United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Oxford, WI, Employer
__________________________________________

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

Docket No. 18-0219
Issued: August 17, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 7, 2017 appellant filed a timely appeal from a June 28, 2017 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 abused its discretion when it denied authorization of
appellant’s left knee surgery.
FACTUAL HISTORY
On January 20, 2015 appellant, then a 33-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on January 15, 2015 he twisted his left foot, ankle, calf,
and knee when he slipped off the concrete pavement while walking in the snow near a fence at
1

5 U.S.C. § 8101 et seq.

work. He stopped work on the date of injury and returned to limited-duty work later on
January 21, 2015.
On March 6, 2015 OWCP accepted the claim for tear of the medial meniscus of the left
knee. It authorized left knee arthroscopy with partial lateral meniscectomy at the anterior horn
and partial synovectomy and chondroplasty of medial femoral condyle performed on March 11,
2015 by Dr. James J. Foskett, appellant’s attending Board-certified orthopedic surgeon. On
March 25, 2015 appellant returned to full-duty work.
In an April 23, 2015 medical report, Dr. Foskett noted that appellant was status post the
authorized March 11, 2015 surgery and still had debilitating left knee pain. He also noted
appellant’s medical history, which included acute left knee pain, left knee anterior cruciate
ligament (ACL) reconstruction performed in 2004, repair of a failed left knee ACL, meniscus,
ligament repair, removal of hardware, etc., and removal of an abscess on the left knee in 2014.
Dr. Foskett provided a review of systems and discussed examination findings. He provided an
impression of persistent and debilitating left knee pain with post-traumatic arthritic changes.
Dr. Foskett also provided an impression of history of prior trauma and ACL reconstruction. He
noted that appellant reinjured his knee on January 15, 2015 and that, prior to this injury, he had
been doing satisfactorily. Appellant’s pain had been signiﬁcantly accelerated by this injury and
he had persistent debilitating pain despite arthroscopy injection and physical therapy. Dr. Foskett
advised that, although appellant was relatively young for a total knee replacement, this was likely
the only salvage procedure which would appreciably relieve his pain. He related that appellant
was not a good candidate for unicompartmental knee arthroplasty due to his weight, age, and
having an incompetent ACL. On May 19, 2015 Dr. Foskett requested authorization to perform a
total left knee arthroplasty.
On May 29, 2015 OWCP referred the case to an OWCP medical adviser, Dr. Michael
Hellman, an orthopedic surgeon, for an opinion with respect to the requested surgery.
On June 10, 2015 Dr. Foskett performed a total left knee arthroplasty and an open lateral
retinacular release of the left knee for patellofemoral maltracking and dislocation. The
preoperative diagnoses were left knee severe osteoarthritis and cystic mass on the left anterior
knee. The postoperative diagnoses were left knee severe osteoarthritis and cystic subfascial mass
on the left knee, rule out sterile abscess, inclusion with foreign body reaction versus infection.
In a note dated June 11, 2015, Dr. Hellman reviewed the relevant medical evidence, which
indicated that appellant had preexisting post-traumatic arthritis of the left knee. He concluded that
surgery should not be authorized. Dr. Hellman explained that appellant’s accepted employmentrelated injury was a ground level low-energy twist of the left knee and that this type of injury
would not cause any permanent aggravation of his preexisting condition. He reasoned that this
type of injury was a temporary aggravation of his post-traumatic arthritis. Dr. Hellman further
reasoned that appellant’s preexisting condition was already severe before the accepted injury
occurred.
OWCP, by letter dated August 12, 2015, referred appellant, along with a statement of
accepted facts (SOAF), the medical record, and list of questions, to Dr. Mysore S. Shivaram, a
Board-certified orthopedic surgeon, for a second opinion to determine whether appellant’s

