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

)
)
)
)
)
)
)
)

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

Docket No. 13-986
Issued: December 24, 2013

Case Submitted on the Record

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

JURISDICTION
On February 28, 2013 appellant, through her attorney, filed a timely appeal from a
December 5, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) finding
an overpayment in compensation, a December 11, 2012 hearing representative’s decision
affirming termination of her wage-loss benefits and a December 31, 2012 decision denying a
request for an oral hearing. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss benefits effective July 1, 2012 on the grounds that she no longer had any disability
causally related to her accepted employment-related injuries; (2) whether it properly determined
that appellant received an overpayment in the amount of $10,994.69 for the period July 1 to
October 20, 2012 after her benefits were terminated; (3) whether appellant was at fault in the

1

5 U.S.C. § 8101 et seq.

creation of the overpayment and therefore not entitled to waiver of recovery; and (4) whether
OWCP properly denied appellant’s request for a hearing.
FACTUAL HISTORY
OWCP accepted that on February 24, 2010 appellant, then a 34-year-old letter carrier,
sustained a right wrist sprain and right carpal tunnel syndrome as a result of repetitively casing
mail and opening delivery doors in the performance of duty. She continued to work, but in a
limited-duty capacity.2
On September 17, 2010 appellant underwent right carpal tunnel release surgery. She
stopped work and OWCP paid wage-loss and disability compensation. Appellant was placed on
the periodic rolls and submitted a direct deposit sign-up form.
On November 1, 2010 appellant returned to light duty as a modified carrier and clerk.
She returned to full duty on December 18, 2010.3
On December 15, 2011 appellant underwent another right carpal tunnel release surgery
by Dr. Christian F. Vissers, a Board-certified orthopedic surgeon. She stopped work again and
OWCP paid wage-loss compensation benefits. Appellant was placed back on the periodic rolls.
On January 11, 2012 OWCP requested additional information from Dr. Vissers regarding
appellant’s current treatment, whether she could be expected to return to modified work and
when she would reach maximum medical improvement with respect to her work-related
conditions.
In a January 30, 2012 report, Dr. Vissers stated that appellant did not arrive for her
appointment. He related that she was six weeks status post right carpal tunnel release surgery
and opined that she could begin working limited duty. Dr. Vissers restricted her to lifting up to
10 pounds and no impact activities or vibratory tools. In a January 30, 2012 work capacity
evaluation form, he noted that appellant had not reached maximum medical improvement and
provided work restrictions.
In a February 13, 2012 report, Dr. Vissers advised that appellant had not arrived for her
appointment that day or on January 30, 2012. He reported that, despite numerous attempts by his
office to contact her regarding her appointment, she had not returned any telephone calls.
Dr. Vissers related that appellant underwent a right carpal tunnel release on December 15, 2011.
Although appellant was unavailable for a physical examination he could opine that at
2

In a February 26, 2010 duty status report, Dr. Marc R. Watkins, Board-certified in occupational medicine,
authorized appellant to work limited duty with restrictions of no use of the right hand and no driving the company
vehicle. On May 10, 2010 appellant accepted a limited-duty job offer as a modified city carrier.
3

On January 14, 2011 OWCP issued a preliminary decision that appellant received an overpayment in the amount
of $4,439.79 because she received compensation for total disability from November 1 to December 18, 2010 after
she returned to work on November 1, 2010. It found that she was at fault in creating the overpayment because she
accepted payments that she knew or reasonably should have known to be incorrect. By decision dated February 25,
2011, OWCP finalized the overpayment decision and found that she was at fault in creation of the overpayment.

2

two-month status post carpal tunnel release she could return to full duty as a mailhandler. In a
February 13, 2012 work capacity evaluation form, Dr. Vissers noted that she had not reached
maximum medical improvement but could return to work without restrictions.
On February 15 and 22, 2012 a field nurse informed OWCP that she had attempted to
contact appellant but her calls were not returned. She related that appellant did not show up on
January 30 or February 13, 2012 for scheduled examination by Dr. Vissers.
On April 20, 2012 OWCP proposed to terminate appellant’s wage-loss compensation
benefits based on Dr. Vissers’ February 13, 2012 report. Dr. Vissers found that she was no
longer disabled due to her employment-related conditions and was capable of working full duty.
OWCP advised appellant that she had 30 days to submit additional relevant evidence or
argument if she disagreed with the proposed termination of benefits.
Appellant resubmitted a December 5, 2011 work restriction report and a December 15,
2011 hospital discharge report.
By decision dated June 18, 2012, OWCP terminated appellant’s wage-loss benefits
effective July 1, 2012 finding that Dr. Vissers’ reports established that she had no continuing
disability due to the accepted February 24, 2010 employment injury. Appellant remained
entitled to medical benefits.
On June 25, 2012 appellant, through counsel, requested a telephone hearing, which was
held on October 15, 2012. She had not returned to work and described pain she experienced due
to her employment-related conditions. Appellant tried to return to work after her first carpal
tunnel release surgery but was unable to continue doing the same repetitive motions. Her
counsel requested 30 days to provide additional medical evidence.
On August 15, 2012 appellant requested a schedule award. By letter dated August 27,
2012, OWCP advised her that no medical evidence was submitted to establish permanent
impairment as a result of her work-related condition. On October 19, 2012 it advised appellant
that she was not at maximum medical improvement as noted by Dr. Vissers.
Appellant received disability compensation by direct deposit every 28 days until
October 20, 2012. She received a net compensation of $2,750.66 for the period July 1 to 28,
2012; $2,775.27 for the period July 29 to August 25, 2012; $2,779.16 for the period August 26 to
September 22, 2012; and $2,689.60 for the period September 23 to October 20, 2012.
An overpayment worksheet dated October 15, 2012 noted that appellant received
compensation payments for 112 days of time lost which totaled $10,994.69. It also noted that
her wage-loss compensation benefits were terminated on July 1, 2012.
On October 19, 2012 OWCP issued a preliminary decision that appellant received an
overpayment in the amount of $10,994.69 because she received wage-loss compensation for total
disability from July 1 to October 20, 2012 after her benefits were terminated effective
July 1, 2012. It found that she was at fault in creating the overpayment because she accepted
payments that she knew or reasonably should have known to be incorrect. OWCP determined
that appellant was paid a gross amount of $3,016.86 every 28-calendar days. It calculated the
3

gross daily amount of $107.75 by the number of overpayment days, 112, for a total amount of
$12,067.44. OWCP subtracted $1,072.75 for health and life insurance deductions to determine
that appellant received a total overpayment amount $10,994.69. It informed her of her appellate
options and instructed her to complete an enclosed overpayment recovery form and submit
supporting financial documentation. No additional evidence regarding appellant’s overpayment
was received.
In a November 20, 2012 letter, appellant’s counsel again requested a schedule award. He
stated that an attached medical report included a date of maximum medical improvement and a
conclusion on permanent impairment.4
In a November 10, 2012 report, Dr. Martin Fritzhand, an occupational health specialist,
related appellant’s complaints of constant pain in the right palm that radiated up to her elbow and
numbness in the digits of the right hand. Appellant stated that she could not use her right hand
and was unable to do the things she needed to do at work. Dr. Fritzhand noted her accepted
conditions for right wrist sprain and right carpal tunnel syndrome. He reviewed appellant’s
medical history and noted that she underwent carpal tunnel release surgeries on September 2010
and December 2011. Upon examination of the right wrist, Dr. Fritzhand observed tenderness on
palpation of the volar aspect and diminished pinprick and light touch over the ulnar aspect of the
distal right forearm. Dorsiflexion and palmar flexion of the right wrist was normal to 60 degrees.
Tinel’s sign on the right side was positive. Dr. Fritzhand stated that maximum medical
improvement was met by August 2012. He opined that, according to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment, Table
15-23, appellant had six percent permanent impairment to the right upper extremity.
Dr. Fritzhand included a QuickDASH score report.
In a December 5, 2012 decision, OWCP finalized the overpayment of $10,994.69. It
found that appellant was at fault in the creation of the overpayment because she accepted
payments that she knew or reasonably should have known to be incorrect.
On December 11, 2012 appellant’s counsel requested a prerecoupment hearing from the
December 5, 2012 decision.
By decision dated December 11, 2012, an OWCP hearing representative affirmed the
June 18, 2012 termination of benefits based on Dr. Vissers’ report. She found that
Dr. Fritzhand’s report failed to establish that appellant continued to be disabled as a result of her
employment-related conditions.
In a decision dated December 31, 2012, OWCP found that appellant was not entitled to a
prerecoupment hearing regarding the December 5, 2012 final overpayment decision.

