United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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Appearances:
Dean Albrecht, for the appellant
Office of Solicitor, for the Director

Docket No. 09-969
Issued: January 8, 2010

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant timely appealed a January 9, 2009 nonmerit decision of the
Office of Workers’ Compensation Programs denying her reconsideration request and a
December 3, 2008 merit decision affirming the termination of her compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective November 23, 2008; and (2) whether the Office properly refused to reopen her
claim for merit review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.1 In a November 7, 2005 decision, the
Board found that appellant established a compensable factor with regard to the employing
1

Docket No. 05-1079 (issued November 7, 2005).

establishment’s March 14, 2003 letter notifying her that she would be removed from her duties
due to improper conduct. However, the medical evidence of record was insufficient to support
that she sustained an emotional condition in the performance of duty. The facts of the case as set
forth in the prior decision are incorporated by reference.
Appellant subsequently requested reconsideration before the Office and submitted
additional evidence to support her emotional condition claim. On September 5, 2007 the Office
accepted the claim for acute stress disorder. The record reflects that appellant retired on
disability on November 17, 2005. She received wage-loss compensation.
In a February 7, 2008 letter, the Office requested appellant’s attending physician
Dr. Walter E. Afield, a Board-certified psychiatrist, to provide an updated report regarding
appellant’s medical status and disability. No response was received.
The Office referred appellant and the case record to Dr. James R. Edgar, a Boardcertified psychiatrist, for a second opinion evaluation regarding whether she continued to be
disabled due to her accepted condition. In an August 13, 2008 report, Dr. Edgar reviewed the
statement of accepted facts and medical records. He noted that appellant had preexisting history
of bipolar disorder, and that she did not follow up for treatment by Dr. Afield or continue her
medications. Dr. Edgar provided a comprehensive examination, including psychological testing
and a detailed mental status examination. Appellant’s speech, mood and thought processes were
described as normal with logical associations. He also attached a copy of the psychological
testing that was performed on his behalf on August 13, 2008. Dr. Edgar diagnosed bipolar
disorder by history not related to work stress. In response to the Office’s questions, he opined
that appellant no longer had a medical condition or disability as a result of her accepted
employment injury, noting that there were no longer residuals of the accepted acute stress
disorder. Dr. Edgar noted that appellant felt her disability retirement was due to carpal tunnel
syndrome. He noted that the medication she was taking was for her preexisting bipolar disorder
and not for the condition accepted by the Office as work related. Dr. Edgar also noted that
appellant had not sought treatment from Dr. Afield for over a year until she saw him the previous
week. He found that from a psychiatric perspective appellant was able to return to her former
work and no further treatment was needed for the acute stress disorder as it had resolved without
residual disability.
On September 26, 2008 the Office issued a notice of proposed termination of
compensation, finding that the weight of the medical evidence was represented by Dr. Edgar. It
noted that appellant no longer had any disability or residuals due to her accepted acute stress
reaction condition. The Office advised that there was no medical evidence to establish that she
was currently under the care of a qualified psychiatrist. Appellant was provided 30 days to
respond.
In a September 29, 2008 letter, appellant’s representative indicated that he received the
Office’s September 26, 2008 notice and had partially responded to this in a prior September 23,
2008 letter.2 He indicated that both Dr. Afield and Dr. Masood Z. Rehmani, a Board-certified
2

The September 23, 2008 letter, received by the Office September 26, 2008, advised it was in response to the
Office’s letter of September 11, 2008 requesting additional information about the current claim and claim number
xxxxxx578, for carpal tunnel syndrome.

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psychiatrist, treated appellant for her emotional condition and were in contact regarding her care.
Appellant’s representative requested additional time to submit evidence.
On October 28, 2008 the Office received copies of treatment notes from Dr. Afield dated
2003 through 2008 and Dr. Rehmani dated 2003 through 2008. On September 5, 2008
Dr. Afield noted that appellant had been seen by Dr. Edgar and that she was still trying to handle
her situation holistically. He stated that she was still upset and incapable of working. Dr. Afield
opined that this was a permanent impairment and was related to the injury at the employing
establishment. Dr. Afield advised that appellant needed continued treatment. On October 28,
2008 the Office received an October 20, 2008 letter from appellant’s representative.
By decision dated October 29, 2008, the Office terminated appellant’s termination
compensation benefits effective November 23, 2008. The weight of medical opinion was
accorded to Dr. Edgar’s finding that appellant no longer had an acute stress reaction.
In a November 12, 2008 letter, appellant’s representative requested reconsideration of the
October 29, 2008 decision based on new medical reports and arguments previously submitted but
not considered.
By decision dated December 3, 2008, the Office denied modification of the October 29,
2008 decision. It reviewed the medical evidence from Drs. Afield and Rehmani.
On December 15, 2008 appellant’s representative requested reconsideration. He
contended that new medical evidence had previously been submitted but not reviewed. No new
evidence was submitted.
By decision dated January 9, 2009, the Office denied appellant’s request for further
review of the merits of her claim.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.4 The right to medical
benefits is not limited to the period of entitlement to disability. To terminate authorization for
medical treatment, the Office must establish that appellant no longer has residuals of an
employment-related condition that requires further medical treatment.5

3

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

4

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

5

Frederick Justiniano, 45 ECAB 491 (1994).

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Rationalized medical opinion evidence is medical evidence based on a complete factual
and medical background of reasonable medical certainty and supported by medical rationale
explaining the opinion offered.6
After termination or modification of benefits are clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an acute stress disorder as a result of a
March 14, 2003 letter from the employing establishment notifying her that she would be
removed from her duties due to improper conduct. It terminated her compensation benefits
effective November 23, 2008 based on the opinion of Dr. Edgar, a Board-certified psychiatrist,
who served as an Office referral physician. The Board finds that the weight of the medical
evidence is represented by the thorough, well-rationalized opinion of Dr. Edgar, who determined
that appellant ceased to have employment-related residuals of her accepted condition.
In an August 13, 2008 report, Dr. Edgar described appellant’s preexisting medical
history, and her accepted employment condition. He noted that appellant had a long history of
bipolar disorder for which she took medication and provided a detailed mental status
examination, including comprehensive diagnostic testing. Dr. Edgar opined that appellant no
longer had a medical condition or disability from the accepted acute stress disorder, opining that
residuals of the acute stress disorder had resolved. He explained that the medication appellant
took was for depression and not the condition accepted by the Office as work related. Dr. Edgar
addressed findings on mental status examination and psychological testing obtained by his
Office. Dr. Edgar noted that her memory and thought processes were intact and that she had the
ability to manage daily living activities. The Board has carefully reviewed the opinion of
Dr. Edgar and notes that it has reliability, probative value and convincing quality with respect to
the physician’s stated conclusions regarding appellant’s condition. Dr. Edgar provided medical
rationale in support of his opinion noting, for example, that appellant had not seen her
psychiatrist in over a year before recently seeing Dr. Afield, that she was not taking medication
for her accepted condition and that her disability retirement was due to carpal tunnel syndrome.8
He provided no basis on which to support any continuing residuals or disability for work
attributable to the accepted acute stress disorder.
The Board finds that the Office properly terminated appellant’s compensation benefits
effective November 23, 2008. Thereafter, the burden of proof for reinstating compensation
benefits shifted to appellant.9

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

7

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

See supra note 7.

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Appellant submitted copies of treatment records dated 2003 through 2008 from
Dr. Afield and Dr. Rehmani.
Dr. Afield advised in a September 5, 2008 treatment record that appellant was still
disabled and that she had permanent impairment related to the accepted work injury. However,
he did not provide any medical rationale explaining how her disability was attributable to the
compensable condition of acute stress disorder rather than her preexisting condition. Moreover,
he noted that appellant was on medication and was trying to handle her condition in a holistic
manner. Dr. Afield did not report the results of any recent examination or any diagnostic
evaluation, just noting that he would be interested in reviewing the report of Dr. Edgar. Medical
reports not containing rationale on causal relation are entitled to little probative value.10 The
need for rationale is especially important as appellant has a preexisting bipolar disorder that has
not been accepted as being employment related. Dr. Afield’s treatment records are insufficient
to overcome or to create a conflict with Dr. Edgar’s opinion that the employment-related
condition had resolved.
None of the other evidence submitted discusses or provides a contrary medical opinion
regarding appellant’s disability and medical status as it relates to the accepted condition. The
additional reports from Dr. Afield and Dr. Rehmani do not support that appellant continues to
have residuals from her acute stress disorder.
Appellant’s representative contends that certain medical information had not been
considered. However, the issue in the case is medical in nature and no other medical evidence
addresses with probative medical rationale, based on a thorough examination, how appellant
continued to have residuals of the employment-related acute stress disorder. The Office properly
terminated appellant’s compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act11 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation,
either under its own authority or on application by a claimant.12 Section 10.608(a) of the Code
of Federal Regulations provides that 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 the standards described in section 10.606(b)(2).13 This section provides that the
application for reconsideration must be submitted in writing and set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; or (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.14
10

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002). See supra note 7.

