United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Loma Linda, CA, Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0241
Issued: August 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 14, 2018 appellant, through counsel, filed a timely appeal from an
October 29, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 29, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation, effective February 16, 2018, pursuant to 20 C.F.R. § 10.500(a) based on her
earnings had she accepted a temporary, limited-duty assignment.
FACTUAL HISTORY
On February 9, 2011 appellant, then a 53-year-old medical instrument technician, filed a
traumatic injury claim (Form CA-1) alleging that on February 1, 2011 she sustained an injury when
she pulled a chair with a broken wheel while in the performance of duty. OWCP initially accepted
her claim for lumbar sprain, but later expanded the accepted conditions to include sciatica and
displacement of lumbar intervertebral disc without myelopathy. Appellant later stopped work and
received wage-loss compensation on the periodic rolls commencing June 29, 2014.4
On August 30, 2016 the employing establishment offered appellant a light-duty
assignment. The assignment was for full-time work and had an annual salary of $61,036.00. The
assignment’s physical requirements included sitting and using a computer for data entry and
conducting research. The position allowed for the ability to reposition as needed for comfort and
required lifting, pushing, and pulling up to 10 pounds. It did not require overhead use of the arms,
bending, squatting, or twisting.
Appellant did not accept the offered position and she submitted reports from Dr. Babak
Khamsi and Dr. Thomas Haider, both Board-certified orthopedic surgeons, who provided opinions
that she was temporarily totally disabled.
By decision dated November 16, 2016, OWCP terminated appellant’s wage-loss
compensation effective August 30, 2016 pursuant to 20 C.F.R. § 10.500(a) based on her earnings
had she accepted the limited-duty assignment. However, by decision dated August 31, 2017, a
representative of OWCP’s Branch of Hearings and Review reversed OWCP’s termination action
due to OWCP’s failure to provide her with a notice of proposed termination.
In September 2017, OWCP referred appellant to Dr. Steven M. Ma, a Board-certified
orthopedic surgeon, for a second opinion examination and requested that he provide an opinion on
her ability to work.
In an October 18, 2017 report, Dr. Ma reported his findings on physical examination and
noted that they did not support appellant’s severe pain complaints nor did they warrant additional
surgery. He concluded that the examination findings, as well as the results of a July 20, 2017

4
Appellant has a prior claim, filed under a separate claim number, for an August 27, 2009 injury which was
accepted for cervical and lumbar strains. She also filed claims for March 11 and July 30, 2003 injuries which were
administratively handled by OWCP due to no lost time from work. Appellant underwent OWCP-approved low back
surgery on January 23, 2014 which included decompression/fusion procedures between the L3 and S1 disc levels.

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functional capacity evaluation, showed that she could currently perform the duties of the lightduty assignment offered by the employing establishment on August 30, 2016.
On December 1, 2017 the employing establishment again offered appellant a light-duty
assignment.5 In a December 1, 2017 letter, a human resources specialist indicated that the medical
evidence of record showed that she could perform restricted work in a light-duty assignment. The
specialist indicated that the light-duty assignment was based on appellant’s medical restrictions as
detailed by Dr. Ma. She noted that the offer served as assurance that appellant’s duties during her
period of recovery would not exceed the physical requirements outlined in the offer. An attached
document for the administrative support position bore the heading “Veterans Health
Administration -- Light[-]Duty Assignment” and described the duties of the assignment which
were mostly clerical in nature. The assignment was for full-time work and had an annual salary
of $61,036.00. The assignment’s physical requirements included sitting and using a computer for
data entry and conducting research. The position allowed the ability to reposition as needed for
comfort and required lifting, pushing, and pulling up to 10 pounds. It did not require overhead use
of the arms, bending, squatting, or twisting.
On December 6, 2017 the employing establishment advised OWCP that appellant had
refused the offered light-duty assignment and that she had indicated that she would obtain work
restrictions from her attending physicians. On December 12, 2017 OWCP received an undated
report from Dr. Khamsi who indicated that appellant could only perform the light-duty position
for six hours per day with frequent breaks.6
In a December 12, 2017 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation pursuant to 20 C.F.R. § 10.500(a) based on her earnings had she accepted
a temporary, limited-duty assignment. It noted that it had been advised that she accepted a
“temporary light[-]duty assignment” offered by the employing establishment on December 1,
2017, but that she, on her own accord, had limited her performance of work to six hours per day
effective December 12, 2017. OWCP indicated that the weight of the medical evidence,
represented by Dr. Ma’s opinion, showed that appellant could perform the temporary assignment
as offered. It noted that her case would be held open for 30 days to afford her an opportunity to
accept the full assignment and report to duty, or arrange for a report date without penalty. If
appellant chose not to accept “this assignment in full,” she was required to provide a written
explanation of her reasons during the allotted period. OWCP noted, “If you decline to report to
the temporary light[-]duty assignment, and fail to demonstrate that the declination is justified
(within the allotted 30 days), your right to wage[-]loss compensation will be terminated
indefinitely since this light[-]duty assignment has no projected end date.”

5

The assignment would be available to appellant on December 6, 2017 and it appears that the assignment had the
same duties/physical requirements as the assignment that was offered to her on August 30, 2016. The Board notes
that appellant was receiving wage-loss compensation on the periodic rolls at the time the employing establishment
offered the light-duty assignment on December 1, 2017.
6
It appears that appellant attempted to perform the offered light-duty position for a brief period. However, the
precise extent of this attempt is unclear from the case record.

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In a January 8, 2018 letter, counsel argued that appellant had not completely abandoned
the light-duty assignment. She asserted that the reports of attending physicians showed that
appellant could not perform the assignment for eight hours per day.
Appellant submitted several reports from attending physicians, including a December 26,
2017 report from Dr. James I. Rho, a Board-certified anesthesiologist, who advised that she
reported that she had returned to work, but could not tolerate an eight-hour work shift. Dr. Rho
recommended that she work six hours per day. In a January 9, 2018 report, Dr. Haider noted that
appellant had reported her back had worsened due to prolonged sitting at work and he indicated
that she was temporarily totally disabled. On February 6, 2018 he noted her complaints of back
pain and indicated that she could not return to work. Dr. Haider advised that appellant was
awaiting surgery intended to relieve her intense lower back pain.
By decision dated February 16, 2018, OWCP terminated appellant’s wage-loss
compensation, effective February 16, 2018, pursuant to 20 C.F.R. § 10.500(a) based on her
earnings had she accepted a temporary, limited-duty assignment. It indicated that the weight of
the medical evidence, represented by Dr. Ma’s opinion, showed that she could perform the full
time light-duty assignment.
On March 13, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review. During the hearing, held on
August 14, 2018, counsel argued that the reports of attending physicians showed that appellant
could not perform the offered light-duty assignment on a full-time basis. Appellant submitted
additional reports of Dr. Khamsi and Dr. Haider which discussed her medical condition in late2018.
By decision dated October 29, 2018, OWCP’s hearing representative affirmed OWCP’s
February 16, 2018 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of compensation benefits.7
OWCP regulations at 20 C.F.R. § 10.500(a) provide in relevant part:
“(a) Benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents him
or her from earning the wages earned before the work-related injury. For example,
an employee is not entitled to compensation for any wage loss claimed on a [Form]
CA-7 to the extent that evidence contemporaneous with the period claimed on a
[Form] CA-7 establishes that an employee had medical work restrictions in place;
that light duty within those work restrictions was available; and that the employee
was previously notified in writing that such duty was available. Similarly, an
employee receiving continuing periodic payments for disability was not prevented
7

