United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Northport, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1946
Issued: December 27, 2007

Case Submitted on the Record

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

JURISDICTION
On July 17, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 3, 2007 denying his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
appeal.
ISSUE
The issue is whether appellant sustained a traumatic injury while in the performance of
duty on January 30, 2006.
FACTUAL HISTORY
On January 30, 2006 appellant, a 56-year-old firefighter, filed a traumatic injury claim
alleging that he injured his back on that date while riding in a fire truck. He stated that, while he
was “sitting in the rear of the fire apparatus, the driver came to an abrupt and violent stop
causing [him] to sprain/strain [his] lower back.” Supervisor Anthony Volpe controverted the

claim, noting that appellant was already favoring his back when he reported for duty on the date
in question.
On February 16, 2006 the Office informed appellant that the evidence submitted was
insufficient to establish his claim and advised him to provide additional documentation,
including a firm diagnosis and a physician’s opinion as to how his injury resulted in the
diagnosed condition. The Office requested appellant to provide a detailed description as to how
the injury occurred, including the cause of the injury and statements from any witnesses or other
documentation supporting his claim.
Appellant submitted a report dated February 7, 2006 from Dr. Richard D. Hindes, a
Board-certified orthopedic surgeon. He provided diagnoses of lumbosacral strain and previous
osteoarthritis, right hip and the history of injury, as reported by appellant. Appellant stated that
he was riding in the rear seat of the fire engine when the driver stopped abruptly, causing him to
fly forward, injuring his back. He indicated that he had acute onset of low back pain at the time
of the accident and was taken to the North Shore Veterans Hospital emergency room for
evaluation.
In a report dated January 30, 2006, Dr. Mark Williams, a Board-certified general surgeon,
indicated that appellant reported to the employee health emergency room “with sudden low back
pain sustained while twisting, while riding on a fire truck earlier this morning with no trauma.”
He diagnosed lumbar muscle strain.
On February 8, 2006 Mr. Volpe expressed his opinion that the injury was not work
related, as appellant was already favoring his back when he reported to work on
January 30, 2006. He stated that appellant may have aggravated his back condition when the
truck stopped noting that he complained of pain immediately thereafter.
On February 24, 2006 the employing establishment controverted appellant’s claim, citing
numerous inconsistencies in the evidence. It provided witness statements, dated February 9,
2006, from fellow firefighters. Joseph Zuco stated that he observed appellant limping and bent
over at the beginning of his tour on the date of the alleged injury. In describing the stop alleged
by appellant to have caused his injury, Mr. Zuco indicated that “when the vehicle stopped, [he]
did [not] move at all.” Christopher Pross stated that the vehicle stopped at a stop sign and that
appellant’s description of the stop as “violent and abrupt” was “untrue” and “exaggerated.” He
indicated that the stop was hard, “but not hard enough to throw anyone out of their seat or hurt
them.” Mr. Volpe stated that he “absolutely would not use the words ‘abrupt and/or violent’” to
describe the stop.
In a letter to the Office dated March 11, 2006, appellant stated that, at the time of the
alleged January 30, 2006 accident, he was riding in the rear of the fire truck after a call. The
driver was arguing with the shift operator, when he “suddenly jammed his foot on the brake
pedal, throwing [him] forward on the seat that [he] was in.” He stated that he was able to grab
onto a fire extinguisher that was mounted in front of him and landed on his knees on the floor of
the vehicle, twisting his back in the process. Appellant related that immediately following the
incident he experienced extremely sharp pain in his lower back which required emergency room
treatment.

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In a February 28, 2006 report, Dr. Peter J. Stumpf, a chiropractor, indicated that appellant
injured his back on January 30, 2006 when he was an unrestrained passenger in a fire truck that
suddenly stopped short. Dr. Stumpf stated that appellant had no prior history of injury to this
area.
On March 7, 2006 Dr. Hindes indicated that x-rays of the lumbar spine showed mild
degenerative changes. Noting that appellant had marked limitation in the range of motion in his
right hip, he stated that appellant’s primary problem was “clearly” degenerative arthritis of the
right hip.
In a decision dated May 3, 2006, the Office denied appellant’s claim on the grounds that
he failed to establish fact of injury, as he did not submit sufficient evidence to establish that he
actually experienced an employment incident at the time, place and in the manner alleged or that
the alleged incident caused his claimed condition.
On September 13, 2006 appellant, through his representative, requested reconsideration
of the Office’s May 3, 2006 decision. Counsel contended that there were no inconsistencies in
the facts presented; that appellant’s version of the facts should stand as there was no strong or
persuasive evidence refuting his allegations; that appellant had not been provided with his
coworkers’ statements; and that the Office had abused its discretion by failing to consider the
medical evidence.
On March 19, 2007 the Office provided appellant’s representative with comments and
witness statements submitted by the employing establishment. The Office allowed counsel 20
days to respond to the comments and statements.
By decision dated May 3, 2007, the Office denied modification of its May 3, 2006
decision finding that appellant had failed to establish that the injury occurred at the time, place
and in the manner alleged.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 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 the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an “employee of the
1

5 U.S.C. §§ 8101 et seq.

2

5 U.S.C. § 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).

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United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty, as alleged, and that any 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,” namely, he
must submit sufficient evidence to establish that he experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged, and that such event, incident or
exposure caused an injury.5
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met his burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.6
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.7 An award of
compensation may not be based on appellant’s belief of causal relationship. 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
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.9

4

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

5

Betty J. Smith, 54 ECAB174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). The term “injury” as
defined by the Act, 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

See Betty J. Smith, supra note 5.

7

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

8

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

9

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

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ANALYSIS
As noted above, the first element of fact of injury requires that appellant submit evidence
establishing that an incident occurred at the time, place and in the manner alleged.10 The Board
finds that he has failed to meet his burden of proof to establish that he sustained a traumatic
injury to his back on January 30, 2006.
There are inconsistencies in the evidence which cast serious doubt on appellant’s claim.
In his CA-1 form, appellant claimed that on January 30, 2006 he injured his back while riding in
a fire truck. He stated that, while he was “sitting in the rear of the fire apparatus, the driver came
to an abrupt and violent stop causing [him] to sprain/strain [his] lower back.” Appellant told
Dr. Hindes that he was riding in the rear seat of the fire engine when the driver stopped abruptly,
causing him to fly forward. He reported to Dr. Williams that he twisted his back while riding on
a fire truck. On March 11, 2006 appellant stated that, at the time of the alleged accident the
driver was arguing with the shift operator when he “suddenly jammed his foot on the brake
pedal, throwing [him] forward on the seat that [he] was in.” He stated that he was able to grab
onto a fire extinguisher that was mounted in front of him and landed on his knees on the floor of
the vehicle, twisting his back in the process. Appellant has given inconsistent versions of the
facts surrounding his alleged injury, but has not presented any probative evidence to corroborate
any of them, despite the fact that at the time of the alleged incident he was a passenger on a fire
truck returning from a call along with a truckload of fellow firefighters.
The evidence from appellant’s coworkers and supervisor disputes that the claimed
incident occurred as alleged. He was observed limping, bent over and favoring his back at the
beginning of his tour on January 30, 2006 before the alleged injury occurred. Mr. Pross stated
that appellant’s description of the stop as “violent and abrupt” was “untrue” and “exaggerated.”
He indicated that the stop was hard, “but not hard enough to throw anyone out of their seat or
hurt them.” Mr. Zuco stated that, “when the vehicle stopped, [he] did [not] move at all.”
Mr. Volpe stated that he “absolutely would not use the words ‘abrupt and/or violent’” to describe
the stop. The Board notes that a claimant’s relation of an employment incident carries great
probative value and will stand unless refuted by strong or persuasive evidence.11 Appellant’s
characterization of the circumstances surrounding his claimed injury is contradicted by numerous
witness statements, none of which support that he fell out of his seat and/or twisted his back on
January 30, 2006. The Board finds that the evidence submitted contains such inconsistencies as
to cast doubt on the validity of appellant’s claim.12 Accordingly, the Board finds that appellant
has not met his burden of proof in establishing that he experienced an employment-related
incident at the time, place and in the manner alleged.13

10

See Betty J. Smith, supra note 5; see also Tracey P. Spillane, supra note 5.

11

Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

12

See S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007).