11

5 U.S.C. §§ 8101-8193.

12

Id. at § 8128(a).

13

20 C.F.R. § 10.608(a).

14

Id. at § 10.608(b)(1) and (2).

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Section 10.608(b) provides that, when a request for reconsideration is timely but fails to meet at
least one of these three requirements, the Office will deny the application for reconsideration
without reopening the case for a review on the merits.15
ANALYSIS -- ISSUE 2
In support of her December 15, 2008 reconsideration request, appellant’s representative
referred to documents which had previously been submitted but which he contends had not been
reviewed. The medical evidence of record was reviewed by the Office in its merit decisions.
This argument does not constitute a basis for reopening her case. The Board has held that the
submission of evidence or argument which repeats or duplicates evidence or argument already in
the case record does not constitute a basis for reopening a case.16 Appellant has not submitted
any new medical evidence which addresses the relevant issue of whether appellant’s conditions
and disability after November 23, 2008 are causally related to her compensable work injury. Her
reconsideration request failed to show that the Office erroneously applied or interpreted a
specific point of law nor did it advance a point of law or fact not previously considered by the
Office. The Office did not abuse its discretion in refusing to reopen appellant’s claim for a
review on the merits.
On appeal appellant’s representative reiterated that new medical evidence was submitted
and the Office refused to review such evidence. As noted, however, the record reflects that
evidence submitted by appellant was reviewed by the Office, which found that the treatment
records of her attending physicians were not adequate to overcome the opinion of Dr. Edgar.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective November 23, 2008. The Board further finds that the Office
properly denied appellant’s request for reconsideration without reviewing the merits of her
claim.

15

Id. at § 10.608(b).

16

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated January 9, 2009 and December 3, 2008 are affirmed.
Issued: January 8, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BOSTON HCS, Brockton, MA, Employer
__________________________________________

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Appearances:
John L. Whitehouse, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1932
Issued: January 16, 2019

Case Submitted on the Record

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

JURISDICTION
On September 13, 2017 appellant, through counsel, filed a timely appeal from an August 7,
2017 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 on January 23, 2018 the Director filed a Motion to Affirm in part and Remand in part. The
motion requested that the Board remand the case with regard to the termination of the medical benefits as she
acknowledged that OWCP had failed to provide proper pretermination notification. The motion further requested that
the Board affirm the termination of wage-loss compensation benefits contending that no pretermination notice was
required and that the medical evidence of record was sufficient to terminate wage-loss compensation. The Clerk of
the Appellate Boards served counsel with a copy of the motion and allotted him time to file a response. However, no
response was received. The Board has considered the motion and has proceeded with a decision on the merits.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 17, 2015, because he no longer had residuals
or disability due to his accepted March 17, 2015 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts of the case as presented in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On March 18, 2015 appellant, then a 47-year-old investigator, filed a traumatic injury claim
(Form CA-1) alleging that on March 17, 2015 he sustained injuries to his neck, back, and left eye,
as well as experienced a severe concussion, dizziness, and confusion when boxes fell on his head
and neck at work and caused him to fall forward onto his face. He stopped work on that date.
Appellant initially received treatment from his employee health unit. In a March 17, 2015
progress note, Dr. Andrea Ohldin, a staff physician, related that appellant fell onto the floor and
landed on the left side of his head after several books from a bookshelf fell on him. Appellant
noted feeling nauseated, dizziness, having difficulty standing, and feeling confused. Upon
physical examination, Dr. Ohldin observed a pink oval around 15 millimeters and a contusion
above appellant’s left eyebrow. She diagnosed “head trauma with fall and elevated blood
pressure.” Appellant was transported to urgent care for further evaluation.
In a March 17, 2015 urgent care record, Dr. Joan Cheng, a Board-certified diagnostic
radiologist, indicated that appellant was treated for confusion and nausea after a bookshelf fell on
his head. She reported that neurological examination showed clear speech and slightly slow
movements. Dr. Cheng diagnosed concussion.
A March 17, 2015 computerized tomography (CT) scan report of appellant’s head showed
mild soft tissue swelling overlying the left supraorbital, but no acute intracranial abnormality.
Appellant submitted various reports and letters dated March 19 to April 23, 2015 by
Dr. Glenn Tucker, a Board-certified internist. Dr. Tucker described that on March 17, 2015
appellant experienced vomiting, nausea, and dizziness at work when boxes fell on his head and
back. He discussed appellant’s history and provided physical examination findings. In reports
dated April 7 and 14, 2015, Dr. Tucker diagnosed other and unspecified cerebral laceration and
contusion, without mention of open intracranial wound, with concussion. He indicated that
appellant continued to experience symptoms relating to his March 17, 2015 head injury and had
impaired cognition after sustaining a severe concussion at work. Dr. Tucker advised that appellant
not return to work.
OWCP denied appellant’s claim in a decision dated May 15, 2015. It accepted that the
March 17, 2015 incident occurred as alleged, but denied appellant’s claim because the medical
evidence of record failed to establish a diagnosed condition causally related to the accepted
incident.
4

Docket No. 16-0777 (issued January 3, 2017).