4

As OWCP has not issued a final decision regarding the schedule award claim, the Board does not have
jurisdiction to review the schedule award issue. See 20 C.F.R. § 501.2(c).

4

LEGAL PRECEDENT -- ISSUE 1
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.5 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.6 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
To be of probative value, a medical report must provide an opinion on the issue presented
that is supported by medical rationale. The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and employment factors identified by the claimant. The weight of the medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.8
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for right wrist sprain and right carpal tunnel syndrome
and paid wage-loss compensation benefits. In a decision dated June 18, 2012, it terminated
appellant’s wage-loss compensation benefits effective July 1, 2012 based on Dr. Vissers’
February 13, 2012 report.
By decision dated February 11, 2012, an OWCP hearing
representative affirmed the termination.
Dr. Vissers advised that appellant was two months post carpal tunnel release surgery. He
advised in general that she could return to full duty as a mailhandler. OWCP’s burden of proof
to terminate appellant’s compensation requires the furnishing rationalized medical opinion
evidence.9 A well-reasoned medical opinion must be consistent with findings upon examination,
such as findings during physical examination, laboratory testing or diagnostic procedures.10
Dr. Vissers noted that appellant did not appear for two appointments following surgery. He
provided medical opinions concerning her capacity for limited duty and regular duty that were
not based on any physical examination

5

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

6

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

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

8

Jennifer Atkerson, 55 ECAB 317 (2004).

9

Supra note 7.

10

See Federal (FECA) Procedure Manual, Part 2 -- Disability Management, Developing and Evaluating Medical
Evidence, Chapter 2.810.6(a)(2) (September 2010).

5

The Board finds that Dr. Vissers’ report does not clearly establish that appellant was no
longer disabled as a result of her accepted right wrist or hand conditions. There is no
rationalized medical evidenced to establishing that her disability ceased or was no longer related
to her employment. The February 13, 2012 opinion of Dr. Vissers is not sufficiently detailed or
rationalized to support OWCP’s termination of wage-loss compensation benefits.11 The Board
will reverse OWCP’s December 11, 2012 decision affirming the termination of appellant’s
disability compensation benefits.
LEGAL PRECEDENT -- ISSUES 2&3
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.12 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that while an employee is receiving compensation or if
he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may
not receive salary, pay or remuneration of any type from the United States, except in limited
specific instances.13
ANALYSIS -- ISSUES 2&3
The underlying overpayment in this case was based on OWCP’s June 18, 2012 decision
to terminate appellant’s wage-loss benefits. The Board has held that it may review the
underlying decision to determine if fact of overpayment has been established.14 In its
December 5, 2012 decision, OWCP determined that appellant received an overpayment of
$10,994.69 for the period July 1 to October 20, 2012 because she received wage-loss benefits
after the termination. The Board finds, however, that OWCP did not meet its burden of proof to
terminate her wage-loss benefits. Accordingly, the fact of overpayment has not been established.
In view of the Board’s finding on the fact of overpayment, the issues of fault and denial of
waiver are moot.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation benefits effective July 1, 2012. For this reason, OWCP did not
establish the fact of overpayment.15

11

See R.M., Docket No. 11-1701 (issued March 19, 2012).

12

5 U.S.C. § 8102.

13

Id. at § 8116(a).

14

See Russell E. Wageneck, 46 ECAB 653 (1995).

15

In view of the Board’s disposition on the termination and overpayment issues, the December 31, 2012 decision
regarding the denial of a prerecoupment hearing is moot.

6

ORDER
IT IS HEREBY ORDERED THAT the December 11 and 5, 2012 decisions of the
Office of Workers’ Compensation Programs are reversed.
Issued: December 24, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Vero Beach, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-12
Issued: February 28, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 4, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 7, 2006 merit decision denying her traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2 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 that she
sustained an injury causally related to factors of her federal employment.
FACTUAL HISTORY
On December 12, 2005 appellant, a 48-year-old clerk, filed a traumatic injury claim,
alleging that she noticed “severe pain in her left wrist after sorting extremely large and numerous
parcels” on December 11, 2005. Her supervisor, Richard M. Smith, Jr., controverted the claim,
noting that appellant had informed him that she was not sure that she had injured her wrist at
work. On December 16, 2005 the employing establishment challenged appellant’s claim on the
grounds that pain is not a compensable diagnosis.

On December 23, 2005 the Office informed appellant that the evidence submitted was
insufficient to establish her claim and requested detailed information regarding the activities she
believed contributed to her condition and a comprehensive medical report with a diagnosis,
results of examinations and tests and a doctor’s opinion with medical reasons on the cause of her
condition.
In response to the Office’s request, appellant submitted a December 12, 2005 duty status
report, signed by Dr. Nancy Baker, a Board-certified family practitioner, who stated that
appellant noticed severe pain in her left wrist after sorting numerous large parcels. In a
January 23, 2006 Florida workers’ compensation form, Dr. Baker recommended occupational
therapy. Although the form requested information regarding the cause of appellant’s condition,
no such information was provided. On January 23, 2006 Dr. Baker prescribed occupational
therapy for appellant’s left hand and provided a diagnosis of de Quervain’s tenosynovitis. In a
January 23, 2006 duty status report, she diagnosed “de Quervain’s,” stating that appellant injured
her left wrist while handling a large volume of incoming parcels.
By decision dated February 7, 2006, the Office denied appellant’s claim on the grounds
that the medical evidence did not demonstrate that her claimed medical condition was causally
related to established work-related events. The Office accepted that the claimed events occurred,
but found that appellant had failed to provide a diagnosis which could be connected to the
accepted events.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim, including the fact that an injury was
sustained in the performance of duty as alleged,3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factors of employment caused or contributed to the claimant’s diagnosed
condition. To be of probative value, 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
1

The Board notes that the record on appeal contains evidence that was not before the Office at the time it issued
its February 7, 2006 decision. The Board has no jurisdiction to review this evidence for the first time on appeal. See
20 C.F.R. § 501.2(c). See also Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36
n.2 (1952). Appellant may submit this evidence to the Office, together with a formal request for reconsideration,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
2

5 U.S.C. §§ 8101-8193.

3

Joseph W. Kripp, 55 ECAB ___ (Docket No. 03-1814, issued October 3, 2003); see also Leon Thomas, 52
ECAB 202, 203 (2001). “When an employee claims that he sustained injury in the performance of duty 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. He must also establish that such event, incident or exposure caused an
injury.” See also 5 U.S.C. § 8101(5) (“injury” defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease
or Illness” and “Traumatic injury” defined).
4

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

2

must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.5 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.6
ANALYSIS
The Office accepted that the sorting activities described by appellant occurred in the
performance of duty. The issue at hand, therefore, is whether the medical evidence submitted is
sufficient to establish that her diagnosed condition is causally related to the employment factors
identified. The medical evidence presented does not contain a rationalized medical opinion
establishing that the work-related incident caused or aggravated any particular medical condition
or disability. Therefore, appellant has failed to satisfy her burden of proof.
The medical evidence of record consists of reports from Dr. Baker. In her December 12,
2005 duty status report, Dr. Baker stated that appellant noticed severe pain in her left wrist after
sorting numerous large parcels. However, she did not provide a diagnosis or an opinion as to the
specific cause of appellant’s condition. The Board has long held that medical evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.7 In a January 23, 2006 Florida workers’ compensation
form, Dr. Baker recommended occupational therapy, but failed to provide the requested
information regarding the cause of appellant’s condition. On that same date, Dr. Baker
prescribed occupational therapy and provided a diagnosis of de Quervain’s tenosynovitis.
However, she again offered no opinion as to the cause of appellant’s condition. Therefore, these
reports also lack probative value. In a January 23, 2006 duty status report, Dr. Baker diagnosed
“de Quervain’s,” stating that appellant injured her left wrist while handling a large volume of
incoming parcels. To the degree that Dr. Baker’s statement can be construed as an opinion as to
the cause of appellant’s diagnosed condition, it is unsupported by medical rationale explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.8 It is therefore of diminished probative value.
Appellant expressed her belief that her condition resulted from her work-related sorting
activities. The Board has held that the mere fact that a condition manifests itself during a period
of employment does not raise an inference that there is a causal relationship between the two.9
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
5

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

6

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 4 at 218.

