upper extremity.2 A
magnetic resonance imaging (MRI) scan of the cervical spine revealed a degenerative disc at
C5-6 with no evidence of spinal stenosis. Dr. Gleason diagnosed chronic back syndrome,
postoperative discectomy L4-5; degenerative spondylolisthesis at L4-5; mild degenerative disc
disease at C5-6; and tardy ulnar nerve palsy on the right. He recommended against surgery.
In a January 12, 2009 report, Dr. Adams reviewed a history of injury and treatment,
noting a several-month history of severe pain beginning in appellant’s hand and shooting up his
right upper extremity and into his shoulder. Appellant noted numbness of the right small fingers
and numbness of his entire right lower extremities when driving. On examination, motor
strength was 5/5 in both upper extremities, except for pain-inhibited weakness about the right
shoulder. Sensation was decreased with pinprick in the right small finger. Electrodiagnostic
examination revealed localized neuropathy of the right ulnar nerve across the elbow, moderate.
There was no electrodiagnostic evidence of radiculopathy or carpal tunnel syndrome in the right
upper extremity.
On September 28, 2009 Ann Harman, an injury compensation program administrator for
the employing establishment, controverted appellant’s claim contending that he had not
submitted sufficient medical evidence to establish a causal relationship between factors of
employment and his claimed medical condition. She noted that he had undergone surgery earlier
in the year but had not advised his employer that it was work related.
Appellant submitted a November 18, 2009 report of an MRI scan of the cervical spine
from Dr. William R. Brown, a Board-certified radiologist. Findings included a small to
moderate peterolateral extradural defect encroaching on nerve root canal and anterior lateral
ventral thecal sac consistent with bony spurring or possible disc prolapse.
On October 26, 2009 OWCP requested additional evidence, including a comprehensive
medical report containing a diagnosis, description of symptoms, the results of examinations and
tests and medical rationale explaining how appellant’s diagnosed condition was causally related
to specific factors of his employment.
2

The record contains a January 12, 2009 report of an EMG/NCS performed by Dr. Adams.

2

By decision dated December 22, 2009, OWCP denied appellant’s claim. It found that the
evidence supported that the employment exposures occurred as alleged, but denied the claim on
the grounds that the medical evidence was insufficient to establish that he sustained a cervical or
upper extremity condition as a result of established employment activities.
On July 13, 2010 appellant requested reconsideration.
The record contains a June 3, 2010 letter from the Social Security Administration
reflecting its denial of appellant’s claim for disability compensation. It found that his back and
shoulder conditions were not severe enough to disable him from work.
In a decision dated October 14, 2010, OWCP found that appellant had failed to establish
a causal relationship between the established work events and his claimed conditions.
In a January 15, 2010 letter, the Office of Personnel Management found that appellant
was disabled from his position as heavy mobile equipment operator due to his chronic back
syndrome and ulnar nerve palsy conditions.
On February 18, 2011 appellant again requested reconsideration.
Appellant submitted a February 8, 2011 report from Dr. E. Timothy Kelley, a Boardcertified orthopedic surgeon, who noted that appellant retired on disability from his position as a
heavy mobile equipment mechanic because of chronic back pain, chronic neck pain and an
“apparent” work-related shoulder injury which occurred on February 2, 2009. Due to the
February 2, 2009 injury, he had recurrent pain in the neck and shoulder, which rendered him
unable to perform his duties as a heavy mobile equipment mechanic.
By decision dated March 3, 2011, OWCP denied modification of its prior decisions,
finding that there was no rationalized medical evidence of record supporting a causal relationship
between appellant’s federal employment and his claimed conditions.
The record contains a copy of a letter from Dr. Kelley reflecting that he was terminating
his treatment of appellant due to inappropriate conduct in his offices. He stated that he provided
appellant with an authorization to release medical records, which he was asked to complete and
return.
On May 2, 2011 appellant requested reconsideration of the March 3, 2011 decision.
In a February 2, 2009 progress report, Dr. Gleason related appellant’s continued
symptoms of right shoulder pain, as well as pain, numbness and tingling from his elbow ulnar
aspect all the way down to his 4th and 5th fingers, which he described as classical for a tardy ulnar
nerve palsy diagnosis. On examination of the shoulder, appellant had pain in passive and active
rotator abduction and external rotation. He showed a decreased sensation over the ulnar nerve
distribution out into the right fingers. Appellant had a positive Tinel’s sign over the ulnar nerve
at the elbow on the right. Dr. Gleason diagnosed rotator cuff syndrome of the right shoulder and
recommended a right shoulder MRI scan.