13

As appellant did not establish an employment incident alleged to have caused her injury, it is not necessary to
consider any medical evidence. Bonnie A. Contreras, 57 ECAB ___ (Docket No. 06-167, issued February 7, 2006).

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CONCLUSION
Appellant has not met his burden of proof to establish that he sustained a traumatic injury
to his back in the performance of duty on January 30, 2006.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 27, 2007
Washington, DC

Alec J. Koromilas, 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
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rochester, NY, Employer
__________________________________________

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

Docket No. 07-798
Issued: July 18, 2007

Case Submitted on the Record

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

JURISDICTION
On January 31, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 15, 2006 which denied her recurrence
of disability claim. Pursuant to 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 established a recurrence of disability commencing on
or after February 1, 2006 causally related to her accepted June 21, 1981 employment injury.
FACTUAL HISTORY
On July 8, 1981 appellant, then a 25-year-old letter carrier, filed an occupational disease
claim alleging an injury to her left knee when she fell while delivering mail on June 26, 1981.
On June 21, 1982 the Office accepted appellant’s claim for inflammatory left knee effusion and
fracture of the distal left condyle. Arthroscopy was performed on October 7, 1981.

On August 31, 2006 appellant filed a claim for a recurrence of disability that began on
February 1, 2006. She alleged that her condition had been ongoing since 1981 and that her
present condition was related to her June 20, 1981 injury because she fell twice within one week
on June 20 and 26, 2006. Appellant noted that the claim was for medical treatment only. The
employing establishment stated that she was separated from the employing establishment at the
time of the alleged recurrence.
In a September 8, 2006 report, Dr. Allen D. Boyd, Board-certified in orthopedic surgery,
diagnosed severe degenerative joint disease of both knees and stated that he believed appellant’s
condition was caused by an employment injury as the “left knee favoring articular femur
fracture.” He also opined that appellant would require total knee replacement before returning to
regular employment.
In a September 20, 2006 letter, appellant described her falls on June 20 and 26, 2006
which contributed to her 1981 injury.
In an October 4, 2006 letter, the Office requested additional evidence from appellant to
support her recurrence claim. Appellant responded on October 12, 2006, addressing her work
history and noting that she was terminated in August 1981, reinstated on October 2, 1982 and
resigned on December 3, 1989. In response to the Office’s question about other injuries which
affected the same part of the body, appellant stated that she tripped and fell on her right knee in a
fall during 1996. She stated that her pain has been ongoing for many years and that she was
doing her normal duties when she suffered a recurrence.
The Office received medical documentation, including a July 13, 1982 orthopedic
consultation from Dr. James Burke, treatment notes from Dr. Burke dated July 13, 1982 through
November 5, 1987, visit notes from Dr. John Devanny, Board-certified in orthopedic surgery,
dated July 8, 1992 through September 17, 1996 and evaluation notes from Dr. Boyd dated
February 1 and August 14, 2006. On June 27, 1986 Dr. Burke noted that appellant “wishes to
keep the details of the automobile accident separate from the left knee problems.” On
February 1, 2006 Dr. Boyd stated that appellant told him she has had pain in both knees for many
years.
By December 15, 2006 decision, the Office denied appellant’s claim on the grounds that
the evidence of record did not support that her claimed recurrence was related to the accepted
1981 injury.
LEGAL PRECEDENT
In this case, appellant has the burden of establishing that she sustained a recurrence of a
medical condition1 on February 1, 2006 causally related to her July 8, 1981 employment injury.
This burden includes the necessity of furnishing medical evidence from a physician who, on the
1

Recurrence of medical condition means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a “need for further medical treatment after release from
treatment,” nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2002).

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basis of a complete and accurate factual and medical history concludes that the condition is
causally related to the employment injury and supports that conclusion with sound medical
rationale.2 Where no such rationale is present, the medical evidence is of diminished probative
value.3
Office regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition
resulting from a previous injury or illness without a new or intervening injury.4 In order to
establish that her claimed recurrence of the condition was caused by the accepted injury, medical
evidence of bridging symptoms between her present condition and the accepted injury must
support the physician’s conclusion of a causal relationship.5
ANALYSIS
The Office accepted that appellant sustained an inflammatory left knee effusion and
fracture distal left condyle on June 21, 1981 as a result of her federal employment. Appellant
was reinstated and returned to work on October 2, 1982. She resigned from her position on
December 3, 1989. At the time of the alleged recurrence of disability appellant was not working
for the employing establishment or any other federal agency. Her statements to the Office noted
that she fell on June 20 and 26, 2006.
The medical evidence submitted in support of appellant’s February 1, 2006 recurrence
claim includes treatment records from Dr. Burke and Dr. Devanny. Dr. Burke’s notes cover the
time period July 13, 1982 through November 5, 1987. Dr. Devanny’s notes are for the time
period July 28, 1992 through September 17, 1996. The records of both physicians address
appellant’s condition for time periods prior to the claimed recurrence in February 2006. This
evidence is not probative evidence as to appellant’s condition in February 2006 and as it is more
than 10 years old and not germane to appellant’s condition in 2006.
Dr. Boyd’s recent treatment fails to include a complete medical and factual history. On
September 8, 2006 he merely noted that appellant had degenerative joint disease of both knees.
Although Dr. Boyd stated that appellant would need total knee replacement, he did not address
how her injury in 1981 caused or contributed to any recurrence of her medical condition in 2006.
His notes do not address whether appellant’s current condition is causally related to the original
employment injury and, therefore, are of diminished probative value. While Dr. Boyd’s notes
are evidence that appellant experienced knee pain in 2006 there is no opinion as to how her
current condition is related to the 1981 injury. There is no rationalized medical opinion about
the causal relation between the original accepted injury and the claimed recurrence.

2

Ronald A. Eldridge, 53 ECAB 218 (2001).

3

Albert C. Brown, 52 ECAB 152 (2000).

4

20 C.F.R. § 10.5(x).

5

See Ricky S. Storms, 52 ECAB 349 (2001).

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A recurrence of disability is caused by a spontaneous change in a medical condition from
a previous injury without a new or intervening injury. Appellant filed for recurrence 25 years
after her initial claim and after she sustained additional falls and traumatic incidents. In her
letter, appellant alleged that her knee pain has been present for many years. There is no medical
opinion of record relating appellant’s medical condition in 2006 to the accepted injury or which
explains how her 2006 condition is related to the accepted injury, rather than her subsequent
nonwork-related injuries. There are at least two such incidents contained in the record. On
October 12, 2006 appellant mentioned that she fell in the fall of 1996. Additionally in
Dr. Burke’s treatment note on June 27, 1986 states that appellant “wishes to keep the details of
the automobile accident separate from the left knee problems.” Appellant has not established a
spontaneous change in her accepted condition.
The Board finds that there is insufficient medical evidence to demonstrate how
appellant’s current condition is causally related to her previous 1981 knee injury of inflammatory
left knee effusion and fracture distal left condyle.
CONCLUSION
Appellant has not met her burden to establish that the claimed recurrence of disability is
causally related to the original injury.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 2007
Washington, DC

Alec J. Koromilas, 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
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbia, MO, Employer
__________________________________________

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

Docket No. 08-1763
Issued: April 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 6, 2008 appellant filed a timely appeal from the November 20, 2007 and
March 19, 2008 merit decisions of the Office of Workers’ Compensation Programs which
granted a schedule award for a five percent impairment of her right upper extremity. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the merits of this
case.
ISSUE
The issue is whether appellant has more than a five percent impairment of her right upper
extremity.
FACTUAL HISTORY
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and
tenosynovitis of the middle and ring fingers of the right hand due to repetitive work as a postal
clerk. On February 18, 2005 appellant underwent a right carpal tunnel release and release of
right ring finger. On March 11, 2005 she underwent a left carpal tunnel release and left ring

