United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, CAROLINA FOREST
POST OFFICE, Myrtle Beach, SC, Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0521
Issued: October 13, 2021

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 February 18, 2021 appellant filed a timely appeal from a September 18, 2020 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 issuance of the September 18, 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.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation, effective March 3, 2020, pursuant to 20 C.F.R. § 10.500(a), because she refused a
temporary, limited-duty assignment.
FACTUAL HISTORY
On September 12, 2015 appellant, then a 51-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 11, 2015 she injured her right arm and shoulder
when she removed boxes out of the back of her truck and tripped and fell over other boxes. She
stopped work on September 12, 2015 and returned to modified-duty work on October 28, 2015.
OWCP accepted the claim for traumatic right shoulder arthropathy (complete rotator cuff tear).
Appellant underwent authorized right shoulder arthroscopy on January 22, 2016; right shoulder
arthroscopy with subacromial decompression, excision of lose body, oste ophyte, distal clavicle
excision, and glenohumeral debridement on August 8, 2016; and reverse total right shoulder
arthroplasty and right biceps tendonesis on June 29, 2017. OWCP paid her wage-loss
compensation on the periodic rolls and subsequently on the supplemental rolls.
On July 22, 2019 OWCP obtained a second opinion report from Dr. Robert M. Moore, a
Board-certified orthopedic surgeon regarding appellant’s residuals and ability to perform her dateof-injury job or a modified position.
Dr. Moore reviewed medical records and a statement of accepted facts (SOAF). On
examination of the right shoulder he noted a well-healed anterior incision, mild tenderness in the
right anterior shoulder and proximal humerus region, 50 degrees of active and passive abduction,
70 degrees of active and passive forward elevation, 40 degrees of internal and external rotation,
and total discomfort and pain at the end ranges. Dr. Moore also noted grade 4 strength in the active
abduction and forward elevation, and an intact neurovascular status. He diagnosed status post
reverse right shoulder arthroplasty and treatment of rotator cuff tear and cuff arthropathy o f the
right shoulder. Dr. Moore opined that appellant’s right cuff rotator cuff tear for which she
underwent authorized surgery on two attempts to repair her right shoulder, followed by reverse
shoulder arthroplasty resulted from her September 11, 2015 employment injury. He advised that
she was unable to perform her regular rural carrier work duties and returned her to modified work
with restrictions that included, no lifting more than 10 pounds with the right arm and no reaching
above the right shoulder. Dr. Moore reviewed the employing establishment’s February 20, 2019
offer for a modified rural carrier associate position and opined that appellant was unable to perform
the offered position because she was unable to lift more than 10 pounds with her right arm and
could not lift above right shoulder level. 4
On August 21, 2019, based on Dr. Moore’s restrictions, the employing establishment
offered appellant a full-time, temporary, modified clerk position, which required her to work as a
lobby assistant, perform data entry, write second notices, answer telephone s, provide service to
customers, and perform passport services at the main post office and the Socastee Post Office. The
The employing establishment’s February 20, 2019 job offer required appellant to case and deliver a rural route
and lift 20 pounds overhead.
4

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position also required her to perform custodial duties. The physical requirements of the position
required intermittent standing, sitting, walking, writing with a pen, simple grasping, and no
reaching above the right shoulder. Appellant refused the position and did not report for duty.
The record reflects that, commencing June 8, 2019, OWCP paid appellant wage-loss
compensation on the supplemental rolls.
In an August 29, 2019 letter, counsel, on behalf of appellant, contended that the offered
position required appellant to “cross craft,” which was prohibited by the employing
establishment’s Employee and Labor Relations Manual (ELRM). He further contended that the
custodial duties of the offered position were not within appellant’s restrictions. Additionally,
counsel asserted that the position appeared to be an odd-lot and makeshift position. He also
asserted that OWCP neglected to address a May 2, 2019 note of Dr. Eleyanya Ogburu-Ogbonnaya,
a neurologist, who advised that appellant could return to work with restrictions that included no
lifting more than five pounds and no overhead lifting, and recommended that she undergo a
functional capacity evaluation (FCE). Lastly, counsel maintained that the offered position was
temporary in nature, which was considered unsuitable pursuant to 5 U.S.C. § 8106(c).
In an August 30, 2019 letter, the employing establishment responded to counsel’s
August 29, 2019 letter. It noted that appellant could file a grievance if there was any violation of
its ELRM. The employing establishment further noted that she would receive training on the
custodial duties within her restrictions. It contended that the offered position was within
appellant’s restrictions and that if work was not available within her restrictions, she could file a
claim for compensation (Form CA-7).
On September 27, 2019 the employing establishment confirmed to OWCP that the offered
position remained available.
In a notice of proposed termination dated January 14, 2020, OWCP proposed to terminate
appellant’s wage-loss compensation in accordance with 20 C.F.R. § 10.500(a) based on her refusal
of the August 21, 2019 temporary, light-duty position. It advised appellant that it had reviewed
the work restrictions provided by Dr. Moore and found that his opinion represented the weight of
the medical evidence. OWCP further determined that the position offered appellant was within
her restrictions. It informed her of the provisions of 20 C.F.R. § 10.500 (a) and advised her that
any claimant who declined a temporary, light-duty assignment deemed appropriate by OWCP was
not entitled to compensation for total wage loss. OWCP noted that the offered pay rate of
$1,389.20 per week for working 40 hours was greater than that on her date of injury and, therefore,
she would not be entitled to ongoing wage-loss compensation. It afforded appellant 30 days to
accept the assignment and report to duty or provide a written explanation of her reasons for not
accepting the assignment.
Appellant filed Form CA-7 claims for leave without pay (LWOP) during the period
January 4 through 17, 2020.
In a February 13, 2020 letter, counsel disagreed with OWCP’s proposed termination of
compensation. He contended that OWCP’s January 14, 2020 notice constituted a loss of wageearning capacity (LWEC) determination rather than a proposed termination of compensation.
Counsel reiterated his prior contentions that the offered position was temporary in nature and the
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custodial duties were not within her restrictions and required her to “cross craft” in violation of the
ELRM. He noted that the employing establishment indicated on appellant’s December 17, 2019
Form CA-7 claim that there was no light-duty work available, but also acknowledgement that the
offered position was still available. Additionally, counsel asserted that Dr. Moore’s opinion could
not constitute the weight of the medical opinion evidence as he did not review the August 21, 2019
job offer.
OWCP subsequently received additional medical evidence.
In a March 3, 2020 decision, OWCP finalized the January 14, 2020 proposed termination
and terminated appellant’s wage-loss compensation, effective that date, because she failed to
accept the August 21, 2019 temporary, modified-duty assignment in accordance with 20 C.F.R.
§ 10.500(a). It found that the weight of the medical evidence rested with Dr. Moore, who provided
permanent work restrictions. OWCP indicated that its procedures provided that a temporary, lightduty assignment could be provided to an employee who was on the periodic rolls and was stable
and well-defined or had permanent restrictions, and the employing establishment was actively
pursuing permanent employment to accommodate these restrictions. As appellant would have
sustained no wage loss had she accepted the assignment, OWCP determined that she was not
entitled to wage-loss compensation.
On March 9, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. She also submitted medical evidence.
OWCP thereafter continued to receive medical evidence. The telephonic hearing was held
before an OWCP hearing representative on July 9, 2020.
By decision dated September 18, 2020, OWCP’s hearing representative affirmed the
March 3, 2020 decision.
LEGAL PRECEDENT
OWCP’s regulations at section 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
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