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Appellant timely requested a hearing before a representative of OWCP’s Branch of
Hearings and Review, which was held on November 20, 2015. OWCP received additional medical
evidence, including reports from Dr. Tucker dated May 12 and June 23, 2015.
By decision dated February 4, 2016, an OWCP hearing representative affirmed the
May 15, 2015 decision in part and revised it in part. She remanded the case for OWCP to accept
appellant’s claim for contusion of the left forehead because the evidence of record was sufficient
to establish a causal relationship between appellant’s diagnosed forehead contusion and the
March 17, 2015 employment incident. The hearing representative also found that the evidence of
record failed to establish that appellant’s concussion was causally related to the accepted incident.
In a decision dated March 9, 2016, OWCP accepted appellant’s claim for left forehead
contusion.
Appellant, through counsel, filed an appeal to the Board.
By decision dated January 3, 2017, the Board set aside and remanded the February 4, 2016
decision. It determined that Dr. Tucker’s reports raised an uncontroverted inference between
appellant’s diagnosed head concussion and the accepted March 17, 2015 employment incident.
The Board remanded the case for OWCP to further develop the medical evidence regarding
whether appellant’s head condition was causally related to the accepted incident.
OWCP referred appellant’s case, along with a statement of accepted facts (SOAF) and a
copy of the record, to Dr. Jacob Kogan, a Board-certified neurologist and second-opinion
examiner, to determine whether appellant’s diagnosed concussion was causally related to the
March 17, 2015 employment incident and whether he sustained any other diagnosed conditions as
a result of the accepted incident. In a June 2, 2017 report, Dr. Kogan accurately described the
March 17, 2015 employment incident and reviewed the record, including appellant’s medical
reports and the SOAF. He related that, although appellant’s symptoms of blurred vision, dizziness,
and nausea had resolved, appellant still complained of headaches and memory and concentration
difficulties. Upon physical examination, Dr. Kogan reported no tenderness or swelling and full
range of motion at appellant’s cervical and lumbar spine. He indicated that neurological
examination demonstrated that appellant was alert and oriented. Dr. Kogan related that appellant
had very good memory for recent and distal elements of his medical history, no pressured speech,
and organized thought process.
Dr. Kogan opined that appellant sustained a concussion and post concussive syndrome as
a result of the March 17, 2015 employment incident. He explained that contemporaneous medical
reports showed that appellant experienced typical symptoms of concussion and post concussive
syndrome, including cognitive impairment, mood changes, headache, nausea, and disequilibrium,
following the March 17, 2015 incident. Dr. Kogan indicated that appellant’s concussion was mild
in severity and further opined that appellant’s concussion and post concussive syndrome
conditions had resolved. He explained that the natural history of post concussive syndrome
following a mild concussion was that the symptoms resolved over the next months and were
completely resolved by three months. Dr. Kogan noted that appellant was currently more than two
years post injury, so residual symptoms of post concussive syndrome at this time would be
atypical. He reported that appellant’s current headaches were “likely” the result of a preexisting
chronic headache condition as appellant admitted that he had headaches of similar severity before
the March 17, 2015 employment incident. Dr. Kogan further indicated that appellant’s cognitive
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or mood changes were “more likely” the result of his conditions of depression, anxiety, and posttraumatic stress disorder (PTSD). He recommended that appellant be referred to an appropriate
expert in psychiatry and neuropsychology. In a work capacity evaluation form (OWCP-5c),
Dr. Kogan indicated that appellant could return to his usual job without restrictions.
On June 2, 2017 OWCP requested an addendum from Dr. Kogan to address whether
appellant suffers any residuals of cognitive impairment, and, if not, when those residuals resolved.
In a June 8, 2017 addendum report, Dr. Kogan indicated that it was “more likely than not”
that appellant’s current cognitive complaints were due to his co-morbid diagnoses of depression,
anxiety, and PTSD rather than concussion or post concussive syndrome. He explained, however,
that a definitive opinion regarding this matter would require a psychiatric assessment. Dr. Kogan
also noted that it was difficult to establish a definitive date of resolution of appellant’s mild
concussion and post concussive syndrome because patients recover at variable rates. He related
that, based on the natural history of mild concussion and post concussive syndrome, the vast
majority of patients were completely recovered by three months. Dr. Kogan opined that
appellant’s residuals of mild concussion and post concussive syndrome “likely resolved” by
June 17, 2015.
By decision dated June 9, 2017, OWCP expanded the acceptance of appellant’s claim to
include mild concussion without loss of consciousness and post-concussion syndrome.
OWCP referred appellant’s case, along with an updated SOAF and a copy of the record, to
Dr. Maureen O’Connor, a clinical psychologist and second-opinion examiner, for a
neuropsychological evaluation in order to determine whether appellant continued to suffer residual
cognitive dysfunction causally related to his accepted concussion and post-concussion syndrome
conditions and whether he sustained any other neuropsychological conditions as a result of the
accepted incident. In a June 30, 2017 report, Dr. O’Connor reviewed appellant’s medical records
and documented a clinical interview where she recounted this history of the March 17, 2015
employment incident. She noted that appellant has a prior history of depression, anxiety, and
PTSD and reported that appellant believed that the March 17, 2015 employment incident triggered
his PTSD.
Dr. O’Connor provided examination findings from validity testing, cognitive testing, and
emotional/psychological testing. She related that current findings suggested some minor
inefficiency in cognitive domains of attention, problem solving, and recall of complex visual
material. Dr. O’Connor indicated that appellant’s interview suggested current depression and
anxiety. She further noted that it was difficult to interpret psychological testing due to an
inconsistency in appellant’s responses. Dr. O’Connor responded “No” indicating that appellant
did not suffer objective residual cognitive impairment causally related to his diagnosed mild
concussion and post concussive syndrome. She explained that appellant’s current “minor
cognitive inefficiencies … are thought to be better explained by preexisting psychological
conditions of depression, anxiety, and PTSD, and current additional stressors.” Dr. O’Connor
further reported that appellant suffered a concussion or mild traumatic brain injury and explained
that the expected course of recovery in mild traumatic brain injury was up to three months. She
opined: “I would expect that [appellant’s] post concussive symptoms would have resolved by
approximately June 17, 2015 given this literature.” In a work capacity evaluation form (OWCP5c), Dr. O’Connor indicated that appellant could return to work without restrictions
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By decision dated August 7, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective June 17, 2015. It found that the weight of medical opinion evidence
rested with the opinions of Dr. Kogan and Dr. O’Connor, OWCP second-opinion examiners, who
had determined in reports dated June 2, 8, and 30, 2017 that appellant no longer had any residuals
or disability causally related to the March 17, 2015 employment injury. OWCP noted that both
Dr. Kogan and Dr. O’Connor opined that appellant’s work-related injury resolved no later than
June 17, 2015.5
LEGAL PRECEDENT
Under FECA,6 once OWCP has accepted a claim and paid compensation, it has the burden
of justifying termination or modification of compensation benefits.7 OWCP may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.8 Its burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.9 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.10 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.11
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits.
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and medical benefits because the second opinion physicians failed to address whether all of
appellant’s accepted conditions had resolved. In reports dated June 2 and 8, 2017, Dr. Kogan
opined that appellant’s concussion and post concussive syndrome conditions had likely resolved
by June 17, 2015 and noted that appellant could return to his usual job without restrictions. He
did not, however, address whether appellant’s accepted left forehead contusion had resolved. The
April 21 and June 9, 2017 SOAFs provided to Dr. Kogan noted that appellant’s claim was accepted
for left forehead contusion. In his June 2 and 8, 2017 reports, however, he failed to opine on
whether appellant still suffered residuals or remained disabled as a result of his accepted forehead
contusion. In addition, Dr. O’Connor, in her June 30, 2017 report addressed only whether
5

The evidence of record indicates that a pretermination notice was not issued.

6

Supra note 2.

7

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

8

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB
541 (1986).
9

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

10

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
11

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., Docket No. 08-1822
(issued August 5, 2009).

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appellant continued to suffer residual cognitive dysfunction causally related to appellant’s postconcussion syndrome conditions and whether he sustained any other neuropsychological
conditions.
It is well established that medical reports must be based on a complete and accurate factual
and medical background and that medical opinions not based on an accurate history and
background are of limited probative value.12 Because both second opinion physicians failed to
address all of appellant’s accepted conditions resulting from the March 17, 2015 employment
injury, OWCP erred in terminating appellant’s wage-loss compensation and medical benefits,
effective June 17, 2015, based on these reports.13 The Board finds, therefore, that OWCP has not
met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits,
effective June 17, 2015.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective June 17, 2015.

12

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001).

13

See R.P., Docket No. 17-1133 (issued January 18, 2018) (the Board reversed OWCP’s decision terminating
appellant’s wage-loss compensation and medical benefits where the referee medical examiner did not address all of
the claimant’s accepted conditions); see also L.A., Docket No. 14-1138 (issued September 9, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the August 7, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 16, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1029
Issued: August 13, 2007

Case Submitted on the Record

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

JURISDICTION
On February 28, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ schedule award decision dated February 20, 2007. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a one percent permanent impairment to his
left lower extremity.
FACTUAL HISTORY
This is the third appeal before the Board. Appellant, a 50-year-old mail carrier, filed a
claim for benefits on August 5, 1989, alleging that he injured his lower back as he walked up
some stairs. The Office accepted the claim for subluxation and lumbosacral sprain with
lumbosacral radiculitis. On December 31, 2001 appellant filed a Form CA-7 claim for a
schedule award based on a partial loss of use of his left lower extremity. By decisions dated
September 18, 2002 and March 3, 2003, the Office denied appellant’s claim for a schedule