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

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from earning the wages earned before the work-related injury if the evidence
establishes that the employing [establishment] had offered, in accordance with
OWCP procedures, a temporary light-duty assignment within the employee’s work
restrictions.”8
When it is determined that an appellant is no longer totally disabled from work and is on
the periodic rolls, OWCP’s procedures provide that the claims examiner should evaluate whether
the evidence of record establishes that light-duty work was available within his or her restrictions.
The claims examiner should provide a pretermination or prereduction notice if appellant is being
removed from the periodic rolls.9 When the light-duty assignment either ends or is no longer
available, the claimant should be returned to the periodic rolls if medical evidence supports
continued disability.10
OWCP’s procedures further advise, “If there would have been wage loss if the claimant
had accepted the light-duty assignment, the claimant remains entitled to compensation benefits
based on the temporary actual earnings WEC calculation (just as if he/she had accepted the lightduty assignment).”11
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective February 16, 2018, pursuant to 20 C.F.R. § 10.500(a) based on her
earnings had she accepted a temporary, limited-duty assignment.
OWCP has terminated appellant’s wage-loss compensation on February 16, 2018 pursuant
to 20 C.F.R. § 10.500(a). The Board is unable to determine from the current record whether its
termination of her benefits is proper under section 10.500(a) as it cannot be established whether
she had been offered a temporary or a permanent employment position. OWCP procedures require
that, when an employing establishment provides an alternate employment position to a partially
disabled employee who cannot perform his or her date-of-injury position, it must be determined
whether the offered position is permanent or temporary in nature.12 If the employment offered to
an employee on the periodic rolls is temporary and the employee does not accept the position
section 10.500(a) applies.13 However, if the offered employment is permanent in nature and the
employee does not accept the position the penalty provisions under 5 U.S.C. § 8106(c) apply.14

8

20 C.F.R. § 10.500(a).

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9(c)(1)
(June 2013).
10

Id.

11

Id. at Chapter 2.814.8(c)(10).

12

Id. at Chapter 2.814.4.

13

Supra note 8.

14
See C.W., Docket No. 18-1779 (issued May 6, 2019) (termination under 20 C.F.R. § 10.500(a) reversed given
that it was unclear whether the assignment offered to the claimant on the periodic rolls was temporary in nature).

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On December 1, 2017 the employing establishment provided appellant a written job offer
as a full-time modified administrative assistant beginning December 6, 2017. The document
effectuating the offer bore the heading “Veterans Health Administration – Light[-]Duty
Assignment.” The assignment was for an administrative assistant with full-time work and had an
annual salary of $61,036.00. The cover letter for the written job offer, completed by a human
resources specialist for the employing establishment, provided notice that the offer served as
assurance that appellant’s duties during her period of recovery would not exceed the physical
requirements outlined in the offer. However, the specialist did not provide an indication as to
whether the offered assignment was temporary or permanent and her notice is vague in the absence
of further clarifying documentation in the case record. When OWCP issued its notice of proposed
termination of wage-loss compensation on December 12, 2017, it noted that appellant had limited
her work to six hours per day in the “temporary light-duty assignment” provided by the employing
establishment.15 The Board finds, however, that there is no documentation of record supporting
the status of the offered assignment as temporary in nature.
Appellant was a recipient of wage-loss compensation on the periodic rolls at the time of
the December 1, 2017 offer of employment. Therefore, to terminate her wage-loss compensation
pursuant to 20 C.F.R. § 10.500(a), OWCP had the burden of proof to establish that the employment
position was temporary in nature. This determination is critical as a permanent job offer would
require OWCP to terminate benefits in compliance with the strict provisions of 5 U.S.C. § 8106(c).
As it cannot be established that the assignment offered to appellant was a temporary position,
OWCP has not met its burden of proof to terminate wage-loss compensation pursuant to section
10.500(a).16
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective February 16, 2018, pursuant to 20 C.F.R. § 10.500(a) based on her
earnings had she accepted a temporary, limited-duty assignment.

Although OWCP characterized the assignment as a “temporary light-duty assignment,” it also indicated in its
December 12, 2017 notice that “this light[-]duty assignment has no projected end date.”
15

16

See C.W., supra note 14.

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ORDER
IT IS HEREBY ORDERED THAT the October 29, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 12, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 21-0683
Issued: December 16, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 24, 2021 appellant filed a timely appeal from a December 8, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proo f to establish a right shoulder
condition causally related to the accepted March 14, 2020 employment incident.

1
The Board notes that, following the December 8, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 17, 2020 appellant, then a 53-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on March 14, 2020 she sustained a shoulder sprain,
shoulder dislocation, and frozen shoulder when carrying a mail satchel on her right shoulder while
in the performance of duty. On the reverse side of the claim form appellant’s supervisor
acknowledged that she was injured in the performance of duty.
In support of her claim, appellant submitted literature on how to care for a shoulder sprain
and frozen shoulder exercises.
Appellant also submitted an unsigned letter dated March 25, 2020 from an emergency
department, which noted that she was seen by a provider and could return to work in three days.
In a development letter dated April 21, 2020, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
In a letter dated April 28, 2020, the employing establishment controverted appellant’s
claim, explaining that she had not worked from December 7, 2019 through March 13, 2020 and
that her alleged injury occurred on the day she returned to work. Appellant, however, did not
report her injury until April 17, 2020. The employing establishment also noted that she filed an
occupational disease claim (Form CA-2) on March 23, 2020 for a shoulder sprain, which she stated
occurred on March 13, 2020.
By decision dated May 26, 2020, OWCP denied appellant’s claim as the evidence
submitted was insufficient to establish that the incident occurred, as alleged. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
Appellant submitted a letter dated May 5, 2020 from Dr. Milliardaire Syverain, an internal
medicine specialist. The letter was partially legible, but noted a right shoulder and right foot injury
at work.
On June 10, 2020 appellant timely requested a telephonic hearing before a representative
of OWCP’s Branch of Hearings and Review, which was held on October 6, 2020. The hearing
representative afforded appellant 30 days to submit additional evidence.
In response, appellant submitted a medical note dated July 23, 2020 from Michelle
Buchholz, a family nurse practitioner. Ms. Buchholz related that appellant had experienced
intense pain in her right shoulder while carrying a postal bag in March. She indicated that appellant
may have sustained a torn rotator cuff.
OWCP received a medical note dated August 24, 2020 from Dr. Alma Sanchez, a family
medicine specialist. Dr. Sanchez noted that appellant had pain in her right shoulder radiating down
her arm and that she had reported carrying mail on her right shoulder. She related that appellant
had decreased range of motion of the right shoulder. Dr. Sanchez noted possible diagnoses as
frozen shoulder or rotator cuff injury.
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In a progress note dated October 8, 2020, Dr. Sanchez assessed right shoulder pain and
related that it remained unchanged. She also stated that an x-ray of appellant’s right shoulder
revealed normal joint findings, but with possible degenerative changes of the humeral head.
By decision dated December 8, 2020, OWCP’s hearing representative modified OWCP’s
May 26, 2020 decision and found that the March 14, 2020 employment incident occurred, as
alleged, but denied appellant’s claim, finding that causal relationship had not been established
between her right shoulder pathology and the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 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. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component to be established
is that the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).

