United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 09-1633
Issued: April 19, 2010

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 June 11, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated September 4, 2008 and May 4, 2009, denying his
recurrence claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant sustained a recurrence of total disability commencing
March 21, 2008 causally related to his February 23, 1990 employment injuries.
FACTUAL HISTORY
On March 22, 1990 appellant, then a 39-year-old general mechanic, filed an occupational
disease claim for pain in his left leg and foot and to his lower buttock. He also indicated that his
disc was ruptured. Appellant advised his work duties included lifting, pushing and pulling heavy
objects. He stopped work on January 26, 1990 and returned to light duty on February 5, 1990.
The Office accepted appellant’s claim for displacement of lumbar intervertebral disc without

myelopathy. It subsequently accepted a herniated disc at L5-S1. Appellant returned to work
with permanent restrictions of no lifting over 25 pounds.
In a December 4, 1991 report, Dr. Henry J. Freede, a Board-certified orthopedic surgeon,
placed appellant on permanent restricted duty and not to lift over 25 pounds. He submitted
reports through April 24, 1997, treating appellant for residuals of an old injury to his low back
that consisted of an extruded disc that was slowly resolving over time. Dr. Freede advised that
appellant’s continuing problems were related to his low back injury and that he could work
limited duty.
On March 24, 2008 appellant filed a recurrence of disability claim alleging that, on
March 21, 2008 between 10:00 a.m. and 2:00 p.m., he experienced pain in his low back and left
leg while performing his duties. He did not stop work.
In a May 12, 2008 letter, the Office advised appellant that factual and medical evidence
were needed to support his recurrence claim. It requested that he provide a narrative report from
a physician describing objective findings and an opinion on causal relation.
Appellant submitted medical reports dated March 26 and April 23, 2008 from
Dr. Gregory Zeiders, an osteopath specializing in orthopedic surgery, who stated that appellant
was seen for a new condition to his low back. He reported having pain while stretching and
putting a tarp over a sorting machine at the employing establishment on March 21, 2008.
Appellant noted that he was previously seen by other physicians for back pain, facet hypertrophy
and a history of bulging discs. He provided findings on examination and listed an impression of
acute or chronic low back sprain/strain. Dr. Zeiders advised that appellant could work with
restrictions of no lifting more than 10 pounds and no pushing/pulling more than 25 pounds.
By decision dated September 4, 2008, the Office denied appellant’s recurrence of
disability claim. It noted that Dr. Zeiders had described a new injury.
On January 29, 2009 appellant requested reconsideration. He submitted medical reports
dated September 16, 2008 to March 12, 2009 from Dr. Shelly V. Jacobs, a general practitioner,
who noted that appellant worked for the employing establishment at approximately 29 years as a
maintenance mechanic. Appellant was moving heavy postal equipment repeatedly over many
years when he first noticed significant low back pain in February 1990. He was treated for that
injury and required a weight lifting restriction of 25 pounds. In March 2008, appellant was
stretching a tarp over a processing machine and moved quickly while lifting his arms over his
head. He again wrenched his low back. Dr. Jacobs listed appellant’s examination findings and
provided an assessment of chronic lumbar back strain with reported two levels of herniated disc.
She opined that he injured his lower back while performing repetitive duties at the employing
establishment both in 1990 and 2008. Dr. Jacobs stated that the natural history of lumbar back
disease followed periods of crescents followed by exacerbations. She also advised that appellant
needed to be treated for stress, anxiety and anger that developed from his work-related injury.
Dr. Jacobs reviewed a December 12, 1990 magnetic resonance imaging (MRI) scan report
provided by appellant, which revealed two herniated discs. She opined that he injured his low
back while performing repetitive duties at the employing establishment in 1990 and 2008. In
subsequent reports, Dr. Jacobs noted appellant’s status and made treatment recommendations.

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In an October 24, 2008 report, Dr. Donald Barney, an osteopath in general practice and
an associate of Dr. Jacobs, noted that appellant provided a work history of custodial sweeping,
mopping floors and cleaning the office building. Appellant also worked as a maintenance
mechanic moving metal collection boxes and casing boxes and other objects as required. He
reported that his injury was due to lifting heavy items at work, such as the mailboxes.
In a May 4, 2009 decision, the Office denied modification of its September 4, 2008
decision. It found that Dr. Jacob described a new injury and noted that appellant could file a new
claim for occupational disease.
LEGAL PRECEDENT
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 which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.1
Office procedures state that a recurrence of disability includes a work stoppage caused by
a spontaneous material change, demonstrated by objective findings, in the medical condition that
resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured.2
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.3
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between his recurrence of disability and his employment
injury.4 This burden includes the necessity of furnishing evidence from a qualified physician
who, on the basis of a complete and accurate factual and medical history, concludes that the

1

20 C.F.R. § 10.5(x); see S.F., 59 ECAB ___ (Docket No. 07-2287, issued May 16, 2008). See 20 C.F.R.
§ 10.5(y) (defines recurrence of a medical condition as a documented need for medical treatment after release from
treatment for the accepted condition).
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).
Kenneth R. Love, 50 ECAB 193, 199 (1998).
3

Terry R. Hedman, 38 ECAB 222 (1986). See 20 C.F.R. § 10.5(x) for the definition of a recurrence of disability.

4

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

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condition is causally related to the employment injury.5 The physician’s conclusion must be
supported by sound medical reasoning.6
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.7 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.8 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.9
ANALYSIS
The Office accepted that appellant sustained displacement of a lumbar intervertebral disc
without myelopathy and a herniated disc at L5-S1. Appellant returned to full-time work with
permanent restrictions of no lifting over 25 pounds. He subsequently claimed a recurrence of
disability on March 21, 2008, stating that his back pain was exacerbated by his work on
March 21, 2008 when he stretched and pulled a tarp over a sorting machine. The Board finds
that appellant has not established a change in the nature and extent of his accepted injury-related
condition or a change in the nature and extent of the light-duty requirements.
In a March 26, 2008 report, Dr. Zeiders stated that appellant was seen for a new condition
to his low back which arose on March 21, 2008 when he stretched and put a tarp over a sorting
machine. He listed an impression of acute or chronic low back strain/sprain. On April 23, 2008
Dr. Zeiders advised that appellant was restricted to lifting no more than 25 pounds. He did not
describe a change in the nature of appellant’s physical condition arising from the February 23,
1990 employment injury, which prevented him from performing his light-duty position. Rather,
Dr. Zeiders attributed appellant’s back condition to a new injury sustained on March 21, 2008.
His reports are insufficient to establish that appellant sustained a recurrence of accepted medical
condition due to residuals of the February 23, 1990 work injury.
On September 16, 2008 Dr. Jacobs noted a history of the 1990 injury and that appellant
required a weight lifting restriction of 25 pounds. She also noted the March 2008 work injury
when he wrenched his back while stretching a tarp over a machine. Dr. Jacobs diagnosed a
chronic lumbar back strain with two preexiting levels of herniated disc. She stated that appellant
injured his back in 1990 and 2008 while performing repetitive activities. Dr. Jacobs reiterated
her opinion on causal relationship in a September 25, 2009 report. Her opinion is of limited
5

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

6

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

7

See Ricky S. Storms, 52 ECAB 349 (2001); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.2 (June 1995).
8

For the importance of bridging information in establishing a claim for a recurrence of disability, see
Richard McBride, 37 ECAB 748 at 753 (1986).
9

See Ricky S. Storms, supra note 7; Morris Scanlon, 11 ECAB 384, 385 (1960).