7

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

8

9

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).
See Joe T. Williams, 44 ECAB 518, 521 (1993).

3

establish causal relationship.10 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit. Therefore, appellant’s belief that
her condition was caused by work-related activities is not determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which contained a description of her symptoms, test results, diagnosis, treatment
and the doctor’s opinion, with medical reasons, on the cause of her condition. Appellant failed
to do so. As there is no probative, rationalized medical evidence addressing how appellant’s
claimed condition was caused or aggravated by her employment, she has not met her burden of
proof in establishing that she sustained a traumatic injury in the performance of duty causally
related to factors of employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty on December 11, 2005.
ORDER
IT IS HEREBY ORDERED THAT the February 7, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 28, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY,
)
Fort Drum, NY, Employer
)
_________________________________________ )
G.P., Appellant

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

Docket No. 11-492
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 December 13, 2010 appellant filed a timely appeal of a November 24, 2010 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.
On February 25, 2010 appellant, then a 50-year-old office aid, filed a traumatic injury
claim alleging that he injured both knees, his head, neck and upper back on December 21, 2009
in the employing establishment parking lot at 10:00 am. He stated that he “Was very depressed
and had a panic attack which made me sick to my stomach. I leaned over to throw up and
slipped fell when knee gave out.” Appellant’s supervisor indicated that appellant was at the
employing establishment for two and a half hours completing paperwork to start his processing
for return to work in a suitable work position based on a separate claim.2
In a statement dated December 31, 2009, appellant related his accepted employment
injuries of falling from a fire truck and injuring his knee in 1988 resulting in a knee replacement
1

5 U.S.C. § 8101 et seq.

2

OWCP File No. xxxxxx979.

in 1998. He also stated that he developed stress and anxiety attacks while performing light-duty
and answering incoming alarm calls due to his hearing loss. Appellant noted that he reported to
work on December 21, 2009. He stated, “My knees and hip hurt so bad it raised my stress and
anxiety until it made me sick. When we had a break I went outside to my vehicle because I
became sick to my stomach. I leaned over to put my hands against my vehicle and slipped and
hit my head, went down on my knees on the running boards then flipped sideways and fell onto
my back on the ground.”
OWCP denied appellant’s claim on April 9, 2010 finding that he failed to provide a
factual or medical explanation for his panic attack. Appellant requested an oral hearing and
testified on September 16, 2010 that after reporting for orientation and a safety meeting on
December 21, 2009 he became depressed and anxious because he could not hear and developed a
panic attack. He went into the icy and snowy parking lot on the employing establishment
premises during the lunch break described leaning against his car, bending over and his right
knee collapsed and he hit his head on his car and flipped onto his back.
In the November 24, 2010 decision, OWCP’s hearing representative noted that appellant
had previously accepted claims for right knee injury, hearing loss, depression and anxiety. The
hearing representative denied appellant’s claim because his panic attack was due to his return to
work through OWCP decisions. The hearing representative stated, “The claimant also claimed
that the fall was due to his right knee giving way as a consequence of the right knee injury. This
aspect of the claim was addressed on the March 5, 1988 injury claim (xxxxxx029) and denied on
the basis that the medical evidence failed to establish that the fall was sustained as a consequence
of the injury.”
The Board, having duly considered the matter, concludes that the case is not in posture
for decision. In this regard, the Board notes that, by decision dated November 24, 2010,
OWCP’s hearing representative denied appellant’s claim on two bases, both of which relate to
previously accepted injuries, his knee and his panic attacks. However, upon perusal of the case
record, the Board notes that there is no evidence addressing appellant’s previous claims
associated with the case record. The Board is unable to determine whether all of the pertinent
evidence reviewed by OWCP is currently in the record before the Board.
Section 501.2(c) of the Board’s Rules of Procedure,3 provides that the Board has
jurisdiction “to consider and decide appeals from the final decision of OWCP in any case arising
under FECA.”4 Additionally, the Board’s review of the case is limited to the evidence which
was before OWCP at the issuance of the final decision. Since the record as transmitted to the
Board does not contain evidence that OWCP relied upon in reaching its final decision, including
the additional case record and decision described by the hearing representative as well as
documentation regarding his emotional condition claim which was apparently accepted for
anxiety and panic attacks, the Board is unable to properly “consider and decide” appellant’s
claim. The November 24, 2010 decision of OWCP must be set aside and the case remanded to
OWCP for reconstruction and proper assemblage of the case record including combining all the
3

20 C.F.R. § 501.2(c)(1).

4

5 U.S.C. § 8101 et seq.

2

files implicated by appellant’s claim for injury on December 21, 2009. Following this and such
further development as OWCP deems necessary,5 OWCP shall issue an appropriate merit
decision pursuant to 5 U.S.C. § 8128(b)(1) to preserve appellant’s right to future appeals.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 24, 2010 is hereby set aside and the case remanded for
further proceedings consistent with this order of the Board.
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

5

The Board notes that the District medical director recommended that OWCP refer appellant for a second
opinion evaluation in order to accurately assess her permanent impairment due to all accepted conditions.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-693
Issued: November 1, 2011

Case Submitted on the Record

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

JURISDICTION
On January 26, 2011 appellant filed a timely appeal from a November 1, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

On August 16, 2011 the Board received a letter from appellant advising that, on July 21, 2011 he e-mailed the
Board to request an oral argument. In his letter, appellant reiterated that he desired oral argument before the Board.
However, the Board notes that a request for oral argument must be made no later than 60 days after the filing of an
appeal. 20 C.F.R. § 501.5(b). As the appeal was filed on January 26, 2011, and the request for oral argument was
made no earlier than July 21, 2011, the request was untimely and must be denied.