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nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted March 14, 2020 employment incident.
In a May 5, 2020 letter, Dr. Syverain related that appellant had sustained a right shoulder
injury at work. As this report lacked medical rationale establishing causal relationship, it is
insufficient to establish appellant’s claim.10
Appellant submitted medical notes dated August 24 and October 8, 2020 from
Dr. Sanchez, which related that appellant was seen for right shoulder pain. In her August 24, 2020
report, Dr. Sanchez noted possible diagnosis of frozen shoulder or rotator cuff tear. In her
October 8, 2020 report, she assessed right shoulder pain and noted possible degenerative changes
of the humeral head. However, Dr. Sanchez did not offer an opinion on causal relationship. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship 11 As such, these
reports from Dr. Sanchez were insufficient to establish a diagnosed right shoulder condition
causally related to the accepted employment incident.
Appellant also submitted a progress note dated July 23, 2020 from Ms. Buchholz, a family
nurse practitioner. Certain healthcare providers such as physician assistants, nurse practitioners,
and physical therapists are not considered physicians as defined under FECA. 12 Consequently,
Ms. Buchholz’ report will not suffice for purposes of establishing entitlement to FECA benefits.13
OWCP also received a letter dated March 25, 2020 from an emergency department which
was unsigned. The Board has held that reports that are unsigned or bear an illegible signature
cannot be considered probative medical evidence as the author cannot be identified as a

9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

P.C., Docket No. 18-0167 (issued May 7, 2019).

11

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

5 U.S.C. § 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); see also M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221
(issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
12

13

See M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians under
FECA).

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physician.14 Therefore, this document has no probative value and is insufficient to establish the
claim.
Finally, OWCP received literature from the appellant on how to care for a shoulder sprain
and frozen shoulder exercises. The Board has, however, long held that excerpts from publications
have little probative value in resolving medical questions unless a physician establishes the
applicability of the general medical principle discussed in the article to the specific factual situation
in the case.15
As there is no medical evidence of record establishing a right shoulder condition causally
related to the accepted March 14, 2020 employment incident, the Board finds that appellant has
not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted March 14, 2020 employment incident.

14

C.S., Docket No. 20-1354 (issued January 29, 2021); D.T., Docket No. 20-0685 (issued October 8, 2020);
Merton J. Sills, 39 ECAB 572, 575 (1988).
15

T.S., Docket No. 18-1518 (issued April 17, 2019); W.C. (R.C.), Docket No. 18-0531 (issued November 1, 2018);
K.U., Docket No. 15-1771 (issued August 26, 2016); Roger D. Payne, 55 ECAB 535 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the December 8, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 2021
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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

Docket No. 08-128
Issued: June 4, 2008

Case Submitted on the Record

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

JURISDICTION
On October 16, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ hearing representative’s merit decision dated September 17, 2007
terminating her compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective April 15, 2007; and (2) whether appellant has any
continuing disability or medical residuals on or after April 15, 2007.
FACTUAL HISTORY
This case has previously been before the Board. The Office accepted appellant’s claim
for aggravation of bulging discs at L3-S1 on April 28, 1989. The Office entered her on the
periodic rolls on April 22, 1991. By decision dated April 24, 1991, the Office denied appellant’s

additional claims for compensation from July 13, 1987 through November 7, 1988. By decision
dated June 29, 1992, finalized July 2, 1992, the Branch of Hearings and Review found that
appellant was not entitled to wage-loss benefits prior to April 7, 1991. In a decision dated
December 21, 1993,1 the Board found that appellant had not submitted sufficient medical
evidence to establish her disability and affirmed the hearing representative’s July 2, 1992
decision. The facts and the circumstances of the case are set out in the Board’s prior decision
and adopted herein by reference.
On February 13, 2004 the Office referred appellant to Dr. Aimee Hachigian-Gould, a
Board-certified orthopedic surgeon, for a second opinion evaluation. Dr. Hachigian-Gould
completed a report on May 12, 2004, noting appellant’s history of injury, medical treatment and
performed a physical examination. She diagnosed chronic lumbosacral strain with sciatica,
degenerative disc disease in the lumbar spine and herniated L5-S1 disc. Dr. Hachigian-Gould
stated, “Her underlying condition was aggravated and altered due to her work activities as
evidenced by progression of her disc bulges and degenerative changes at facet joints of the
lumbosacral spine along with disc space narrowing.” She concluded, “This patient essentially
has had a permanent aggravation of her underlying condition and should be considered
permanently stable at this point.” Dr. Hachigian-Gould opined that appellant could work four
hours a day with restrictions.
Based on this report, the Office proposed to reduce appellant’s compensation benefits
based on her capacity to earn wages as a bookkeeper on March 31, 2005. Appellant disagreed
with this proposal and submitted a May 11, 2005 report from Dr. John Stevens, an attending
family practitioner, who diagnosed lumbar degenerative disc disease at multiple levels as well as
facet degenerative changes contributing to her condition. Dr. Stevens opined that appellant
remained totally disabled and that he did not anticipate improvement.
The Office found that there was a conflict of medical opinion between Dr. HachigianGould and Dr. Stevens regarding appellant’s ability to work. The Office referred appellant to
Dr. James Burton, a Board-certified orthopedic surgeon for an impartial medical examination. In
a report dated July 2, 2005, Dr. Burton reviewed the statement of accepted facts and the medical
records. He performed a physical examination and diagnosed multiple level degenerative disc
disease and herniated disc at L5-S1. Dr. Burton opined that appellant’s present condition was
unrelated to her work activities and that she had sustained a work-related temporary aggravation
of her underlying degenerative condition which ceased six months after her last employment
exposure. He found that appellant could not return to work as a procurement clerk due to her
“chronic worsening degenerative condition, possibly related to [motor vehicle accidents] but not
related to any work injury.” Dr. Burton found that appellant was capable of performing parttime sedentary or light activity.
On July 27, 2005 the Office proposed to terminate appellant’s compensation benefits
based on Dr. Burton’s report. Appellant objected to this proposal and submitted medical
evidence previously of record. By decision dated August 29, 2005, the Office terminated
appellant’s medical and compensation benefits.
1

Docket No. 92-2117 (issued December 21, 1993).