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probative value as she did not explain how appellant’s back condition as of March 21, 2008
arose from his February 23, 1990 work injury. Dr. Jacobs identified a March 21, 2008 injury.
She failed to describe a spontaneous worsening of appellant’s accepted work-related condition.
Rather, Dr. Jacobs identified a new injury and also attributed appellant’s condition to performing
repetitive work activities. She did not provide a reasoned explanation of how appellant’s current
condition was causally related to the 1990 work injury. As noted if appellant attributes his need
for medical treatment in 2008 to his work activities on or about March 21, 2008, he was advised
to file a claim for a new injury.10
Dr. Barney provided an assessment of lumbar strain in his October 24, 2008 report.
However, he failed to provide a clear explanation on whether appellant’s condition was related to
the February 23, 1990 work injury. Dr. Barney’s report does not contain any description of the
February 23, 1990 employment injury or any discussion regarding how appellant’s condition
beginning March 21, 2008 was causally related to that injury. Thus, his report does not
constitute rationalized medical opinion.
For these reasons, appellant did not establish a change in his accepted back condition on
or after March 21, 2008. He also did not allege any change in the nature and extent of his lightduty job requirements. Appellant alleged on appeal that the employing establishment changed
the wording of how his light duty was classified, from permanent limited duty to light duty with
restrictions not to lift more than 25 pounds. This argument is not material to the medical
question of causal relation. There is no evidence that the employing establishment either
required appellant to work beyond his 25-pound lifting restriction or that it withdrew his lightduty job.
CONCLUSION
The Board finds that appellant failed to establish a recurrence of his medical condition on
or after March 21, 2008 due to his February 23, 1990 employment injury.

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The Board’s decision on appellant’s recurrence of a medical condition does not preclude adjudication of a new
injury claim for aggravation of his preexisting back condition.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decisions dated May 4, 2009 and September 4, 2008 are affirmed.
Issued: April 19, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-2401
Issued: August 12, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
On September 27, 2010 appellant filed an application for review of an Office of Workers’
Compensation Programs (OWCP) decision dated April 5, 2010. The appeal was docketed as
No. 10-2401.
The Board, having reviewed the case record submitted by OWCP, finds that this case is
not in posture for decision. On appeal appellant does not contest the fact and amount of
overpayment. She however alleges that OWCP has not made appropriate findings of fact as to
whether she was at fault in the creation of the overpayment. The Board concurs.
This is the second appeal before the Board. Appellant, a 45-year-old flat sorter, filed a
Form CA-2 claim for benefits on May 8, 2000. OWCP accepted the claim for left cubical tunnel
syndrome and paid her appropriate compensation for temporary total disability compensation.
By decision dated June 7, 2004, it terminated appellant’s compensation benefits effective
July 11, 2004 on the grounds that she refused an offer of suitable work. In a decision dated
December 15, 2005,1 the Board reversed the termination of compensation. Appellant’s
compensation benefits were reinstated. She began receiving compensation from OWCP
beginning with retroactive payments for the period when her compensation was terminated.
1

Docket No. 05-916 (issued December 15, 2005).

OWCP determined, however, that appellant’s compensation did not contain deductions for health
premiums or life insurance benefits as of February 25, 2006 and continuing. On March 25, 2009
and February 24, 2010, it issued a preliminary determination that an overpayment had occurred
in the amount of $5,234.36 for the period February 25, 2006 through December 20, 2008 due to
the lack of deduction of insurance premiums. OWCP found that appellant was with fault
regarding the creation of the overpayment because she should have reasonably been aware that
her premiums were not being paid or being deducted. In a decision dated April 5, 2010, it
finalized the preliminary determination regarding the overpayment of $5,234.36.
In her appeal to the Board, appellant contends that she was not at fault for the
overpayment. She asserted that she wrote letters to OWCP explaining that she was being denied
coverage by her health insurer. Appellant attached copies of these letters, all of which were
either date-stamped or stamped as received by OWCP. In addition, she attached copies of letters
from OWCP which acknowledged her complaints and her requests for assistance. The record
also contains numerous e-mail memorandum between the employing establishment and OWCP
indicating that OWCP was uncertain whether the insurance deductions should have been made
by OWCP or by the employing establishment. As the record indicates that appellant had
questioned whether she had insurance coverage during the time in question and OWCP
questioned responsibility for deduction of the insurance premiums, OWCP should have made
findings of fact to substantiate the finding that appellant was at fault for creating the
overpayment for accepting compensation which did not deduct insurance premiums.
The Board is unable to render an informed adjudication of the case. The appeal docketed
as No. 10-2401 must be set aside and remanded for adjudication of the case pursuant to 5 U.S.C.
§ 8128(a).
Accordingly, the April 5, 2010 decision will be set aside. OWCP shall make findings of
fact as to whether appellant is with fault in the creation of the overpayment, and, if not, whether
she is entitled to waiver of the overpayment. After such further development as OWCP deems
necessary, it should issue an appropriate decision to protect appellant’s appeal rights.

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IT IS HEREBY ORDERED THAT the decision dated April 5, 2010 be set aside and
the case remanded for reconsideration of the issues of fault and waiver of overpayment.
Issued: August 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

Docket No. 09-1407
Issued: April 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 5, 2009 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated October 1, 2008 and a nonmerit decision dated March 3, 2009.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether the Office properly reduced appellant’s compensation
benefits based on her refusal to cooperate with vocational rehabilitation efforts; and (2) whether
the Branch of Hearings and Review properly found that appellant had abandoned her request for
a telephonic hearing.
FACTUAL HISTORY
On October 8, 2006 appellant, then a 36-year-old mail handler, filed an occupational
disease claim alleging that she developed carpal tunnel syndrome due to factors of her federal

employment. The Office accepted appellant’s claim for bilateral carpal tunnel syndrome on
January 10, 2007. She worked in a modified position until April 3, 2007. On that date,
appellant’s attending physician, Dr. Michael Hebrard, Board-certified in physical medicine and
rehabilitation, opined that she was totally disabled.
The employing establishment offered appellant a modified-duty assignment on
October 31, 2007. Dr. Hebrard referred her to Dr. Kendrick E. Lee, a Board-certified surgeon,
who opined on January 7, 2008 that appellant required surgery for carpal tunnel syndrome.
Dr. Lee performed her right carpal tunnel release on January 31, 2008. Dr. Hebrard continued to
support appellant’s total disability. The Office expanded her claim to accept right trigger finger.
The Office referred appellant for a second opinion evaluation with Dr. Khodam-Rad
Payman, a Board-certified orthopedic surgeon, on June 5, 2008. In a report dated June 23, 2008,
Dr. Payman found that she had intact sensation in the right hand with triggering and tenderness
in the right thumb. Appellant’s left hand examination was consistent with carpal tunnel
syndrome in Dr. Payman’s opinion. Dr. Payman diagnosed successful right carpal tunnel
surgery, trigger finger of the right thumb and left carpal tunnel syndrome. He opined that she
required left carpal tunnel surgery, but that she was currently capable of light-duty work.
Dr. Payman completed a work capacity evaluation and opined that appellant could work four
hours a day with no repetitive movements of the wrist, two hours each of pushing and pulling up
to 20 pounds and lifting up to 10 pounds two hours a day.
In a note dated June 19, 2008, Dr. Hebrard examined appellant and diagnosed bilateral
carpal tunnel syndrome and lesion of the ulnar nerve. He stated that she could perform restricted
duty with minimal use of the upper extremities for grasping, pinching and fingering. Dr. Lee
examined appellant on June 25, 2008 and diagnosed carpal tunnel syndrome, lesion of the ulnar
nerve and trigger finger. He noted that she was not working.
The Office referred Dr. Payman’s report to Dr. Hebrard on July 7, 2008. In a note dated
July 17, 2008, Dr. Hebrard stated that appellant was temporarily totally disabled until
August 21, 2008. He completed a report on the same date, diagnosed bilateral carpal tunnel
syndrome and right trigger finger. Dr. Hebrard stated that appellant was currently totally
disabled.
The employing establishment offered appellant a light-duty job on July 8, 2008 scanning
and tagging. The physical requirements were limited to no pulling or pushing more than
20 pounds for 1 and 2 hours a day respectively, no lifting more than 10 pounds for 1 hour and no
repetitive movement.
The Office referred appellant for vocational rehabilitation services on August 4, 2008. It
stated that she could return to work four hours a day and directed the counselor to start
vocational rehabilitation through placement with the previous employer. In a letter dated
August 6, 2008, the Office informed appellant that a rehabilitation counselor had been assigned
to her and informed her that she should cooperate fully with the counselor.