4

restrictions. (The penalty provision of 5 U.S.C. 8106(c)(2) will not be imposed on
such assignments under this paragraph).”5
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 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. 6 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.7
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 [wage-earning capacity] calculation (just as if he/she
had accepted the light-duty assignment).”8
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation, effective March 3, 2020, pursuant to 20 C.F.R. § 10.500(a), because she refused a
temporary, limited-duty assignment.
The physical requirements of the offered temporary, light-duty assignment were within
appellant’s medical restrictions provided by Dr. Moore, in his capacity as a second opinion referral
physician.
In his July 22, 2019 report, Dr. Moore noted appellant’s history of injury and medical
treatment. He reviewed the employing establishment’s February 20, 2019 offer for a modified
rural carrier associate position and opined that she was not capable of performing the offered
position because she was restricted to lifting no more than 10 pounds with her right arm and no
lifting above right shoulder level. While Dr. Moore did not review the August 21, 2019 full-time,
temporary, light-duty modified clerk job offer in question, the employing establishment offered
appellant the position based on the restrictions set forth by Dr. Moore.
The August 21, 2019 offered position involved work as a lobby assistant, performing data
entry, writing second notices, answering telephones, providing service to customers, and
performing passport services at the main post office and the Socastee Post Office, and custodial
duties. The physical requirements of the position involved intermittent standing, sitting, walking,
writing with a pen, simple grasping, and no reaching above the right shoulder. Contrary to
5

20 C.F.R. § 10.500(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work,
Chapter 2.814.2(c)(a) (June 2013).
6

Federal (FECA) Procedure Manual, id. at Chapter 2.814.9(c)(1) (June 2013).

7

Id.

8

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.814.8(c)(10).

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counsel’s contention that the offered position was not suitable, the employing establishment
maintained that the position was within appellant’s restrictions and vocational skills. Additionally,
it maintained that appellant could file a grievance if she believed that the offered position violated
its ELRM and more importantly she would receive training for the required custodial duties.
Further, the employing establishment noted that, if work was not available within her restrictions,
she could file a Form CA-7 claim for compensation. Regarding counsel’s contention that the
offered position was temporary in nature and, thus, unsuitable pursuant to 5 U.S.C. § 8106(c), the
Board notes that, as stated above, the penalty provision of 5 U.S.C. § 8106(c)(2) will not be
imposed on such assignments under section 10.500(a).9
The evidence of record establishes that appellant declined the temporary limited-duty
assignment offered by the employing establishment, which was suitable and would have paid her
wages greater than those of her date-of-injury job 10 and that appellant was notified in writing on
August 21, 2019 of the available job, which was within her work restrictions. 11
Thus, the Board finds that OWCP met its burden of proof to terminate appellant’s
entitlement to compensation, effective March 3, 2020, pursuant to 20 C.F.R. § 10.500(a) based on
her earnings had she accepted the temporary limited-duty assignment.12
On appeal counsel contends that the offered position was not suitable. For the reasons set
forth above, the Board finds that, under the provisions of 20 C.F.R. § 10.500(a), OWCP properly
terminated appellant’s compensation.
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 OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation, effective March 3, 2020, pursuant to 20 C.F.R. § 10.500(a), because she refused a
temporary, limited-duty assignment.

9

Supra note 4.

10

The Board finds that OWCP properly applied the formula set forth in provisions in Albert C. Shadrick in
determining appellant’s LWEC. 5 ECAB 376 (1953) (codified by regulation at 20 C.F.R. § 10.403). The clerk
position would have paid $1,389.20 per week, which was greater than appellant’s date-of-injury job of $1,349.76 per
week.
11

See supra note 5; L.B., Docket No. 17-0405 (issued January 25, 2019); S.M., Docket No. 15-1667 (issued
April 20, 2016).
12

J.J., Docket No. 17-0885 (issued June 16, 2017); G.C., Docket No. 17-0140 (issued April 13, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the September 18, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 13, 2021
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Moultrie, GA, Employer
__________________________________________

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

Docket No. 12-315
Issued: June 8, 2012

Case Submitted on the Record

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

JURISDICTION
On November 23, 2011 appellant filed a timely appeal from an October 28, 2011 decision
of the Office of Workers’ Compensation Programs denying his traumatic injury 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 a
knee injury in the performance of duty on August 15, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 18, 2011 appellant, then a 67-year-old consumer safety inspector, filed a
traumatic injury claim alleging that on August 15, 2011 he injured his right knee when he slipped
on a post chill stand. He did not stop working.
In support of his claim, appellant submitted a September 12, 2011 treatment note and
procedure note from Dr. Kevin J. Collins, a treating physician, who noted physical findings and
diagnosed sprains and strains of the leg and knee. Dr. Collins reported an injury date of
August 15, 2011.
By correspondence dated September 15, 2011, OWCP informed appellant that the
evidence of record was insufficient to support his claim. Appellant was advised as to the type of
medical and factual evidence to submit and given 30 days to provide the requested information.
In response to OWCP, appellant submitted evidence including February 21 and
August 17 and 21, 2011 treatment notes from Dr. Collins. In August 17 and 21, 2011 notes,
Dr. Collins stated that appellant related hearing his right knee pop while stepping down from a
stand at work on August 15, 2011. Physical findings include normal range of motion and
tenderness at the patella area. An x-ray interpretation revealed tricompartmental osteoarthritis.
Dr. Collins diagnosed knee and leg sprains and strains, patella chondromalacia and lower leg
joint pain. The February 21, 2011 report indicates that appellant was receiving treatment from
Dr. Collins for leg and knee sprains and strains.
By decision dated October 28, 2011, OWCP found the evidence established that the
employment incident occurred as alleged, but denied appellant’s claim on the grounds that the
there was no medical evidence explaining how the diagnosed condition was causally related to
the August 15, 2011 employment incident.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment

2

The Board notes that appellant submitted additional evidence with his appeal. However, the Board may only
review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1);
M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

Supra note 1.

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injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 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.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.12 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.13

4

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

5

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

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006)

13

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

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ANALYSIS
OWCP accepted that the August 15, 2011 incident occurred as alleged. It denied
appellant’s claim on the grounds that there was insufficient medical evidence to support that the
diagnosed medical condition was causally related to the August 15, 2011 employment incident.
The Board finds that he did not submit sufficient medical evidence to support that he sustained a
knee injury causally related to the August 15, 2011 employment incident.
On September 15, 2011 OWCP advised appellant of the type of medical evidence needed
to establish his claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how the August 15, 2011 incident may have caused or aggravated his
claimed right knee condition.
In support of his claim, appellant submitted treatment notes dated August 17 and 21 and
September 12, 2011 from Dr. Collins noting the August 15, 2011 employment incident and
diagnosing knee and leg sprains and strains, patella chondromalacia and lower leg joint pain.
However, these reports offered no opinion which addresses how the August 15, 2011 accepted
incident caused his diagnosed conditions. The Board has held that 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.14 Thus, these treatment notes from Dr. Collins are
insufficient to establish appellant’s claim. Appellant also submitted a February 21, 2011
treatment note from Dr. Collins regarding treatment for knee conditions. However this report
predates the August 15, 2011 employment incident and is not relevant to whether the accepted
employment incident caused or contributed to appellant’s right knee condition. The record
contains no other medical evidence received prior to the issuance of OWCP’s October 28, 2011
decision addressing the August 15, 2011 employment incident and a right knee condition.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.15 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.16 Causal relationships must be established by rationalized medical opinion evidence.17
As appellant has not submitted any rationalized medical evidence support his claim that he
sustained an injury causally related to the August 15, 2011 employment incident, he has failed to
meet his burden of proof to establish a 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.

14

See K.W., 59 ECAB 271 (2007); Michael E. Smith, 50 ECAB 313 (1999).

15

E.J., Docket No. 09-1481 (issued February 19, 2010); D.E., 58 ECAB 448 (2007); Daniel O. Vasquez, 57
ECAB 559 (2006).
16

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

17

T.P., Docket No. 09-2102 (issued August 25, 2010); Roy L. Humphrey, 57 ECAB 238 (2005).