ISSUE
The issue is whether OWCP properly suspended appellant’s right to compensation
benefits effective November 1, 2010, under 5 U.S.C. § 8123(d) for obstructing a medical
examination.
FACTUAL HISTORY
OWCP accepted that on June 1, 1978 appellant, then a 32-year-old air traffic control
specialist, sustained aggravation of adjustment reaction of adult life with depressive reaction in
the performance of duty. Appellant did not work after May 8, 1979. He received appropriate
compensation benefits.
Appellant received treatment from Dr. W. Gary Walters, a Board-certified psychiatrist.
In a July 20, 2009 report, Dr. Walters advised that appellant’s work-related condition persisted
with no significant change since his previous report. He diagnosed post-traumatic stress
disorder, alcohol addiction, paranoid personality, subgradual bipolar disorder. Dr. Walters
advised that appellant’s condition had not resolved and was permanent. He indicated that
appellant was disabled from all work and that his treatment was comprised of medication and
supportive psychotherapy.
OWCP continued to develop the claim, and by letter dated July 29, 2009, referred
appellant for a second opinion, along with a statement of accepted facts, a set of questions and
the medical record to Dr. Gregory Gass, a Board-certified psychiatrist and neurologist.
In an August 25, 2009 report, Dr. Gass noted that appellant arrived 35 minutes late for
the second opinion examination and greeted him in an irritable and angry state and in an
accusatory fashion. He noted that appellant was irritated as he had a difficult time locating the
physician’s office. Dr. Gass stated that he gave appellant some time to relax and settle in and
then proceeded with the examination. He examined appellant and diagnosed: depressive
disorder, not otherwise specified; impulse control disorder; and rule out intermittent explosive
disorder; personality disorder not otherwise specified with narcissistic traits, and paranoid traits.
Dr. Gass determined that appellant had difficulty in social interaction and could not leave his
home without having rage episodes in driving or in simple activities such as going to the grocery
store. He advised that it was “impossible to explain if his issues have to do with the actual
events that occurred in his employment. Dr. Gass’ issues seem to be intrinsic to his personality.
He draws a line in time with the events that occurred at the time of his job. However it is
difficult to believe that appellant did not have preexisting problems as his personality seems to
be that of a very narcissistic and paranoid nature.” Dr. Gass opined that he did not consider
appellant employable or safe to be around others. He explained that appellant was late and
blamed him for his lateness and it was difficult to contain him and get him ready for his
interview. Dr. Gass also noted that appellant carried a gun with him in the workplace, and did so
in the past and advised that the coworkers felt unsafe. He advised that appellant was not an
individual that you would want in a workplace because of his impulse control issues. Dr. Gass
opined that his “best educated guess would be that this is intrinsic to his personality and not
related to employment factors in the statement of accepted facts.”

2

By letter dated October 16, 2009, OWCP requested that appellant’s treating physician
Dr. Walters review Dr. Gass’ opinion and provide comments regarding the evaluation.
On July 21, 2010 OWCP referred appellant along with a statement of accepted facts and
the medical record to Dr. James Sydney Alexander, a Board-certified psychiatrist, for an
impartial medical evaluation to resolve the conflict in opinion between Dr. Gary Walters,
appellant’s treating physician, and the second opinion physician, Dr. Gregory Gass, regarding the
resolution of appellant’s accepted conditions.3 OWCP advised appellant that, he if refused to
submit to or obstructed the examination, his benefits would be suspended under 5 U.S.C.
§ 8123(d).
In an August 24, 2010 telephone call memorandum, OWCP noted that Dr. Alexander
telephoned OWCP on August 23, 2010 and left a message to request additional work
performance evaluations. Dr. Alexander asked that OWCP call him for further explanation. In
an August 24, 2010 letter, OWCP’s claims examiner handling appellant’s claim advised
Dr. Alexander that OWCP procedures did not allow him to speak directly with the physician.
The claims examiner advised that OWCP did not have any prior performance evaluations.
On August 25, 2010 Dr. Alexander’s office left a message with OWCP citing a concern
in relation to information found in appellant’s file, which revealed that he carried or had access
to a gun. OWCP contacted the physician’s office and spoke to a receptionist advising her that if
the physician had any concerns about his staff or patient safety to stop the examination and
notify OWCP. The receptionist indicated that Dr. Alexander would proceed with the
appointment but OWCP would be contacted if there were concerns.
On September 14, 2010 the date of the examination, OWCP was informed via telephone
that appellant had not arrived for his appointment. However, a few minutes later, it received a
telephone call from Dr. Alexander’s office, indicating that appellant had arrived, with a hand
gun. It was noted that appellant wanted to leave his gun with the receptionist while he was with
the doctor. However, his request was declined and he was asked to wait outside. Dr. Alexander
met with him at a safe distance and the appointment was cancelled.
On September 15, 2010 Dr. Alexander’s office faxed to OWCP a letter that it received
from appellant. In a letter dated September 14, 2010, appellant asked Dr. Alexander for a
“written statement” concerning what happened that morning. He indicated that if he did not
receive a response by September 30, 2010, his attorney would become involved. He advised
Dr. Alexander not to “make the situation any worse than it already is.” Two receptionists also
signed a statement noting that appellant presented for an appointment on September 14, 2010 in
a “very agitated” state because he could not find the office. The receptionists stated that
appellant was “verbally angry and loud” in the lobby and continued in the same frame of mind
when he met with Dr. Alexander and staff in the lobby, where he noted that he had a gun and a
permit to carry the gun. The receptionists stated that appellant did not like the fact that he could
not carry the gun into the office with him. After this, he left the building.

3

The record reflects that prior appointments with other physicians were cancelled due to various reasons which
included having seen another physician in the practice, a conflict and scheduling, distance.

3

In a September 14, 2010 letter, Dr. Alexander described his encounter with appellant. He
explained that appellant arrived 20 minutes late for his appointment, was loud and intrusive upon
his entrance to the building. He noted that appellant’s behavior continued and he directed it
toward the office manager. Dr. Alexander stated that he walked by at this point and returned
approximately 30 seconds later at which time his office manger inquired as to whether appellant
had a weapon. Appellant responded “yes, I’m licensed to carry it and always do.”
Dr. Alexander noted that appellant showed him a copy of the letter that he was provided for his
appointment and noted that “he was not instructed to not bring a gun.” He related that appellant
stated that he was “just another of the hired ‘hitmen’ to take away his disability.” Dr. Alexander
indicated that he and his office manager contacted OWCP and they were instructed to notify
appellant that the “appointment was to be canceled due to his bringing his gun and he was to
leave.” He noted that appellant “angrily gathered his motorcycle helmet, satchel, jacket,
[tele]phone, etc., and left the building. Dr. Alexander made a comment about how calling his
case manager on the [tele]phone has n[o]t worked, so he [wi]ll make a trip to see him face to
face. He then left the building, made a several minutes cell phone call, then drove off on his
motorcycle.”
In a September 14, 2010 letter, appellant informed OWCP that he arrived at his
appointment noting that “as usual he was armed and had a carry permit with him” He noted that
he advised the receptionist that he had a gun when she asked him if he was carrying a weapon
and showed her the permit. Appellant noted that she asked him to leave immediately and
informed him that he was advised not to carry a weapon. He disputed this noting “This is a total
lie. I have never been told not to carry a weapon by OWCP at any time.” Appellant also
indicated that the physician came out and introduced himself, and that he advised the physician
that he “would be happy to leave my weapon at the reception desk.” However, he noted that he
was informed that the receptionist could not be responsible. Appellant also noted that even
though it was against his better judgment, he would put my weapon in the backpack on his bike.
He noted that the physician indicated that would be fine; however they called OWCP and when
he came back, he was advised that his appointment had been cancelled.
In a telephone call memorandum dated September 16, 2010, OWCP contacted
Dr. Alexander concerning the cancelled appointment. It was advised of appellant’s aggressive
manner which caused the office staff to be uneasy. Additionally, OWCP was informed that
appellant was advised that he could not bring his gun into the doctor’s office and that appellant
became upset noting it was his right to carry and protect himself against people. Dr. Alexander
advised OWCP that appellant was asked to leave his gun outside and that he refused to put it in
the saddlebags on his motorcycle. OWCP was advised that Dr. Alexander and his staff believed
it was not in their interest to continue with the examination in light of appellant’s conduct.
In a September 16, 2010 letter to OWCP, Dr. Alexander explained:
“[Appellant’s] history of carrying weapons along with his abrupt, angry, loud,
demanding style presents a safety risk for anyone in the vicinity. His threatening
manner places the psychiatrist in the untenable position of having to provide an
ethically independent view while having concern about the safety of those present
in the building. Furthermore, Dr. Alexander has to take into account the safety of
these people, his/her staff, his/her family, and self should a fellow like [appellant]
4