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In a separate letter to the vocational rehabilitation counselor dated August 6, 2008, the
Office stated, “The Office of Workers’ Compensation Programs (OWCP) is referring this
employee to you for ASSISTANCE IN RETURNING [APPELLANT] TO WORK WITH US
POSTAL SERVICE.” (Emphasis in the original.)
The vocational rehabilitation counselor contacted appellant by letter on August 11, 2008
and informed her of a scheduled appointment. She sent a second letter regarding the initial
evaluation on August 14, 2008. The vocational rehabilitation counselor reported on August 26,
2008 that appellant did not appear at scheduled meetings and failed to carry out agreed upon
actions. She stated that she contacted the employing establishment and arranged for appellant to
return to work on August 23, 2008. Appellant informed the vocational rehabilitation counselor
that she was not certain if she could return to work on that date as she needed to secure childcare
and her physician had not released her to return to work. The vocational rehabilitation counselor
contacted the employing establishment on August 23, 2008 and appellant did not report to work.
In a letter dated August 28, 2008, the Office informed appellant that if she failed to
cooperate with vocational rehabilitation efforts including appropriate temporary work
assignments offered by the employing establishment during her recuperation, the Office could
reduce her compensation. It stated that she failed to report to work on August 23, 2008 and that
absence of childcare was not sufficient reasoning to fail to report to work. The Office instructed
appellant to contact her vocational rehabilitation counselor within 30 days or her compensation
would be reduced in accordance with 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519.
Dr. Hebrard completed a duty status report on September 7, 2008 and provided more
restrictive work abilities than Dr. Payman. The Office authorized left carpal tunnel surgery on
September 12, 2008.
Appellant attended a scheduled appointment with the vocational rehabilitation counselor
on September 9, 2008. She accepted a light-duty position at the employing establishment on
September 9, 2008 and returned to work on September 10, 2008 for less than two hours. On
September 19, 2008 the vocational rehabilitation counselor reported that appellant worked four
hours as scheduled on September 13, 2008; she worked only two hours on September 14, 2008
and she used sick leave on September 15 and 16, 2008. Appellant did not report to work on
September 17, 2008 or request leave.
By decision dated October 1, 2008, the Office reduced appellant’s compensation to zero
based on her refusal to cooperate with vocational rehabilitation efforts. It stated that she had not
regularly worked her full four-hour shift and had been off intermittently without contacting her
employer. The Office found that appellant had not provided any valid reasons for not complying
with the rehabilitation program. It reduced appellant’s compensation benefits to zero until such
time as she complied with the rehabilitation program.
Appellant requested a telephonic hearing on October 6, 2008.1 She provided the Office
with her change of address on December 17, 2008. In a letter dated December 29, 2008 and
mailed to appellant’s new address, the Branch of Hearings and Review informed her that her
1

Appellant underwent a left carpal tunnel release on October 30, 2008.

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telephonic hearing was scheduled for February 9, 2009 at 1:45 p.m. eastern time and provided
her with the telephone number and the pass code.
By decision dated March 3, 2009, the Branch of Hearings and Review found that
appellant had abandoned her telephonic hearing as she failed to appear and failed to contact the
Branch of Hearings and Review to explain her failure.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of proof to support that the
disability has ceased or lessened before it may terminate or modify compensation benefits.2
Section 8104(a) of the Federal Employees’ Compensation Act pertains to vocational
rehabilitation and provides: “The Secretary of Labor may direct a permanently disabled
individual whose disability is compensable under this subchapter to undergo vocational
rehabilitation. The Secretary shall provide for furnishing the vocational rehabilitation services.”3
Under this section of the Act, the Office has developed procedures that emphasize returning
partially disabled employees to suitable employment and determining their wage-earning
capacity.4 If it is determined that the injured employee is prevented from returning to the
date-of-injury job, vocational rehabilitation services may be provided to assist returning the
employee to suitable employment.5 Where reemployment at the employing establishment is not
possible, the Office will assist the claimant to find work with a new employer and sponsor
necessary vocational training.6
Section 8113(b) of the Act further provides: “If an individual without good cause fails to
apply for and undergo vocational rehabilitation when so directed under section 8104” the Office
after finding that in the absence of the failure the wage-earning capacity of the individual would
probably have substantially increased, “may reduce prospectively the monetary compensation of
the individual in accordance with what would have probably been [her] wage-earning capacity in
the absence of the failure, until the individual in good faith complies” with the direction of the
Office.7 Under this section of the Act, an employee’s failure to willingly cooperate with
vocational rehabilitation may form the basis for termination of the rehabilitation program and the

2

Howard L. Miller, 56 ECAB 697 (2005).

3

5 U.S.C. § 8104(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.2 (August 1995).
5

Id. The Office’s regulations provides: “In determining what constitutes ‘suitable work’ for a particular disabled
employee, [the Office] considers the employee’s current physical limitations, whether the work is available within
the employee’s demonstrated commuting area, the employee’s qualifications to perform such work and other
relevant factors.” 20 C.F.R. § 10.500(b).
6

Federal (FECA) Procedure Manual, supra note 4, Chapter 2.813.3 (August 1995).

7

5 U.S.C. § 8113(b).

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reduction of monetary compensation.8
pertinent part:

The Office’s implementing regulations provide in

“If an employee without good cause fails or refuses to apply for, undergo,
participate in or continue to participate in a vocational rehabilitation effort when
so directed, [the Office] will act as follows-(a) Where a suitable job has been identified, [the Office] will reduce the
employee’s future monetary compensation based on the amount which
would likely have been his or her wage-earning capacity had he or she
undergone vocational rehabilitation. [The Office] will determine this
amount in accordance with the job identified through the vocational
rehabilitation planning process…. The reduction will remain in effect
until such time as the employee acts in good faith to comply with the
direction of [the Office].
(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early but necessary stages of a vocational
rehabilitation effort (that is, meeting with the [Office] nurse, interviews,
testing, counseling, functional capacity evaluations and work evaluations),
[the Office] cannot determine what would have been the employee’s
wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this section, in
the absence of evidence to the contrary, [the Office] will assume that the
vocational rehabilitation effort would have resulted in a return to work
with no loss of wage-earning capacity and the [Office] will reduce the
employee’s monetary compensation accordingly (that is, to zero). This
reduction will remain in effect until such time as the employee acts in
good faith to comply with the directions of [the Office].”9
ANALYSIS -- ISSUE 1
The Board finds that appellant’s abandonment of the offered light-duty job did not
constitute a refusal to participate in vocational rehabilitation and that the Office did not properly
reduce her compensation to zero. In the October 1, 2008 decision, the Office found that her
abandonment of the employing establishment’s July 8, 2008 light-duty job offer constituted a
refusal to participate in vocational rehabilitation, justifying reduction of her monetary
compensation to zero under 20 C.F.R. § 10.519. The Board has held that, while the refusal or
abandonment of a light-duty job offer may result in sanctions under section 8106 of the Act,10 it
does not constitute a failure to refuse or cooperate with the early or necessary stages of
8