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CONCLUSION
The Board finds that appellant had not met his burden of proof to establish that he
sustained a knee injury in the performance of duty on August 15, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 28, 2011 is affirmed.
Issued: June 8, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, DAVIE BRANCH,
Davie, FL, Employer
__________________________________________

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

Docket No. 11-744
Issued: December 28, 2011

Case Submitted on the Record

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

JURISDICTION
On February 2, 2011 appellant filed a timely appeal of the January 10, 2011 overpayment
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 overpayment case.
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment of compensation in the amount of $357.65 from October 29 through December 7,
2007 because she received augmented compensation but had no dependents; (2) whether she was
at fault in the creation of the $357.65 overpayment and, therefore, ineligible for waiver of the
recovery; and (3) whether OWCP properly required repayment of the overpayment by a one-time
deduction of $357.65 from her continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that she was not at fault in creating the overpayment
because she presumed that her daughter and grandchildren were dependents since they lived with
her and her daughter was unemployed. She further contends that she is unable to repay the
overpayment due to financial hardship.
FACTUAL HISTORY
OWCP accepted that on December 13, 2000 appellant, then a 40-year-old clerk, sustained
cervical, thoracic and lumbar strains and aggravation of cervical disc and lumbar degeneration as
a result of lifting a 36-pound parcel into a crab cage while working at the employing
establishment. Appellant stopped work.
In a February 19, 2002 letter, OWCP advised appellant that she was being placed on the
periodic compensation rolls for temporary total disability at the augmented rate of 75 percent of
her monthly pay.2 Appellant was instructed to inform OWCP of any change in the status of her
claimed dependents. OWCP specifically advised her as follows: “If you claimed only one
dependent, DO NOT CASH CHECKS RECEIVED AFTER THE CHANGE IN STATUS of this
dependent. Otherwise, an overpayment of compensation may result. Return the checks
promptly to this office.”
In EN1032 forms covering the 15 months prior to their completion on December 29,
2003, October 25, 2004 and September 26, 2009, appellant listed “no” in response to a question
regarding whether she was receiving compensation for a dependent. In the December 29, 2003
Form EN1032, she asked for the definition of a dependent in response to the question of whether
she was entitled to receive compensation for that dependent. Appellant stated that her
unemployed daughter lived with her. In the October 25, 2004 Form EN1032, she indicated that
her daughter, who was born on December 4, 1982, had withdrawn from continuing education in
June 2004. In the September 26, 2009 Form EN1032, appellant indicated not applicable in
response to a question regarding whether she was entitled to receive compensation for the
claimed dependent. Part C of Form EN1032, entitled Dependents, described the applicable
compensation rates for an individual with dependents (75 percent) and without dependents
(66 2/3 percent). The form also described who and under what circumstances a person can be
claimed as a dependent. After providing general information about compensation rates and
eligible dependents, Form EN1032 specifically inquired about whether appellant was claiming
compensation on account of dependents, such as children and whether there had been any
changes in dependent status that might effect entitlement. Part H of the form included a
certification that reads in part: “I understand that I must immediately report to OWCP ... any
change in the status of claimed dependents....”
In a May 6, 2010 health benefits election form, appellant indicated that her daughter
reached age 22 on December 4, 2004. A May 7, 2010 OWCP memorandum noted that she had
not advised it about her daughter’s age. Federal heath benefits did not provide coverage for a
dependent commencing on the dependent’s 22nd birthday. The health benefits code was changed
2

In a February 27, 2006 decision, OWCP reduced appellant’s compensation to zero on the grounds that her actual
earnings in a modified window service technician position fairly and reasonably represented her wage-earning
capacity.

2

to 104 commencing January 17, 2010. A refund was due for various periods including,
October 29 through December 7, 2007. An overpayment of compensation determination was
recommended for the same period due to a change in the compensation rate from 75 percent to
66 2/3 percent.
On September 30, 2010 OWCP notified appellant of its preliminary determination that
she received an overpayment of $357.65 because she received compensation at the augmented
rate from October 29 to December 7, 2007 even though she did not have a dependent. It
calculated the overpayment by subtracting the amount of compensation she actually received
from the amount to which she was entitled had it used the proper payrate and health benefit
deductions. In an attached worksheet, OWCP noted that appellant received $4,363.20 in
compensation from which $217.66 was deducted for health benefits, totaling $4,145.54. She
should have received $3,878.40 in compensation and $90.51 for health benefits. She should
have been paid at the 66 2/3 percent statutory rate for claimants without dependents; or a total of
$3,787.89. The difference of $357.65 represented the overpayment. OWCP found that appellant
was at fault in the creation of the overpayment because she knew or should have known that the
amount of the compensation she received was incorrect. It requested that appellant complete the
enclosed overpayment recovery questionnaire and submit supporting financial documents.
Additionally, it notified her that, within 30 days of the date of the letter, she could request a
telephone conference, a final decision based on the written evidence or a prerecoupment hearing.
Appellant did not respond.
In a January 10, 2011 decision, OWCP finalized the overpayment determination in the
amount of $357.65. It found that appellant did not submit any evidence refuting the amount of
the overpayment or finding of fault and directed recovery of the overpayment by making a
one-time deduction of $357.65 from appellant’s continuing compensation benefits.3
LEGAL PRECEDENT -- ISSUE 1
FECA4 provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.5 If the
disability is total, the United States shall pay the employee during the disability monthly
compensation equal to 66 2/3 percent of her monthly pay, which is known as the basic statutory
rate for total disability.6 Where the employee has one or more dependents as defined in FECA,
he or she is entitled to have his or her basic compensation augmented at the rate of 8 1/3 percent,
for a total of 75 percent of monthly pay.7 A dependent includes a student, which under 5 U.S.C.
3

On appeal, appellant has submitted new evidence. However, the Board cannot consider evidence that was not
before OWCP at the time of the final decision. See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G.,
58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

5 U.S.C. § 8101 et seq.

5

Id. at § 8102(a).

6

Id. at § 8105(a).

7

Id. at § 8110(b).

3

§ 8101 means an individual under 23 years of age who has not completed four years of education
beyond high school and is pursuing a full-time course of study.8 If a claimant receives
augmented compensation during a period where she has no eligible dependents, the difference
between the compensation she was entitled to receive at the two-thirds compensation rate and the
augmented compensation received at the three-quarters rate constitutes an overpayment of
compensation.9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $357.65 for the period October 29 through December 7, 2007. On May 6, 2010 appellant
advised OWCP that her daughter was 22 years old as of December 4, 2004. OWCP paid her
compensation at the augmented rate of 75 percent of her monthly pay from October 29 through
December 7, 2007 instead of at the 66 2/3 percent rate for employees with no qualifying
dependents. Accordingly, appellant received an overpayment of compensation.
OWCP paid appellant $4,363.20 at the augmented rate for the period October 29 through
December 7, 2007. Appellant should have been paid $3,878.40. OWCP also deducted $217.66
in health benefits at the augmented rate for the same period. It should have deducted $90.51.
Appellant consequently received an overpayment of $357.65, the difference between the
compensation and health benefits deductions to which she was entitled at the 2/3 rate and the
augmented compensation she received and the health benefits deductions at the 3/4 rate.10 The
Board will affirm the fact and amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA11 provides that “[a]djustment or recovery by the United States
may not be made when 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.” Section 10.433 of OWCP’s implementing regulations12 provide
that, in determining whether a claimant is at fault, OWCP will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
8

Id. at § 8110(a).

9

Diana L. Booth, 52 ECAB 370 (2001).

10

Id.