finger. On June 30, 2005 appellant was released to return to regular duty. On March 14, 2006
she filed a claim for a schedule award.
On May 3, 2006 the Office referred appellant to Dr. Robert Conway, a Board-certified
physiatrist, for a second opinion evaluation. In a report dated May 18, 2006, Dr. Conway
advised that appellant did not have any ratable permanent impairment of either upper extremity.1
On June 2, 2006 an Office medical adviser agreed with Dr. Conway that appellant had no ratable
impairment of her right or left upper extremities.
By decision dated June 16, 2006, the Office denied appellant’s claim for a schedule
award, finding that the medical evidence did not support any permanent impairment.
On July 9, 2006 appellant requested an oral hearing which was held on March 27, 2007.
In a July 20, 2006 report, Dr. Joseph D. Morris, an osteopath specializing in neurology, noted
that appellant had a positive Tinel’s sign in both wrists. He also found a positive Phalen’s sign
bilaterally at about 35 seconds. Dr. Morris obtained an electromyogram (EMG) and nerve
conduction studies which showed evidence of mild carpal tunnel syndrome (CTS) on the right
but were otherwise reported as normal. He noted that appellant complained of episodic
numbness, tingling, pain and paresthesias of the both hand, to a lesser degree on the left side.
Dr. Morris stated that the normal values implied there was not enough axonal neuronal drop-out
to show delay and diagnosed status post bilateral carpal tunnel release with a history of
hypothyroidism and hypertension.
In a report dated April 12, 2007, Dr. James Eckenrode, a Board-certified orthopedic
surgeon specializing in surgery of the hand, advised that he treated appellant since 2003. He
noted that appellant still complained of numbness and diffuse weakness with loss of coordination
in her hands and wrists. Dr. Eckenrode found that, pursuant to the A.M.A., Guides (5th ed.
2001), appellant had five percent impairment to each upper extremity.2 He advised that an
additional five percent impairment could be added to each upper extremity due to the significant
weakness manifested by her markedly abnormal grip strength bilaterally.
By decision dated June 8, 2007, an Office hearing representative affirmed the June 16,
2006 decision.
On September 26, 2007 appellant requested reconsideration. In a September 18, 2007
report, Dr. Eckenrode noted that his rating of five percent impairment to each upper extremity
was based on page 495 of the A.M.A., Guides. He indicated that an optimal recovery time had
followed surgical decompression and appellant had complaints of pain with normal sensibility
1

Dr. Conway noted that using the American Medical Associations, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) 467, Figure 16-28, there was a zero percent impairment due to loss of extension or flexion
of either wrist. He noted that pursuant to A.M.A., Guides 469, Figure 16-31, there was a zero percent impairment of
the upper extremity due to any limitation of radial or ulnar deviation of either wrist. Dr. Conway noted no
impairment due to motor loss and no evidence of atrophy. He also noted that appellant’s sensory examination,
although it did appear relatively reproducible, demonstrated deficits in the ulnar distribution greater than the median
distribution. Dr. Conway concluded that appellant had no ratable impairment due to loss of sensation.
2

A.M.A., Guides 495.

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and opposition strength and some motor latency on EMG testing. Therefore, a residual carpal
tunnel syndrome was still present and five percent impairment to each upper extremity was
allowed. Dr. Eckenrode noted that he measured grip strength using the standard protocol for grip
strength measurements as mentioned in the A.M.A., Guides. He had reported the average of
multiple grip strength tests done in the middle position of the Jamar dynamometer.
On November 2, 2007 a second Office medical adviser reviewed the record and
impairment estimate of Dr. Eckenrode. He noted that the electrodiagnostic studies obtained by
Dr. Morris supported a mild residual carpal tunnel syndrome on the right, for which the A.M.A.,
Guides allowed a five percent impairment rating. However, as the diagnostic studies were
reported as normal for the left side, this did not support residual impairment. Therefore, the
Office medical adviser concluded that the medical evidence supported five percent impairment
of appellant’s right upper extremity.
By decision dated November 20, 2007, the Office granted a schedule award for five
percent impairment to the right upper extremity.
On February 4, 2008 appellant requested reconsideration. In a January 16, 2008 report
Dr. Roger W. Cameron, an osteopath, listed his impression as recurrent right carpal tunnel
syndrome, probable recurrent left carpal tunnel syndrome, bilateral residual ring trigger ringers,
bilateral thoracic outlet syndrome and hypothyroidism. He advised that appellant had five
percent impairment to wrist due to residual carpal tunnel syndrome, more on the right than the
left, as evidenced by sensory abnormality to light touch, positive Tinel’s over the carpal tunnel
and mild slowing of the right and left median motor nerves evidenced on the prior diagnostic
studies. Dr. Cameron also stated that appellant had components of thoracic outlet syndrome that
affected the C8 and T1 nerve roots which combined to form the ulnar nerve. He rated nine
percent impairment due to the thoracic outlet syndrome and ulnar nerve findings.3 Combining
these percentages, Dr. Cameron concluded that appellant had 14 percent impairment to each arm.
On March 1, 2008 the Office medical adviser stated that Dr. Cameron had rated upper
extremity impairments caused by conditions which had not been accepted by the Office as
employment related. He indicated that thoracic outlet syndrome affecting the C8 and T1 nerves
was a new diagnosis and that it had not accepted any condition above the level of the wrist for
either upper extremity. Therefore, it was inappropriate for Dr. Cameron to provide an
impairment rating utilizing Table 16-14, based on deficits of the brachial plexus.

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Dr. Cameron noted that the thoracic outlet syndrome affected cervical roots C8 and T1 which combined to form
the ulnar nerve. For the sensory component, he concluded that appellant was a Grade 4 and assigned a 10 percent
sensory deficit with a range of 1 to 25 percent. A.M.A., Guides 482, Table 16-10. Dr. Cameron noted that
maximum sensory deficit for the ulnar nerve, lower trunk, was listed as 20 percent. A.M.A., Guides 490, Table 1614. Dr. Cameron then multiplied 10 percent by the maximum sensory deficit of 20 percent to arrive at 2 percent
impairment for the sensory side. In grading the motor side of the nerve, he believed appellant was Grade 4 and
assigned a 10 percent motor deficit from a range of 1 to 26. A.M.A., Guides 484, Table 16-11. Dr. Cameron noted
the maximum upper extremity impairment due to motor deficit from the lower trunk C8-T1 as 70 percent. A.M.A.,
Guides 490, Table 16-14. Dr. Cameron then multiplied 10 percent times 70 percent and gave appellant a 7 percent
rating for the motor component to the ulnar nerve. Combining the sensory and motor rating, he concluded that
appellant had nine percent impairment due to thoracic outlet and ulnar nerve findings.

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By decision dated March 19, 2008, the Office denied modification of the previous
decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides have been adopted by the
implementing regulations as the appropriate standards for evaluating schedule losses.6
In rating impairment due to carpal tunnel syndrome, the A.M.A., Guides, note three
possible scenarios can be present following surgical decompression:
(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual CTS is rated according to the
sensory and/or motor deficits as described earlier.
(2) Normal sensibility and opposition strength with abnormal sensory and/or
motor latencies or abnormal EMG testing of the thenar muscles; a residual CTS is
still present, and an impairment rating not to exceed 5 percent of the upper
extremity may be justified.
(3)
Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength, and nerve conduction studies: there is
no objective basis for an impairment rating.
ANALYSIS
Appellant’s claim was accepted by the Office for carpal tunnel syndrome of both upper
extremities. She underwent a right carpal tunnel release on February 18, 2005 and a left carpal
tunnel release on March 11, 2005. Appellant subsequently claimed a schedule award due to
residuals of her accepted condition.
Following surgery, appellant underwent a neurological evaluation by Dr. Morris, who
obtained an EMG and nerve conduction studies on July 10, 2006. Dr. Morris advised that,
testing showed evidence suggesting a mild residual carpal tunnel on the right, otherwise, the
evaluation was described as normal. He stated that the normal values implied that there was not
enough axonal drop-out to show delay. Based on this report, the Office medical adviser found
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

See Id; Jacqueline S. Harris, 54 ECAB 139 (2002).