end up having his disability terminated. It makes the job of performing an
unbiased opinion extremely difficult.”
He explained that appellant had multiple psychiatric evaluations and there was a plethora of
information that showed a history of similar symptoms, complaints and diagnoses.
Dr. Alexander noted that appellant behaved similarly inappropriately during his evaluation with
Dr. Gass and noted there were “unclear reasons” as to why other physicians refused to see him.
He opined:
“It is clear to me that it is unsafe for an outpatient office to attempt to see him. I
believe there are [at] least two options. One is to have an internal psychiatrist
make the final decision when the community could be in danger. In [appellant’s]
case, if an unfavorable internal decision is made without further psychiatric
evaluation, he is likely to decide that I was the root cause, thus putting those
around me and myself in danger.”
Dr. Alexander also recommended that another psychiatric evaluation occur in a secure
building, such as a state or federal building, where an effective weapons search could occur,
security was available to protect the psychiatrist and others from violent outbursts and the
psychiatrist’s anonymity could be preserved. He further noted that it would “be best if the
psychiatrist was one that was out of state or from far enough away that [appellant] could not
discover their identity.” Dr. Alexander explained that the limitations placed on the psychiatrist’s
ability to procure information were restrictive. He suggested that additional information was
needed preceding his condition to show appellant’s prior behavior. In a September 16, 2010
letter to appellant, Dr. Alexander informed appellant that he advised OWCP that, due to
appellant’s history and his actions of September 14, 2010, it would not be reasonable for his
opinion regarding appellant to remain unbiased. He stated that his role as an independent
specialist had been compromised and he could not evaluate appellant.
On October 4, 2010 OWCP proposed to suspend appellant’s compensation benefits on
the grounds that his recent intimidating manner and the way he conducted himself and the
“deliberate fashion on his attitude” when requested by OWCP to attend examinations caused
alarm for the examiners which were selected by OWCP. It noted the events of September 14,
2010 and noted that Dr. Alexander and his staff believed it was not in their interest to continue
with an examination due to appellant’s conduct. OWCP advised that appellant’s actions and
demeanor were considered an obstruction of a necessary medical examination in order to
ascertain the extent of appellant’s ongoing residuals from his accepted condition. It allowed
appellant 14 days to provide in writing good cause for his obstruction and informed him of the
penalty provision of section 8123(d) of FECA.
Appellant did not respond to the proposed suspension letter.
By decision dated November 1, 2010, OWCP finalized the proposed suspension,
effective that date.

5

LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.4
The determination of the need for an examination, the type of examination, the choice of locale
and the choice of medical examiners are matters within the province and discretion of OWCP.5
OWCP regulations at section 10.320 provides that a claimant must submit to examination by a
qualified physician as often and at such time and places as it considers reasonably necessary.6
Section 8123(d) of FECA and section 10.323 of its regulations provide that, if an employee
refuses to submit to or obstructs a directed medical examination, his or her right to compensation
is suspended until the refusal or obstruction ceases.7 OWCP procedures provide that, before
OWCP may invoke these provisions, the employee is to be provided a period of 14 days within
which to present in writing his or her reasons for the refusal or obstruction.8 If good cause for
the refusal or obstruction is not established, entitlement to compensation is suspended in
accordance with section 8123(d) of FECA.
ANALYSIS
OWCP scheduled an impartial medical examination on Dr. Alexander on September 14,
2010 to resolve a conflict in opinion between the treating physician, Dr. Gary Walters, and
Dr. Gass, an OWCP referral physician, regarding whether there were residuals of appellant’s
accepted emotional condition. OWCP advised appellant that his benefits would be suspended if
he refused to submit to or obstructed the examination. As there was a medical conflict which
required resolution,9 it acted properly in referring appellant for an impartial examination with
Dr. Alexander. As noted, the determination of the need for an examination, the type of
examination, the choice of locale and the choice of medical examiners are matters within the
province and discretion of OWCP.10
The Board finds that appellant obstructed the impartial examination scheduled with
Dr. Alexander. The record reflects that appellant appeared late at Dr. Alexander’s office on
September 14, 2010 in a very agitated state and notified the office staff that he was carrying a
hand gun. The record contains a statement from Dr. Alexander’s receptionists documenting that
appellant was “verbally angry and loud” in the lobby and continued in the same frame of mind
when he met with Dr. Alexander who informed appellant that he could not carry his gun into the
4

5 U.S.C. § 8123.

5

J.T., 59 ECAB 293 (2008).

6

20 C.F.R. § 10.320.

7

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010); J.T., supra note 5.
9

See 5 U.S.C. § 8123(a).

10

J.T., supra note 5.

6

examination. Dr. Alexander provided statements indicating appellant was loud and intrusive
upon arriving late for his appointment and that he referred to Dr. Alexander as a “hired” hit man
to “take away” his compensation. He noted that he had concerns for his own safety and that of
his staff and did not feel it was safe to proceed with the examination. The nature of appellant’s
state of belligerence and lack of cooperation is underscored by his September 14, 2010 letter to
Dr. Alexander asking for a statement and advising him not to “make the situation any worse than
it already is.” The Board finds that according to witness statements from office staff and
Dr. Alexander that appellant, from the time that he appeared for his scheduled appointment on
September 14, 2010, he was uncooperative and threatening in his demeanor to Dr. Alexander and
his staff. It was not reasonable to expect Dr. Alexander to proceed to examine an individual in
such an agitated and threatening state who was arguing about his right to carry a hand gun into a
medical examination. Although appellant asserted that it was his right to carry his gun and that
he was not informed that he could not bring a gun, it was not reasonable for him to present
himself for the examination in such a belligerent and uncooperative manner in which
Dr. Alexander and his staff reasonably feared for their safety. OWCP allowed appellant 14 days
to respond to the proposed suspension but appellant made no response before OWCP suspended
benefits on November 1, 2010. The Board finds that appellant has not established good cause for
his obstruction of the scheduled examination.
In these circumstances, OWCP properly suspended appellant’s compensation under
5 U.S.C. § 8123(d), effective November 1, 2010, for his obstruction of the September 14, 2010
examination.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s right to compensation
benefits effective November 1, 2010 under 5 U.S.C. § 8123(d) for obstructing a medical
examination.

7

ORDER
IT IS HEREBY ORDERED THAT the November 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed
Issued: November 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Capital Heights, MD, Employer
__________________________________________
Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 18-0157
Issued: May 22, 2019

Case Submitted on the Record

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

On October 29, 2017 appellant filed a timely appeal from a September 19, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 18-0157.
On December 5, 2015 appellant, then a 68-year-old parcel post distribution machine
operator clerk, filed an occupational disease claim (Form CA-2) alleging that she developed a
right knee injury due to long-term standing and walking which had aggravated prior
employment-related knee conditions.2 She indicated that she first became aware of the current
injury and its relation to her employment duties on December 15, 2014. Appellant stopped work
on December 15, 2014. OWCP assigned the claim File No. xxxxxx279.
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

The record reflects that appellant had three prior claims for employment-related injuries or conditions.

In a December 5, 2015 statement, appellant noted that she was a postal clerk and her
duties for 18 years had involved distributing parcel post mail, keying parcels, and gathering
postal equipment. She explained that previously, on February 6, 2013, she had pain in her leg,
knees, and hands and she had filed an occupational disease claim. That claim was assigned
OWCP File No. xxxxxx704 and accepted for internal derangement of both knees, bilateral tear of
the meniscus, bilateral carpal tunnel syndrome, and bilateral sprain of the knee and leg.
Appellant explained that she returned to full-time light-duty work on August 24, 2014, and
continued working until December 15, 2014, when her knees became so bad she fell, and had to
stop working.
By decision dated September 19, 2017, OWCP denied appellant’s claim under File No.
xxxxxx279, finding that the medical evidence submitted did not include a physician’s opinion
which was based upon a complete and accurate history of injury. It concluded that her attending
physician had not noted the alleged fall at work on December 15, 2014 and had instead noted her
repetitive work duties for the employing establishment over her 18 years of employment.
The Board has duly considered the matter and concludes that this case is not in posture
for decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files.3 For
example, if a new injury case is reported for an employee who previously filed an injury claim
for a similar condition or the same part of the body, doubling is required.4 Appellant’s present
claim is for a right knee condition which she had alleged was an exacerbation of her prior
accepted injuries to her bilateral knees in OWCP File No. xxxxxx704. The medical records of
the two files, both relating to conditions of appellant’s knees, have not been combined for crossreferencing as required by OWCP’s procedures.
The Board therefore finds that for a full and fair adjudication of appellant’s pending
appeal, the claim file must be remanded to OWCP to administratively combine OWCP File Nos.
xxxxxx704 and xxxxxx279. Following this and other such further development as it deems
necessary, OWCP shall issue a de novo decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; K.T., Docket No. 17-0432 (issued August 17, 2018).