award. In a decision dated October 1, 2003, the Board set aside the Office’s September 18, 2002
decision.1 The Board found that there was a conflict in the medical evidence between
Dr. Rudolph Merick, appellant’s treating physician and Board-certified internist, and Dr. Edward
Williamson, the second opinion examiner and Board-certified neurologist, regarding whether
appellant had any impairment based on his work-related injury. The Board remanded the case to
the Office for referral to an impartial medical specialist to resolve the conflict in the medical
evidence.
The Office referred appellant to Dr. Jack P. Failla, a Board-certified orthopedic surgeon,
for a referee medical examination. In a January 22, 2004 report, Dr. Failla found that appellant
had a 10 percent whole person impairment. In a report dated April 19, 2004, the Office medical
adviser found that appellant had a 1 percent permanent impairment for the left lower extremity,
finding that under Table 15-15 appellant had a Grade 4 deficit/sensory deficit of 25 percent,
which equated to a 1 percent impairment under Table 15-18. By decision dated February 13,
2006, the Office granted appellant a schedule award for a one percent impairment of the left
lower extremity. In a decision dated November 13, 2006,2 the Board set aside the Office’s
February 13, 2006 decision. The Board noted that Dr. Failla had discussed appellant’s condition
pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment, but did not refer to any applicable tables and charts in calculating appellant’s
impairment rating. In addition, the Board noted that the Office had improperly rendered
appellant’s impairment rating as a whole man impairment. The Board remanded the case to the
Office for referral to Dr. Failla for a supplemental report for clarification and elaboration. The
complete facts of this case are set forth in the Board’s October 1, 2003 and November 13, 2006
decisions and are hereby incorporated by reference.
In a January 10, 2007 report, Dr. Failla stated:
“My assessment, at the time of my examination, and understanding what I
believed to have been the statement of accepted facts were that of multiple lumbar
injuries, etc., my opinion was based primarily on two components and not just the
one percent for any residual radicular impairment regarding spinal nerves. My
assessment was then based on the evaluation of the lumbar spine as stated in my
report of Category II and lumbar Category III. The range of disability there was
anywhere from 5 to 13 percent, and I fixated on a combination of considering the
lumbar problem and the radicular problem as identified on page 424, Table 15-18,
that there was probably only an additional 1 percent that was associated with the
lumbar S1 symptomatology of occasional numbness.
“Although there appears to be some evidence of an element of spinal stenosis, one
could not clearly identify significant radicular findings other than the absent ankle
jerks and therefore S1 is impaired, primarily sensory. The muscle weakness is
purely subjective and could not be clarified by objective testing. Therefore, I can
now clarify to you that my total impairment rating was that of 10 percent, which
1

Docket No. 03-1097 (issued October 1, 2003).

2

Docket No. 06-829 (issued November 13, 2006).

2

included not only the issues of impairment related to the lumbar spine injuries, but
also probably a 1 percent affect involving S1.”
In a report dated February 10, 2007, the Office medical adviser found that appellant had a
1 percent permanent impairment for the left lower extremity, finding that under Table 15-15
appellant had a Grade 4 deficit/sensory deficit of 25 percent, which rated a 1 percent impairment
under Table 15-18.
On February 20, 2007 the Office found that appellant was not entitled to more than a one
percent impairment of the left lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 sets forth
the number of weeks of compensation to be paid for permanent loss, or loss of use of the
members of the body listed in the schedule. Where the loss of use is less than 100 percent, the
amount of compensation is paid in proportion to the percentage loss of use.4 However, the Act
does not specify the manner in which the percentage of loss of use of a member is to be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating
schedule losses.5
ANALYSIS
In this case, Dr. Failla, the impartial specialist, calculated a one percent impairment based
on sensory/radicular loss at S1 pursuant to page 424, Table 15-18. The Office medical adviser
took Dr. Failla’s findings of a minimal sensory deficit at S1 and applied them to Table 15-15,
which determines impairment due to sensory loss. He multiplied the maximum deficit for a
Grade 4 impairment, 25 percent, based on motor deficit under Table 15-15 by 5 percent, the
amount of impairment he rated at Table 15-18, for a 1.25 percent left lower extremity
impairment.
There is no other probative medical evidence establishing that appellant sustained any
additional permanent impairment. The Board finds that the Office medical adviser properly
applied the A.M.A., Guides to rate appellant’s left lower extremity impairment. His report
constitutes the weight of medical opinion.
The Board will affirm the Office’s February 20, 2007 decision granting appellant a
schedule award for a one percent permanent impairment to his left lower extremity.

3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

5 U.S.C. § 8107(c)(19).

5

20 C.F.R. § 10.404.

3

CONCLUSION
The Board finds that appellant has no more than a one percent permanent impairment to
his left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the February 20, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 13, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
FORCES COMMAND, Norfolk, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1639
Issued: November 4, 2015

Case Submitted on the Record

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

JURISDICTION
On July 28, 2015 appellant, through counsel, filed a timely appeal from a July 2, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for a schedule award due
to hearing loss.
FACTUAL HISTORY
On August 28, 2013 appellant, then a retired 64-year-old materials handler inspector,
filed an occupational disease claim (Form CA-2) alleging that he sustained hearing loss due to
exposure to hazardous noise at work. He indicated that on August 1, 2006 he first became aware
1

5 U.S.C. § 8101 et seq.

of his claimed condition and first realized that it was caused or aggravated by his employment.
On the same form, appellant’s immediate supervisor indicated that he retired effective
December 31, 2011.
In an August 29, 2013 letter, OWCP requested that appellant submit additional factual
and medical evidence. It also requested that the employing establishment submit information.
Appellant submitted a detailed statement describing his federal and nonfederal
employment over the years, including the type of noise exposure he experienced in each job. He
indicated that in some of his federal jobs he was exposed to noise from pneumatic tools, trucks,
trains, and heavy equipment. Appellant submitted a January 10, 2012 audiogram that showed
mild hearing loss, but the audiogram report was not signed.
On September 10, 2013 appellant filed a claim for a schedule award (Form CA-1).
OWCP referred appellant for evaluation of his claimed hearing loss to Dr. William R.
Lomax, a Board-certified otolaryngologist. In a November 6, 2013 report, Dr. Lomax reported
findings of November 4, 2013 audiometric testing. He found that appellant had sensorineural
hearing loss which was caused by presbycusis and acoustic trauma, but he checked a box
indicating that the audiometic testing results were invalid and unrepresentative of appellant’s
hearing sensitivity.2
In a November 14, 2013 report, Dr. Eric Puestow, a Board-certified internist and an
OWCP medical adviser, noted that a schedule award could not be calculated because Dr. Lomax
had indicated that the November 4, 2013 audiometric testing results were not valid.
OWCP sent appellant to another OWCP referral physician to evaluate his claimed
hearing loss. In a May 21, 2014 report, Dr. Kristen Bish, a Board-certified otolaryngologist,
reported findings of audiometric testing she obtained on that date. She noted that the testing
showed poor morphology and that the results were “inconclusive.”
OWCP then referred appellant for additional evaluation of his claimed hearing loss. In a
March 30, 2015 report, Dr. Rocco Cassone, a Board-certified otolaryngologist serving as an
OWCP referral physician, reported findings of audiometric testing he obtained on that date.
Dr. Cassone noted that the audiometric testing showed a moderate-to-severe sensorineural
hearing loss with excellent speech discrimination of 92 percent and 96 percent in the right and
left ear, respectfully. He noted that appellant was “somewhat inconsistent” comparing his pure
tones to his speech scores and noted, “I do believe the pure tones were fairly reliable and are
consistent testing to reach the charted numbers.” In the “impression/recommendation” portion of
the report, Dr. Cassone noted that appellant appeared to have a sensorineural hearing loss that
was at least in part related to federal employment although there was a little inconsistency in his
testing and “this had been similar over his previous testing.” Appellant’s pure tones were
slightly worse on the present audiometric evaluation than on his earlier evaluations. Dr. Cassone
2

In his November 6, 2013 report and a supplemental report dated June 9, 2014, Dr. Lomax noted that the
January 10, 2012 audiogram of record was a better indicator of appellant’s hearing loss than the audiogram he
obtained on November 4, 2013.

2

noted, “It is my feeling that he should be considered to have some possible relation to his noise
exposure at work.” He noted there also was a component of presbycusis to appellant’s hearing
loss and that amplification should be used.
On April 29, 2015 Dr. Puestow, an OWCP medical adviser, noted that calculation of a
schedule award was not possible. He indicated that Dr. Cassone noted that sensorineural hearing
loss was possible due to appellant’s employment, but that the audiometric testing results were
invalid.
In a July 2, 2015 decision, OWCP accepted appellant’s claim for “a hearing loss” due to
his employment-related noise exposure, but found, “After three evaluations however tests were
deemed invalid and did not establish a ratable hearing loss. Therefore, you are not entitled to a
schedule award of compensation under [FECA].”
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged.7 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.8 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 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, then added to the greater loss and the total is divided by

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id.