4

that appellant had five percent impairment of the right upper extremity under the rating criteria
applicable to carpal tunnel syndrome at page 495 of the A.M.A., Guides, under scenario 2. As
appellant did not have any abnormal electrodiagnostic testing related to her left upper extremity,
the Office medical adviser found that she did not have evidence of impairment to her left upper
extremity. The Board finds that the report of the Office medical adviser properly applied the
criteria of the A.M.A., Guides, in rating appellant’s impairment based upon her accepted bilateral
carpal tunnel syndrome.
On appeal, appellant contends that she has greater impairment than that found by the
Office. The Board notes, however, that the remainder of the medical evidence of record does not
provide an impairment rating conforming to the A.M.A., Guides. Dr. Eckenrode provided an
impairment rating of five percent to each upper extremity, indicating that he was applying the
criteria at page 495. However, he did not adequately explain how he rated impairment to
appellant’s left upper extremity at five percent in the absence of abnormal electrodiagnostic
testing, as required under scenario 2. The Board notes that Dr. Eckenrode did not obtain any
new diagnostic studies but relied on those obtained by Dr. Morris on July 10, 2006. Although he
stated that testing revealed “bilateral abnormal findings,” his opinion is not well explained given
that Dr. Morris had described testing of the left upper extremity as normal. Dr. Eckenrode also
rated five percent impairment based on loss of grip strength to each upper extremity. However,
this rating also fails to conform to the A.M.A., Guides, which provide at page 494: “In
compression neuropathies, additional impairment values are not given for decreased grip
strength.” As the impairment rating provided by Dr. Eckenrode did not properly apply the
A.M.A., Guides, his opinion is of reduced probative value.
Similarly, the report of Dr. Cameron is also of diminished probative value. He also relied
upon the July 20, 2006 diagnostic studies of Dr. Morris in making a five percent impairment
estimate for both upper extremities under the criteria at page 495. Moreover, Dr. Cameron
diagnosed thoracic outlet syndrome resulting in some upper extremity numbness and tingling and
contributing to weakness on grip studies. As noted, however, the Office has not accepted any
condition above the level of the wrists as related to appellant’s federal employment.
Dr. Cameron did not provide sufficient medical rationale to attribute the diagnosed thoracic
outlet syndrome as a consequence of her accepted bilateral carpal tunnel syndrome. As noted,
the criteria for rating impairment due to carpal tunnel syndrome preclude the consideration of
loss due to grip strength.
CONCLUSION
The Board finds that appellant has no more than five percent impairment of her right
upper extremity due to her accepted carpal tunnel condition.

5

ORDER
IT IS HEREBY ORDERED THAT the March 19, 2008 and November 20, 2007
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: April 7, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_______________________________________
G.P., Appellant
and
U.S. POST SERVICE, POST OFFICE,
Haywood, CA, Employer
_______________________________________

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

Docket No. 08-1045
Issued: September 3, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 28, 2004 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated August 16 and December 3, 2007 finding that
she had not established disability for work. 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 has met her burden of proof in establishing disability on or
after May 21, 2007 causally related to her March 28, 2005 employment injury.
FACTUAL HISTORY
On March 28, 2005 appellant, then a 47-year-old mail carrier, filed a traumatic injury
claim alleging that she sustained back pain due to sorting and unstrapping mail in the
performance of duty. She returned to modified work on April 20, 2005. The Office accepted her
claim for sprain/strain of the lumbar region on May 11, 2005.

Appellant filed a claim for compensation on May 20, 2007 requesting leave-without-pay
compensation from May 21 to June 2, 2007. She submitted a series of notes from her attending
physician, Dr. Alan Hsu. On May 21, 25 and 30, 2007 Dr. Hsu stated that appellant had
experienced a “flare-up” in her low back pain and that she needed to be off work to enable her to
recover. He indicated that appellant could return to her light-duty position on June 3, 2007. Dr
Hsu completed narrative reports on June 1, 2007 stating that appellant was experiencing a period
of increased pain due to her work-related back injury which had started to resolve. He opined
that due to a magnetic resonance imaging (MRI) scan on May 29, 2007 her right side low back
pain had increased. Appellant also reported significant left side low back pain which she
attributed to an attempt to lessen the pain on her right side. Dr. Hsu noted that appellant walked
with a cane due to a left leg limp and that the May 29, 2007 MRI scan revealed a new disc
herniation at L2-3. He diagnosed low back pain with radiculopathy on the right. Dr. Hsu
provided a treatment plan of extending appellant’s total disability from work through June 2,
2007 “to facilitate recovery” and return to normal light-duty work on June 3, 2007.
In a letter dated June 14, 2007, the Office requested additional factual and medical
evidence from appellant in support of her claimed period of disability. It allowed 30 days for a
response. Appellant submitted a report dated July 16, 2007 from Dr. Hsu noting history of an
employment injury on March 28, 2005 and resulting pain in the right side of her low back.
Dr. Hsu reported that appellant’s most recent MRI scan revealed a new disc herniation at L2-3
and diagnosed bilateral lumbar pain. He completed an attending physician’s report on June 21,
2007 and diagnosed “low back pain with radiculopathy flare-ups.” Dr. Hsu noted appellant’s
employment injury and indicated with a checkmark “yes” that appellant’s condition was caused
or aggravated by an employment activity. He provided work restrictions. On July 26, 2007
Dr. Hsu stated that he treated appellant from May 21 through June 2, 2007 due to a “flare-up of
he low back pain.” He stated that appellant experienced significant back pain during his period
as demonstrated by her slow gait with a limp. Dr. Hsu stated that when appellant’s symptoms
improved he released her to return to her normal limited-duty activities. On August 2, 2007
appellant received an injection which significantly reduced her symptoms of low back pain and
eliminated radiation of pain down her left leg.
By decision dated August 16, 2007, the Office denied appellant’s claim for compensation
finding that the medical evidence was not sufficient to establish that she was totally disabled
from May 21 to June 2, 2007.
Appellant requested reconsideration on September 11, 2007. In an August 23, 2007
report, Dr. Hsu listed the objective findings supporting his conclusion that appellant was totally
disabled from May 21 through June 2, 2007. He stated, “Although pain was the predominant
feature of this flare-up, which is subjective, there have also been objective findings that support
that she had a flare-up in low back pain. For example, on February 21, 2007 the patient had
tenderness to palpation on the right and left sacral area (whereas before she only had tenderness
at the right sacral area on April 25, 2007), that her range-of-motion had decreased to flexion of
only 20 degrees (it was 50 degrees on April 25, 2007) and extension of 5 degrees (it was 10
degrees on April 25, 2007).”
The Office referred appellant for a second opinion evaluation on August 22, 2007. In a
report dated September 13, 2007, Dr. Juon-Kin Fong, a Board-certified orthopedic surgeon,

2

noted appellant’s history of injury and described her “slight antalgic limp of the right leg.” He
diagnosed lumbalgia with right leg radiculitis spondylosis and obesity. Dr. Fong found that
appellant had back pain which was sufficient to interfere with her work, but no obvious cause on
diagnostic examination. He recommended further testing.
By decision dated December 3, 2007, the Office reviewed appellant’s claim on the merits
and denied modification of the August 16, 2007 decision finding that the medical evidence was
not sufficient to support appellant’s claim for total disability beginning May 21, 2007.
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.1
For each period of disability claimed, a claimant has the burden of proving by a
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury. Whether a particular injury caused an employee to be
disabled for employment and the duration of that disability are medical issues which must be
provide by preponderance of the reliable probative and substantial medical evidence.2
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. The Board has stated that, when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s complaints
that he or she hurts too much to work, without objective signs of disability being shown, the
physician has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.3
ANALYSIS
Dr. Hsu, a physician Board-certified in preventive medicine, generally supported
appellant’s claim for total disability for the period May 21 through June 2, 2007. He noted
appellant’s history of employment injury and diagnosed “flare-up” of low back pain. Dr. Hsu
found that appellant was unable to work, noting that she had a limp as well as decreased range of
motion and increased tenderness of the lumbosacral area. However, he did not provide a clear
1

20 C.F.R. § 10.5(x).

2

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

3

Id.

3

opinion explaining how appellant’s disability for work was due to her accepted employment
injury. Dr. Hsu stated that appellant’s most recent MRI scan demonstrated a new herniated disc
at L2-3. He further noted that she described increasing pain on the left side of her back as a
consequence from protecting her injured right side. Dr. Hsu did not clearly explain how either of
these new back conditions caused or contributed to appellant’s total disability for the period in
question. He also opined with a checkmark “yes” that appellant’s condition was due to her
accepted employment injury. The Board has held that an opinion on causal relationship which
consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s condition was related to the history given is of little probative value. Without any
explanation or rationale for the conclusion reached, such a report is insufficient to establish
causal relationship.4 Dr. Hsu has not offered adequate explanation for his conclusion that
appellant’s alleged period of total disability was due to her accepted employment injury. This
medical reasoning is especially necessary given the diagnosis of additional back conditions
which have not been accepted by the Office as employment related. The record before the Board
does not contain a definite opinion with supportive medical reasoning regarding the cause of
appellant’s total disability beginning May 21, 2007. Appellant has failed to meet her burden of
proof and the Office properly denied her claim.
CONCLUSION
The Board finds that the medical evidence is not sufficient to establish that appellant was
totally disabled from May 21 to June 2, 2007 due to her accepted employment-related back
condition and that the Office properly denied her claim.