2

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: May 22, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, ST. LOUIS
NETWORK DISTRIBUTION CENTER,
Hazelwood, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-0279
Issued: June 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 20, 2019 appellant, through counsel, filed a timely appeal from an
October 21, 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.3

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.

3
The Board notes that, following the October 21, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $11,239.79 for which she was not at fault, for the
period May 12, 2017 through April 26, 2020 because she improperly received wage-loss
compensation at an augmented compensation rate; and (2) whether it properly denied appellant’s
request for waiver of recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On December 3, 2011 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that day she sustained left hip and knee conditions when her
foot caught on the grate of the loader and she fell forward while in the performance of duty. OWCP
accepted the claim for left lower leg joint effusion, left lateral collateral ligament knee sprain, and
left lateral meniscal knee tear. Appellant underwent OWCP-authorized left knee arthroscopic
surgery, which was performed on October 16, 2012.5 OWCP expanded acceptance of appellant’s
claim to include: secondary left leg to left ankle lymphedema; post-traumatic edema-swelling of
the left lower extremity (including left ankle) and aggravation of right knee arthritis; and right
lower leg shin laceration without foreign body by decisions dated June 20, 2016, July 17, 2017,
and January 17, 2018, respectively. The record reflects that OWCP paid appellant intermittent
wage-loss compensation on the supplemental rolls from February 13, 2012 to November 20, 2017,
and by a schedule award as of November 21, 2017.
The record contains a claim for a schedule award (Form CA-7) dated April 24, 2013 in
which appellant listed her two daughters as dependents with birth dates of March 16, 1990 and
March 27, 1995.
In a Febuary 26, 2015 letter, OWCP advised appellant that it required aditional information
to determine continuing eligibility for compensaton for her claimed dependent daughter beyond
her 18th birthday. It asked appellant to provide a statement and certification of school enrollment
using attached forms to verify her daughter’s student status. OWCP afforded appellant 30 days to
submit additional evidence. Appellant did not respond to OWCP’s request.
Appellant filed a Form CA-7 claim for wage-loss compensation on May 10, 2017. She did
not list any dependents on this claim form. On October 10, 2017 appellant filed a claim for a
schedule award (Form CA-7). She did not list any dependents on the claim form.

4

Docket No. 15-1268 (issued December 10, 2015).

5
OWCP assigned this claim OWCP File No. xxxxxx499. On October 25, 2013 it administratively combined
OWCP File No. xxxxxx499 with OWCP File No. xxxxxx614, with the latter serving as the master file. Under OWCP
File No. xxxxxxx614, OWCP accepted that appellant sustained a left knee strain as the result of a February 2, 2003
traumatic injury.

2

By decision dated March 21, 2018, OWCP granted appellant a schedule award for 26
percent permanent impairment of the right lower extremity (knee) and an additional 18 percent
permanent impairment of the left lower extremity (knee), resulting in a total 21 percent left lower
extremity permanent impairment. The award covered a period of 362.88 weeks for the left lower
extremity and 524.16 weeks for the right lower extremity from November 21, 2017 to
April 26, 2020. This decision noted that the schedule award would be paid at the 66 2/3
compensation rate for employees without an eligible dependent.
On May 11, 2018 OWCP paid appellant intermittent wage-loss compensation on the
supplemental rolls for the period May 12 through November 20, 2017. Appellant’s weekly pay
rate of $1,070.08 was multiplied by a compensation rate of 75 percent for employees with an
eligible dependent, which was multiplied by 29.95 hours of time lost,6 yielding a net payment of
$626.52.
The record reflects that appellant received schedule award payments from November 21,
2017 through April 26, 2020. These payments were made at the 75 percent rate for employees
with an eligible dependent.
In a lump-sum schedule award calculation form dated February 5, 2019, OWCP utilized
the four-week compensation schedule award amount appellant was receiving at the 75 percent rate,
to compute the remaining schedule award due appellant.
On February 11, 2019 appellant signed an agreement to accept lump-sum settlement of
schedule award. She agreed to accept the sum of $46,784.96 in payment of compensation for the
commuted value of further installments of compensation for the remainder of the schedule award
payable from March 31, 2019 through April 26, 2020.
In a September 6, 2019 preliminary overpayment determination, OWCP informed
appellant of its preliminary determination that an overpayment of compensation in the amount of
$11,239.79 had been created for the period May 12, 2017 through April 26, 2020 because she had
been paid compensation at the augmented rate of 3/4 when she should have been paid
compensation at the 2/3 rate of her weekly pay. It found that she had been paid intermittent wageloss compensation of $626.52 for the period May 12 through November 20, 2017 when she should
have been paid $556.88, resulting in an overpayment of $69.64. OWCP found that appellant had
been paid for a schedule award in the amount of $60,281.47 for the period November 21, 2017
through March 30, 2019 when she should have been paid $53,569.64, resulting in an overpayment
of $6,711.83. Lastly, it found that she received a lump-sum payment of $46,784.96 for a schedule
award payable for the period March 31, 2019 through April 26, 2020 when she should have been
paid $42,326.64, resulting in an overpayment of $4,458.32. OWCP then added these amounts
resulting in a total overpayment of $11,239.79.

6

This computation was based on intermittent wage loss for 1.84 hours on May 12, 2017, 1.37 hours on May 15,
2017, 1.90 hours on June 2, 2017, 1.37 hours on August 14, 2017, 2.00 hours on September 7, 2017, 1.97 hours on
September 18, 2017, 1.91 hours on September 25, 2017, 1.96 hours on October 2, 2017, 3.74 hours on October 5,
2017, 3.41 hours on October 19, 2017, 1.71 hours on October 30, 2017, 1.94 hours on December 4, 2017, 1.77 hours
on December 11, 2017, and 3.06 hours on January 4, 2018. OWCP changed the end date from January 4, 2018 to
November 20, 2017 because the system would not allow payment that went into the schedule award period.

3

OWCP further found that appellant was without fault in the creation of the overpayment.
It advised appellant that, if she disagreed with the fact or amount of the overpayment, she had the
right to submit new evidence and to request a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review. OWCP also requested that she complete the enclosed
overpayment recovery questionnaire (Form OWCP-20), and attach supporting documents
including copies of income tax returns, bank account statements, bills and canceled checks, pay
slips, and any other records, which supported the income and expenses listed. It advised that,
under 20 C.F.R. § 10.438, failure to submit the requested information within 30 days would result
in denial of waiver of recovery of the overpayment.
On September 19, 2019 appellant completed Form OWCP-20, contesting fact and amount
of the overpayment and requesting waiver. She asserted that her youngest daughter had been her
dependent and in school full time. Appellant submitted a college transcript for the year 2014. On
the Form OWCP-20 she reported $2,600.00 in monthly income, $2,243.00 in monthly expenses
and $3,200.00 in assets. Appellant did not submit any supporting financial documentation.
By decision dated October 21, 2019, OWCP finalized its preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $11,239.79 for the period May 12, 2017 through April 26, 20207 because she had improperly
received augmented compensation without having eligible dependents. It found that appellant was
without fault in the creation of the overpayment, but denied waiver of recovery of the overpayment.
OWCP found the financial information appellant provided established that she was able to repay
the overpayment. It instructed appellant to submit monthly payments of $300.00.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from a personal injury sustained while in the performance of duty.8 If the
disability is total, the United States shall pay the employee during the period of total disability the
basic compensation rate of 66 2/3 percent of his monthly pay. A disabled employee is entitled to
an augmented compensation rate of 75 percent if she has one or more dependents.9
A dependent includes an unmarried child who, while living with the employee or receiving
regular contributions from the employee toward his or her support, is either under 18 years of age
or over 18 years of age and incapable of self-support due to physical or mental disability.10 A
child is also considered a dependent if he or she is an unmarried student under 23 years of age who

7

The Board notes a typographical error in the decision where OWCP notes the period of the overpayment as
“May 12, 2017 through April 6, 2020.” In the body of the decision, OWCP correctly notes the period as May 12,
2017 through April 26, 2020 in calculating the overpayment.
8

5 U.S.C. § 8102(a).

9

R.G., Docket No. 18-1251 (issued November 26, 2019); O.R., 59 ECAB 432, 436 (2008); id. at §§ 8105(a) and
8110(b).
10

Id. at § 8110(a).