2

Appellant requested an oral hearing. In a report dated May 1, 2006, Dr. Stephens
diagnosed lumbar degenerative disc disease at multiple levels, facet degenerative changes and
myofascial pain with muscle contraction headaches. Dr. Stephens stated that he had reviewed
his treatment notes regarding appellant and that her condition was related to her 1987
employment injury. He also concluded that appellant’s work-related condition was permanent.
Dr. Stephens found appellant to be totally disabled.
By decision dated November 2, 2006, the hearing representative set aside the Office’s
August 29, 2005 termination decision. The hearing representative found that appellant’s claim
should be expanded to include the additional condition of permanent aggravation of underlying
degenerative disc disease as found by Dr. Hachigian-Gould. The Office was directed to revise
the statement of accepted facts and request a supplemental report from Dr. Burton addressing
appellant’s continuing employment residuals and disability.
The Office revised the statement of accepted facts and requested a supplemental report
from Dr. Burton. In a report dated January 19, 2007, Dr. Burton disagreed with the finding that
appellant had sustained a permanent aggravation of her preexisting back condition. He stated,
“One might see a temporary aggravation of one level that may cause a ‘muscle strain’ or perhaps
even a mild disc bulge, but not at three separate levels simultaneously. This simply does not
happen.” Dr. Burton concluded that appellant sustained only a temporary aggravation of her low
back condition which ended two months after her initial injury in 1987. He stated that he
accepted that appellant sustained a permanent aggravation even though he “strongly disagreed
with this finding.” Dr. Burton advised that appellant had only sustained a temporary aggravation
of her back condition that he did not believe that she had any residuals of any work-related
injury. He found that appellant had a degenerative process and her condition would worsen with
passing time. Dr. Burton stated, “The fact that she is gradually getting worse has nothing to do
with the ‘injury’ that occurred in 1987.” He concluded by stating that appellant’s present
condition was not due to her work injury and provided work restrictions.
In a letter dated March 8, 2007, the Office proposed to terminate appellant’s medical and
compensation benefits based on Dr. Burton’s reports. On March 26, 2007 appellant asserted that
Dr. Burton’s rationale that she was merely aging did not change the fact that the Office had
accepted a permanent aggravation of her underlying condition.
By decision dated April 13, 2007, the Office terminated appellant’s compensation
benefits effective April 15, 2007. The Office noted that Dr. Burton’s report was entitled to
special weight as he was the impartial medical examiner and that his January 19, 2007 report
established that appellant no longer had disability or residuals due to her accepted work-related
condition.
Appellant requested a review of the written record on May 2, 2007. By decision dated
September 17, 2007, an Office hearing representative affirmed the April 13, 2007 termination
decision.

3

LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.2 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.3 The
Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement of
disability. To terminate authorization for medical treatment, the Office must establish that a
claimant no longer has residuals of an employment-related condition, which require further
medical treatment.5
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for permanent aggravation of degenerative disc
disease at L3-S1. On April 13, 2007 the Office terminated appellant’s compensation and
medical benefits on the grounds that the accepted conditions had resolved. The Office, therefore,
bears the burden of proof to justify a termination of benefits.
A conflict in medical opinion arose between appellant’s attending physician, Dr. Stevens
and Dr. Hachigian-Gould, a Board-certified orthopedic surgeon, and the Office referral
physician, on the extent of appellant’s injury-related disability. To resolve the conflict, the
Office referred appellant to Dr. Burton, a Board-certified orthopedic surgeon, who diagnosed
multilevel degenerative disc disease and herniated disc at L5-S1. He opined that appellant had
sustained only a temporary employment-related aggravation of this condition which ended
between two to six months after her last employment exposure. Dr. Burton stated that she did
not sustain a permanent aggravation of bulging discs at three levels simultaneously. He
explained that appellant was unable to perform her duties as a procurement clerk, but the basis of
her disability was degenerative disc disease, which he repeated was not related to the work
incident of 1987. Dr. Burton reiterated that appellant’s precedent degenerative disc disease was
only temporarily aggravated by her work injury for a few months. He concluded that her current
disability was not related to the work incident of 1987.
As noted by the hearing representative, Dr. Burton is not an impartial medical examiner
for the issue of whether appellant has any continuing residuals due to her accepted employment
injury, as both Dr. Stevens and Dr. Hachigian-Gould agreed that she experienced continuing
medical residuals. The Board finds that Dr. Burton’s opinion cannot be accorded sufficient
weight to establish that appellant has no disability due to her accepted employment injury.
Dr. Burton made statements that were clear and unequivocal, but he offered little medical
rationale to support his stated conclusion. He cited no clinical findings to substantiate his
2

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

3

Mary A. Lowe, 52 ECAB 223, 224 (2001).

4

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

5

Mary A. Lowe, supra, note 3.

4

assertion. Dr. Burton provided no comparative analysis of appellant’s condition before and after
her injury to show that it had no impact on her underlying back condition. Instead, he concluded
that appellant’s employment injury could not have resulted in a permanent aggravation of her
bulging discs at L3-S1 as found by Dr. Hachigian-Gould and as accepted by the Office.
Therefore, she could have no disability or medical residuals related to such a permanent
aggravation.
The Board has held that medical conclusions unsupported by rationale are of little
probative value. A physician’s opinion on causal relationship must be one of reasonable medical
certainty, but it must also be supported with affirmative evidence, explained by medical rationale
and based on a complete and accurate medical and factual background. In this case, the certainty
with which Dr. Burton expressed his opinion cannot overcome the lack of medical rationale.6
Dr. Burton was of the opinion that appellant’s 1987 employment injury caused only a
temporary aggravation of her preexisting degenerative disc disease and, therefore, her current
disability was unrelated to her employment. However, the Office terminated compensation
benefits on the grounds that all residuals of the accepted employment injury had ceased. This is
not what Dr. Burton reported. The Board has held that it is a denial of administrative due
process for the Office to terminate compensation benefits on the grounds that a claimant no
longer has residuals of an accepted condition, where the record supports that the reason for the
Office’s action was that the condition was not causally related to the claimant’s employment and
should not have been accepted as such. The Office must inform claimants correctly and
accurately of the grounds on which a decision rests, so as to afford them an opportunity to meet,
if they can, any defect appearing therein.7
CONCLUSION
The Board finds that the Office has not met its burden of proof. Dr. Burton offered little
if any medical rationale to support his conclusion that appellant sustained only a temporary
aggravation of degenerative disc disease and his opinion deviated from the statement of accepted
facts. His opinion has little probative value, does not represent the weight of the medical
evidence and is insufficient to resolve the conflict at issue. Further, the Office improperly
terminated benefits on grounds that are inconsistent with the opinion offered by Dr. Burton.

6

Willa M. Frazier, 55 ECAB 379, 384 (2004).

7

Id. at 385; Sylena Wilkes, Docket No. 05-1402 (issued June 2, 2006).