4

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

4

ORDER
IT IS HEREBY ORDERED THAT the December 3 and August 16, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 3, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Orofino, ID, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-857
Issued: January 3, 2011

Case Submitted on the Record

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

JURISDICTION
On December 9, 2008 appellant, through his representative, filed a timely appeal from the
August 12, 2008 merit decision of the Office of Workers’ Compensation Programs, which
accepted a temporary aggravation of preexisting coronary disease prior to September 22, 2002.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUE
The issue is whether the Office met its burden to establish that the employment-related
temporary aggravation of coronary disease resolved by September 22, 2002. Appellant’s
attorney argues on appeal that the opinion of the Office’s second opinion physician is not
sufficient to discharge the Office’s burden.
FACTUAL HISTORY
On October 6, 2002 appellant, then a 56-year-old law enforcement officer, filed a
traumatic injury claim alleging that he sustained chest, left arm and left side pains on
September 2, 2002. He stated that he had been working long, stressful shifts and had been oncall 24 hours a day.

Appellant submitted a November 18, 2002 report from Dr. Gerhard Muelheims, a Boardcertified internist, specializing in cardiovascular disease. Dr. Muelheims provided examination
findings and noted that appellant underwent cardiac intervention and percutaneous stenting of his
right coronary vessel on September 20, 2002. His report reflected a history of coronary artery
disease and elevated cholesterol.
On January 3, 2003 Dr. Muelheims reported that he was treating appellant for coronary
artery disease and vascular risk factors. Appellant was admitted to Deaconess Medical Center on
September 20, 2002 with complaints of chest pain. He was found to have coronary artery
disease with a 95 percent blockage of his right coronary artery with evidence of hypokinesis, but
with fairly well-preserved left ventricular ejection fraction. Appellant also had mild to moderate
disease of his left anterior descending artery.
By decision dated January 29, 2003, the Office denied appellant’s claim on the grounds
that there was no evidence establishing that the claimed medical condition was caused by the
established work-related events.
On February 25, 2003 appellant requested an oral hearing. On June 30, 2003 he filed an
occupational disease claim.
In an October 30, 2003 statement, appellant alleged that his coronary condition was
caused by his stressful employment conditions and activities. His duties included the
apprehension and arrest of criminals and illegal immigrants. Appellant experienced stress
related to an internal investigation regarding malicious and false allegations against him. On
September 2, 2002, after climbing a flight of stairs in the main building of the employing
establishment, he had a heart attack, which required a coronary angiography for a blockage of a
major artery. Prior to the September 2, 2002 attack, appellant had worked 40 days straight,
without a day off.
By decision dated January 22, 2004, an Office hearing representative vacated the
January 23, 2003 decision and remanded the case for further development regarding fact of
injury.
In a letter dated February 19, 2004, Ginger R. Swisher, appellant’s supervisor, stated that
appellant was responsible for the detection of crimes and the identification, arrest and detention
of those responsible for committing such crimes on national forest lands. Appellant often
participated in special law enforcement details that require extensive hours of work. His job was
both physically and psychologically demanding. It was a high stress job and often caused
officers to work long hours and late night hours. Normal off-duty living conditions were often
interrupted by law enforcement call out needs. Appellant was a single officer patrol in his area
and carried a pager, so that he was available when a law enforcement need arises whether he is
on duty or off. For the year 2002, he averaged over 12 hours of overtime per week. Current
hours worked would reflect an average overtime of 17.36 hours per week the most recent six pay
periods. Appellant’s statement regarding the internal investigation was accurate. Allegations by
employees were made which caused an extensive and stressful investigation to ensue
(approximately three years in length). Appellant was cleared of all allegations and the
employees making the allegations were subject to personnel action. During the time the
allegations were being made, there were some trust, credibility, and character attacks made
2

towards appellant; this was undoubtedly very stressful for him, as an officer’s integrity is a main
stay necessity for their success. For the period of work surrounding the date of appellant’s heart
attack, he was working extensive days and hours. Immediately preceding his heart attack, he
worked a 73.5-hour workweek.
In a June 4, 2004 report, Dr. Muelheims stated that appellant’s coronary artery condition
likely developed over a number of years, most likely secondary to his being a male as well as
having elevated cholesterol. He was unable to identify the exact precipitating factor that caused,
or the degree to which stress contributed to, his hospitalization in September 2002.
In a decision dated August 20, 2004, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish that the claimed cardiac condition was causally
related to established work-related events. On September 18, 2004 appellant requested an oral
hearing.
The record contains an August 18, 2004 report from Dr. Pierre Leimgruber, a Boardcertified internist, specializing in cardiovascular disease, who noted that he had been treating
appellant since September 2002, when he was admitted with acute coronary syndrome.
Dr. Leimgruber’s findings were consistent with a high-grade stenosis in appellant’s right
coronary artery and he underwent successful balloon angioplasty and stenting. He opined that
appellant’s coronary artery disease progression, which ultimately culminated in his acute event
in September 2002, was significantly caused by stress experienced in his work environment.
Dr. Leimgruber explained that stress has been well known to aggravate and accelerate underlying
coronary artery disease.
By decision dated March 7, 2005, an Office hearing representative affirmed the Office’s
prior decision.
On October 26, 2005 appellant requested reconsideration. He submitted a May 16, 2005
report from Dr. Leimgruber, who explained that stress causes the progression of coronary artery
disease by raising catecholamine levels, which increases the heart rate and blood pressure. On
August 15, 2005 Dr. Charles R. Foster, a treating physician, opined that appellant’s stressful job
activities caused appellant’s coronary artery disease and acute September 2002 event, on a more
probable than not basis.
By decision dated October 28, 2005, the Office denied modification of the prior decision.
On July 13, 2006 appellant requested reconsideration.
Appellant submitted a June 1, 2006 report from Dr. John G. Peterson, a Board-certified
internist, specializing in cardiovascular disease. Dr. Peterson opined that work stressors
precipitated acute ischemic heart disease in September 2002.
The Office referred appellant to Dr. Robert G. Thompson, a Board-certified internist,
specializing in cardiovascular disease, for a second opinion examination and an opinion as to
whether appellant’s diagnosed coronary artery disease was causally related to employment
factors. If the condition was aggravated by employment factors, the Office asked the physician
3

to provide a rationalized opinion on whether the aggravation was temporary or permanent. The
statement of accepted facts provided to Dr. Thompson stipulated that appellant worked 12 to 16
hours per day for the 40 days preceding the September 2002 cardiac incident, and that his duties
included monitoring and relocating sensors and radio traffic and arresting people attempting to
leave the United States illegally.
In a June 27, 2007 report, Dr. Thompson provided a history of appellant’s injury and
treatment. He stated that it was impossible to say that ongoing stress in this case caused
appellant’s chronic coronary problem.
By decision dated July 24, 2007, the Office affirmed the prior decision, finding that there
were no employment factors contributing to appellant’s coronary condition.
Appellant’s representative noted that he had not received notice of the second opinion
examination and requested that the July 24, 2007 decision be vacated based on the Office’s
procedural error. In a letter dated October 12, 2007, the Office informed appellant’s counsel that
the July 24, 2007 decision was set aside.
The Office referred appellant, together with a statement of accepted facts, to Dr. Amish J.
Desai, a Board-certified internist, specializing in cardiovascular disease, for a second opinion
examination and an opinion as to the cause of his cardiac condition. In a report dated August 28,
2007, Dr. Desai stated that stress in the workplace has been shown to increase the risk of
coronary artery disease and subsequent myocardial infarction, “especially when it is protracted,
intense and continuous, such as in [appellant’s] case.” He opined that appellant’s underlying
cardiac condition was accelerated by his employment as a law enforcement officer. Dr. Desai
also noted that “aggravation as related to the work factors ceased when the patient stopped this
line of work.” In a supplemental report dated November 16, 2007, he opined that appellant’s
coronary artery disease was more probably than not accelerated by his ongoing stressful work
environment, which led to elevated cortisol levels in the blood stream, which, in turn, damaged
the blood vessels in the heart.1
On June 11, 2008 the Office informed appellant that Dr. Desai’s reports would be
excluded from the record, as his opinion was equivocal, and appellant was referred to
Dr. Douglas L. Dawley, a Board-certified internist, specializing in cardiovascular disease, for
another second opinion examination. It asked Dr. Dawley to provide an unequivocal opinion
with medical rationale as to whether the work-related factor contributed to the development of
appellant’s cardiac disease.
In a June 11, 2008 report, Dr. Dawley provided a history of injury and treatment, noting
that appellant underwent a coronary angiogram on September 20, 2002, which showed a 95
percent stenosis of the mid right coronary artery. Subsequently, he underwent RCA stenting of
the high-grade right coronary lesion with a 3.0 express stent. Dr. Dawley stated that, since that
time, appellant’s angina had not recurred. He provided: examination findings reflecting a blood
1

Appellant filed an appeal with the Board for review of the Office’s July 24, 2007 decision. The appeal was
dismissed by order dated February 27, 2008 at appellant’s request. Docket No. 08-112 (issued February 27, 2008).