M.M., 58 ECAB 567, 574 (2007); see Wayne E. Boyd, 49 ECAB 202 (1997) (the employee failed to cooperate
with the early and necessary stage of developing a training program).
9

20 C.F.R. § 10.519(a).

10

5 U.S.C. § 8106.

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vocational rehabilitation under section 8113 of the Act and its implementing regulations.11 The
Office’s application of section 8113 to reduce appellant’s monetary compensation was in error.
The Board has held that a light-duty job offer from the employing establishment, made in
the absence of vocational rehabilitation by the Office does not constitute vocational
rehabilitation.12 Appellant’s case differs from others recently decided by the Board, including
Rebecca L. Eckert,13 Ozine J. Hagan14 and Marilou Carmichael,15 in that she received a limited
referral to a vocational rehabilitation counselor, rather than a field nurse, to assist her in returning
to a light-duty position already offered by the employing establishment. However, the same
principles apply here.16
On July 8, 2008 the employing establishment offered appellant a light-duty position
based on the restrictions set by Dr. Payman, a Board-certified orthopedic surgeon and Office’s
second opinion physician. Appellant did not accept the position. She was referred to a
vocational rehabilitation counselor on August 6, 2008 with the purpose of returning her to that
light-duty position. The vocational rehabilitation counselor’s duties were limited to returning
appellant to a predetermined position. It does not appear from the August 8, 2008 letter, that she
had the authority to assess appellant’s vocational skills, retrain her for a different occupation or
assist her in finding work, all of which form the essential core of vocational rehabilitation. As
she also had no role in formulating the position, which did not change from the time it was
initially offered, the position was not the result of the rehabilitation process. The vocational
rehabilitation counselor’s activities were limited to a preliminary reemployment effort, which
does not constitute vocational rehabilitation as contemplated by the Act, the implementing
regulations or the Office’s procedures.17 The Board finds that vocational rehabilitation
counselor’s assigned task of returning appellant to the light-duty job offered by the employing
establishment did not constitute vocational rehabilitation or its early and necessary stages.
The Office erred in its determination that appellant failed to participate in the vocational
rehabilitation process. The facts of this case do not establish that she refused or failed to undergo
any testing, interviews or counseling or that she was uncooperative in the early or necessary
stages of vocational rehabilitation, a prerequisite for invoking the penalty provision of section
11

M.M., supra note 8; Marilou Carmichael, 56 ECAB 451 (2005); Rebecca L. Eckert, 54 ECAB 183 (2002).

12

Id.

13

Rebecca L. Eckert, supra note 11.

14

Ozine J. Hagan, 55 ECAB 681 (2004).

15

Marilou Carmichael, supra note 11.

16

See M.M., supra note 8, (the Board found that refusal of a light-duty job when the vocational rehabilitation
counselor’s actions were limited to a preliminary reemployment effort, did not constitute vocational rehabilitation or
its early and necessary stages).
17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Case Management, Chapter 2.600.7
(September 1997) (“a limited referral [to vocational rehabilitation services] may be made for placement services
with the previous employer when the claimant can work for at least four hours per day and the previous employer
may be able to offer a modified job”).

6

10.519(c). As found above, her limited referral to vocational rehabilitation services was not for
the purposes of vocational rehabilitation and, therefore, her actions could not impede this
process.
CONCLUSION
The Board finds that the Office did not properly reduce appellant’s compensation to zero
under 5 U.S.C. § 8113(b) for failure to participate in vocational rehabilitation.18
ORDER
IT IS HEREBY ORDERED THAT March 3, 2009 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 7, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

18

Due to the Board’s disposition of this issue is not necessary to address whether the Branch of Hearings and
Review properly found that appellant abandoned her telephonic hearing.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, VEHICLE
MAINTENANCE FACILITY, Huntsville, AL,
Employer
__________________________________________

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

Docket No. 09-1654
Issued: July 14, 2010

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 June 22, 2009 appellant timely appealed the May 8, 2009 nonmerit decision of the
Office of Workers’ Compensation Programs, which denied reconsideration. The latest merit
decision was issued on April 21, 2008, more than one year prior to the appeal. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the Office’s May 8, 2009 nonmerit
decision.1
ISSUE
The issue is whether the Office properly denied appellant’s March 26, 2009 request for
reconsideration under 5 U.S.C. § 8128(a).

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 56-year-old clerk, filed an
occupational disease claim for stress, depression and anxiety that reportedly arose on or about
September 15, 2003. She claimed, inter alia, that she had been sexually harassed by her
supervisor, Kenneth W. Fair. The harassment allegedly began in January 2002, soon after
appellant’s arrival at the vehicle maintenance facility (VMF). Appellant also alleged that
Mr. Fair and another coworker, Ronnie Hall, had been verbally abusive. Both men allegedly
called her “dumb” and “stupid” and told her she was not smart enough to learn anything.3
Appellant filed an Equal Employment Opportunity (EEO) complaint against Mr. Fair for
sexual harassment,4 which the EEO Commission denied by decision dated June 21, 2005. While
there was “sufficient evidence to support a claim of harassment or hostile work environment on
the basis of sex,” the EEO Commission found that appellant had not proven she was the victim
of unlawful discrimination.5 Despite evidence of sexual harassment in the workplace, the
employing establishment was relieved of any liability for Mr. Fair’s misconduct because
appellant unreasonably failed to take advantage of specific workplace procedures for reporting
sexual harassment.6
When the case was previously on appeal, the Office had already issued four separate
merit decisions all finding that appellant had not established a compensable employment factor.
The last merit decision was issued on April 18, 2007. By decision dated January 28, 2008, the
Board set aside the Office’s April 18, 2007 decision and remanded the case for further
development. The Board found that, because of inadequate development of the record,
appellant’s allegations of verbal abuse and sexual misconduct were not in posture for decision.7
The Board further noted that EEO Commission findings may constitute substantial evidence
relative to a claim under the Federal Employees’ Compensation Act.8 While the Office was not
bound by the EEO Commission’s finding that Mr. Fair sexually harassed appellant, the Board

2

Docket No. 07-1556 (issued January 28, 2008).

3

Appellant also took exception to various other employment incidents regarding time and attendance, availability
and adequacy of job training, work assignments, reassignment of particular job duties and office space allocation.
4

She also alleged that Mr. Fair had improperly removed her from her vehicle maintenance accounting system
(VMAS) duties because of her gender and/or because she declined his sexual advances.
5

The EEO Commission stated that, “[b]ased on the observed demeanor of all witnesses, especially … [appellant]
and Mr. Fair, [appellant’s] allegations concerning the behavior of Mr. Fair appear credible.” The EEO Commission
further found that appellant’s testimony established that “the harassment was based on sex.”
6

Regarding her claim that she was improperly relieved of her VMAS duties, the EEO Commission found that the
employing establishment had a legitimate, nondiscriminatory basis for this personnel action.
7

With respect to employment incidents involving time and attendance, availability and adequacy of job training,
work assignments, reassignment of particular job duties and office space allocation, the Board found those
administrative and personnel matters noncompensable. The Board’s January 28, 2008 decision (Docket No. 071556) is incorporated herein by reference.
8

Beverly R. Jones, 55 ECAB 411, 417 n.14 (2004).