5

ORDER
IT IS HEREBY ORDERED THAT the September 17, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 4, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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

Docket No. 18-0152
Issued: October 1, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 26, 2017 appellant filed a timely appeal from an October 4, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated April 19, 2017, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 9, 2004 appellant, then a 35-year-old shipfitter, filed an occupational disease
claim (Form CA-2) for bilateral hand tendinitis/tenosynovitis, which he attributed to using
various tools at work. He identified September 23, 2003 both as the date he first became aware
of his condition and when he first realized his bilateral hand condition was employment-related.
Appellant did not stop work at the time he filed his Form CA-2.
On October 19, 2004 OWCP accepted appellant’s claim for bilateral hand and wrist
tendinitis/tenosynovitis. Approximately 12 years lapsed without any additional activity on
appellant’s accepted occupational disease claim.
Effective April 1, 2016, appellant resigned from his position as a supervisory shipfitter.
On June 16, 2016 appellant filed a claim for a schedule award (Form CA-7). At that time,
the latest medical evidence of record dated back to September 8, 2004.
In a June 28, 2016 schedule award claim development letter, OWCP advised appellant
that he needed to submit current medical evidence regarding the extent of any bilateral upper
extremity permanent impairment. It further advised appellant to make arrangements with his
treating physician for the submission of a narrative medical report, which included a final
permanent impairment rating in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment) (A.M.A., Guides).2 OWCP
sent a similar development letter to appellant’s previous treating physician, Dr. Mayo A.
Noerdlinger, a Board-certified orthopedic surgeon. However, Dr. Noerdlinger was unable to
provide the requested permanent impairment rating because he had not seen appellant in two
years.
OWCP prepared a statement of accepted facts (SOAF) and referred appellant for a second
opinion evaluation to ascertain whether he had any permanent impairment due to his accepted
employment injury.
In a report dated September 19, 2016, Dr. Scott F. Corneal, an osteopath and Boardcertified physiatrist and OWCP referral physician, noted that appellant’s clinical examination
was fairly benign with mild left forearm discomfort with resisted left wrist flexion and mild
tenderness over the interspace between the thumb and index finger, bilaterally. He diagnosed
bilateral hand discomfort and numbness and tingling in the hands at night. Dr. Corneal noted
that appellant’s symptoms were due to repetitive trauma to his hands from using air tools for
many years. He found nine percent impairment for appellant’s upper extremity injuries.
Dr. Corneal referenced Table 15-2, Digit Regional Grid, A.M.A., Guides at page 391. He found
one percent digit impairment, for a class 1 soft tissue injury. Dr. Corneal then converted the
individual digit impairments to 10 percent hand impairment, which corresponded to 9 percent
upper extremity permanent impairment. In an October 28, 2016 supplemental report, he

2

A.M.A., Guides (6th ed. 2009).

2

clarified that appellant had 4.5 percent permanent impairment of each upper extremity, for a
combined 9 percent permanent impairment of the upper extremities.
On December 4, 2016 OWCP’s district medical adviser, Dr. David J. Slutsky,3 reviewed
the record, including Dr. Corneal’s impairment rating. He disagreed with Dr. Corneal’s
impairment rating, and instead found zero percent bilateral upper extremity impairment.
Dr. Slutsky rated appellant based on a diagnosis of tenosynovitis under Table 15-3, Wrist Regional
Grid, A.M.A., Guides 395. The medical adviser noted that Dr. Corneal rated appellant using Table
15-2 for digit impairment with a grade modifier of 2 for functional history; however, he failed to
provide a QuickDASH (Disabilities of the Arm, Shoulder, and Hand) score or document problems
with activities of daily living to warrant this modifier. Dr. Slutsky further noted that Dr. Corneal
apparently awarded one percent digit impairment for each finger and thumb, which was not
supported by the medical evidence. He opined that appellant had zero percent permanent
impairment of the right and left hand. The date of maximum medical improvement was
September 19, 2016.
On December 7, 2016 OWCP referred Dr. Slutsky’s report to Dr. Corneal for review and
comment.
In a decision dated April 19, 2017, OWCP denied appellant’s claim for a schedule award,
finding that the evidence of record was insufficient to establish that he sustained permanent
impairment to a scheduled member due to the accepted work injury.
On July 17, 2017 appellant requested reconsideration. In a statement dated July 12, 2017,
appellant disagreed with both Dr. Corneal and Dr. Slutsky’s impairment ratings. He reported
working for the employing establishment for 28 years as a welder and shipfitter and noted that he
was unable to continue to work in this field due to his work injury. Appellant indicated that during
his career he spent many hours using pneumatic tools and first reported his injury in 2003. He
noted that everyday tasks such as holding a steering wheel, grasping a tool, or holding a telephone
caused pain. Appellant noted informing Dr. Corneal of pain in his fingers, thumbs, hands, and
lower arms, when grasping and holding objects. He further explained that the pain limited his
daily activities and job opportunities.
In a decision dated October 4, 2017, OWCP denied appellant’s request for reconsideration
of the merits of his claim.
LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP has the discretion to reopen a case for review on
the merits. It must exercise this discretion in accordance with the guidelines set forth in section
10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain

3

Dr. Slutsky is a Board-certified orthopedic surgeon.

4

5 U.S.C. § 8128(a).

3

review of the merits of his or her written application for reconsideration, including all supporting
documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”5
Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP
without review of the merits of the claim.6
ANALYSIS
OWCP denied appellant’s claim for a schedule award because he had not established that
he sustained permanent impairment to a scheduled member due to his accepted work injury.
Thereafter, it denied appellant’s request for reconsideration of the merits of the claim.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law as he did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant did not advance a new and relevant legal argument
not previously considered. In a statement dated July 12, 2017, he disagreed with both Dr. Corneal
and Dr. Slutsky, the medical adviser, regarding his impairment rating. Appellant indicated that he
worked for the employing establishment for 28 years as a welder and shipfitter and was unable to
continue to work in this field due to his work injury. He indicated that during his career he spent
many hours using pneumatic tools. Appellant noted that he informed Dr. Corneal that he had pain
in his fingers, thumbs, hands, and lower arms, and when grasping and holding objects, and that his
pain limits his daily activities and job opportunities. This does not show a legal error by OWCP
or a new and relevant legal argument. The underlying issue in this case is whether appellant
sustained permanent impairment to a scheduled member due to the accepted work injury. That is
a medical issue that must be addressed by relevant and pertinent new medical evidence.7 Appellant
did not submit any pertinent new and relevant evidence in support of his claim.
On appeal appellant reiterated that he disagreed with OWCP’s decisions dated April 19
and October 4, 2017 and believed they contained inaccurate statements. As explained, the Board
does not have jurisdiction over the merits of the case.

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(b).

7

See Bobbie F. Cowart, 55 ECAB 746 (2004).