4

has not completed four years of education beyond the high school level and is currently pursuing
a full-time course of study at a qualifying college, university, or training program.11
If a claimant received compensation at the augmented rate during a period when he or she
did not have an eligible dependent, the difference between the compensation that was disbursed at
the 75 percent augmented rate and the compensation that should have been disbursed at the 66 2/3
percent basic rate constitutes an overpayment of compensation.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $11,239.79 for the period May 12, 2017 through April 26, 2020
because she improperly received wage-loss compensation at an augmented compensation rate to
which she was not entitled.
While appellant has alleged that her youngest daughter, who was over the age of 18 at the
time, continued to qualify as a dependent as a full-time student, appellant only submitted a 2014
college transcript, which preceded the period of the overpayment in question. The Board,
therefore, finds that OWCP properly determined that appellant was not entitled to the augmented
compensation rate as of May 12, 2017.
Compensation records confirm that OWCP paid appellant intermittent wage-loss
compensation at the augmented rate from May 12 through November 20, 2017, which amounted
to a total of $626.52. Appellant, however, was only entitled to receive $556.88 in compensation
at the basic rate, resulting in an overpayment in the amount of $69.64. For the period
November 21, 2017 through March 30, 2019, OWCP paid appellant for a schedule award in the
amount of $60,281.45. Appellant, however, was only entitled to receive $53,569.64 for her
schedule award compensation at the basic rate resulting in an overpayment of $6,711.83. Lastly,
OWCP found appellant received a lump-sum payment of $46,784.96 for her schedule award
payable for March 31, 2019 through April 26, 2020 when she was only entitled to receive
$42,326.64 resulting in an overpayment of $4,458.32. OWCP then combined these amount to find
a total overpayment of $11,239.79. Accordingly, the Board finds that OWCP properly determined
that she received an overpayment of compensation in the amount of $11,239.79 for the period
May 12, 2017 through April 26, 2020.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.13
Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
11

R.G., supra note 9; E.G., 59 ECAB 599 (2008).

12

R.G., supra note 9; Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

13

Supra note 2 at § 8129.

5

specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver.14
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP’s regulations.15 Section 10.436 provides that recovery of an overpayment
would defeat the purpose of FECA if recovery would cause hardship because the beneficiary needs
substantially all of his or her income (including compensation benefits) to meet current ordinary
and necessary living expense, and, also, if the beneficiary’s assets do not exceed a specified amount
as determined by OWCP from data provided by the Bureau of Labor Statistics.16 For waiver of
recovery of the overpayment under the defeat the purpose of FECA standard, appellant must show
that he or she needs substantially all of his or her current income to meet current ordinary and
necessary living expenses, and that assets do not exceed the resource base.17 An individual is
deemed to need substantially all of his or her current income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As 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.19 Appellant,
however, had the responsibility to provide supporting financial information to OWCP,20 but she
did not do so.
Consequently, as appellant did not submit the supporting financial information required
under section 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for
waiver, OWCP properly denied waiver of recovery of the overpayment.21

14

20 C.F.R. § 10.438.

15

Id. at §§ 10.434-10.437.

16

Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Chapter 6.400.4a(2).
17

Id.

18

Id.

19

5 U.S.C. § 8129.

20

20 C.F.R. § 10.438.

21

Id. at § 10.438; see also M.B., Docket No. 19-1108 (issued October 19, 2020).

6

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $11,239.79 for the period May 12, 2017 through April 26, 2020
because she improperly received wage-loss compensation at an augmented compensation rate to
which she was not entitled. The Board further finds that OWCP properly denied waiver of
recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-958
Issued: April 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 28, 2010 appellant filed a timely appeal of an August 26, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP), denying his application for
reconsideration without merit review of the 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 August 26, 2010 nonmerit decision. Since more than 180 days elapsed between the last merit
decision of November 24, 2009 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of the claim pursuant to 20 C.F.R. § 501.3(e).
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was insufficient to warrant review of the merits of the claim for compensation
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 11, 2007 appellant, then a 51-year-old hazardous waste disposer, filed a
traumatic injury claim alleging that he sustained injuries on December 19, 2006 when he fell in
the performance of duty while descending a stairwell. On February 16, 2007 OWCP accepted
the claim for a lumbar sprain.2 Appellant returned to work at four hours per day on April 12,
2007 and full-time light duty as of July 23, 2007.
The record notes that appellant retired from federal employment as of
December 21, 2007. He continued to submit reports from an attending physician, Dr. Michal
McManus, an occupational medicine specialist. On January 11, 2008 Dr. McManus provided a
history and results on examination. He stated that appellant had permanent work restrictions and
there was no change of condition.
In a report dated January 28, 2009, Dr. Richard Wohns, a neurosurgeon, proposed that
appellant undergo lumbar interspinous process decompression (IPD) surgery. By report dated
February 9, 2009, an OWCP medical adviser recommended that the surgery should be
authorized. The medical adviser opined that appellant had aggravated a preexisting spinal
stenosis and/or the lumbosacral spondylosis accepted from the occupational claim.
On March 18, 2009 appellant underwent lumbar surgery performed by Dr. Wohns. He
filed a claim for compensation (Form CA-7) dated April 2, 2009 for the period commencing
December 21, 2007.
In a report dated April 21, 2009, Dr. McManus noted that appellant had reinjured his
back on December 19, 2006 and discussed appellant’s treatment. He diagnosed recurrent
lumbosacral strain with permanent aggravation of lumbar spinal stenosis. Dr. McManus opined
that appellant’s lumbar spinal stenosis was recurrently and permanently aggravated by his fall at
work on December 19, 2006, and appellant had permanent work restrictions at this time and was
unable to return to his date-of-injury job as a hazardous material handler.
By decision dated November 24, 2009, OWCP advised appellant that the claim was
accepted for permanent aggravation of lumbar spinal stenosis and he would be entitled to
compensation as of March 18, 2009, the date of the lumbar surgery. It denied the claim for
compensation from December 21, 2007 to March 17, 2009 on the grounds that the medical
evidence was insufficient to establish the claim.
On January 21, 2010 appellant submitted additional reports from Dr. McManus. In a
report dated December 10, 2009, Dr. McManus stated that he was responding to the
November 24, 2009 OWCP decision. He stated, “[Appellant’s] injury of December 19, 2006
resulted in a permanent worsening of his lumbar spinal stenosis. His disability from the period
December 21, 2007 through March 17, 2009 is a direct result of his work injury of
December 19, 2006.” Dr. McManus noted that appellant was not released to full-time work until
2

Appellant also filed an occupational claim (Form CA-2) on October 4, 2005 alleging that he sustained injuries
causally related to lifting items and loading pallets. OWCP accepted the claim for right thoracic and lumbar
neuritis/radiculitis and lumbosacral spondylosis. This claim has been administratively combined with the current
file.