2

explained that there was legal precedent for accepting demeanor-based credibility
determinations.9
On remand, the Office obtained additional evidence, including recent statements from
Mr. Fair and Mr. Hall, both of whom denied appellant’s accusations.
In a decision dated April 21, 2008, the Office again found that appellant failed to
establish a compensable employment factor. As to the allegations of verbal abuse and sexual
harassment, the Office found that the alleged incidents involving Mr. Hall and Mr. Friar had not
been factually established. The Office noted that appellant’s behavior during the time of the
alleged sexual misconduct cast doubt on her credibility. In particular, it stated that she had not
advised “anyone inside or out of the agency of any sexual misconduct by Mr. Fair until after [she
had been] removed from [her] VMAS duties.”10 Because of recent statements from Mr. Hall and
Mr. Fair denying appellant’s accusations and her so-called “contradicting behavior” during her
employment at the VMF, the Office found that the alleged verbal abuse and sexual harassment
was not factually established.
Appellant requested reconsideration on March 26, 2009. Her request was accompanied
by an undated declaration from Virginia White, several training certificates, and a November 18,
2003 psychiatric report that she had previously submitted.
In her sworn statement, Ms. White indicated that she knew appellant for approximately
25 years. She also stated that she had been spending a lot of time with appellant before and at
the time she started to work at Huntsville VMF. Ms. White indicated that appellant “had n[o]t
been working there [one] month when she would come home crying.” Appellant reportedly told
Ms. White that her boss was calling her “dumb & stupid.” Ms. White further stated that not too
long after that appellant told her that her boss was trying to get her to talk about her sex life.
According to her, appellant told her the boss would come by and pinch her on the butt or talk
ugly to her. Ms. White also stated that appellant’s boss tried to get her to go with him for drinks
and he asked her to do drugs. Appellant’s boss also “would say ugly things to her and even ask
her if she wanted to f--k.” Ms. White further stated that in 2002 appellant told her that her boss
tried to touch her “private parts” when they would be in the same vehicle working. Appellant
also reportedly told Ms. White that her boss had tried to get her to pull off the road for sex.
Ms. White said that appellant told her on several occasions that she told her boss that “no way
was she going to have sex with him.” Appellant also reportedly told him that she did not
appreciate him treating her that way. When Ms. White talked to appellant in September 2003
about her being off work, appellant reportedly told her that she could not take her boss doing that
to her anymore. Appellant also reportedly told Ms. White that she had been to her doctor and he
was concerned so he sent her to a psychiatrist, who then took her off work.
By decision dated May 8, 2009, the Office denied appellant’s request for reconsideration.
It did not review the merits of the claim because the evidence submitted “was irrelevant or
immaterial….” The Office explained that Ms. White’s statement was “considered here say (sic)
9

J.S., 58 ECAB 515, 520 (2007); Anthony J. DeWilliams, 48 ECAB 410, 411 (1997).

10

The Office further noted that appellant had given Mr. Fair a coffee mug and toys for his dog.

3

since she was not there at the time of the occurrence and only [was] saying what [appellant]
relayed to her.”
LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.11 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.12
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.13
ANALYSIS
In denying appellant’s request for reconsideration, the Office indicated that the evidence
submitted was either “irrelevant or immaterial.” As previously noted, one avenue of obtaining
merit review is to submit relevant and pertinent new evidence not previously considered by the
Office.14 The Board agrees that the psychiatric report and the training certificates are not
particularly relevant to the issue of whether appellant established a compensable employment
factor. However, the Office erred with respect to its treatment of Ms. White’s statement. There
is no indication that this evidence was previously submitted, and the substance of Ms. White’s
statement is clearly relevant to the question of whether appellant was sexually harassed and/or
verbally abused in the workplace. It is also relevant to what the Office characterized as
appellant’s “contradicting behavior.” In its April 21, 2008 decision, the Office questioned
appellant’s veracity because she had not advised “anyone inside or out of the agency of any
sexual misconduct by Mr. Fair until after [she had been] removed from [her] VMAS duties.”
However, according to Ms. White, appellant confided with her about problems at work on
several occasions prior to September 2003 when the employing establishment limited appellant’s
access to VMAS and she stopped working. While appellant may not have informed anyone
inside the agency of Mr. Fair’s alleged misconduct, Ms. White’s statement demonstrates that
there was at least one individual outside the agency that appellant contemporaneously advised of
the claimed harassment and abuse.
The Office dismissed Ms. White’s statement as hearsay, noting that she was not present
when the events occurred and she only repeated what appellant told her. Ms. White’s lack of
firsthand knowledge of the alleged harassment goes to the weight or probative value of the
evidence, not whether the statement is sufficient to warrant reopening appellant’s claim for
11

5 U.S.C. § 8128(a) (2006).

12

20 C.F.R. § 10.606(b)(2) (2009).

13

Id. at § 10.608(b).

14

Id. at § 10.606(b)(2)(iii).

4

further merit review. Moreover, the hearsay nature of the statement does not negate the fact that
appellant told Ms. White of her troubles at work contemporaneous with the occurrence of the
alleged events. Because Ms. White’s statement is relevant and pertinent new evidence, appellant
is entitled to a review of the merits of her claim. Accordingly, the May 8, 2009 decision shall be
set aside and the case remanded for further merit review in accordance with 20 C.F.R.
§§ 10.608(a) and 10.609.
CONCLUSION
The Board finds that the Office improperly denied appellant’s March 26, 2009 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2009 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision.
Issued: July 14, 2010
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
U.S. POSTAL SERVICE, MONSEY POST
OFFICE, Monsey, NY, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1792
Issued: August 4, 2020

Case Submitted on the Record

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

JURISDICTION
On August 27, 2019 appellant, through counsel, filed a timely appeal from an August 8,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation, effective February 14, 2019, as she no longer had residuals or disability
1

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

5 U.S.C. § 8101 et seq.

causally related to her accepted August 3, 2018 employment injury; and (2) whether appellant has
met her burden of proof to establish continuing residuals or disability, on or after February 14,
2019, causally related to her accepted August 3, 2018 employment injury.
FACTUAL HISTORY
On August 3, 2018 appellant, then a 56-year-old city carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on even date she injured her left ankle and right knee when
she fell down steps while in the performance of duty. She stopped work on that date. On
September 12, 2018 OWCP accepted appellant’s claim for left ankle sprain.
Appellant was first paid wage-loss compensation on the supplemental rolls on
October 19, 2018. She remained on the supplemental rolls through February 14, 2019.
On December 7, 2018 Dr. Peter Strassberg, a Board-certified internist, found that appellant
had mild tenderness in her left ankle and foot, but no significant swelling. He noted that her left
ankle intermittently collapsed and that she was unable to return to her date-of-injury position
carrying up to 70 pounds.
On December 28, 2018 Dr. Strassberg examined appellant and reported limited range of
motion, slight tenderness, and no swelling in her left ankle. He found that she was capable of
performing light-duty work, but could not perform heavy lifting or very heavy work.
Dr. Strassberg opined that appellant’s left ankle would give way if she had to perform significant
walking with a heavy sack.
On January 3, 2019 OWCP referred appellant, a statement of accepted facts, and a list of
questions to Dr. Andrew Farber, an osteopath specializing in orthopedic surgery, for a second
opinion evaluation.
On January 4, 2019 Dr. Strassberg noted limited range of motion, slight tenderness, and
slight swelling in appellant’s left ankle. He opined that appellant’s ankle was “not as steady as it
could be.” Dr. Strassberg found that she could not lift more than 25 pounds due to her left ankle
instability.
In a January 31, 2019 report, Dr. Farber noted appellant’s history of injury and listed the
duties of her date-of-injury position, including carrying a mailbag weighing up to 35 pounds,
walking and standing outside in all weather and lifting sacks or parcels weighing up to 70 pounds.
He noted that she reported 10/10 pain in the left ankle both with and without movement. On
physical examination Dr. Farber found that appellant’s left ankle had no swelling or tenderness to
palpation. He reported no gross instability. Dr. Farber found that appellant’s strength was normal.
He noted no objective or subjective findings on physical examination. Dr. Farber opined that
appellant’s work-related condition had resolved, but that she had not reached maximum medical
improvement. He determined that she could return to her date-of-injury job with no restrictions.