4

pressure of 142/82; heart 71 and regular, respirations 18; thyroid not palpable; neck supple
without adenopathy; lungs clear; extremities without edema; pulses: carotids full bilaterally
without bruits; radial and dorsalis pedis pulses 1+ bilaterally. Dr. Dawley opined that appellant’s
only cardiac risk factor appeared to be hypercholesterolemia.
Dr. Dawley opined that stress was not a clear-cut causal factor in the occurrence or
manifestation of symptomatic coronary artery disease. He stated:
“I think it could only be argued that his job stress provided a temporary aggravation
of his cardiac symptoms, possibly due to a hyperadrenergic state. In no way, though,
would his job stress be considered a major causal factor in the development of
coronary artery disease.”
Dr. Dawley indicated that “the temporary aggravation would have ceased when the
specific provoking job activities ceased.” He opined that appellant would need routine medical
follow-up, specifically to monitor cardiac risk factors like hypertension and
hypercholesterolemia.
In a decision dated August 12, 2008, the Office vacated the October 25, 2008 decision
and accepted appellant’s claim for temporary aggravation of his underlying coronary disease
prior to September 22, 2002. The Office’s decision was based upon Dr. Dawley’s June 11, 2008
report.2
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 Once the Office accepts a
claim it has the burden of justifying modification or termination of compensation. After it has
determined that an employee has disability causally related to his employment, it may not
terminate compensation without establishing that the disability has ceased or is no longer related
to the employment injury.4 The fact that the Office accepted an employee’s claim for a specified
period of disability does not shift the burden of proof to the employee. The burden is on the
Office to demonstrate an absence of employment-related disability or residuals in the period
subsequent to the date of termination or modification.5

2

The Board notes that appellant submitted additional evidence after the Office rendered its August 12, 2008
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952)
3

5 U.S.C. § 8102(a).

4

Edwin Lester, 34 ECAB 1807 (1983).

5

See Elsie L. Price, 54 ECAB 734, 739 (2003); Raymond M. Shulden, 31 ECAB 297 (1979); Anna M. Blaine
(Gilbert H. Blaine), 26 ECAB 351 (1975).

5

ANALYSIS
On the same day, the Office accepted appellant’s claim for temporary aggravation of his
underlying coronary disease and found that the accepted condition had resolved effective
September 22, 2002. As noted, the Office’s acceptance of a claim for a specified period of
disability does not shift the burden of proof to the claimant to demonstrate that he remains
disabled thereafter.6 It is the Office’s burden to demonstrate the absence of employment-related
disability for the period following termination or modification of benefits.7 The Office based its
decision to terminate compensation and medical benefits on Dr. Dawley’s June 11, 2008 report.
The Board finds that the medical evidence of record is insufficient to establish that appellant’s
accepted condition had resolved.
Dr. Dawley stated that it could “be argued” that appellant’s job stress provided a
temporary aggravation of his cardiac symptoms, “possibly” due to a hyperadrenergic state. His
opinion regarding both the cause and duration of appellant’s condition is equivocal in nature.
Although he speculated that the temporary aggravation would have ceased when the specific
provoking job activities ceased, Dr. Dawley did not explain the basis for his conclusion that the
effects of the aggravation would be limited in time, or whether the accepted stressful
employment factor had accelerated the underlying cardiac condition, as Dr. Desai opined. Such
a discussion is particularly important in light of the opinions of appellant’s treating physicians
that stress causes the progression of coronary artery disease by raising catecholamine levels.
Dr. Dawley’s opinion that appellant would need routine medical follow-up to monitor cardiac
risk factors like hypertension and hypercholesterolemia does not establish that the aggravation
had resolved by September 22, 2002, but rather supports appellant’s contention that he continues
to experience residuals from the accepted condition. The Board finds that Dr. Dawley’s report is
of limited probative value and fails to demonstrate an absence of employment-related residuals
required to terminate appellant’s benefits.8
The record does not contain a rationalized medical opinion establishing that the accepted
condition of temporary aggravation of coronary disease had resolved as of September 22, 2002.
The Office, therefore, improperly terminated authorization for medical treatment for this
accepted condition.9

6

Elsie L. Price, supra note 5.

7

Id.

8

See supra note 5.

9

The Office excluded Dr. Desai’s reports from the record on the grounds that they were equivocal. Dr. Desai’s
reports, however, do not fall within the category of reports which should be excluded from the record. There is no
evidence that he performed fitness-for-duty examinations for the employing establishment, that the Office had
previously requested an impartial report and failed to seek clarification before seeking his opinion; that his reports
were obtained through telephone contact or that the Office improperly utilized leading questions. The Office
therefore was not required to exclude Dr. Desai’s reports from the record. See Federal (FECA) Procedure Manual,
Part 3 -- Medical, Medical Examinations, Chapter 3.500.6 (September 1995). The Office’s error in excluding
Dr. Dasai’s reports was harmless, however, it does not affect the outcome of this case.

6

On appeal, counsel contests the termination of the accepted aggravation of appellant’s
coronary condition. For reasons stated, the Board finds that the termination of benefits was
improper.
CONCLUSION
The Board finds that the Office did not meet its burden to establish that appellant’s
accepted condition had resolved as of September 22, 2002. Accordingly, the Office’s August 12,
2008 decision is affirmed as to its acceptance of temporary aggravation of coronary disease. The
decision is reversed as to the termination of appellant’s medical and compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the August 12, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: January 3, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, LAWSON ARMY AIRFIELD,
FORT BENNING, GA, Employer
__________________________________________

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

Docket No. 15-600
Issued: June 2, 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 January 26, 2015 appellant, through counsel, filed a timely appeal from a
December 3, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
back injury on September 10, 2013, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 11, 2013 appellant, then a 32-year-old firefighter, filed a traumatic injury
claim alleging that on September 10, 2013 he injured his back while pulling a hose load of 1.75”
attack line of the fire apparatus. He stopped work on September 10, 2013.
Medical notes from Columbus Regional Medical Center dated September 11, 2013 noted
a report of back pain and excused appellant from work until September 13, 2013.
In a September 12, 2013 treatment note, Dr. Glenn E. Fussell, a Board-certified family
practitioner, noted that appellant was pulling a hose load of 1.75” attack line of the fire apparatus
and injured his back. Appellant went to the hospital where they stated it looked like the muscles
were pinching a nerve. Dr. Fussell noted appellant’s complaints and set forth findings on
examination. An assessment of low back pain was provided along with several other diagnoses.
Appellant was referred to Dr. Thomas Bernard, a Board-certified orthopedic surgeon, for further
treatment and was taken off work until seen by Dr. Bernard.
In a September 12, 2013 certificate for work absence, Dr. Fussell advised that appellant
was unable to return to work until seen by Dr. Bernard. In an October 8, 2013 note, he cleared
appellant to return to work with a restriction of no lifting over 10 pounds. In an October 14,
2013 note, Dr. Fussell stated that appellant could continue to work with the restriction of no
lifting over 10 pounds. He noted that this restriction would be revaluated when appellant saw
Dr. Bernard.
On October 17, 2013 OWCP advised appellant of the deficiencies in his claim and
provided him 30 days in which to submit additional medical evidence, which provided a
diagnosis of a medical condition which was sustained as a result of the claimed events.
In an October 22, 2013 report, Dr. Fussell noted that appellant had fallen at work the
previous day. He noted that appellant was entering a coworker’s sleeping quarters and as he
turned the door knob, he had a back spasm that caused him to fall. Dr. Fussell noted that
appellant went to the hospital last night and was told he strained his lower back. He noted
findings on examination and provided an assessment of low back pain and accidental fall.
Dr. Fussell indicated that appellant could resume the same work restrictions he was on with light
duty and no lifting over 10 pounds. He noted that appellant would see Dr. Bernard on
November 4, 2013.
By decision dated November 25, 2013, OWCP denied the claim as appellant had not
established the medical component of fact of injury as the medical evidence submitted failed to
contain a diagnosis in connection with the event or a well-rationalized opinion based on
objective findings on whether and how any condition diagnosed was attributable to identified
work activities.
On November 7, 2014 appellant requested reconsideration. A nurse restriction form
signed February 25, 2014 was submitted along with several reports from Dr. Fussell.
In a November 15, 2013 report, Dr. Fussell noted that appellant was seen for a follow-up
on multiple chronic conditions. He noted examination findings. An assessment of arthropathy
2