11

5 U.S.C. § 8129(b).

12

20 C.F.R. § 10.433.

4

“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.13
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in the creation of the overpayment because
she accepted payments she knew or should have known to be incorrect. Payment from
October 29 through December 7, 2007 was not proper because they were made at the augmented
three-fourths rate. As appellant had no dependents after her daughter turned 22 years old on
December 4, 2004, she was only entitled to compensation at the statutory two-thirds rate.
As early as February 19, 2002, appellant was made aware of the fact that she was being
compensated at the 75 percent rate because of one or more dependents. When she was first
placed on the periodic compensation rolls, she was instructed to inform OWCP of any change in
the status of any dependents claimed to avoid an overpayment of compensation. In several
EN1032 forms, including those completed by appellant on December 29, 2003, October 25, 2004
and September 26, 2009, OWCP specifically advised her of the standards under FECA for
claiming a dependent. Appellant presumably read Form EN1032 on multiple occasions when
she signed the above-noted certification.
The Board finds that appellant accepted payments she knew or should have known to be
incorrect. Not only did the initial award notification advise her of her responsibility to correctly
identify her eligible dependents, but she was also reminded of this obligation on the EN1032
forms she signed on December 29, 2003, October 25, 2004 and September 26, 2009. Part C of
Form EN1032, entitled Dependents, described the applicable compensation rates for an
individual with dependents (75 percent) and without dependents (66 2/3 percent). The form also
described who and under what circumstances a person can be claimed as a dependent. After
providing general information about compensation rates and eligible dependents, Form EN1032
specifically inquired about whether one is claiming compensation on account of other
dependents, such as children and whether there have been any changes in dependent status that
might effect entitlement. Part H of the form includes a certification that reads in part: “I
understand that I must immediately report to OWCP ... any change in the status of claimed
dependents....” Appellant presumably read Form EN1032 on multiple occasions when she
signed the above-noted certification.
Given the specificity of Form EN1032, the Board finds that appellant knew or should
have known that she was not entitled to claim her daughter as a dependent. The Board,
therefore, finds that she was at fault in creating the overpayment of compensation benefits, as she
accepted payments she knew or should have known to be incorrect. Because appellant was at
fault, she is not eligible for a waiver of recovery of the overpayment.
13

Id. at § 10.433(b).

5

On appeal, appellant contested the finding that she was not at fault in creating the
overpayment as she presumed that her daughter and grandchildren were eligible dependents
since they lived with her and her daughter was unemployed. As a recipient of compensation,
appellant had the responsibility to promptly notify OWCP as to status of any claimed
dependents.14
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.15
ANALYSIS -- ISSUE 3
OWCP determined that the $357.65 overpayment would be recovered from continuing
compensation. Because appellant failed to submit the requested financial documentation, OWCP
did not abuse its discretion in determining to make a one-time payment of $357.65 from her
continuing compensation. The Board will affirm OWCP’s January 10, 2011 decision on the
issue of rate of recovery.16
On appeal, appellant contended that recovery of the overpayment would cause an undue
financial hardship. However, this argument was not raised before OWCP and the Board may not
consider it for the first time on appeal.17
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
$357.65 from October 29 through December 7, 2007. The Board further finds that OWCP
properly found that she was at fault in creating the overpayment and, therefore, ineligible for
wavier of the recovery. Lastly, the Board finds that OWCP did not abuse its discretion in
directing recovery of the overpayment by making a one-time deduction of $357.65 from
appellant’s continuing compensation benefits.

14

Id. at § 501.2(c)(1).

15

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

16

The Board has jurisdiction to review the issue of recovery of an overpayment in those cases where OWCP
seeks recovery from continuing compensation benefits. See Desiderio Martinez, 55 ECAB 245, 251 (2004).
17

Supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Ashville, AL, Employer
__________________________________________

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

Docket No. 09-642
Issued: November 10, 2009

Case Submitted on the Record

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

JURISDICTION
On January 6, 2009 appellant filed a timely appeal from a September 30, 2008 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has more than a 15 percent binaural loss of hearing, for
which he received a schedule award.
On appeal, appellant contends that he has greater impairment and difficulty in
understanding people.
FACTUAL HISTORY
By decision dated September 6, 2002, the Office, in File No. xxxxxx435, granted
appellant a schedule award for 15 percent binaural loss of hearing causally related to factors of
his federal employment in his capacity as a heavy mobile equipment mechanic. On April 21,
2008 appellant filed a new occupational disease claim alleging additional hearing loss as a result

of his federal employment.
The employing establishment noted that he retired on
November 2, 2007. During the period 2002 until his retirement, appellant’s exposure to noise
showed a lack of duration and intensity sufficient to have caused additional loss. The Office
assigned the claim File No. xxxxxx540.
By letter dated May 2, 2008, the Office asked appellant to submit further information. In
response, appellant submitted results of hearing tests conducted at the employing establishment
from February 16, 2005 to November 2, 2007.
By letter dated August 11, 2008, the Office referred appellant to Dr. Dennis G. Pappas,
Jr., a Board-certified otolaryngologist, for a second opinion. On September 4, 2008 Dr. Pappas
noted that appellant complained of worsening hearing and continuous ringing (tinnitus). He
diagnosed sensorineural hearing loss due to appellant’s employment. However, Dr. Pappas
noted that there was no appreciable change in hearing in either ear when the audiogram of
September 4, 2008 was compared to a hearing test obtained on February 13, 2001. Air testing
for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps)
revealed decibel losses of 20, 20, 50 and 55 respectively. Air testing for the left ear at frequency
levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 15, 20, 50 and 55,
respectively. Applying the A.M.A., Guides to the September 4, 2008 audiogram testing at
frequency levels of 500, 1,000, 2,000 and 3,000 cps for the right ear, when added together and
divided by 4, equals an average hearing loss of 36.25 decibels. Subtracting the 25 decibel fence
and multiplying the 11.25 remainder by 1.5 equals a hearing loss of 16.875 percent. With regard
to the left ear, testing at frequency levels of 500, 1,000, 2,000 and 3,000 cps yielded an average
hearing loss of 38.75. Subtracting the 25 decibel fence and multiplying the 13.75 remainder by
1.5 yields a 20.625 percent hearing loss in appellant’s right ear. To determine binaural hearing
loss, the 16.875 loss in the right ear is multiplied by 5 which yields a product of 84.375 which is
then added to the hearing loss in the left ear of 20.625 to equal 105 which is divided by 6 in order
to equal a 17.5 percent binaural hearing loss. Dr. Pappas thus calculated appellant’s hearing loss
as 16.9 percent on the right and 20.7 percent on the left, or a 17.5 percent binaural hearing loss.
By decision dated September 30, 2008, the Office denied appellant’s claim for an
additional hearing loss.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.1 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate

1

The Act provides that, for complete, or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).

2

standard for evaluating schedule losses.2 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).3
Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.4 Then, the fence of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five and then added to the greater loss and the total is divided by six to arrive at the amount of
the binaural hearing loss.7
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While appellant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence.8 Once the Office has begun an
investigation of a claim, it must pursue the evidence as far as reasonably possible.9 When the
Office refers appellant for a second opinion examination and the physician’s report does not
adequately address the issues at hand, the Office has a responsibility to secure a report on the
relevant issues.10
ANALYSIS
In the instant case, appellant received a schedule award for 15 percent binaural hearing
loss. He claimed an increased impairment and the Office referred him to Dr. Pappas for
evaluation of whether his employment caused or contributed to additional hearing loss.
Dr. Pappas opined that there was no appreciable change in hearing in either ear when he
compared the February 2001 study to the study obtained on September 4, 2008. However, he
also noted that appellant had a hearing impairment of 16.9 percent in his right ear, 20.7 percent
in his left ear, for a binaural hearing impairment of 17.5 percent. Although Dr. Pappas stated
that there was no appreciable change in hearing in either ear, he obtained audiological tests
results indicating a greater hearing loss than the 15 percent previously awarded. He also advised
2

20 C.F.R. § 10.404.

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

A.M.A., Guides 250 (5th ed. 2001).

5

Id.

6

Id.

7

Id.

8

John J. Carlone, 41 ECAB 354, 359-60 (1989).

9

Edward Schoening, 41 ECAB 277, 282 (1989).

10

Peter C. Belkind, 56 ECAB 581 (2005). See also Robert Kirby, 51 ECAB 474, 476 (2000).