3

In an April 25, 2011 report, Dr. David B. Morris, a Board-certified family practitioner,
stated that he treated appellant at Ellington Memorial Clinic until 14 months ago, when he
stopped work at the clinic. He noted that appellant was currently retired and unable to work due
to an injury he sustained at work in 2009 with a pneumatic air gun, which caused him to
experience acute shoulder pain. Dr. Morris did not currently have access to appellant’s medical
records.
In an undated statement, appellant indicated that, on February 2, 2009 he was working on
a starter, using a pneumatic air gun or wrench when he heard his shoulder pop. He stated that
Dr. Morris did not have access to his medical records because the clinic will not release them.
On May 31, 2011 appellant stated that he had reported the February 2, 2009 shoulder
injury to Dr. Morris and described his work history for the previous seven years. He was treated
by Dr. Gleason and Dr. Bundrick, who reportedly performed shoulder surgery on July 30, 2009
for tendi and impingement syndrome of the right shoulder.3 Appellant stated that he was unable
to obtain his medical records from Atlantic clinic.
The record contains the first page of a January 12, 2009 report from Dr. Gleason, who
provided a description of appellant’s job duties as related by his patient. Appellant’s duties
reportedly required him to prepare boxes weighing up to 85 pounds to be lifted by cranes and to
look up and down constantly for 10 to 12 hours a day. He reported that he had back surgery in
2002; however, he has no records to verify the surgery. On examination of the cervical spine,
appellant exhibited pain at the right and left paraspinals with some radiation down into the upper
thoracic region, posterior midline.
By decision dated June 27, 2011, OWCP denied modification of its March 3, 2011
decision on the grounds that the medical evidence of record was insufficient to establish a causal
relationship between appellant’s federal employment and his diagnosed conditions.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.4 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on whether there is a causal relationship between the employee’s diagnosed
condition and the compensable employment factors. The opinion of the physician must be based
3

The record does not contain any medical reports relating to appellant’s shoulder surgery.

4

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

4

on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.6
ANALYSIS
OWCP accepted that appellant was a federal employee, that he timely filed his claim for
compensation benefits and that the workplace events occurred as alleged. The issue, therefore, is
whether appellant has submitted sufficient medical evidence to establish that the employment
activities caused an injury. The Board finds that the medical evidence of record is insufficient to
establish a causal relationship between the established employment activities and a diagnosed
condition.
On January 12, 2009 Dr. Gleason provided examination findings and diagnosed chronic
back syndrome, postoperative discectomy L4-5; degenerative spondylolisthesis at L4-5; mild
degenerative disc disease at C5-6; and tardy ulnar nerve palsy on the right. He described
appellant’s job duties as related by his patient, noting that he had reportedly undergone back
surgery in 2002. Dr. Gleason did not, however, provide any opinion as to the cause of
appellant’s diagnosed conditions. 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.7
On February 2, 2009 Dr. Gleason provided examination findings, which included pain in
passive and active rotator abduction and external rotation of the right shoulder, as well as
decreased sensation over the ulnar nerve distribution out into the right fingers and a positive
Tinel’s sign over the ulnar nerve at the elbow on the right. He diagnosed rotator cuff syndrome
of the right shoulder and tardy ulnar nerve palsy on the right. As Dr. Gleason’s report does not
contain a discussion of appellant’s employment duties as they relate to his diagnosed conditions
or an opinion on the cause of those conditions, it is of limited probative value.
In a January 12, 2009 report, Dr. Adams provided a history of injury and treatment and
discussed the results of an EMG/NCS performed on that date. Examination revealed paininhibited weakness about the right shoulder and decreased sensation with pinprick in the right
small finger. Electrodiagnostic examination revealed localized moderate neuropathy of the right
ulnar nerve across the elbow. Dr. Adams found no electrodiagnostic evidence of radiculopathy
or carpal tunnel syndrome in the right upper extremity. Absent any opinion regarding the cause
5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