of spinal facet joint; low back pain; accidental fall and other diagnoses were provided.
Dr. Fussell noted that, based on a March 12, 2013 magnetic resonance imaging (MRI) scan,
appellant had proven facet arthropathy but a diagnosis of spondylosis was equivocal. He
recommended that appellant continue work restrictions of no lifting over 10 pounds.
In a February 25, 2014 report, Dr. Fussell noted that on February 9, 2013 appellant was
assigned as the driver and while pushing the external bay door open, it jammed and jolted his
back causing back pain. That injury was reported. On February 22, 2013 appellant was opening
a hanger door when the weather stripping on the door got caught and abruptly stopped. He stated
that it jammed him and he felt a tingling down to his hips. Appellant tried to pull it another way
and realized that his back was hurting. He was seen at the hospital and given an antiinflammatory injection, Flexeril, and Motrin and put on light duty. On February 22, 2013
Dr. Fussell performed an x-ray, which showed a normal spine with loss of lordosis, which
suggested an injury and spasm. Appellant also had cardiac issues and was referred to another
physician for a work-up which ultimately was negative. Dr. Fussell saw appellant again on
March 15, 2013 with improvement in his back pain, but still restricted to light duty. The lumbar
spine MRI scan showed mild disc bulging at L3-4 and L4-5 with no nerve root compression.
Mild bilateral facet arthropathy at L4-5 and L5-S1 was noted, with a slightly bigger bulge that
indented the anterior thecal sac. Moderate narrowing of the neural formina was also noted with
moderate facet arthropathy at that level. Appellant returned to full duty in April 2013 and
remained in full-duty status until July 26, 2013, after he reinjured his back at work when he bent
over to pick something up and his back locked up. Dr. Fussell stated that he returned appellant
to work the following Monday and worked him up for a kidney stone. He saw appellant for
another episode of back pain on September 12, 2013 when appellant injured his back while
pulling a hose load. Dr. Fussell noted that appellant’s complaints were not following the context
of his examination. He indicated that appellant went on light duty from then until the present.
The next injury was on October 21, 2013 when appellant fell at work due to a back spasm.
Dr. Fussell noted that appellant was referred to Dr. Bernard for an evaluation of his back.
Appellant was seen on November 4 and December 16, 2013.
Dr. Bernard diagnosed
lumbosacral spondylosis without myelopathy and recommended light-duty work restrictions with
a 10-pound weight limit, physical therapy, and back brace. Dr. Fussell stated that he kept
appellant on the same restrictions. Appellant still complained of chronic back pain. Dr. Fussell
noted findings on examination and provided an assessment of lumbosacral spondylosis without
myelopathy, symptomatic, arthropathy of spinal facet joint, asymptomatic, low back pain, and
accidental fall.
By decision dated December 3, 2014, OWCP modified its prior decision to reflect that
the fact of injury had been established, but denied the claim as causal relationship had not been
established.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the

3

employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.4
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 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.8 The opinion of the physician must be based 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.9
ANALYSIS -- ISSUE 1
OWCP denied appellant’s claim as the medical evidence of record was insufficient to
establish that his diagnosed back conditions were caused or aggravated by his work activities.
The Board affirms the decision.
Appellant alleged that he sustained a back injury while pulling a hose load on
September 10, 2013. The employing establishment has not disputed that this event occurred as
alleged. Dr. Fussell failed to present any medical rationale as to how the September 10, 2013
work-related event could cause or aggravate the diagnosed conditions of lumbosacral

2

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

3

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

John J. Carlone, 41 ECAB 354 (1989); B.F., Docket No. 09-60 (issued March 17, 2009).

5

D.B., 58 ECAB 464 (2007); Paul Foster, 56 ECAB 208 (2004).

6

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, 57
ECAB 364 (2006).
7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); Michael S. Mina, 57 ECAB
379 (2006).
8

J.J., Docket No. 09-27 (issued February 10, 2009); Sedi L. Graham, 57 ECAB 494 (2006).

9

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

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spondylosis without myelopathy, arthropathy of spinal facet joint, low back pain, and accidental
fall.10
While Dr. Fussell noted the September 10, 2013 work incident in his February 25, 2014
report, he additionally reported that appellant had several other work-related incidents which
caused injury to his back: on February 9, 2013, while pushing a bay door open; on February 22,
2013, while opening a hanger door; on July 26, 2013, when bending over to pick something up;
and on October 21, 2013 when appellant fell at work due to a back spasm.
An explanation as to how physiologically the September 10, 2013 incident would have
caused the diagnosed conditions is especially important given the number of other incidents
appellant experienced during 2013, allegedly causing back injury. Dr. Fussell’s report does not
offer a rationalized medical explanation as to how the September 10, 2013 incident caused
injury. As such his February 25, 2014 report is of little probative value in establishing
appellant’s claim.
Notes from a nurse are also insufficient to establish appellant’s claim. Nurses are not
considered physicians under FECA. A nurse’s opinion regarding diagnosis or causal relationship
is therefore of no probative value.11
Appellant also submitted work restriction notes and several treatment notes from
Dr. Fussell in support of his claim that he sustained a back condition on September 10, 2013.
However, these notes do not offer any opinion on causal relationship between the diagnosed
medical condition and the September 10, 2013 employment incident. Thus, these notes are
insufficient to meet appellant’s burden of proof.
The Board finds that the medical evidence does not establish that appellant sustained a
medical condition causally related to his federal employment. An award of compensation may
not be based on surmise, conjecture, or speculation. Neither the fact that appellant’s condition
became apparent during a period of employment or the belief that his condition was caused,
precipitated, or aggravated by his employment, is sufficient to establish causal relationship.12
Causal relationships must be established by rationalized medical opinion evidence. As noted, the
medical evidence is insufficient to establish appellant’s claim. Consequently, OWCP properly
found that he did not meet his burden of proof in establishing his claim.
On appeal, counsel argued that the decision is contrary to fact and law. As noted above,
the medical evidence does not establish that appellant’s diagnosed conditions are causally related
to the accepted September 10, 2013 event of pulling a hose load, or appellant’s other firefighter
10

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, id.

11

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).
12

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

5

duties. Reports from appellant’s treating physician failed to provide sufficient medical rationale
based on a complete factual background explaining the reasons why his diagnosed conditions
were caused or aggravated by particular employment duties.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a back injury on September 10, 2013, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, U.S. PRISON, Atlanta, GA, Employer
__________________________________________