3

that appellant complained of tinnitus. However, Dr. Pappas never addressed whether tinnitus
was a factor to be considered in rating appellant’s permanent impairment.11
As the Office undertook development of the medical evidence by referring appellant to
Dr. Pappas for a second opinion examination, it had an obligation to secure, if necessary,
clarification of the physician’s opinion.12 Accordingly, the case will be remanded for the Office
to further develop the medical evidence with regard to the extent of permanent impairment due
to appellant’s accepted hearing loss.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 30, 2008 is vacated and the case is remanded for
further development of the medical evidence.
Issued: November 10, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

The A.M.A., Guides allows for compensation of up to five percent for tinnitus in the presence of measurable
hearing loss if the tinnitus impacts the ability to perform activities of daily living. See A.M.A., Guides 246; S.G., 58
ECAB ___ (Docket No. 07-30, issued February 26, 2007); Leslie M. Mahin, 55 ECAB 311 (2004).
12

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Forrest Park, IL, Employer
__________________________________________

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

Docket No. 08-2458
Issued: May 14, 2009

Case Submitted on the Record

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

JURISDICTION
On September 11, 2008 appellant timely appealed the June 6, 2008 nonmerit decision of
the Office of Workers’ Compensation Programs denying reconsideration of her claim. As more
than a year has elapsed since the last merit decision, dated November 24, 2006, and the filing of
this appeal, on September 11, 2008, the Board lacks jurisdiction over the merits of appellant’s
claim.1 The Board also has jurisdiction over the January 15, 2008 nonmerit decision which
denied reconsideration of the Office’s November 24, 2006 merit decision.
ISSUE
The issue is whether the Office properly denied appellant’s requests for reconsideration
on the grounds that they were not timely filed and failed to establish clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3.

FACTUAL HISTORY
On April 5, 2006 appellant, a 58-year-old postal employee, filed a recurrence of disability
claim (Form CA-2) alleging that on January 5, 1996 she sustained a recurrence of disability due
to her December 15, 1994 injury. She reported that she was in constant pain due to the injury
and could not perform her regular duties.
The Office had accepted that appellant sustained bilateral wrist tendinitis and bilateral
carpal tunnel syndrome on December 5, 1994. By decision dated May 2, 1997, the Office
terminated her compensation on the grounds that she no longer had residuals of the accepted
conditions.
By decision dated June 24, 2006, the Office denied appellant’s claim for recurrence
because the evidence was not sufficient to establish that her current medical condition was due to
the accepted work injury.
Appellant disagreed and requested review of the written record on August 28, 2006.2
By decision dated November 24, 2006, the Branch of Hearings and Review affirmed the
Office’s July 24, 2006 decision because the evidence of record did not establish that her current
conditions were causally related to her federal employment.
Appellant submitted a collection of medical reports and treatment notes on January 30,
2007 concerning medical treatment and consultation occurring between September 25, 2000 and
January 8, 2007.
By letter dated November 20, 2007, appellant requested reconsideration of the
November 24, 2006 merit decision. By decision dated January 15, 2008, the Office denied
reconsideration because her request, received on December 10, 2007, was untimely and did not
present clear evidence of error.
Appellant disagreed, and by letter dated March 28, 2008, she again requested
reconsideration. She asserted that her November 20, 2007 reconsideration request was not
untimely, as her letter was postmarked prior to November 24, 2007. The record does not contain
a copy of the postmark.
By decision dated June 6, 2008, the Office denied appellant’s request for reconsideration.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act3 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
2

The record reflects that appellant also requested reconsideration on August 25, 2006.

3

5 U.S.C. § 8101 et seq.

2

district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.4
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.5 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.6
ANALYSIS
The Board finds that the case is not in posture for decision because the evidence does not
support the conclusion that appellant’s request was untimely. The last merit decision in
appellant’s case was dated November 24, 2006. Appellant’s reconsideration request was dated
November 20, 2007.
The record contains no envelope or copy bearing the postmark. It is the Office’s
responsibility to keep the envelope or provide evidence as to the postmark date.7 The Office
procedure manual provides that, in determining the timeliness of a reconsideration request, the
date of the request should be used if the envelope bearing the postmark is unavailable or
illegible.8 As the record lacks evidence of the postmark or other evidence from which the date of
the mailing could be established, the Office should have looked to the date of the letter to
establish the timeliness of appellant’s reconsideration request. In light of the Office’s failure to
preserve the evidence of mailing, the Board finds that the request was timely filed.
CONCLUSION
The Board finds that the case is not in posture for decision. The Board sets aside the
Office’s January 15 and June 6, 2008 decisions and remands the case for further action consistent
with this decision.

4

20 C.F.R. § 10.605.

5

Donna L. Shahin, 55 ECAB 192 (2003).

6

20 C.F.R. § 10.608.

7

In determining the timeliness of a reconsideration request, the date of the request should be used if the envelope
bearing the postmark is unavailable. Algimantas Bumelis, 48 ECAB 679, 680 (1997). Additionally, the Office’s
procedures require that an imaged copy of the envelope that enclosed the request for reconsideration should be in the
case record. If there is no postmark, or if it is not legible, other evidence such as a certified mail receipt, a certificate
of service and affidavits may be used to establish the mailing date. In the absence of such evidence, the date of the
letter itself should be used. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3(b)(1) (January 2004).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (June 2002); 20
C.F.R. § 10.607(a). See also, Jack D. Johnson, 57 ECAB 593 (2006); Robin M. Taylor, Docket No. 03-2239 (issued
December 19, 2003).

3

ORDER
IT IS HEREBY ORDERED THAT the June 6 and January 15, 2008 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
action consistent with this decision.
Issued: May 14, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Dallas, TX, Employer
__________________________________________

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Appearances:
Edward Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 08-539
Issued: November 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 December 13, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 25, 2007 denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant had established an employment-related disability for the
periods September 2 to 4 and September 14, 2006 to January 4, 2007.
FACTUAL HISTORY
On January 9, 2006 appellant, then a 50-year-old security screener, filed an occupational
illness claim (Form CA-2) alleging that she sustained a lumbar injury causally related to
repetitive lifting in her federal employment. The Office accepted a lumbar strain and lumbago as
employment related.

On August 28, 2006 appellant returned to a light-duty position which provided that she
was to monitor passengers for secondary screening and she could sit or stand as needed. She
stopped working on September 14, 2006 and submitted claims for compensation (Form CA-7)
for the periods September 2 to 4, 2006 and commencing September 14, 2006. In a letter dated
October 25, 2006, appellant’s representative alleged that appellant had to work outside her work
restrictions as she was assigned to a different terminal than the terminal described in the lightduty job offer. The employing establishment responded in a December 18, 2006 letter
contending that appellant did not have to work outside her physical restrictions as she could sit or
stand based on her comfort level.
In a treatment note dated September 6, 2006, Dr. Kyle Scarborough, a family practitoner,
reported that appellant had sat at a computer and was unable to continue or return to work the
following day. He diagnosed back pain with bulging discs. In a report dated September 18,
2006, Dr. Benny Wang, a neurologist, provided results on examination and indicated that
appellant was experiencing low back pain. He reported on September 21, 2006 that a magnetic
resonance imaging (MRI) scan showed foraminal stenosis. In a report dated October 12, 2006,
Dr. Bonaventure Ngu, an orthopedic surgeon, noted in his history that on September 14, 2006
appellant was at work and using a transcutaneous electric nerve stimulator (TENS) unit that
somehow shocked her. Appellant quit working and she had not returned. Dr. Ngu stated that he
did not believe appellant was a surgical candidate. By report dated November 1, 2006, Dr. Wang
noted that appellant “does not think she can do her job at work.” He stated that she should not
do any lifting or pushing, but should be able to sit or stand if she could change positions. In an
October 26, 2006 report, Dr. Wang stated that appellant’s history was consistent with
lumbosacral radiculopathy and lumber strain. He stated that appellant was still “unable to do a
lot of work.”
The Office referred appellant for a second opinion examination with Dr. Bernard Albina,
an orthopedic surgeon, regarding her current condition. Dr. Albina was asked for an opinion as
to the extent and degree of any continuing employment-related residuals. In a report dated
April 9, 2007, he indicated that appellant had a chronic lumbar strain with a functional overlay.
Dr. Albina indicated that appellant had residuals of the employment injury and could work with a
10-pound lifting restriction.
By decision dated May 25, 2007, the Office denied disability compensation from
September 2 to 4, 2006 and from September 14, 2006 to January 4, 2007.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of
reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.1
1

Terry R. Hedman, 38 ECAB 222 (1986).