6

A.M.A., Guides 250-51 (6th ed. 2009).

7

Id.

8

Id.

9

Id.

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six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.11
It is well established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.12
ANALYSIS
On August 28, 2013 appellant filed a claim alleging that he sustained hearing loss due to
exposure to hazardous noise at work. He later filed a claim for a schedule award. OWCP
developed the record by referring appellant for audiometric testing and evaluation of his claimed
hearing loss. After it determined that two OWCP referral physicians obtained test findings that
were unreliable, OWCP referred appellant for additional evaluation of his claimed hearing loss to
Dr. Cassone, a Board-certified otolaryngologist.
Dr. Cassone submitted a March 30, 2015 report of his March 30, 2015 audiometric
testing. Thereafter, Dr. Puestow, a Board-certified internist serving as an OWCP medical
adviser, noted on April 29, 2015 that calculation of a schedule award was not possible. He
indicated that Dr. Cassone had noted that sensorineural hearing loss was possible due to
appellant’s employment, but that the audiometric test results were invalid.
In a July 2, 2015 decision, OWCP accepted appellant’s claim for “a hearing loss” due to
his employment-related noise exposure and noted, “After three evaluations however tests were
deemed invalid and did not establish a ratable hearing loss. Therefore, you are not entitled to a
schedule award of compensation under [FECA].”
The Board notes that Dr. Cassone’s March 30, 2015 report requires clarification as he did
not explicitly indicate whether the testing results he obtained were invalid. Dr. Cassone noted
that appellant was “somewhat inconsistent” comparing his pure tones to his speech scores and
noted, “I do believe the pure tones were fairly reliable and are consistent testing to reach the
charted numbers.” In the “impression/recommendation” portion of the report, he noted that
appellant appeared to have a sensorineural hearing loss that was at least in part related to federal
employment although there was a little inconsistency in his testing and “this had been similar
over his previous testing.” Therefore, Dr. Cassone’s opinion on the validity of the testing is
vague and in need of clarification.
For these reasons, the case shall be remanded to OWCP in order to obtain a supplemental
report from Dr. Cassone clarifying his opinion on the validity of the test results he obtained on
March 30, 2015. After carrying out this development, it shall issue a de novo decision regarding
appellant’s claim for schedule award compensation.
10

Id.

11

Donald Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket No. 011570 (issued August 13, 2002).
12

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

4

CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly denied appellant’s claim for a schedule award due to hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2015 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded to OWCP for proceedings consistent
with this decision of the Board.
Issued: November 4, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
B.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Jamaica, NY, Employer
__________________________________________

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

Docket No. 06-2007
Issued: February 1, 2007

Case Submitted on the Record

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

JURISDICTION
On August 28, 2006 appellant filed a timely appeal from two June 28, 2006 decisions of
the Office of Workers’ Compensation Programs, which denied his claims for compensation on
the grounds that he failed to establish disability for work during the period claimed. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(1), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that his claims for compensation for
intermittent periods from January 23 to April 1, 2006 are due to the accepted May 24, 2004
employment injuries.
FACTUAL HISTORY
On August 25, 2005 appellant, a 41-year-old engineering technician, filed a traumatic
injury claim alleging that he injured his neck while in the performance of duty. He stated that
when he turned his head to the left on May 24, 2004 “something popped or cracked” in his neck.

Appellant alleged that he did not file a claim for injury earlier because he did not realize how
serious the injury was and hoped it would heal on its own.
The employing establishment submitted additional materials, including a witness
statement from Albert Dummann, a coworker and a medical billing form and physical therapy
referral from Dr. Russell C. Huang, an orthopedic surgeon. In Mr. Dummann’s statement, he
indicated that he was working with appellant on May 24, 2004 when appellant turned his head to
look over his shoulder and complained of a cracking noise in his neck. He also stated that
appellant looked like he was in a great deal of pain and left the facility to seek medical attention.
The records from Dr. Huang indicate that appellant was diagnosed with cervical degenerative
disc disease and cervicalgia and given a prescription for physical therapy on July 27, 2005.
On September 16, 2005 the Office requested additional medical and factual information
from appellant who provided a personal statement dated October 12, 2005 and medical records
from his initial consultation with Dr. Huang. Appellant stated that, on May 24, 2005, he was in
the equipment room of an air traffic control tower in which he was installing equipment. He
alleged that when he turned his head to the left he heard a cracking or popping noise and
thereafter experienced severe pain, blurred vision and nausea. Appellant sought immediate
medical treatment from Dr. Paula Nuckols, a Board-certified family physician, who gave him a
prescription for Celebrex and pain killers.
The report from Dr. Huang’s July 27, 2005 consultation indicated that appellant
complained of neck pain radiating up into the back of his head and down into the bilateral
trapezius. In the medical history, he reported that appellant had a diving accident in 1988 that
injured his spinal cord. Though appellant was in a quadriplegic state for nearly a month
following the accident, the only long-term effects were diffuse residual weakness in his right arm
and left triceps, unsteadiness of gait and minimal weakness in his lower extremities. Dr. Huang
reported that, following the May 24, 2004 employment incident, appellant had headaches,
ringing in his ears and occasional tingling in his fingers. He conducted both physical and
radiographic examinations. Dr. Huang indicated that appellant’s cervical range of motion
showed stiffness in lateral rotation, but a good range in flexion and extension. His examination
of a CT myelogram, cervical magnetic resonance imaging (MRI) scan and x-rays showed a
collapse of the disc space at C5-6 with a “relatively kyphotic angulation.” Dr. Huang noted
hypermobility at the C5-6 segment, which had a broad posterolateral disc bulge on the left side,
which he indicated “was probably causing some mild foramina stenosis.” He diagnosed
appellant with severe and debilitating neck pain and C5-6 degenerative disc disease with
segmental instability.
By decision dated December 15, 2005, the Office accepted appellant’s claim for
cervicalgia.
On February 8, 2006 appellant filed two claims for compensation, Form CA-7, for the
periods January 23 to February 4 and February 5 to 18, 2006. He indicated that he was on leave
without pay for both periods.
By letter dated March 1, 2006, the Office requested medical evidence establishing
appellant’s disability for work during the entire claimed period. The Office noted that the record

2

contained no statement from a treating physician that appellant was totally disabled due to his
accepted condition and that appellant had filed no claim for recurrence of disability. In response,
appellant resent Dr. Huang’s July 27, 2005 report. He also filed a CA-7 form claiming
compensation for leave without pay taken from February 19 to March 4, 2006.
On April 18, 2006 the employing establishment requested that the Office refer appellant
for a second opinion so that reasonable accommodations for his accepted employment injury
could be considered. The employing establishment included copies of appellant’s disability
retirement application, appellant’s position description, Dr. Huang’s July 27, 2005 report and an
unsigned report from Dr. Steven P. Greer, who is Board-certified in internal medicine. In his
report dated April 12, 2006, Dr. Greer stated that he saw appellant on March 24, 2006, when he
gave him a physical examination and reviewed the July 27, 2005 report from Dr. Huang. He
found appellant’s neck to be severely limited in range of motion in extension and lateral rotation
on both sides. Dr. Greer concluded that appellant still experienced severe and debilitating neck
pain.
On April 18, 2006 appellant submitted CA-7 forms for the period February 19 to March 4
and March 5 to 18, 2006.
On May 11, 2006 the Office sent a letter acknowledging that appellant had claimed a
recurrence of disability beginning on January 23, 2006 and requesting that he complete the
appropriate forms and provide additional factual and medical information. On that day, the
Office also sent a letter requesting medical evidence establishing appellant’s disability for work
from January 23 to March 4, 2006.
Appellant submitted three more CA-7 claims for compensation on May 15, 2006,
covering the periods April 2 to 15, April 16 to 29 and April 30 to May 13, 2006.
On May 24, 2006 the Office sent a letter requesting that appellant provide medical
evidence addressing the periods of disability claimed from February 2 to April 1, 2006. The
Office found that the two medical records in the record were insufficient because Dr. Huang’s
report was not current and did not address the claimed periods and Dr. Greer was not a specialist
in orthopedic medicine.
On June 5, 2005 appellant submitted a claim for compensation for the period May 14
to 27, 2006. As with all his other claims, he indicated that he had used leave with out pay on
those days.
On June 13, 2006 appellant provided the Office with an attending physician’s report,
Form CA-20, completed by Dr. Huang on May 28, 2006. Dr. Huang indicated that he had not
treated appellant since July 27, 2005 and that he did not know appellant’s periods of disability or
when he might be able to return to work. He stated that he believed appellant’s condition was
aggravated by manual labor on the job and that the permanent effect of his employment injury
was likely to be chronic neck pain.
On June 21, 2006 the Office requested medical information establishing appellant’s
disability from the claimed period May 14 to 27, 2006. The Office also informed appellant that