4

The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 4, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LANGLEY AIR FORCE BASE, Langley, VA,
Employer
__________________________________________

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

Docket No. 19-1369
Issued: June 30, 2020

Case Submitted on the Record

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

JURISDICTION
On June 10, 2019 appellant filed a timely appeal from an April 16, 2019 merit decision of
the Office of Workers Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $25,211.19, for which he was without fault,
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 16, 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.

because he concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits for the period November 1, 2014 through
March 2, 2019; (2) whether OWCP properly denied waiver of recovery of the overpayment; and
(3) whether OWCP properly required recovery of the overpayment by deducting $100.00 every 28
days from appellant’s continuing compensation payments,
FACTUAL HISTORY
On March 18, 1992 appellant, then a 43-year-old painter, filed a traumatic injury claim
(Form CA-1) alleging that on February 24, 1992 he injured his right elbow, wrist, and hand as a
result of repetitively lifting a can of paint and a ladder while in the performance of duty. OWCP
accepted appellant’s claim for aggravation of right wrist strain and carpal tunnel syndrome.
Appellant began limited-duty job and stopped work on November 26, 1995 because limited duty
was no longer available. OWCP paid appellant compensation on the supplemental rolls, and
placed him on the periodic rolls effective December 10, 1995. By decision dated February 2,
1998, it reduced appellant’s compensation based on his capacity to earn wages in the constructive
position of a customer service representative. Appellant continues to receive compensation
benefits based on his loss of wage-earning capacity determination.
On an EN1032 form dated December 22, 2014, appellant did not respond to the question
as to whether he was in receipt of SSA benefits. On EN1032 forms dated December 14, 2015 and
December 12, 2016, he replied “No” regarding receipt of SSA benefits, and on EN1032 forms
dated December 13, 2017 and December 3, 2018, appellant replied “Yes,” indicating that he had
received SSA benefits as part of an annuity for federal service.
On February 5, 2019 SSA forwarded a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form to OWCP. The form indicated that beginning in
November 2014 appellant’s SSA rate with FERS was $1,187.50 and without FERS $716.60;
beginning in December 2014 and December 2015, his rate with FERS was $1,207.60 and without
FERS $728.70; beginning December 2016, his SSA rate with FERS was $1,211.20 and without
FERS $730.80; beginning in December 2017, his SSA rate with FERS was $1,235.40 and without
FERS $745.40; and beginning in December 2018, his SSA rate with FERS was $1,269.80 and
without FERS $766.20. OWCP prepared a FERS offset calculation worksheet verifying its
calculations.
In a letter dated March 13, 2019, OWCP notified appellant that, based on information
provided by SSA regarding the amount of his SSA benefit attributable to federal service, his FECA
wage-loss compensation had been adjusted.
On March 15, 2019 OWCP issued a preliminary determination, finding that an
overpayment of compensation in the amount of $25,211.19 had been created. It explained that the
overpayment occurred because a portion of appellant’s SSA age-related retirement benefits that
he received for the period November 1, 2014 through March 2, 2019 was based on credits earned
while working in the Federal Government, and that this portion of his SSA benefit was a prohibited
dual benefit. OWCP found him not at fault in the creation of the overpayment. It explained its
calculation of the overpayment, attached its calculation worksheet, and informed him of the actions
he could take. OWCP provided an overpayment action request form and an overpayment recovery
2

questionnaire (OWCP-20). It requested that he provide documentation including income tax
returns, bank account statements, bills and cancelled checks, pay slips, and any other records which
supported income and expenses listed, and allotted 30 days for him to respond. OWCP mailed the
preliminary overpayment determination to appellant’s last known address of record. No response
or additional evidence was received regarding the overpayment.
By decision dated April 16, 2019, OWCP finalized its preliminary determination finding
that appellant had received an overpayment of compensation in the amount of $25,211.19 for the
period November 1, 2014 through March 2, 2019 because a portion of his SSA age-related
retirement benefits was based on credits earned while working in the Federal Government, and
that this portion of his SSA benefit was a prohibited dual benefit. It further found that he was
without fault in the creation of the overpayment, but denied waiver of recovery. OWCP noted that
no response had been received following the preliminary determination. It required recovery of
the overpayment by deducting $100.00 every 28 days from appellant’s continuing wage-loss
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4 When an overpayment of compensation
has been made to an individual because of an error of fact or law, adjustment shall be made under
regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled.5
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.6 FECA Bulletin No. 97-09 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.7

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

Id. at § 8129(a).

6

20 C.F.R. § 10.421(d); see J.S., Docket No. 19-0824 (issued October 4, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
7

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

3

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $25,211.19 because he concurrently received FECA wage-loss
compensation benefits and SSA age-related retirement benefits for the period November 1, 2014
through March 2, 2019.
Appellant has not challenged the fact or amount of overpayment. The record indicates that,
while appellant was receiving compensation for disability under FECA, he was also receiving SSA
age-related retirement benefits during the period at issue. A claimant cannot receive both
compensation for wage-loss and SSA age-related benefits attributable to federal service for the
same period.8 Consequently, the fact of the overpayment has been established.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS and without FERS for specific periods
commencing November 1, 2014 through March 2, 2019. OWCP provided its calculations for each
relevant period based on the SSA worksheet and in its March 1, 2018 preliminary overpayment
determination. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period November 1, 2014 through March 2, 2019 and finds that an overpayment of compensation
in the amount of $25,211.19 was created.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.10 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
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.11

8

See D.C., Docket No. 19-0118 (issued January 15, 2020).

9

See L.W., Docket No. 19-0787 (issued October 23, 2019); L.L., Docket No. 18-1103 (issued March 5, 2019); D.C.,
Docket No. 17-0559 (issued June 21, 2018).
10

5 U.S.C. § 8129.

11

20 C.F.R. § 10.438.

4

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.
As OWCP found, appellant not at fault in the creation of the overpayment. Therefore,
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.12
Appellant, however, had the responsibility to provide financial information to OWCP,13 and he
did not do so.
In its preliminary determination dated March 15, 2019, OWCP clearly explained the
importance of providing the completed overpayment recovery questionnaire and supporting
financial documentation, including copies of income tax returns, bank account statements, bills,
pay slips, and any other records to support income and expenses. It advised appellant that it would
deny waiver of recovery if he failed to furnish the requested financial information within 30 days.
Appellant, however, did not respond to this request. He did not complete the Form OWCP-20 or
submit the financial information necessary for OWCP to determine if recovery of the overpayment
would defeat the purpose of FECA or if recovery would be against equity and good conscience.
Consequently, as appellant did not submit the information required under section 10.438
of OWCP’s regulations, which was necessary to determine his eligibility for waiver, OWCP
properly denied waiver of recovery of the overpayment.14
On appeal appellant alleges that he did not receive notice from OWCP requesting that he
provide evidence in support of waiver. The record reflects that the preliminary overpayment
determination dated March 15, 2019 explained the importance of providing the completed
overpayment questionnaire. Under the “mailbox rule,” it is presumed, absent evidence to the
contrary, that a notice mailed to an individual in the ordinary course of business was received by
that individual.15 The record supports that OWCP’s preliminary determination dated March 15,
2019 was sent to appellant at his address of record and does not indicate that it was returned as
undeliverable. Consequently, as appellant did not submit the financial information required under
section 10.438 of OWCP’s regulations, OWCP properly denied waiver of recovery of the
overpayment of compensation in the amount of $25,211.19.16

12

5 U.S.C. § 8129.

13

20 C.F.R. § 10.438.

14

Id.