2

By decision dated February 15, 2019, OWCP terminated appellant’s wage-loss
compensation effective February 9, 2019.3
OWCP subsequently received a February 27, 2019 treatment note indicating
Dr. Strassberg’s findings of slight tenderness in appellant’s ankle and foot, with full range of
motion and no swelling. Dr. Strassberg opined that she could not return to full duty as she had
difficulty walking on an uneven surface with heavy weights.
In a March 6, 2019 note, Dr. Andrew M. Somberg, a Board-certified orthopedic surgeon,
noted appellant’s history of injury on August 3, 2018 and diagnosed sprain of the left ankle. He
reported that she could perform sedentary work with no lifting over 15 pounds.
On March 22, 2019 appellant underwent a left ankle magnetic resonance imaging (MRI)
scan which demonstrated small tibiotalar joint effusion with mild-to-moderate chondral fissuring
and subchondral edema in the distal tibia and talar dome or high-grade tendinosis of the distal
posterior tibialis tendon with focal edema, tibiotalar chondromalacia, and moderate tarsal
metatarsal joint degenerative changes.
On May 14, 2019 Dr. Somberg examined appellant and reviewed her MRI scan. He
diagnosed sprain of the left ankle and found that she could perform sedentary work lifting no more
than 15 pounds.
On March 5, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. She alleged that she was still experiencing pain and tenderness
in her left ankle and was unable to return to full-duty work. During the June 24, 2019 hearing,
appellant testified that she had not returned to work.
By decision dated August 8, 2019, OWCP’s hearing representative found that the weight
of the medical evidence rested with Dr. Farber’s January 17, 2019 report which established that
appellant could resume full-duty work. He further found that pretermination notice was not
necessary as she was on the supplemental rolls for less than one year. OWCP’s hearing
representative determined that the date of the termination was February 14, 2019 and modified
OWCP’s February 15, 2019 decision to reflect that date.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.4 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 Its burden of proof includes the necessity of furnishing rationalized medical

3

This decision supersedes OWCP’s February 7, 2019 decision which did not contain appeal rights.

4

M.M., Docket No. 17-1264 (issued December 3, 2018).

5

E.B., Docket No. 18-1060 (issued November 1, 2018).

3

opinion evidence based on a proper factual and medical background.6 OWCP is not required to
provide pretermination notice when a claimant has been on the supplemental rolls for less than one
year.7
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician (known as a referee physician or impartial medical
specialist) who shall make an examination.8 This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.9 When there exists opposing reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.10
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective February 14, 2019.
OWCP accepted appellant’s August 3, 2018 traumatic injury claim for left ankle sprain. It
authorized wage-loss compensation benefits beginning September 18, 2018.
Appellant provided a series of reports from Dr. Strassberg dated through January 4, 2019,
noting findings on physical examination including limited range of motion, slight tenderness, and
slight swelling in appellant’s left ankle. Dr. Strassberg found that she could not return to full-duty
work.
OWCP referred appellant for a second opinion evaluation with Dr. Farber, and in his
January 31, 2019 report, he reported no swelling or tenderness to palpation on physical
examination of her left ankle. Dr. Farber further reported no gross instability and normal strength.
He found that appellant’s work-related condition had resolved, but that she had not reached
maximum medical improvement. Dr. Farber determined that she could return to her date-of-injury
job with no restrictions.
Appellant’s treating physician and OWCP’s second opinion physician disagreed regarding
her findings on physical examination and on her ability to return to full-duty work. As such, the
Board finds that a conflict of medical opinion exists relative to this issue. OWCP should have

6

G.H., Docket No. 18-0414 (issued November 14, 2018).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(a)(3) (February 2013).

8

5 U.S.C. § 8123(a); A.E., Docket No. 18-0891 (issued January 22, 2019); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
9

20 C.F.R. § 10.321; I.L., Docket No. 18-1399 (issued April 1, 2019); R.C., 58 ECAB 238 (2006).

10

A.E., supra note 8; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

resolved the conflict of medical opinion evidence before terminating compensation.11 As it failed
to resolve the conflict of medical opinion evidence, the Board finds that it failed to meet its burden
of proof to terminate appellant’s wage-loss compensation.12
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective February 14, 2019.
ORDER
IT IS HEREBY ORDERED THAT the August 8, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

K.L., Docket No. 19-0729 (issued November 6, 2019); P.P., Docket No. 17-0023 (issued June 4, 2018).

12

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERAN ADMINISTRATION MEDICAL
CENTER, Hines, IL, Employer
__________________________________________

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

Docket No. 13-1283
Issued: December 6, 2013

Case Submitted on the Record

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

JURISDICTION
On May 7, 2013 appellant filed a timely appeal of a March 5, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant reached maximum medical improvement and whether he
established a compensable impairment of a scheduled member of the body, pursuant to 5 U.S.C.
§ 8107.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 5, 2013 decision, OWCP received additional evidence. However, the
Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On March 14, 2011 appellant, then a 48-year-old housekeeping aid, filed a traumatic
injury claim alleging that on March 7, 2011 he injured his lower back due to loading bio-hazard
containers onto a cart. OWCP accepted the claim for lumbar back sprain, temporary aggravation
of sacroiliac pain and temporary aggravation of preexisting chronic sacroiliac. On November 14,
2011 appellant accepted a limited-duty assignment from the employing establishment.
On October 23, 2012 appellant filed a claim for a schedule award.
By letter dated November 13, 2012, OWCP requested that appellant submit a report from
a treating physician which evaluated his impairment according to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).
In a January 9, 2013 report, Dr. Matthew Jaycox, a treating Board-certified
anesthesiologist, diagnosed low back pain, multilevel facet arthralgia, lumbar radicular
symptoms, bilateral neuroforaminal stenosis at multiple lumbar spine levels and multilevel
degenerate disc disease with posterior disc bulging. He related that appellant continued to
experience a significant amount of axial back pain and that the date of maximum medical
improvement was unknown. Dr. Jaycox was unable to provide an impairment rating as he did
not have all the necessary information.
By decision dated March 5, 2013, OWCP denied appellant’s claim for a schedule award.
It found that the medical evidence did not establish that he had reached maximum medical
improvement.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulation4 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, FECA does not
specify the manner in which the percentage of 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 has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.5 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.6
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id.

6

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).