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the CA-20 completed by Dr. Huang was insufficient because he did not provide information
about the periods of appellant’s claimed disability.
In response to this request, appellant provided a letter from Dr. Huang dated
June 9, 2006. Dr. Huang stated that appellant was not longer able to work as of January 19, 2006
because of his severe and debilitating neck pain caused by C5-6 degenerative disc disease with
segmental instability.
By decision dated June 28, 2006, the Office accepted appellant’s claim for aggravation of
degenerative disc disease, C5-6. The Office also requested additional medical information as to
whether appellant’s condition was permanent or temporary, and if permanent, how it was
determined that the aggravation caused a permanent change to the preexisting condition. In two
other decisions of the same date, the Office denied appellant’s claims for compensation for the
period January 23 and April 1, 2006, specifically, the periods January 23 to February 5, 2006;
February 16 to 18, 2006; February 19 to March 4, 2006; March 5 to 18, 2006; and March 19 to
April 1, 2006. The Office found that the only evidence addressing these periods, Dr. Huang’s
June 9, 2006 letter, could not be accepted as medical evidence of disability. The Board noted
that the letter addressed a period of time in which Dr. Huang had not treated appellant and that
he provided no specific information on specific periods of total or partial disability. Given these
insufficiencies, the Office denied all claims for compensation prior to the June 9, 2006 letter on
the grounds that they lacked medical evidence to support them.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proving the essential elements of his claim by the weight of the evidence presented.3
Compensation for wage loss is available only for periods during which an employee’s accepted
condition prevents him from earning his wages.4 Even if the Office has accepted that appellant
sustained an injury in the performance of duty, appellant still has the burden of establishing that
his accepted condition resulted in disability during the specific periods for which he is claiming
compensation.5 The duration of a disability is a medical issue that must be proved by a
preponderance of the reliable, probative and substantial evidence.6

1

The Board notes that it appears from the record that the compensation claims for the period April 2 to May 27,
2006 are still pending as they were not specifically addressed in the June 28, 2006 decisions. The Board further
notes that, by letter dated July 11, 2006, the Office informed appellant that he was eligible for monthly
compensation starting from the period June 9, 2006 and provided information about his return to work
responsibilities.
2

5 U.S.C. §§ 8101-8193.

3

William A. Archer, 55 ECAB 674 (2004); Nathaniel Milton, 37 ECAB 712 (1986).

4

Judith A Cariddo, 55 ECAB 348 (2004); see also 20 C.F.R. § 10.500(a).

5

Dorothy J. Bell, 47 ECAB 624 (1996).

6

Edward H. Horton, 41 ECAB 301 (1989).

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When an employee claims compensation for leave used because of an alleged injury or
disability, the Office has the responsibility of determining whether the employee was disabled
during those periods.7 The Board will not require the Office to pay compensation for disability
in the absence of any medical evidence directly addressing the particular periods of disability for
which compensation is claimed. To do so would have the effect of allowing employees to selfcertify their disability and entitlement to compensation.8 There is no requirement that an
employee show an independent medical evaluation for each day of claimed disability, but the
employee must provide some medical evidence that he was disabled on those days.9 When
dealing with an accepted employment injury, a narrative medical opinion directly addressing the
dates of claimed disability is generally sufficient to demonstrate disability for those periods.10
ANALYSIS
Appellant, having proved that he has an accepted employment injury and that he was
disabled as of June 9, 2006, now must demonstrate that his employment injury caused him to be
completely disabled from work from January 23 to April 1, 2006. The Board finds that appellant
has not met this burden.
As evidence of his disability, appellant has provided reports by Dr. Huang, an orthopedic
surgeon, and the letter of Dr. Greer, who is a Board-certified internist. Dr. Huang’s July 2005
report provided the medical basis for the Office’s finding, on December 15, 2005, that appellant
had an accepted injury. While Dr. Huang gave a diagnosis and provided evidence that appellant
had sustained an injury in the performance of duty, he gave no indication that appellant was
partially or totally disabled at the time of the consultation. The report was written six months
before the claimed periods of disability in 2006 and thus does not address any of them. The
Board finds that this report is insufficient to demonstrate that appellant was disabled from work
from January 23 to April 1, 2006.
The Form CA-20, which was completed by Dr. Huang on May 28, 2006, is not sufficient
either. On the form, Dr. Huang stated that appellant’s periods of permanent or temporary
disability were unknown to him and that he had not discussed the issues of returning to work
with appellant. He also indicated that he had not treated appellant at any point during the
claimed periods. This form is insufficient because it does not provide evidence that appellant
was disabled from work for the period January 23 to April 1, 2006.
Dr. Huang’s June 9, 2006 letter states that, “[a]s of January 19, 2006, [appellant] was no
longer able to return to work.” Dr. Huang indicated that appellant’s diagnosed condition had not
improved since the 2005 examination and that appellant was “unable to return to work with this
7

Glen M. Lusco, 55 ECAB 148 (2003); Laurie S. Swanson, 53 ECAB 517 (2002).

8

Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Id. (finding that “less than definitive medical evidence” may be adequate proof of disability when an employee
has an accepted employment-related condition and a doctor has provided a medical opinion that the effects of the
condition are likely reoccur).
10

See William A. Archer, supra note 3.

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condition.” The Office found that this letter formed the basis for disability from June 9, 2006
onward. However the statements in this letter are not sufficiently rationalized to show that
appellant was disabled during the period January 23 to April 1, 2006. Dr. Huang gives no
objective evidence as to the state of appellant’s condition during the time in question.
Additionally, given the fact that he did not treat appellant during that time, it is unlikely that he
has any direct evidence about it. There is also no evidence as to what precipitated the change in
appellant’s condition on January 19, 2006 that rendered him disabled after that time, but not
before it. For these reasons, the June 9, 2006 letter does not establish that appellant was disabled
from work.
The Board also finds that Dr. Greer’s unsigned report is insufficient to prove appellant’s
disability. The Board has held that unsigned medical reports are of diminished probative value
as the author cannot be readily identified as a physician.11 As such, Dr. Greer’s report is of no
probative value in establishing appellant’s claim.
CONCLUSION
The Board finds that appellant has not established that his claims for compensation are
due to the accepted work-related condition.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 28, 2006 are affirmed.
Issued: February 1, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

D.D., 57 ECAB __ (Docket No. 06-1315, issued September 14, 2006); Merton J. Sills, 39 ECAB 572 (1988).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICES,
NATIONAL INSTITUTES OF HEALTH,
Hamilton, MT, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0280
Issued: October 14, 2021

Case Submitted on the Record

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

On December 14, 2020 appellant filed a timely appeal from an October 30, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate
Boards docketed the appeal as No. 21-0280.
On November 13, 1995 appellant, then a 47-year-old animal caretaker, filed an
occupational disease claim (Form CA-2) alleging that she sustained pain in her back and legs
causally related to factors of her federal employment. OWCP accepted her claim for aggravation
of severe multiple degenerative disc disease with spinal stenosis at L2 -3, L3-4, and L4-5 with
preexisting disc herniation at L5-S1.
In an Automated Compensation Payment System (ACPS) printout dated May 10, 2002,
appellant’s retirement plan was listed as Code C, a code applicable to those under the Civil Service
1

The Board notes appellant submitted additional evidence to OWCP following the October 30, 2020 decision, and
on appeal. 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 wa s 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.