2

The Office’s procedures acknowledge that in claims for disability within 90 days of a
return to work, the focus is generally on disability, not causal relationship, and a physician’s
statement on causal relationship may be sufficient on the issue even without medical rationale.2
There are, however, situations where a rationalized medical opinion is still required, such as
when the diagnosis is different from the accepted condition.3 Moreover, a claimant must provide
probative evidence of disability for work, including evidence that “describes the duties which the
employee cannot perform and the demonstrated objective medical findings that form the basis
for renewed disability for work.”4
ANALYSIS
It is appellant’s burden of proof to establish that there was a change in the nature and
extent of her employment-related condition that disabled her from performing the light-duty job
to which she returned as of August 28, 2006. She claimed that from September 2 to 4, 2006 and
from September 14, 2006 to January 4, 2007 she was disabled for the light-duty job due to her
accepted employment injury. Appellant noted that her claim for compensation was made within
90 days of a return to work. The medical evidence in this case, however, is not sufficient to meet
appellant’s burden of proof in establishing disability for the periods claimed.
Dr. Wang diagnosed lumbar radiculopathy and referred to MRI scan findings such as
facet hypertrophy or foraminal stenosis. These conditions were not accepted employment
injuries. The record establishes that her claim was accepted for lumbar strain and lumbago.
There must be a rationalized medical opinion on causal relationship with her employment.
Neither Dr. Wang nor any physician of record provided a rationalized medical opinion on causal
relationship with the employment injuries. In addition, there must be clear evidence of disability
for the light-duty position during the periods claimed. The physician must be aware of the job
duties being performed and provide medical findings to support disability for work. None of the
physicians of record provided probative medical evidence on the issue of disability for work
during the claimed periods. Dr. Wang indicated in a November 1, 2006 report that appellant
could not lift or push, but could stand or sit as needed. The light-duty job did not require lifting
or pushing, and allowed appellant to sit or stand. Dr. Ngu referred to an incident with a TENS
units on September 14, 2006, without further explanation. The Board finds appellant did not
meet her burden of proof to submit sufficient medical evidence to establish employment-related
disability for September 2 to 4, 2006 or September 14, 2006 to January 4, 2007.5
Appellant also raised the allegation that the light-duty job was outside her work
restrictions. The basis for this allegation was that she worked in a different airport terminal than
she had anticipated. The employing establishment stated that the job allowed her to sit or stand
as required. There is no probative evidence presented that appellant was required to work
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(6) (September 2003).

3

Id. at 2.1500.5(4).

4

Id. at 2.1500.6(b).

5

It is noted that, while the Office referred appellant to Dr. Albina for a second opinion examination on April 9,
2007, he was not asked nor did he provide an opinion as to an employment-related disability for the claimed periods.

3

outside her physical restrictions. The Board finds no evidence of a change in the nature and
extent of the light-duty requirements entitling appellant to compensation for any period claimed.
CONCLUSION
Appellant did not submit sufficient evidence to establish an employment-related
disability for the period September 2 to 4, 2006 or September 14, 2006 to January 4, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 25, 2007 is affirmed.
Issued: November 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, SOUTHEASTERN
PROCESSING & DISTRIBUTION CENTER,
Southeastern, PA, Employer
__________________________________________

)
)
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)
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)
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)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1083
Issued: March 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On April 25, 2016 appellant, through counsel, filed a timely appeal from a January 19,
2016 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 to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish an occupational
disease causally related to factors of her federal employment.
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.

On appeal, counsel contends that there was a conflict of medical evidence requiring
referral to an impartial medical examiner.
FACTUAL HISTORY
On February 4, 2009 appellant, then a 53-year-old small parcel bundle sorter, filed a
traumatic injury claim (Form CA-1) alleging that she injured her lower back and both legs on
February 3, 2009 while pulling stuck hampers apart. She underwent a lumbar magnetic
resonance imaging (MRI) scan on March 3, 2009 which demonstrated desiccation throughout the
lumbar disc spaces. The MRI scan also showed a probably small central disc protrusion at T1112, as well as a small central herniation at L2-3 with central canal stenosis. At L4-5 appellant
exhibited a central and left-sided disc protrusion. Appellant’s attending physician, Dr. Janine M.
Darby, a Board-certified family practitioner, diagnosed back pain, spinal stenosis of the lumbar
region and herniated disc on March 13 and April 13, 2009.
In a note dated April 2, 2009, Dr. Russell Amundson, a Board-certified neurosurgeon,
noted that appellant had a work incident of pulling hampers apart, which resulted in back pain.
He reported no distinct radicular findings on motor, sensory, or reflex examination.
Dr. Amundson found mild tenderness in the back to palpation at the lumbosacral region as well
as limited lumbar range of motion. He interpreted appellant’s MRI scan to show disc bulges, but
no surgically significant pathology.
Dr. Darby completed a report on May 1, 2009 and diagnosed lumbar disc herniation with
spinal stenosis and attributed this condition to appellant’s February 3, 2009 employment injury.
OWCP accepted appellant’s claim for lumbar sprain on April 29, 2009.
returned to her date-of-injury position on May 4, 2009 with no restrictions.

Appellant

Appellant sought treatment in the hospital emergency room on October 15, 2011 from
Dr. Vibha Gambhir, a physician Board-certified in emergency medicine, due to buttock pain
radiating to her right heel. She reported an exacerbation of her sciatica on October 14, 2012.
Dr. Gambhir diagnosed lumbar radiculopathy and cervical strain.
On October 17, 2011 Dr. Darby described appellant’s employment activities of pushing a
heavy cart on Friday and her pain from her heel to the right side of her head. She found vertebral
spine tenderness and paraspinal tenderness. Appellant was unable to complete straight leg
raising due to pain. Her lower extremities had normal motor and sensory examinations.
Dr. Darby diagnosed back pain and radiculopathy.
Appellant filed a claim for a recurrence of disability (Form CA-2a) on October 17, 2011
and alleged on October 14, 2011 that she sustained a recurrence of disability due to her
February 3, 2009 employment injury. She alleged that she was pushing filled wire containers
and felt a tightness and burn across her lower back. Appellant continued to work and
experienced a sharp pain down her right buttock and leg. She alleged that she had two herniated
discs and spinal stenosis from her February 3, 2009 employment injury.
Dr. Andrew A. Badulak, a Board-certified family practitioner and osteopath, examined
appellant on November 18, 2011. He reported that she injured her back on October 14, 2011
2