2

No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.7 As neither FECA nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a
whole, a claimant is not entitled to such a schedule award.8 The Board notes that section
8101(19) specifically excludes the back from the definition of organ.9 A claimant may be
entitled to a schedule award for permanent impairment to an upper or lower extremity even
though the cause of the impairment originated in the neck, shoulders or spine.10 A schedule
award is not payable for an impairment of the whole body.11
The A.M.A., Guides explain that impairment should not be considered permanent until
the clinical findings indicate that the medical condition is static and well stabilized. It is
understood that an individual’s condition is dynamic. Maximum medical improvement refers to
a date from which further recovery or deterioration is not anticipated, although over time there
may be some expected change. Once impairment has reached maximum medical improvement,
a permanent impairment rating may be performed.12
ANALYSIS
Appellant sought a schedule award pursuant to 5 U.S.C. § 8107 for his accepted lumbar
sprain, temporary aggravation of sacroiliac pain and temporary aggravation of preexisting
chronic sacroiliac. The Board finds that he has not submitted sufficient medical evidence to
establish that he is at maximum medical improvement.
FECA does not allow the payment of a schedule award for permanent impairment of the
lumbar spine. However, a schedule award may be payable for permanent impairment of a lower
extremity, if the cause of the permanent impairment is an accepted injury to the lumbar spine.
Appellant submitted a January 5, 2013 report from Dr. Jaycox, but the physician advised that
appellant had not yet reached maximum medical improvement. Further, he did not have all the
information necessary to rate impairment.
Before a schedule award can be granted pursuant to the A.M.A., Guides, a description of
appellant’s impairment must be obtained from his physician. The description must be in
sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations.13 Dr. Jaycox did not
7

S.K., Docket No. 08-848 (issued January 26, 2009); Thomas J. Engelhart, 50 ECAB 319 (1999).

8

See D.N., 59 ECAB 576 (Docket No. 07-1940, issued June 17, 2008); Jay K. Tomokiyo, 51 ECAB 361 (2000).

9

5 U.S.C. § 8101(19).

10

J.Q. 59 ECAB 366 (2008); Thomas J. Engelhart, supra note 7.

11

A.L., Docket No. 08-1730 (issued March 16, 2009); N.M., 58 ECAB 273 (2007); Marilyn S. Freeland, 57
ECAB 607 (2006).
12

A.M.A., Guides 19; Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

13

See D.N., 59 ECAB 576 (2008); Vanessa Young, 55 ECAB 575 (2004); Robert B. Rozelle, 44 ECAB
615 (1993).

3

provide an impairment rating as requested, rather he explained that appellant had not reached
maximum medical improvement. As noted, permanent impairment may only be evaluated after
an injured employee has reached maximum medical improvement. Appellant did not meet his
burden of proof in this case.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof that he is entitled to a
schedule award under 5 U.S.C. § 8107 as the medical evidence does not establish that he has
reached maximum medical improvement.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 5, 2013 is affirmed.
Issued: December 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 13-831
Issued: July 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 26, 2013 appellant, through his attorney, filed a timely appeal from a
February 4, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) that
denied his claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
employment-related injury on April 18, 2012.
On appeal, appellant’s attorney asserts that the February 4, 2013 decision is contrary to
fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 18, 2012 appellant, then a 38-year-old custodian, filed a traumatic injury claim
alleging that he was injured in his postal vehicle in the employee parking lot. He stopped work
that day. Bridget M. Zelinsky, supervisor of customer services, asserted on the claim form that
the injury occurred due to appellant’s willful misconduct because, based on a police report, he
was not wearing a seatbelt at the time of the accident. In an attached statement, appellant
indicated that the postal vehicle lost its brakes as he was turning into the parking lot and he could
not stop the truck which went towards a fence. He called a coworker who came out to help.
Appellant stated that he was wearing a seatbelt at the time of the accident and that the police
came and questioned him.
In a statement dated April 18, 2012, Ms. Zelinsky indicated that on that day appellant
returned to the employing establishment from the hospital and became very agitated when
questioned whether he was wearing a seatbelt. She stated that the responding policeman
indicated that when questioned immediately after the accident, appellant stated that he was not
wearing a seatbelt. After talking with Ms. Zelinsky, he left to pick up his son. Lew Petrone, of
Three Star Auto Service, provided an April 18, 2012 statement in which he indicated that
appellant had mentioned on April 17, 2012 that he could or should crash a postal vehicle if he
was bringing it into the shop for required brake work. In an undated statement, Donna Petrone, a
coworker, indicated that she saw appellant leave a bank, driving fast and without a seatbelt. She
stated that later she saw the postal vehicle off the road at the employing establishment.
Ms. Petrone saw a police officer arrive and she pulled up out of concern for the driver.
In an April 18, 2012 report from the emergency department of University Medical
Center, Princeton, NJ, Dr. Daniel Farber, Board-certified in emergency medicine, diagnosed
back strain, not otherwise specified; abdominal pain; and motor vehicle accident, unspecified.2
By letter dated May 2, 2012, OWCP informed appellant of the evidence needed to
support his claim, to include a narrative report from his physician explaining how the reported
work incident caused or aggravated a medical condition. In a May 17, 2012 response, appellant
described the April 18, 2012 incident, stating that the brakes on the postal vehicle failed, which
caused him to collide with the curb, injuring his head, neck and back. He indicated that he was
wearing his seatbelt at the time of the accident and was taken by ambulance to the emergency
room. Appellant reported that on April 20, 2012 he saw his family physician, Dr. M.S. Durrani,
a Board-certified internist, who referred him to Dr. Joseph Grassi, a Board-certified physiatrist.
He related that he had a magnetic resonance imaging (MRI) scan study of the lumbar spine on
May 2, 2012 and this was reviewed by Dr. Grassi, who diagnosed a disc herniation at L5-S1.
An OWCP Form CA-16, authorization for examination, dated April 28, 2012, indicated
that appellant was authorized to visit Orthopedic Associates in Phillipsburg, NJ. In a May 1,
2012 report, Dr. Durrani indicated that appellant was seen on April 20, 2012, status post a motor
vehicle accident for continued pain in the neck and back. He advised that appellant was given
medications and advised to rest. Dr. Durrani referred appellant to physical therapy and for an
2

The 16-page report found in the case record does not include a history of injury or include physical examination
findings.

2

MRI scan study and advised that he could not work. A May 2, 2012 MRI scan study of the
lumbar spine demonstrated an eccentric herniation on the right at L5-S1.
In reports dated May 3, 2012, Dr. Grassi, of Orthopedic Associates, reported a history
that on April 18, 2012 appellant was driving a postal vehicle and that, when the brakes failed, the
vehicle jumped a curb and that appellant stated that he may have hit his head on the steering
wheel and blacked out briefly but exited the vehicle on his own and the vehicle was not
damaged. He further indicated that appellant stated that he had no previous back injuries or
problems. Dr. Grassi noted pertinent physical findings of pain to palpation in the midline lower
back and over the sacroiliac joints with muscle tightness and pain to palpation along the midline
lumbar spine and with some decreased range of motion with pain. Seated straight leg raise was
positive on the right, negative on the left. Dr. Grassi reviewed the MRI scan study, noting the
right central herniation with foraminal encroachment at L5-S1 and possible L5 and S1 nerve root
impingement. He diagnosed low back pain and disc herniation at L5-S1 and right lower
extremity radicular pain. Dr. Grassi prescribed medication and physical therapy and advised that
appellant should not work for the next three to four weeks.3
By letter dated May 21, 2012, the employing establishment controverted the claim.
In a June 14, 2012 decision, OWCP found that the April 18, 2012 incident occurred but
denied the claim on the grounds that the medical evidence did not indicate that appellant suffered
a medical condition causally related to the April 18, 2012 work incident.
On July 12, 2012 appellant, through his attorney, requested a hearing before an OWCP
hearing representative. He submitted an April 18, 2012 ambulance report completed by
Jeremy Colby and Susan Neilson, emergency medical technicians (EMTs). The report indicated
that appellant reported a history that when the brakes failed on the postal vehicle he was driving
at 25 to 35 miles per hour, the truck jumped a curb, he hit his head on the steering wheel and the
airbag did not deploy. Appellant was complaining of back and neck pain and headaches.
Tenderness in the thoracic and lumbar area was noted on examination. Appellant was
immobilized and transported to the emergency department at University Medical Center. In
reports dated May 29 and June 12, 2012, Dr. Grassi noted that appellant was improving. He
reiterated his diagnoses, recommended continued physical therapy and advised that appellant
would resume light-duty work on June 18, 2012.
At the hearing, held on November 13, 2012, appellant described the April 18, 2012
incident and his medical treatment. In December 10, 2012 correspondence, the employing
establishment indicated that the brakes on the postal vehicle involved in the April 18, 2012
incident had been checked twice and both facilities indicated that the brakes would have stopped
the vehicle.
In a December 12, 2012 report, Dr. Robert Friedman, a Board-certified orthopedic
surgeon who is an associate of Dr. Grassi, described appellant’s report that he lost control of his
mail truck when the brakes failed and he went over a curb and into a ditch. Appellant reported
the he had no prior back pain but now had radiating pain and indicated that he had returned to
normal duties at work. Dr. Friedman provided physical examination findings, noting slight
3

Appellant also submitted an illegible, unsigned medical report.