Retirement System/Federal Insurance Contributions Act (CSRS/FICA) offset retirement plan.
ACPS printouts dated April 17, 2003 and April 27, 2004 also listed her retirement plan as Code C.
OWCP compensation history records indicate that appellant received payments on the
periodic rolls for disability as of June 16, 2002.
In a form dated July 16, 2020, Social Security Administration (SSA) completed a Federal
Employees Retirement System (FERS)/ SSA dual benefits calculation transmittal and advised
OWCP that appellant had concurrently received FECA benefits and FERS retirement benefits
beginning August 2013. It provided the amount that she had received in retirement benefits,
including the amount earned through FERS and the hypothetical amount that she would have
received without FERS for August and December 2013, December 2014, December 2016,
December 2017, December 2018, and December 2019.
On September 21, 2020 OWCP issued a preliminary overpayment determination that
appellant had received an overpayment of compensation in the amount of $24,186.88 because she
had received FECA wage-loss compensation benefits concurrently with SSA age-related
retirement benefits for the period August 1, 2013 through September 12, 2020. It provided an
overpayment calculation and found that she was without fault in the creation of the overpayment.
OWCP requested that appellant submit a completed overpayment recovery questionnaire (Form
OWCP-20) and provided her with an overpayment action request form delineating her appeal
rights. It afforded her 30 days to respond.
On October 2, 2020 appellant requested a decision based on the written evidence regarding
possible waiver as she was found to be without fault in the creation of the overpayment. She
submitted a Form OWCP-20 to OWCP containing information regarding her income, expenses,
and assets.
By decision dated October 30, 2020, OWCP finalized the September 21, 2020 preliminary
overpayment determination that appellant had received an overpayment of compensation in the
amount of $24,186.88 for the period August 1, 2013 through September 12, 2020 because it had
failed to offset her compensation payments by the portion of her SSA age -related retirement
benefits that were attributable to federal service. It further found that she was without fault in the
creation of the overpayment, but denied waiver of recovery of the overpayment because the
evidence of record failed to establish that recovery of an overpayment would defeat the purpose
of FECA or would be against equity and good conscience. OWCP required recovery of the
repayment by withholding $411.00 from appellant’s continuing compensation payments every 28
days.
The Board, having duly considered this matter, finds that OWCP failed to properly develop
the underlying issue of what portion of appellant’s SSA age-related retirement benefits were
attributable to federal service.2

2

See Order Reversing Case, W.G., Docket No. 20-1389 (issued June 30, 2021); Order Reversing Case, R.L., Docket
No. 20-1333 (issued May 13, 2021); J.L., Docket No. 19-1806 (issued July 29, 2020); A.C., Docket No. 19-0174
(issued July 9, 2019).

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OWCP’s procedures provide that an overpayment occurs when FECA compensation is not
reduced by the FERS/FECA offset amount. Since the SSA will not report an offset amount until
after SSA benefits are received, an overpayment will almost always occur and will need to be
calculated for each period in which the offset amount was not withheld from compensation. 3 The
offset provision of 5 U.S.C. § 8116(d)(2) and applicable regulations apply to SSA age-related
retirement benefits that are attributable to federal service. 4 FECA Bulletin No. 97-09 provides that
FECA benefits have to be adjusted for the FERS portion of SSA age-related retirement benefits
because the portion of the SSA benefit earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual
benefit.5 In identifying the fact and amount of an overpayment of compensation following a
claimant’s receipt of SSA age-related retirement benefits, the Board has observed that OWCP uses
a FERS Offset Calculation Worksheet. 6 This calculation worksheet is sent to SSA and the
completed form is returned to OWCP setting forth purported SSA calculations as to the effective
date and rate of SSA benefits without FERS and the effective date and rate of SSA benefits with
FERS.7 Following receipt of the purported SSA calculations, a preliminary determination of
overpayment is issued if a prohibited dual benefit was received.8
The Board has observed, however, that not all federal employees are enrolled in FERS.
Some FECA claimants are enrolled in another retirement program, such as the CSRS. Other
federal employees are not entitled to be enrolled in a federal retirement program. The refore,
OWCP’s procedures with regard to requesting offset information are not applicable to all recipients
of FECA compensation and SSA age-related retirement benefits. Therefore, the information
solicited on the FERS Offset Calculation Worksheet that OWCP sends to SSA is not applicable to
non-FERS claimants and does not establish either the fact or amount of an overpayment.
Herein, the evidence of record does not establish that appellant was enrolled in FERS. The
case record contains ACPS printouts listing her retirement plan as Code C, applicable to those
under the CSRS/FICA offset retirement plan, rather than FERS. 9 There is no evidence of record
that appellant was enrolled under FERS. The Board finds, therefore, that the October 30, 2020
decision must be reversed. 10

3

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment,
Chapter 6.200.1(h) (September 2018).
4

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

5

FECA Bulletin No. 97-09 (issued February 3, 1997).

6

Id.

7

Id.

8

J.L., supra note 2.

9

See A.C., supra note 2.

10

See W.G., R.L., supra note 2.

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IT IS HEREBY ORDERED THAT the October 30, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 14, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harvey, IL, Employer
__________________________________________

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

Docket No. 14-790
Issued: November 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 25, 2014 appellant filed an appeal from a January 9, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish employment-related
disability from January 9 to March 19, 2012 due to the accepted lumbar sprain.
FACTUAL HISTORY
On May 8, 2010 appellant, then a 48-year-old letter carrier, sustained an employmentrelated lumbar sprain when he had to jump two fences to escape from a Rottweiler. He returned
to full duty in July 2010. An August 9, 2010 magnetic resonance imaging (MRI) scan of the
1

5 U.S.C. §§ 8101-8193.

lumbar spine demonstrated multilevel degenerative disc disease and facet arthropathy with
associated spinal canal/neural foraminal narrowing. A lumbar spine x-ray on August 30, 2010
demonstrated spondylitic changes, degenerative disc disease at L5-S1 and marginal grade 1
retrospondylolisthesis at L5-S1.
On January 6, 2012 appellant filed a recurrence claim, indicating that his back problems
continued after the employment injury.
He stated that the recurrence occurred on
January 2, 2012. The employing establishment indicated that at that time appellant was
performing regular duties.
In support of his claim, appellant submitted a January 18, 2012 report in which
Dr. Herbert Engelhard, III, a Board-certified neurosurgeon, noted a complaint of radiating low
back pain. He related that the problem began when he was being attacked by a dog in May 2010
and it had become increasingly severe. Appellant provided physical examination findings and
reviewed an MRI scan study. Dr. Engelhard diagnosed severe chronic low back pain and left S1
radiculopathy due to instability and disc herniation at L5-S1 and recommended surgery.
In a February 27, 2012 report, Dr. Sandhya Nagubadi, a Board-certified internist, advised
that appellant had been under his care since May 11, 2010 for severe back pain that began on
May 8, 2010 when he was being attacked by a dog. He indicated that the condition had
worsened over time and advised that he treated appellant for degeneration of lumbar or
lumbosacral intervertebral disc, lumbago and degeneration of cervical intervertebral disc.
Dr. Nagubadi indicated that appellant had L5-S1 decompressive laminectomy and fusion surgery
on February 3, 2012.
By letter dated March 16, 2012, OWCP informed appellant that the claimed recurrence of
January 2, 2012 had been accepted but that the back surgery performed on February 3, 2012 had
not yet been authorized. Appellant was asked to complete a CA-7 claim form if he lost time
from work due to the recurrence and provide supporting medical evidence.
In a March 18, 2012 report, Dr. Sanjai Shukla, an OWCP medical adviser, advised that
appellant’s current condition was likely the result of a new injury or worsening of a preexisting
condition and not related to the employment injury; therefore, the back surgery was not
authorized.
On March 19, 2012 appellant submitted a CA-7 claim for compensation for the period
January 9 to March 19, 2012. In April 9, 2012 correspondence, OWCP noted that it had received
appellant’s claim for compensation. It informed him that, although a recurrence was accepted,
after OWCP’s medical adviser’s review, it was determined that the back surgery could not be
authorized and the record did not contain sufficient medical evidence to indicate that the claimed
disability was a result of the work-related injury. Appellant was requested to submit medical
documentation within 30 days and informed that the failure to submit sufficient medical
evidence could result in the denial of his claim for compensation.
In a January 4, 2012 report, Dr. Nagubadi provided physical examination findings and
diagnosed degeneration of lumbar or lumbosacral intervertebral disc, cervicalgia, degeneration of
cervical intervertebral disc. He recommended a neurosurgery consultation. On January 25, 2012