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

Docket No. 10-2361
Issued: July 6, 2011

Case Submitted on the Record

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

JURISDICTION
On September 21, 2010 appellant filed a timely appeal from an August 25, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) that found an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $24,078.93 for the period June 12, 2005 to June 5, 2010 because she erroneously
received augmented compensation; (2) whether OWCP properly denied waiver of the
overpayment; and (3) whether OWCP properly required repayment at the rate of $300.00 from
continuing compensation.
On appeal appellant asserts that she was entitled to augmented compensation because she
is the legal guardian and sole caretaker of her siblings.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 28, 2004 appellant, then a 44-year-old corrections officer, was injured
when she fell from a top bunk she was searching. OWCP accepted left shoulder contusion; right
ankle contusion; herniated disc at L4-5; major depression, single episode; post-traumatic stress
disorder and brachial plexus lesions as employment related. Appellant stopped work on the date
of injury and did not return. She received compensation beginning on February 12, 2005 at the
statutory rate of 66 2/3 percent. On April 18, 2005 appellant was placed on the periodic
compensation rolls at that rate. On April 26, 2006 she informed OWCP that she had dependents
that had been living in her home since November 19, 1997. Appellant stated that the “adoption
process” took place in New Orleans, Louisiana, for five dependents, four of whom were still
living with her. She attached a December 9, 1999 statement regarding three of the claimed
dependents. The statement indicated that five of the children were placed with H.K., who moved
to Georgia to live with her daughter, appellant. The children were in the process of being
adopted by H.K. The Office increased appellant’s compensation to the 75 percent augmented
rate effective June 12, 2005.
On July 6, 2006, February 26, 2007, March 4, 2008, February 26, 2009 and February 8,
2010, appellant submitted OWCP EN1032 forms on which she claimed her siblings and a greatniece as dependents.2 A conference was held on February 25, 2010 between OWCP’s claims
examiner and appellant. The claims examiner noted that appellant claimed two brothers as
dependents. When asked if they had been legally adopted, appellant stated that her mother
passed away several years previously, and the court left her brothers in her care. Appellant was
advised to send the court documentation. Her compensation was reduced to the basic 2/3 rate
effective June 6, 2010.
By letter dated July 22, 2010, OWCP issued a preliminary determination that appellant
received an overpayment in compensation in the amount of $24,078.93 for the period June 12,
2005 to June 5, 2010 based on receipt of augmented compensation. It found that her siblings did
not qualify as dependents, explained the calculation of the overpayment and found appellant not
at fault in its creation. Appellant was provided an overpayment action request form and an
overpayment questionnaire. The overpayment worksheet and computer printouts of record
document that from June 12, 2005 to June 5, 2010 appellant received augmented compensation
totaling $216,485.00, when she should have received compensation at the unaugmented rate
totaling $192,406.07, the difference representing an overpayment in compensation of
$24,078.93.
On July 27, 2010 OWCP’s claims examiner advised appellant that documentation
regarding legal custody of her claimed dependents had not been received. She was advised to
resend the requested documentation. In correspondence dated August 9, 2010, appellant
maintained that she had sent the requested information by priority mail on February 25, 2010 and
attached a postal receipt. She did not resend the requested documentation or otherwise respond
to the preliminary overpayment notice.

2

Appellant claimed as dependents a sister, two brothers and a great-niece.

2

On August 25, 2010 OWCP finalized the overpayment decision. It noted that FECA does
not provide for siblings as qualified dependents. OWCP found that appellant was not at fault in
the creation of the overpayment but was not entitled to waiver because she did not respond to the
preliminary finding. It informed her that $300.00 would be deducted from each continuing
compensation payment in order to recover the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 The basic rate of compensation paid under FECA is 66 2/3 percent of the
injured employee’s monthly pay. Where the employee has one or more dependents as defined in
FECA, the employee is entitled to have his or her basic compensation augmented at the rate of 8
1/3 percent for a total of 75 percent of monthly pay.4 Section 8110(a)(3) of FECA provides that
a child is considered a dependent if he or she is under 18 years of age, is over 18 but is unmarried
and incapable of self-support because of a physical or mental disability or is an unmarried
student, as defined under section 8101(17).5
Sections 8101(9) and 8110 of FECA state that only individuals specifically defined as a
child under section 8110 entitle an employee to augmented compensation for such a dependent.
The term child in section 8101(9) of FECA provides for three specific relationships in addition to
the biological relation between a parent and his or her natural child: stepchildren, adopted
children and posthumous children.6
If a claimant receives augmented compensation during a period where he or she has no
eligible dependents, the difference between the compensation to which he or she was entitled at
the two thirds compensation rate and the augmented compensation received at the three fourths
rate constitutes an overpayment of compensation.7
ANALYSIS -- ISSUE 1
Appellant was placed on the periodic compensation rolls at the augmented three-fourths
rate on June 12, 2005. She received compensation at the augmented rate until June 6, 2010.
Appellant submitted EN1032 forms from July 6, 2006 to February 6, 2010 and claimed several
siblings and a great-niece as her dependents. Although she asserted that she was the legal
3

5 U.S.C. § 8102(a).

4

Id. at § 8110(b).

5

Id. at § 8110(a)(3).

6

5 U.S.C. §§ 8101(9) and 8110; see Louis L. Jackson, Sr., 39 ECAB 423 (1988), citing Aretha Hudson, 28 ECAB
169, 170 (1977) (where the Board held that appellant’s legal guardianship and support of her two minor nephews did
not qualify the children as dependents pursuant to the Act, because appellant had not adopted the children). Both of
these cases note the principle of statutory construction known as expressio unis est exclusio alterius, whereby the
expression of specific persons or things in a statute implies an intent to exclude all others.
7

5 U.S.C. § 8110(a)(3); see Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

3

guardian of the claimed dependents, she submitted no court records or other documentation to
support that the individuals were ever adopted as her children. The issue is whether the claimed
dependents quality as a child as defined under section 8110 of FECA. FECA provides that a
child means one who is 18 years of age or over that age and incapable of self-support, and
includes stepchildren, adopted children and posthumous children, but does not include married
children.8 In Aretha Hudson,9 the Board held that a nephew is not a child under section 8101(9),
finding that the guardian of the nephew was not entitled to augmented compensation under
FECA. Similarly, sisters and brothers are not among the categories of individuals included in the
term “child” for purposes of FECA. The definition of a child covers three specific relationships
in addition to the biological one between a person and his or her natural child.10
The record supports that appellant received compensation at the augmented three-fourths
rate from June 12, 2005 to June 5, 2010, when she had no eligible dependents. Appellant
received augmented compensation at the three-fourths rate totaling $216,485.00, when she
should have received compensation at the statutory two thirds rate of $192,406.07. The
$24,078.93 difference constitutes an overpayment in compensation.11 The Board finds that
OWCP properly determined the fact and amount of compensation overpaid in this case.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”13 Section 10.438 of OWCP regulations provides that [t]he individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
on an overpayment would defeat the purpose of FECA or be against equity and good

8

5 U.S.C. § 8101(9).

9

Aretha Hudson, supra note 6; see also Katie E. Hall, 50 ECAB 177 (1998).

10

Supra note 8.

11

5 U.S.C. §§ 8101(17), 8110.

12

See Ralph P. Beachum, Sr., supra note 7.

13

5 U.S.C. § 8129.

4

conscience.14 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.15
ANALYSIS -- ISSUE 2
OWCP found appellant without fault in the creation of the overpayment, waiver must be
considered and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.16 Appellant,
however, had the responsibility to provide financial information to OWCP for consideration.17
She failed to do so.
In its preliminary determination dated July 22, 2010, OWCP clearly explained the
importance of providing the requested financial information and advised appellant that it would
deny waiver if she failed to furnish the requested financial information within 30 days.
Appellant did not submit any completed overpayment questionnaire or submit financial
information supporting her income and expenses. As a result, OWCP did not have the necessary
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA or if recovery would be against equity and good conscience. As appellant did not submit
the financial information required under section 10.438 of the implementing regulations, OWCP
properly denied waiver of recovery of the overpayment of compensation in the amount of
$24,078.93.18
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.19
14

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. 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. 20 C.F.R. § 10.437.
15

20 C.F.R. § 10.438.

16

Supra note 13.

17

20 C.F.R. § 10.438.

18

Id.

19

Id. at § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

5

ANALYSIS -- ISSUE 3
As noted, appellant did not submit an overpayment recovery questionnaire or other
financial information to OWCP prior to the final August 25, 2010 overpayment decision. The
overpaid individual is responsible for providing information about income, expenses and assets
as specified by OWCP.20 When an individual fails to provide requested financial information,
OWCP should follow minimum collection guidelines designed to collect the debt promptly and
in full.21 As appellant did not submit any financial information as requested, the Board finds that
OWCP did not abuse its discretion in directing recovery at a rate of $300.00 from her continuing
compensation.
CONCLUSION
The Board finds that an overpayment of compensation in the amount of $24,078.93 was
received by appellant’s that OWCP properly denied waiver of the overpayment, and OWCP
properly required repayment by deducting $300.00 each period from appellant’s continuing
compensation payments.

20

Id. at § 10.438.

21

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.4(c)(2) (September 1994).

6

ORDER
IT IS HEREBY ORDERED THAT the August 25, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 6, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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