moving a large iron cage full of mail weighing approximately 2,000 pounds. Dr. Badulak
indicated that appellant developed acute back pain while pulling the iron cage. He noted her
preexisting condition of advanced degenerative disease of the lumbar spine with spinal stenosis.
Dr. Badulak found posterior gluteal and lateral thigh discomfort on the right with straight leg
raising. Appellant’s neurological examination was normal as was her motor function in both
lower extremities. He diagnosed acute onset of right lower extremity radicular symptoms
involving the L5 distribution and multilevel degenerative disc disease of the lumbar spine with
spinal stenosis and neural foraminal narrowing.
In a report dated January 20, 2012, Dr. Darby described appellant’s February 3, 2009
employment injury and reviewed her MRI scan. She noted that appellant returned to full-duty
work on May 4, 2009. Appellant reported in 2009 through 2010, her job duties changed to
require her to handle and process extreme weight loads. On October 17, 2011 she sought
treatment for severe back pain with radiation down the right leg. Dr. Darby diagnosed
lumbosacral radiculopathy and back pain. Appellant underwent an additional MRI scan dated
October 26, 2011, which demonstrated a disc bulge at L4-5 and a disc herniation at L5-S1.
Dr. Darby attributed appellant’s conditions to repetitious and excessive lifting, pushing, pulling,
tugging, or throwing of heavy weights of more than 30 pounds. She alleged that appellant’s back
condition was exacerbated by dispatching weights in excess of 1,500 pounds. Dr. Darby
provided work restrictions.
In a letter dated April 6, 2012, OWCP informed appellant that she had not sustained a
recurrence of her back condition as defined under FECA. It further explained that her claim was
more appropriately considered a new injury from either a traumatic injury or an occupational
disease.
Dr. Darby completed a report on May 11, 2012 and diagnosed herniated disc syndrome
and lumbosacral radiculopathy due to her October 14, 2011 employment injury. She provided
work restrictions. Dr. Darby completed an attending physician’s form report (Form CA-20) on
June 18, 2012 and diagnosed herniated disc syndrome and lumbosacral radiculopathy. She listed
appellant’s history of injury as “herniated discs due to pulling injury on the job.” Dr. Darby
indicated by checking a box marked “yes” that appellant’s condition was caused or aggravated
by her employment activities.
The employing establishment controverted appellant’s claim on May 30, 2012.
Appellant’s supervisor noted that appellant had returned to work on October 11, 2011 following
a leave of absence since August 30, 2011. She confirmed that on October 14, 2011 due to low
mail volume that appellant and her coworkers were granted leave at the end of their shift.
Appellant reported her back pain on October 15, 2011 and had not reported her condition on
October 14, 2011. The employing establishment provided her job duties as lifting and carrying
10 to 12 pounds for approximately eight hours a day, pushing and pulling up to 40 pounds,
sitting continuous for approximately four hours a day and twisting, bending, and stooping for
two hours intermittently. The employing establishment reported that during the last year mail
volume had decreased and that consequentially there were days when appellant and her
coworkers were allowed to use leave or were moved to another operation.

3

On June 29, 2012 Dr. Badulak indicated that appellant sustained an injury on October 14,
2011 and listed her symptoms of low back and leg pain. Appellant’s neurological examination
was normal. Dr. Badulak diagnosed lumbar and thoracic radiculopathy.
Appellant completed a narrative statement on September 5, 2012 and asserted that on
October 11, 2011 the employing establishment instituted new carrier route revision testing
schemes, which resulted in an unequal distribution of dispatched mail on one side of her
machine.3 On October 12, 2011 she began to alternate keying and dispatching mail in half hour
increments. Appellant asserted that she and her partner dispatched 30 wire containers weighing
in excess of 2,000 pounds each half hour rotation as compared to the previous scheme of 8 to 15
containers in that time period. She was required to maneuver the iron containers for 50 feet with
both right and left turns. Appellant alleged that the wheels were frequently clogged with string
and strapping. She developed tightness in her back. Appellant was required to push the
containers further because of the volume of containers amassed. On October 13, 2011 she
continued with the new scheme and again experienced back tightness and strain. Appellant
alleged that the mail volume was overflowing and could not be controlled by two people. By
October 14, 2011 her back was very tight and felt as if it were burning. Appellant was
dispatching a very full container from the machine and felt a sharp pain go down her right
buttock and leg. She completed her tour by sitting and had difficulty walking from the building.
On September 12, 2012 OWCP converted appellant’s claim to an occupational disease
based on her September 5, 2012 statement. It requested additional medical evidence in support
of her occupational disease claim and provided 30 days for a response.
In a July 27, 2012 report, Dr. Badulak noted appellant’s worsening back pain. He stated
that her injury occurred on October 14, 2011 and found that she was disabled. Dr. Badulak
reviewed appellant’s October 26, 2011 MRI scan and found multilevel degenerative changes
with a central disc herniation at L5-S1. He diagnosed lumbar and thoracic radiculopathy.
On October 3, 2012 Dr. Darby diagnosed lumbar/thoracic radiculopathy and right L5
radicular pain and attributed appellant’s current condition to an October 14, 2011 injury. She
opined that appellant had been totally disabled since October 17, 2011.
Dr. Darby completed a report on October 15, 2012. She reported that appellant sought
emergency room treatment on October 15, 2011 for severe back pain radiating down the right
leg. Dr. Darby explained the process change at the employing establishment on October 11,
2011 on appellant’s bundle sorting machine and the resulting increase in mail volume through
appellant’s duty station. Appellant related that her back pain increased from October 11 through
14, 2011 when she moved a full container and felt a sharp back pain radiating down her right leg.
Dr. Darby diagnosed lumbosacral radiculopathy and back pain. She noted that an MRI scan
showed a new disc herniation at L5-S1. Dr. Darby opined that appellant’s current conditions
were causally related to repetitious and excessive lifting, pushing, pulling, tugging, or throwing
of weights greater than 30 pounds. She also attributed appellant’s condition to intense strain of
skeletal lumbosacral areas by dispatching weights in excess of 1,500 pounds. Dr. Darby noted,
“The modifications made to the machine necessitated unusually heavy volume of mail to be
3

Appellant submitted a duplicate statement on October 15, 2012.

4

dispatched in a much more frequent design than normal, causing further strain and aggravation
leading to the injury on October 14, 2011.”
In a November 19, 2013 decision, OWCP denied appellant’s occupational disease claim
finding that she had not established her employment duties as alleged. It indicated that the
employing establishment disputed her description of her position requirements.
Counsel requested an oral hearing on December 9, 2013. On May 19, 2014 he submitted
additional evidence. One of appellant’s coworkers, Ms. M., completed a statement on May 15,
2014 and confirmed that during the week of October 11 through 14, 2011 normal schemes were
not used on the small parcel bundle sorter machine. She asserted that the test schemes were not
well planned and that 90 percent of the mail fell on one side of the machine. Ms. M. alleged,
“The amount of mail that fell was extreme to say the least. We were bombarded with an
overwhelming portion of the entire mail volume falling to our side of the machine.” She further
noted that the dispatch of containers was more than doubled from the normal 10 to 15 containers
per half hour. Ms. M. reported that the aisles were clogged with the number of wire containers
dispatched forcing both appellant and her to push and pull the containers in a tight area for
longer distances. She noted that the testing scheme continued for three weeks before the severe
imbalance of the mail flow was adjusted.
During the hearing, held on May 21, 2014, counsel submitted a report from Dr. Darby
dated June 30, 2014. Dr. Darby concluded, “It is my professional opinion that [appellant’s] disc
herniation at L5-S1 [with] moderate central canal narrowing was a direct result of her work
injury that began on October 11, 2011.” In an August 5, 2014 decision, OWCP’s hearing
representative vacated the November 19, 2013 decision finding that appellant had established her
work factors occurred as alleged. She remanded the case for OWCP to further develop the
medical evidence by referral to a second opinion physician.
On October 17, 2014 OWCP referred appellant, a statement of accepted facts, and a list
of questions for a second opinion evaluation by Dr. Steven J. Valentino, an osteopath with
certifications in orthopedic surgery and spine surgery. In a November 5, 2014 report,
Dr. Valentino noted her work history of increasing back pain over the course of three days due to
a new scheme on the sorting machine. He reviewed appellant’s medical history including x-rays,
which demonstrated degenerative changes without compression fracture or subluxation.
Dr. Valentino found that her March 3, 2009 MRI scan revealed multilevel spondylosis. He
performed a physical examination and found no spasm, malalignment, trigger points, or
subluxation of the spine. Dr. Valentino also reported that appellant’s neurologic examination
was normal. He diagnosed preexisting lumbar degenerative disc disease. Dr. Valentino opined
that appellant did not sustain an injury related to her employment activities as there were no
acute findings to collaborate her radicular-like symptoms. He concluded that she could return to
her date-of-injury position with no restrictions.
By decision dated December 2, 2014, OWCP denied appellant’s occupational disease
claim finding that the medical evidence of record did not establish a diagnosed condition as a
result of her accepted employment activities in October 2011.