7

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

5

of appellant’s diagnosed condition, his report is of limited probative value in establishing the
required causal relationship.
Dr. Kelley’s February 8, 2011 report is also insufficient to establish appellant’s claim.
He noted that appellant retired on disability from his position as a heavy mobile equipment
mechanic because of chronic back pain, chronic neck pain and an “apparent” work-related
shoulder injury which occurred on February 2, 2009. Dr. Kelley stated that, due to the
February 2, 2009 injury, appellant had recurrent pain in the neck and shoulder, which rendered
him unable to perform his duties as a heavy mobile equipment mechanic. He did not provide a
definitive diagnosis,8 examination findings or a complete and accurate factual and medical
history. Dr. Kelley’s opinion that appellant’s condition was apparently due to his February 2,
2009 work injury was vague and speculative. He did not describe appellant’s job duties or
explain the medical process through which such duties would be competent to cause or
contribute to the claimed conditions. Medical conclusions unsupported by rationale are of little
probative value.9
In an April 25, 2011 report, Dr. Morris stated that he treated appellant until
approximately February 2010, when he stopped working at Ellington Memorial Clinic. He noted
that appellant was currently retired and unable to work due to an injury sustained at work in 2009
with a pneumatic air gun, which caused him to experience acute shoulder pain. Dr. Morris’
report is devoid of examination findings or a definitive diagnosis. More significantly, it does not
explain how appellant’s employment activities caused or exacerbated his cervical or upper
extremity conditions. The Board notes that he alleged in his Form CA-2 that repetitive
employment activities were responsible for his claimed neck and shoulder injuries. Dr. Morris
did not reference any repetitive activities, nor did he describe in sufficient detail how working
with a pneumatic air gun contributed to appellant’s condition. For these reasons, his report is of
diminished probative value.
Appellant stated that Dr. Morris did not have access to his medical records because the
clinic would not release them. The burden of obtaining medical reports from his treating
physician, however, rests on appellant.10 The Board also notes that on March 14, 2011
Dr. Kelley provided appellant with an authorization to release medical records, which he was
asked to complete and return. Therefore, appellant had the opportunity to obtain his records.
The remaining medical evidence of record, including MRI scan and EMG/NCS reports,
which do not contain an opinion on causal relationship, are of limited probative value and are
insufficient to establish appellant’s claim.

8

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008).
9

Willa M. Frazier, 55 ECAB 379 (2004).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.6(d)
(January 2004) (The claims examiner should request medical evidence which is in the possession of federal medical
officers or hospitals maintained by a doctor who attends the claimant though authorization by OWCP. The claimant
is responsible for obtaining the medical reports in all other situations).

6

Appellant expressed his belief that his claimed condition resulted from his duties as a
heavy mobile equipment mechanic. 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.11 Neither the fact that the condition became apparent during a
period of employment, nor the belief that the condition was caused nor aggravated by
employment factors nor incidents, is sufficient to establish causal relationship.12 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
alleged work-related injury 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 do
so. As there is no probative, rationalized medical evidence addressing how his claimed
conditions were caused or aggravated by his employment, he has not met his burden of proof in
establishing that he sustained an occupational disease in the performance of duty causally related
to factors of employment.
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 failed to meet his burden of proof to establish that he
sustained an injury in the performance of duty.

11

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

12

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the June 27 and March 3, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 1, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

8