15

See A.S., Docket No. 19-1689 (issued February 21, 2020); Kenneth E. Harris, 54 ECAB 502, 505 (2003); A.C.
Clyburn, 47 ECAB 153 (1995).
16

See M.D., Docket No. 19-1689 (issued February 21, 2020); S.M., Docket No. 17-1802 (issued August 20, 2018).

5

LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides in pertinent part: “When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as the error is discovered or his or her attention is called to
the same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.”17
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment of
compensation by deducting $100.00 every 28 days from appellant’s continuing compensation
payments.
The overpaid individual is responsible for providing information about income, expenses,
and assets as specified by OWCP.18 When an individual fails to provide requested financial
information, OWCP should follow minimum collection guidelines designed to collect the debt
promptly and in full.19 As appellant did not submit the financial information to OWCP as
requested, the Board finds that there is no evidence of record to establish that OWCP erred in
directing recovery of the $25,211.19 overpayment of compensation at the rate of $100.00 every
28 days from continuing compensation.20
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$25,211.19, for which he was without fault, because he concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits, for the period November 1, 2014 through
March 2, 2019. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment, and that it properly required recovery by deducting $100.00 every 28 days from
appellant’s continuing compensation payments.

17

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

18

Id. at § 10.438.

19

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.4(c)(2) (May 2004).
20

See E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued March 2, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Cheyenne, WY, Employer
__________________________________________

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

Docket No. 09-857
Issued: October 16, 2009

Case Submitted on the Record

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

JURISDICTION
On February 11, 2009 appellant filed a timely appeal of the January 7, 2009 merit
decision of the Office of Workers’ Compensation Programs, which found an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of this claim.1
ISSUES
The issues are: (1) whether appellant received an overpayment of $1,774.47 for the
period December 18, 2006 through March 29, 2008; and (2) whether the Office properly denied
waiver of recovery.

1

The current record includes evidence received after the Office issued its January 7, 2009 decision. The Board’s
review of a case is limited to the evidence in the case record that was before the Office at the time of its final
decision. 20 C.F.R. § 501.2(c)(1) (2009).

FACTUAL HISTORY
Appellant, a 62-year-old accounts receivable technician, was involved in an employmentrelated fall on November 2, 2006. The Office accepted her claim for right shoulder contusion,
right wrist fracture, right thumb contusion, lumbar sprain and right knee and leg contusion. In
January 2007, it began paying appellant wage-loss compensation based on a date-of-injury
weekly pay rate of $832.85. The pay rate information was obtained from a December 22, 2006
claim for compensation (Form CA-7), which indicated an annual base pay of $34,637.00 (GS-6,
Step 8) and locality pay of $8,671.00, for a total annual salary of $43,308.00.2 All compensation
payments covering the period December 18, 2006 through March 29, 2008 were based on a
weekly pay rate of $832.85. In April 2008, the Office noted that compensation had been paid
based on an incorrect pay rate. Appellant’s actual date-of-injury annual salary of $38,974.00, for
Grade 6, step 8 incorporated locality pay for the State of Wyoming and represented a weekly pay
rate of $749.50.
In a May 12, 2008 preliminary determination, the Office advised appellant that she had
received an overpayment of $1,774.47 for the period December 18, 2006 through
March 29, 2008. It explained that appellant’s net compensation for the period at issue was
$17,697.81, which was based on an incorrect weekly pay rate of $832.85. Applying the correct
date-of-injury weekly pay rate of $749.50, her net compensation should have only been
$15,923.34, the difference, representing an overpayment of $1,774.47. The Office advised
appellant that she was not at fault in creating the overpayment because the employing
establishment had provided inaccurate pay rate information.
Appellant requested a prerecoupment hearing before the Branch of Hearings and Review.
She was unable to attend the October 3, 2008 hearing and the Office provided her a review of the
written record. However, appellant did not timely submit any relevant financial information or
an overpayment recovery questionnaire (Form OWCP-20).
By decision dated January 7, 2009, the hearing representative affirmed the fact and the
amount of the overpayment, as well as the finding that appellant was not at fault in creating the
$1,774.47. She further found that appellant was not entitled to waiver of recovery of the
overpayment. This latter finding was based on appellant’s failure to submit information
regarding her assets, income and expenditures.
LEGAL PRECEDENT -- ISSUE 1
The amount of compensation paid is a function of the injured employee’s pay rate.3
Section 8101(4) of the Federal Employees’ Compensation Act provides that the rate of pay to be
used in calculating compensation is based on the greatest of either the monthly pay at the date of

2

Appellant’s November 6, 2006 claim form (CA-1) indicated an annual pay rate of $38,974.00. Effective
January 2006, a GS 7, step 8 annual pay rate was $43,308.00.
3

20 C.F.R. §§ 10.401(b), 10.404(b).

2

injury, the date disability began or the date compensable disability recurred if it recurred more
than six months after the employee returned to work.4
ANALYSIS -- ISSUE 1
The record indicates that for the period December 18, 2006 through March 29, 2008 the
Office paid appellant based on an incorrect weekly pay rate of $832.85. This weekly pay rate
represented the pay rate for a GS 7, step 8 employee; however appellant was a GS 6, step 8
employee. Her actual date-of-injury pay rate was $749.50. This weekly pay rate of $749.50
incorporated the proper locality pay for the State of Wyoming. The inaccurate pay rate resulted
in an overpayment of benefits in the amount of $1,774.47 for the above-noted period. Both the
senior claims examiner and the hearing representative found that appellant were not at fault in
creating this overpayment. The Board affirms the hearing representative’s findings with respect
to the fact and amount of the overpayment. Additionally, the Board finds that appellant was not
at fault in creating the overpayment.
LEGAL PRECEDENT -- ISSUE 2
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of the Act or would be against equity and good conscience.5 Recovery of an overpayment will
defeat the purpose of the Act if such recovery would cause hardship to a currently or formerly
entitled beneficiary because the beneficiary from whom the Office seeks recovery needs
substantially all of his or her current income, including compensation benefits, to meet current
ordinary and necessary living expenses and the beneficiary’s assets do not exceed a specified
amount as determined by the Office.6 Additionally, recovery of an overpayment is considered to
be against equity and good conscience when any individual who received an overpayment would
experience severe financial hardship in attempting to repay the debt or when any individual, in
reliance on such payment or on notice that such payments would be made, gives up a valuable
right or changes his or her position for the worse.7
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office.8 This information is necessary for

4

5 U.S.C. § 8101(4) (2006); see Bette L. Kvetensky, 51 ECAB 346, 348-49 (2000).

5

Id. at § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

6

Id. at § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (October 2004).
7

Id. at § 10.437(a), (b).

8

Id. at § 10.438(a).