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Dr. Nagubadi reiterated his diagnoses and noted that appellant was cleared for surgery. On
February 15, 2012 he noted that appellant was seen in follow-up after surgery.
In an April 30, 2012 report, Dr. David H. Garelick, a Board-certified orthopedic surgeon
and OWCP medical adviser, noted that he reviewed appellant’s record for the purpose of
determining if the L5-S1 decompressive laminectomy and fusion was medically necessary to
treat the accepted lumbar sprain. He noted the August 9, 2010 MRI scan study findings and
x-rays that demonstrated preexisting degenerative process at L5-S1 and, at most, the May 8,
2010 employment injury caused a temporary exacerbation that would have resolved within six
weeks. Dr. Garelick recommended that OWCP withhold surgical authorization.
Appellant thereafter submitted a copy of the February 3, 2012 operative report that
included preoperative diagnoses of severe chronic low back pain, a herniated disc at L5-S1,
lumbar radiculopathy and lumbar instability at L5-S1. In a report dated February 15, 2012,
Dr. Engelhard reported follow-up care. On May 8, 2012 he reported that appellant had chronic
back pain and radiculopathy following surgery. Dr. Engelhard recommended that the fusion be
revised. On May 22, 2012 his partner, Dr. Sergey Neckrysh, a Board-certified neurosurgeon,
agreed that appellant’s fusion should be revised. On June 14, 2012 Dr. Igor Altman reported a
history of chronic low back pain with L5-S1 discectomy and arthrodesis done on
February 3, 2012. He advised that revision of instrumentation was done on June 13, 2012 and
provided wound care.
OWCP referred appellant to Dr. Allan M. Brecher, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a June 26, 2012 report, Dr. Brecher noted his review of the
statement of accepted facts and medical record and reported the history of injury and appellant’s
two back surgeries. He provided physical examination findings and advised that appellant had
continuing back pain, noting that he had a back fusion two weeks previously. In answer to
specific OWCP questions, Dr. Brecher advised that the only work-related diagnosis was lumbar
sprain and perhaps a temporary aggravation of preexisting arthritis that resolved by
October 2010, noting that appellant had returned to full duty after the employment injury. He
indicated that, although appellant reported that he had a second lumbar MRI scan study in 2011
that demonstrated a herniated disc, the study was not found in the case record, and opined that
appellant’s nonwork-related degenerative condition had worsened and led to the current
surgeries. Dr. Brecher indicated that appellant could perform sedentary work with restrictions,
due to the degenerative condition and surgeries.
Appellant submitted a June 13, 2012 operative report for redo L5 laminectomy. On
June 18, 2012 Dr. Andrei Rakic, a Board-certified anesthesiologist, saw appellant in consultation
for pain management.
Dr. Nagubadi provided treatment notes dated May 25 to
October 31, 2012. He reiterated appellant’s history, diagnosed degeneration of lumbar or
lumbosacral intervertebral disc, lumbago, cervicalgia, unspecified myalgia and myositis, a
diabetes mellitus. Dr. Nagubadi reported appellant’s pre and postsurgical care. On an
emergency department report dated January 2, 2012, Dr. Andrew Dean, Board-certified in
emergency medicine, advised that appellant was seen for neck pain. He diagnosed neck ache
and discharged appellant to follow-up with his primary care provider. In an emergency
department report dated April 28, 2012, Dr. Amin Yassin, Board-certified in family medicine,
advised that appellant was seen for radiating back pain. He noted that appellant had a fusion two

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months previously and diagnosed back pain, to follow-up with Dr. Nagubadi. On July 8, 2012
appellant was seen in the emergency department by Dr. Margaret Williamson, Board-certified in
emergency medicine, who noted a history of chronic back pain secondary to a work injury and
disc disease with a February 2012 fusion and revision on June 13, 2012. Dr. Williamson
indicated that appellant’s pain had worsened the previous day when he ran out of medication.
He prescribed medication and discharged appellant.
Appellant subsequently submitted duplicates of evidence previously of record and
records of his February and June 2012 hospitalizations for lumbar surgery, including progress
notes and discharge instructions. In a June 18, 2012 report, Dr. Neckrysh reported a history that,
after being chased by a dog at work and jumping a fence, appellant experienced an episode of leg
and back pain. He indicated that he reviewed the MRI scan study from August 2010 that
demonstrated very advanced degenerative disc disease of the lumbar spine and noted that
Dr. Engelhard performed a fusion at L5-S1 that required revision.
By decision dated January 9, 2014, OWCP denied appellant’s claim for disability
compensation for the period January 9 through March 19, 2012. It found that the weight of the
medical evidence rested with the opinions of OWCP’s medical advisers and second opinion
evaluation and concluded that appellant submitted insufficient medical evidence to establish that
the claimed disability was related to the accepted May 8, 2010 employment injury.
LEGAL PRECEDENT
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.2 Disability is
thus not synonymous with physical impairment which may or may not result in incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA.3 The test of “disability”
under FECA is whether an employment-related impairment prevents the employee from engaging
in the kind of work he or she was doing when injured.4 Whether a particular injury causes an
employee to be disabled for work and the duration of that disability, are medical issues that must
be proved by a preponderance of the reliable, probative and substantial medical evidence.5
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.6 Causal relationship is a medical issue. The opinion of the
2

See Prince E. Wallace, 52 ECAB 357 (2001).

3

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

4

Corlisia Sims, 46 ECAB 963 (1995).

5

Tammy L. Medley, 55 ECAB 182 (2003).

6

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

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physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
ANALYSIS
The Board finds this case is not in posture for decision. As noted above, the issue of
whether a particular injury causes an employee disability for work is a medical question and
must be resolved by a preponderance of the reliable, probative and substantial medical evidence.8
In this case OWCP accepted that appellant sustained a lumbar strain due to a May 8, 2010 dog
chasing incident. It also accepted that he sustained a recurrence on January 2, 2012. Appellant
thereafter filed a claim for wage loss for the period January 9 to March 19, 2012. By decision
dated January 9, 2014, OWCP denied the claim for wage loss.
A review of the record indicates that OWCP has not properly developed the medical
evidence related to the wage-loss claim. Dr. Shukla, an OWCP medical adviser, was asked to
review the file for the purposes of surgical authorization and opined that it should be denied.
Dr. Garelick, the second OWCP medical adviser, also indicated that he was reviewing the record
to determine if surgery should be authorized. He advised that he agreed with Dr. Shukla’s
opinion. Neither physician was specifically asked if the period of claimed disability, January 9
to March 19, 2012, was causally related to the May 8, 2010 lumbar sprain.
In his June 26, 2012 report, Dr. Brecher, who provided a second opinion evaluation for
OWCP, completed a work capacity evaluation and advised that appellant’s current degenerative
back condition and need for surgery were due to a preexisting degenerative condition. However,
the statement of accepted facts provided by Dr. Brecher did not indicate that OWCP had
accepted a January 2, 2012 recurrence and he was not specifically asked to provide an opinion
regarding disability due to the accepted lumbar sprain and accepted January 2, 2012 recurrence.
It is well established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, once OWCP
undertakes development of the case record, it has the responsibility to do so in a proper manner.9
As OWCP utilized these reports to deny appellant’s wage-loss claim, it must properly develop
the evidence. The case shall therefore be remanded to OWCP. On remand, OWCP shall revise
the statement of accepted facts and ask that Dr. Brecher provide an opinion as to whether
appellant was totally disabled due to the accepted lumbar sprain for the period January 9 to
March 19, 2012. After this and such further development deemed necessary, OWCP shall issue
an appropriate decision.

7

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

8

Tammy L. Medley, supra note 5.

9

See Peter C. Belkind, 56 ECAB 580 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing
and Evaluating Medical Evidence, Chapter 2.810.9(j) (September 2010).

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CONCLUSION
The Board finds this case is not in posture for decision as to whether appellant is entitled
to disability compensation for the period January 9 to March 19, 2012 due to the accepted
May 8, 2010 lumbar sprain and accepted January 2, 2012 recurrence.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: November 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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