3

reduction in back range of motion with some spasm and tenderness and a negative straight leg
raise examination. He reviewed the MRI scan study. Dr. Friedman noted that his records
indicated that appellant was seen in July 2006 complaining of back pain after he slipped washing
a car at his employer, a car dealer. An MRI scan study at that time demonstrated a small right
paracentral disc herniation at L5-S1 and appellant was treated conservatively. Dr. Friedman
reported that appellant was not seen from October 2006 until he returned three years later with a
shoulder injury and not seen for a back condition until May 2012. He diagnosed lumbar disc
herniation at L5-S1 with radiculitis. Regarding causation, Dr. Friedman stated that this was a
significant issue and appellant had indicated that he had no previous back injury but there was
good documentation that he had a previous MRI scan study showing a herniated disc. He
indicated that in 2006 appellant had a significant injury that required treatment and had gotten to
the point that an epidural was recommended but that appellant did not return for treatment of the
2006 back injury. Dr. Friedman opined that there was possible either some additional treatments
he was not privy to or that appellant’s back condition subsided enough that he could cope.
Regarding appellant’s current condition, he indicated that, since appellant had an established disc
herniation from 2006, it was not clear whether this represented a significant new injury or
exacerbation of an underlying old problem, noting that the recent MRI scan study seemed to
suggest fairly similar findings to the one in 2006. Dr. Friedman stated that, at the very most, “we
could say that this incident caused an aggravation of an underlying problem and was not a clear
causal event,” again noting that appellant had very similar findings in 2006.
By decision dated February 4, 2013, an OWCP hearing representative affirmed the
June 14, 2012 decision. She noted that, as appellant had provided an incorrect medical history,
he was not a credible historian and that Dr. Friedman’s report was speculative regarding
causation. The hearing representative concluded that none of the medical evidence indicated
how the April 18, 2012 incident caused or changed appellant’s back condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim, regardless of whether the asserted claim involves traumatic injury or
occupational disease, an employee must satisfy this burden of proof.4
OWCP regulations at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.5 In order to determine whether an employee sustained an injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component is whether the employee actually
4

Roy L. Humphrey, 57 ECAB 238 (2005).

5

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

4

experienced the employment incident that is alleged to have occurred. The second component is
whether the employment incident caused a personal injury and generally this can be established
only by medical evidence.6
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.8 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.9
ANALYSIS
OWCP found that the April 18, 2012 employment incident occurred as alleged. The
Board, however, finds that the medical evidence of record is insufficient to establish that
appellant sustained an injury or medical condition caused by this incident.
The May 2, 2012 lumbar spine MRI scan did not include an opinion as to the cause of
any diagnosed condition. Medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.10
The April 18, 2012 report from the EMTs is of no probative value as an EMT is not a physician
as defined under FECA.11
In the April 18, 2012 emergency department report, Dr. Farber merely diagnosed back
strain, not otherwise specified; abdominal pain; and motor vehicle accident, unspecified. He did
not provide a complete history of injury, describe physical examination findings or explain a
mechanism of injury. Dr. Farber’s opinion is therefore not sufficient to establish that appellant
sustained an employment-related injury on April 18, 2012.12 Likewise, Dr. Durrani merely noted
that appellant had been in a motor vehicle accident and had continued pain in the neck and back.

6

Tracey P. Spillane, 54 ECAB 608 (2003).

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

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

9

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

10

Willie M. Miller, 53 ECAB 697 (2002).

11

E.K., Docket No. 09-1827 (issued April 21, 2010). Section 8101(2) of FECA provides that “physician”
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2); see L.D., 59 ECAB
648 (2008).
12

See T.H., 59 ECAB 388 (2008).

5

He, however, did not otherwise describe the incident or provide a firm diagnosis. Dr. Durrani’s
opinion too is insufficient to establish an employment-related injury.13
Dr. Grassi reported a history of injury that the brakes on appellant’s postal vehicle failed
and he jumped a curb. He diagnosed back pain and a herniated disc at L5-S1. Dr. Grassi,
however, also reported that appellant had no previous back injury and as noted above, his
associate, Dr. Friedman, indicated that appellant was seen in 2006 for a disc herniation at L5-S1
when he worked for a private employer. The opinion of a physician must be based on a
complete factual and medical background.14 Moreover, Dr. Grassi did not explain how the
April 18, 2012 incident caused appellant’s diagnosed condition. His opinion is also insufficient
to meet appellant’s burden of proof.15
In a December 12, 2012 report, Dr. Friedman noted the history of injury and provided
physical examination findings. He reported that appellant stated that he had no previous history
of back injury yet had been seen in their office in 2006 for a herniated disc. Dr. Friedman
reviewed lumbar spine MRI scan studies done in 2006 and 2012 and advised that the 2012 study
seemed to suggest similar findings to the one in 2006. He concluded that, at the very most, “we
could say that [the April 18, 2012] incident caused an aggravation of an underlying problem and
was not a clear causal event.”
The Board has long held that an opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is
claimed is causally related to the federal employment and such relationship must be supported
with affirmative evidence, explained by medical rationale and be based upon a complete and
accurate medical and factual background of the claimant.16 Furthermore, medical opinions that
are speculative or equivocal in character are of diminished probative value.17 The opinion
should be expressed in terms of a reasonable degree of medical certainty.18 Dr. Friedman merely
indicated that it was possible that the April 18, 2012 incident caused an aggravation of
appellant’s 2006 herniated disc. His report is therefore speculative in nature and insufficient to
meet appellant’s burden of proof.
As appellant did not submit sufficient medical evidence to establish that he sustained a
diagnosed condition caused by the April 18, 2012 employment incident, he did not meet his
burden of proof.
Lastly, the Board notes that where, as in this case, an employing establishment properly
executes a Form CA-16, which authorizes medical treatment as a result of an employee’s claim
for an employment-related injury, the CA-16 form creates a contractual obligation, which does
13

Id.

14

Leslie C. Moore, supra note 8.

15

T.H., supra note 12.

16

Patricia J. Glenn, 53 ECAB 159 (2001).

17

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

18

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

6

not involve the employee directly, to pay for the cost of the examination or treatment regardless
of the action taken on the claim.19 The period for which treatment is authorized by a Form CA16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP.20 The
record is silent as to whether OWCP paid for the cost of appellant’s examination or treatment for
the period noted on the form.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an employment-related injury on April 18, 2012.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2013
Washington, DC

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

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

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

19

See Tracy P. Spillane, 54 ECAB 608 (2003).

20

See 20 C.F.R. § 10.300(c).

7