5

Counsel requested an oral hearing on December 8, 2014, which was held on
March 26, 2015. He argued that the statement of accepted facts provided to Dr. Valentino was
insufficient as it did not describe the impact of the change in sorting scheme on appellant’s
workload or activities.
By decision dated May 8, 2015, OWCP’s hearing representative vacated the December 2,
2014 decision. She noted that the statement of accepted facts had improperly indicated that the
new sorting scheme began on October 12, 2011 rather than October 11, 2011. The hearing
representative also found that the statement of accepted facts failed to describe the increased
volume of mail on her side of the machine due to uneven distribution caused by the new sorting
scheme resulting in more than 30 wire containers per hour rather than the normal 8 to 15. She
noted the greater distance that appellant was required to move the wire containers. The hearing
representative further found that Dr. Valentino had not clearly reviewed the October 26, 2011
MRI scan and had not provided medical rationale in support of his opinion regarding appellant’s
preexisting lumbar degenerative disc disease. She remanded the case for OWCP to request a
supplemental report based on an updated statement of accepted facts to include a complete
description of appellant’s altered job duties beginning October 11, 2011. The hearing
representative directed OWCP to request that Dr. Valentino address both MRI scans, clarify
whether the identified herniated disc was responsible for her radicular symptoms, and to explain
whether appellant’s degenerative disc disease was preexisting. She noted that his opinion should
be well reasoned, based on an accurate definition of causal relationship, and supported by the
evidence of record.
OWCP formulated a new statement of accepted facts on June 9, 2015, noting that
appellant’s work output per hour doubled with the adjusted machine scheme from October 11
through 14, 2014. It also provided Dr. Valentino with a new list of questions. OWCP asked that
he address the findings on both MRI scans, clarify the impact of the L5-S1 disc herniation,
explain whether appellant’s degenerative disc disease was preexisting, provided the definition of
causal relationship, and asked that he support his opinions with evidence in the record and
medical reasoning.
Dr. Valentino provided a supplemental report on June 15, 2015. He reviewed the
March 3, 2009 MRI scan and found desiccation throughout the lumbar discs as well as
transitional anatomy. Dr. Valentino noted a small central herniation at L2-3, a disc protrusion at
L4-5, and a L5-S1 transitional level. He found that the October 26, 2011 MRI scan did not note
transitional anatomy, but a disc bulge at L3-4 and a protruding disc at L5-S1. Dr. Valentino
concluded, “[W]hen one takes into account the transitional anatomy, there is no evidence of a
new disc herniation or protrusion on the October 26, 2011 MRI [scan].” He further opined,
“Given this finding as well as the lack of specific radicular complaints, I do not find that
[appellant] sustained a work-related back condition as a result of her working the new sorting
scheme for the period of October 11, 2014 through October 14, 2015.” Dr. Valentino found that
appellant had a prior history of disc herniation, sciatica, stenosis, and degenerative change. He
concluded that her degenerative disc disease was preexistent and not aggravated by work factors.
In a July 24, 2015 decision, OWCP denied appellant’s claim for an occupational disease
finding that Dr. Valentino’s report was entitled to the weight of the medical evidence.

6

On August 5, 2015 counsel requested an oral hearing, which was held on
November 13, 2015. He argued that Dr. Valentino failed to explain what transitional anatomy
was in his June 15, 2015 report. Counsel further pointed out factual errors in Dr. Valentino’s
report as well as contractions regarding the presence of radicular complaints.
By decision dated January 19, 2016, OWCP’s hearing representative affirmed the
July 24, 2015 decision. He found that Dr. Valentino had provided an accurate history of injury,
definitive diagnosis, and provided medical reasoning supporting that appellant did not sustain an
injury as a result of her occupational activities. The hearing representative found that appellant
had failed to meet her burden of proof to establish an injury due to her employment duties from
October 11 through 14, 2011.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”4 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 evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.5
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.6 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.7
ANALYSIS
The Board finds that this case is not in posture for a decision.
4

20 C.F.R. § 10.5(q).

5

Lourdes Harris, 45 ECAB 545, 547 (1994).

6

5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

7

R.C., 58 ECAB 238 (2006).

7

Beginning October 14, 2011, appellant, who had a previously accepted claim for back
strain, attributed her ongoing back condition to a change in machine scheme on October 11
through 14, 2011. She provided a detailed description of the change in her duties during this
period. Appellant also provided a statement from a coworker supporting her increased duties
beginning October 11, 2011.
Appellant also submitted medical evidence of an additional back condition, including a
diagnosis of cervical strain, and lumbar radiculopathy from Dr. Gambhir. She submitted a series
of reports from Drs. Darby and Badulak beginning October 17, 2011 diagnosing radiculopathy
due to her duties. Appellant underwent an additional MRI scan dated October 26, 2011, which
demonstrated a disc bulge at L4-5 and a disc herniation at L5-S1. Dr. Badulak reviewed her
October 26, 2011 MRI scan and found multilevel degenerative changes with a central disc
herniation at L5-S1. He diagnosed lumbar and thoracic radiculopathy.
OWCP referred appellant for a second opinion evaluation with Dr. Valentino.
Dr. Valentino examined her on November 5, 2014 over three years since her October 11, 2011
employment duties changed, and found no spasm, malalignment, trigger points, or subluxation of
the spine. He also reported that appellant’s neurologic examination was normal. Dr. Valentino
diagnosed preexisting lumbar degenerative disc disease. He opined that she had not sustained an
injury related to her employment activities as there were no acute findings to collaborate her
radicular-like symptoms. Dr. Valentino concluded that appellant could return to her date-ofinjury position with no restrictions. In his June 15, 2015 supplemental report, he reviewed the
March 3, 2009 MRI scan and found desiccation throughout the lumbar discs as well as
transitional anatomy. Dr. Valentino found that the October 26, 2011 MRI scan did not note
transitional anatomy, but a disc bulge at L3-4 and a protruding disc at L5-S1. Dr. Valentino
found no evidence of a new disc herniation or protrusion on the October 26, 2011 MRI scan.
Dr. Valentino further opined that appellant had not sustained a work-related back condition as a
result of her working the new sorting scheme for the period October 11, 2014 through
October 14, 2015.
The Board finds that there is a conflict of medical opinion between appellant’s
physicians, Drs. Darby and Badulak, and Dr. Valentino, OWCP’s second opinion physician,
regarding results of her MRI scans, the relationship between her condition and her employment,
and her diagnosed conditions. Beginning October 17, 2011 Drs. Darby and Badulak diagnosed
work-related radiculopathy. Dr. Valentino, however, diagnosed preexisting lumbar degenerative
disc disease and opined that appellant did not sustain an injury related to her employment
activities. The Board therefore finds that there is a conflict regarding appellant’s specific
diagnosis and whether this diagnoses is employment related. Dr. Badulak also reviewed the
October 26, 2011 MRI scan and found multilevel degenerative changes with a central disc
herniation at L5-S1. On the contrary, Dr. Valentino found no evidence of a new disc herniation
or protrusion on the October 26, 2011 MRI scan. The Board further finds that there is a conflict
of medical opinion regarding the findings demonstrated on the October 26, 2011 MRI scan. Due
to the equal probative value of these reports, the Board finds that appellant’s claim must be
referred to an impartial medical specialist to resolve this conflict. After this and such other
development as OWCP deems necessary, it should issue a de novo decision.

8

CONCLUSION
The Board finds that this case is not in posture for decision and must be remanded for
further development consistent with this decision of the Board.
ORDER
IT IS HEREBY ORDERED THAT the January 19, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development.
Issued: March 20, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9