2

July 27, 2007, and there was an attempt to transition appellant from limited or modified duty. He
stated that appellant continued to experience recurrent aggravations of his lumbar spinal stenosis
with these efforts and was unable to progress to regular/full duty. Dr. McManus concluded that
appellant “subsequently required permanent work restrictions. Appellant’s work injury of
December 19, 2006 resulted in his need for work restrictions and time loss since his injury and
specifically from December 21, 2007 through March 17, 2009.”
By letter dated June 29, 2010, appellant requested reconsideration of his claim. He stated
that he felt he was entitled to compensation commencing December 21, 2007 as he was unable to
work due to his employment injuries.
By decision dated August 26, 2010, OWCP denied the application for reconsideration. It
found the application was insufficient to warrant merit review of the claim for compensation
from December 21, 2007 to March 17, 2009.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.4 Section
10.608(b) states that any application for review that does not meet at least one of the
requirements listed in section 10.606(b)(2) will be denied by OWCP without review of the merits
of the claim.5
ANALYSIS
In the August 26, 2010 decision, OWCP found that appellant had not submitted any new
and relevant evidence. It did not specifically address the December 10, 2009 report from
Dr. McManus. The underlying merit issue in the case was an employment-related disability
from December 21, 2007 to March 17, 2009. Prior to the November 24, 2009 merit decision,
Dr. McManus had stated that appellant had permanent work restrictions. In the April 21, 2009
report, he stated that appellant had a permanent aggravation of spinal stenosis from the
December 19, 2006 employment injury, and was unable to return to work as a hazardous
material handler.
The December 10, 2009 report is new evidence that is relevant with respect to the claim
for compensation. In this report for the first time, Dr. McManus discussed disability for the
specific period claimed from December 21, 2007. He also notes appellant’s work history and
provides an opinion that appellant was disabled from December 21, 2007 to March 17, 2009 as a
3

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
4

20 C.F.R. § 10.606(b)(2).

5

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

3

direct result of the employment injury. A claimant need not submit all evidence necessary to
discharge his burden of proof; but only evidence that is relevant and pertinent and not previously
considered.6
The Board accordingly finds that appellant has met the requirement of 20 C.F.R.
§ 10.606(b)(2)(iii) to submit relevant and pertinent evidence not previously considered by
OWCP. Appellant is entitled to a review of the merits of the claim for compensation, and the
case will be remanded to OWCP for a merit decision.
CONCLUSION
The Board finds the case must be remanded to OWCP as appellant submitted relevant
and pertinent evidence not previously considered by OWCP, and he is entitled to a merit review
of his claim for compensation from December 21, 2007 to March 17, 2009.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 26, 2010 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: April 5, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6

See Billy B. Scoles, 57 ECAB 258 (2005).

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
O.M., Appellant
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
San Juan, PR, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 13-13
Issued: February 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On October 1, 2012 appellant filed a timely appeal from the September 17, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying 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
injury causally related to factors of his federal employment.
FACTUAL HISTORY
On June 19, 2012 appellant, then a 39-year-old health technician, filed an occupational
disease claim alleging that he sustained degenerative disc disease in the performance of duty. He
first became aware of his condition and its relation to his work on October 1, 2006. Appellant
stopped work on February 13, 2012 and returned on February 17, 2012.
1

5 U.S.C. § 8101 et seq.

By letter dated January 26, 2012, OWCP advised appellant that additional factual and
medical evidence was needed.
In a statement dated May 24, 2012, appellant described his symptoms which included leg
pain and numbness in the lower back, both legs, neck and hands which occurred over a period of
time performing his duties. He listed standing for periods of over 12 hours during surgery shifts,
and transporting patients in and out of the operating room, to their beds or the parking lot in
wheelchairs. Appellant explained that the lack of breaks, bending and twisting during open heart
surgery, holding retractors and long shifts contributed to his condition. He noted that on one
occasion he fell because his legs failed to hold him after more than eight hours of continuous
standing and a subsequent surgery.
In a May 29, 2012 statement, Ileana Fernandez, a nurse manager, noted that appellant
never complained of low back pain or demonstrated any difficulty performing his duties. She
advised that on February 13, 2012 appellant worked his tour without complaint from 9:30 hours
to 18:00 hours. Ms. Fernandez explained that he was activated at 22:30 hours and came to work
with low back pain. She advised that appellant was off until February 17, 2012 and returned to
work with no physical limitations.
In a May 15, 2012 form report, Dr. Mari T. Garcia Rondon, an osteopath specializing in
neurology and pain medicine, advised that appellant could work for eight hours a day with
restrictions. Appellant was evaluated due to leg pain, leg paresthesias and low back pain.
Dr. Garcia Rondon indicated that appellant had lumbar discogenic disease at L5-S1, low back
pain, shortening of hamstring muscles, myofascial pain and deficiency of B12 levels. In a
separate treatment note, she noted that appellant was evaluated for low back pain.
Dr. Garcia Rondon diagnosed low back pain and lumbago and advised that appellant’s back pain
was exacerbated by prolonged standing in his job as a surgical technician. Neurological
examination showed normal motor strength in the upper extremity and lower extremity.
Dr. Garcia Rondon had decreased pinprick sense in the distal portion of the legs.
In a February 14, 2012 emergency room report, Dr. Graciela L. Ortega, an internist,
advised that appellant presented with leg and buttock pain and was diagnosed with sciatic
neuropathy. She noted that appellant stood in his job for more than six hours which caused an
exacerbation of his symptoms. In a May 24, 2012 work restriction form, Dr. Cesar C. Gomez, a
physiatrist, provided work restrictions. OWCP also received laboratory and diagnostic testing
reports and nursing records.
By decision dated September 17, 2012, OWCP denied appellant’s claim. It found that
the medical evidence did not establish that his back condition was causally related to the
accepted work activities.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his claim including the fact that the individual is an “employee of the United States”
within the meaning of FECA, that the claim was timely filed within the applicable time limitation
period of FECA, that an injury was sustained in the performance of duty as alleged and that any

2

disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.4
ANALYSIS
The evidence establishes that appellant claimed a lumbar condition due to work activities
such as standing, bending and twisting during surgery and transporting patients. Appellant
submitted insufficient medical evidence to establish that his lumbar condition was caused or
aggravated by these activities or other factors of his federal employment.
On May 15, 2012 Dr. Garcia Rondon noted that appellant had lumbar discogenic disease
at L5-S1, low back pain, shortening of hamstring muscles, myofascial pain and lumbago. She
stated generally that appellant’s back pain was exacerbated by prolonged standing and his
position in his job. In a February 14, 2012 emergency room report, Dr. Ortega diagnosed sciatic
neuropathy and noted that appellant stayed standing at his job for more than six hours which
caused the exacerbation of the symptoms. While both physicians give some limited support for
causal relationship, neither physician adequately explained how standing or other job duties
caused or aggravated his back condition.5 Neither physician provided a full medical history of
appellant’s back condition or treatment. As noted, part of appellant’s burden of proof includes
the submission of rationalized medical evidence based on a full and accurate history supporting
causal relationship between diagnosed conditions and employment factors.
2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

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

4

Id.

5

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

3

Other medical reports such as work restriction reports and reports of testing are
insufficient to establish the claim because these reports did not specifically address whether
appellant’s job duties caused or aggravated a 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.6 The nursing records are also insufficient to establish
the claim. Section 8101(2) of FECA7 provides that the term “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by the applicable state law. Health care
providers such as nurses are not physicians under FECA. Thus, a nurse is not competent to give
a medical opinion.8
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.9
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.10 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
There is insufficient medical evidence explaining how appellant’s employment duties
caused or aggravated his back condition. Appellant has not met his burden of proof in
establishing that he sustained a medical condition in the performance of duty causally related to
factors of his employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty causally related to factors of his federal
employment.

6

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997).

7

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that
a medical opinion, in general, can only be given by a qualified physician).
8

See Bertha L. Arnold, 38 ECAB 282 (1986).

9

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

10

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the September 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2013
Washington, DC

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

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

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

5