3

determining whether a waiver of recovery of the overpayment is warranted.9 Failure to submit
the requested information within 30 days of the request shall result in denial of waiver.10
ANALYSIS -- ISSUE 2
While appellant was not at fault in creating the $1,774.47 overpayment she is not entitled
to waiver of recovery of the overpayment. At the time, the hearing representative issued her
January 7, 2009 decision, she had not submitted any information regarding her personal finances.
This information was initially requested on May 12, 2008 and again on June 19, 2008.
Appellant, however, did not submit any requested financial information. As noted, the
information is necessary in determining whether a waiver of recovery is warranted.11 In view of
appellant’s failure to timely submit the requested financial information, the hearing
representative properly denied waiver of recovery of the overpayment.12
CONCLUSION
The Board finds that appellant received an overpayment of $1,774.47 for the period
December 18, 2006 through March 29, 2008. The Board further finds that appellant is not
entitled to waiver of recovery of the overpayment.

9

Id.

10

Id.

11

Id.

12

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the January 7, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 21-0544
Issued: December 17, 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 February 22, 2021 appellant filed a timely appeal from a November 27, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted May 17, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 27, 2020 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.

FACTUAL HISTORY
On September 17, 2020 appellant, then a 52-year-old parcel post distributor, filed a
traumatic injury claim (Form CA-1) alleging that on May 17, 2020 she sustained a left shoulder
full rotator cuff tear while in the performance of duty. She explained that her injury was caused
by lifting, pushing, and pulling packages with her left arm. Appellant noted that she was unable
to use both arms because of a separate injury she sustained to her right arm. 3 On the reverse side
of the claim form the employing establishment asserted that she was not in the performance of
duty when her injury occurred, contending that she did not file her claim until four months after
her injury occurred. Appellant stopped work on September 16, 2020.
In a September 16, 2020 medical report, Dr. Nicholas Schoch, a Board-certified orthopedic
surgeon, recounted a previous evaluation of appellant’s left shoulder he performed on August 19,
2020 where he diagnosed chronic impingement symptoms with parascapular myofasciitis. He
administered cortisone injections to both shoulders that were found to be effective for about a week
before her pain worsened. Dr. Schoch diagnosed bursitis of the left and right shoulders, right and
left myofasciitis, a partial tear of the right rotator cuff, a degenerative tear of the left rotator cuff,
and pain in the right and left shoulders. He scheduled for appellant to undergo surgery to treat her
conditions. In a medical note of even date, Dr. Schoch indicated that she would need to be off
from work for an undetermined amount of time and noted that she would be undergoing surgery
on November 10, 2020. He also attached an information sheet explaining the causes of bursitis
and methods to treat the condition.
In a September 16, 2020 diagnostic report, Dr. Jan Mourelatos, a Board-certified
diagnostic radiologist, reviewed a magnetic resonance imaging (MRI) scan of appellant’s left
shoulder, which revealed partial tears of the interspace tendons.
In a September 28, 2020 duty status report (Form CA-17), Dr. Schoch diagnosed left
shoulder impingement and indicated that an MRI study revealed a rotator cuff tear. He identified
August 17, 2020 as the date of injury and opined that appellant was totally disabled from work .
In an October 20, 2020 development letter, OWCP advised appellant of the deficiencies of
her claim, and requested additional factual and medical evidence. It afforded her 30 days to
respond.
In a November 2, 2020 medical note, Dr. Schoch diagnosed left shoulder bursitis, general
myofasciitis, and rotator cuff tear. He released appellant to return to work on November 11, 2020
with restrictions.
Appellant also submitted an information sheet, indicating that she would undergo surgery
on January 12, 2021.

3

Appellant previously filed a traumatic injury claim on March 12, 2020 for a right shoulder injury under OWCP
File No. xxxxxx318. OWCP has not issued a decision on that claim.

2

By decision dated November 27, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between her diagnosed condition and the accepted May 17, 2020 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 6 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. 7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury. 8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.9 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
specific employment incident identified by the employee.10

4

Supra note 1.

5

V.L., Docket No. 20-0884 (issued February 12, 2021); F.H., Docket No. 18-0869 (issued January 29, 2020); J.P.,
Docket No. 19-0129 (issued April 26, 2019); Joe D. Cameron, 41 ECAB 153 (1989).
6

C.H., Docket No. 20-1212 (issued February 12, 2021); L.C., Docket No. 19-1301 (issued January 29, 2020); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
7

V.L., supra note 5; P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued
September 16, 2016); Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

C.H., supra note 6; S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued
April 24, 2019); Robert G. Morris, 48 ECAB 238 (1996).
10

V.L., supra note 5; T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued
January 22, 2020); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted May 17, 2020 employment incident.
In a September 16, 2020 medical report, Dr. Schoch diagnosed bursitis myofasciitis, and
pain of the bilateral shoulders, a partial tear of the right rotator cuff, and a degenerative tear of the
left rotator cuff. He also scheduled appellant to undergo surgery to treat her condition. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employment
condition is of no probative value on the issue of causal relationship. 11 For this reason,
Dr. Schoch’s September 16, 2020 medical report is insufficient to meet appellant’s burden of
proof.
Similarly, in his medical notes dated September 16 and November 2, 2020, Dr. Schoch
diagnosed left shoulder bursitis, general myofasciitis, and rotator cuff tear. He also identified work
restrictions due to appellant’s condition. As noted above, medical evidence that does not offer an
opinion regarding the cause of an employment condition is of no probative value on the issue of
causal relationship. 12 Accordingly, Dr. Schoch’s September 16 and November 2, 2020 medical
notes are also insufficient to establish appellant’s claim.
Dr. Schoch’s remaining medical evidence consisted of a September 28, 2020 Form CA-17.
However, this evidence is inapplicable to appellant’s claim as it identified August 17, 2020 as the
date of injury. Consequentially, his remaining medical evidence is insufficient to meet appellant’s
burden of proof.
Appellant’s submitted a September 16, 2020 diagnostic report in which Dr. Mourelatos
reviewed an MRI scan of her left shoulder. The Board has held, however, that diagnostic test
reports, standing alone, lack probative value on the issue of causal relationship as they do not
address the relationship between accepted employment factors and a diagnosed condition. 13 For
this reason, Dr. Mourelatos’ diagnostic report is insufficient to establish her claim.
OWCP also received an information sheet describing the causes of bursitis and ways to
treat the condition. The Board has long held that medical texts and excerpts from publications
lack probative value in establishing the causal relationship between a claimed condition and an
employment incident as such materials are of general application and are not determinative of
whether the specific condition claimed is related to the particular employment factors alleged by
the employee.14 As this information sheet was not interpreted and cited by appellant’s physicians

11

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

12

Id.

13

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

14

L.C., Docket No. 17-1811 (issued March 23, 2018); N.B., Docket No. 14-1702 (issued December 29, 2014); S.A.,
Docket No. 13-1551 (issued December 17, 2013); Gloria J. McPherson, 51 ECAB 441 (2000); William C. Bush, 40
ECAB 1064, 1075 (1989).

4

in offering a rationalized medical opinion as to how the May 17, 2020 employment incident caused
her diagnosed conditions, it is insufficient to establish causal relationship.
As appellant has not submitted rationalized medical evidence establishing a left shoulder
condition causally related to the accepted May 17, 2017 employment incident, the Board finds that
she has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted May 17, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 27, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 17, 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

5