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June 10, 2015 left knee surgery was medically necessary to treat his January 15, 2015 employment
injury.
By decision dated August 27, 2015, OWCP denied authorization for the June 8, 2015 left
knee surgery based on Dr. Hellman’s opinion. It noted that appellant had been scheduled for a
second opinion evaluation to determine whether the surgery should be authorized.
Appellant was unable to attend the scheduled appointment with Dr. Shivaram. OWCP
rescheduled the examination for October 28, 2015. In an October 28, 2015 report, Dr. Shivaram
reviewed the SOAF and the medical record and reported findings on physical examination. He
diagnosed severe degenerative arthritis of the left knee and status post left total knee replacement
followed by removal of the total knee prosthesis and subsequent surgical procedure with antibiotic
spacer in the left knee. Dr. Shivaram noted that x-rays and a magnetic resonance imaging (MRI)
scan performed following appellant’s January 15, 2015 employment injury revealed the presence
of a moderate degree of degenerative arthritis of the left knee. The MRI scan revealed no evidence
of a medial meniscal tear. The lateral meniscus had only an anterior horn of the lateral meniscus
and there was a questionable tear in the anterior horn of the lateral meniscus. Arthroscopic surgery
of the left knee revealed no evidence of a medial meniscus tear. There were peripheral
degenerative changes as shown on the arthroscopic pictures of the knee. The ACL was still intact
even though it was somewhat lax as indicated in the description of an operative report. Based on
the above findings, Dr. Shivaram found that the nature of the January 15, 2015 left knee injury
was not exactly clear. He advised that appellant had a severe injury to the knee in the past and
also had ACL reconstruction, lateral ligament reconstruction, and patellar ligament repair prior to
the January 15, 2015 employment injury. Dr. Shivaram maintained that there was no evidence to
indicate that the accepted work injury aggravated or accelerated appellant’s preexisting severe left
knee degenerative arthritis. He further maintained that, based on the above discussion, no further
medical treatment was required for the January 15, 2015 work-related injury. Dr. Shivaram
advised that no further improvement could be expected since appellant had a left total left knee
replacement and was awaiting revision of this surgical procedure. He opined that the accepted
injury did not cause any permanent aggravation or acceleration of appellant’s osteoarthritis of the
left knee and further opined that OWCP should not approve appellant’s total left knee replacement
surgery since he had significant degenerative arthritis of the knee prior to the January 15, 2015
employment injury.
By decision dated March 31, 2016, OWCP denied authorization for further left knee
surgery based on the opinions of Drs. Hellman and Shivaram.
On April 19, 2016 appellant requested an oral hearing before an OWCP hearing
representative. On December 7, 2016 he requested that his request for an oral hearing be converted
into a request for a review of the written record by an OWCP hearing representative due to a
scheduling conflict.
Appellant submitted a December 17, 2016 report from Dr. Foskett, who reviewed
Dr. Shivaram’s October 28, 2015 findings and disagreed with his opinion that the June 10, 2015
left knee surgery should not be authorized. Dr. Foskett noted that appellant’s knee condition was
complex in nature and nuanced. Prior to the January 15, 2015 work-related injury, appellant
suffered an ACL injury, which was successfully treated by ACL reconstruction. He also had

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preexisting arthritis, which was significant in his left knee prior to the accepted work injury.
Dr. Foskett indicated that this was documented at the subsequent arthroscopy he performed and at
the prior repeat ligamentous reconstruction he performed before the employment injury. He
related that Dr. Shivaram’s evaluation did not consider that given the nature of appellant’s
previously injured and compromised left knee, an additional lateral meniscal tear could further
significantly accelerate arthritic degeneration of such a knee. Dr. Foskett opined, with a high
degree of medical certainty and assurance, that appellant’s January 15, 2015 work injury likely
contributed to significantly and accelerated his underlying arthritic left knee condition. He
maintained that the accepted work injury then partially and significantly contributed to his need to
undergo the 2015 left total knee arthroplasty. Dr. Foskett concluded that, based on the abovereviewed evaluations and findings, it was clear that the accepted employment injury significantly
contributed to appellant’s need to undergo subsequent total knee arthroplasty.
By decision dated January 27, 2017, an OWCP hearing representative set aside the
March 31, 2016 decision and remanded the case for further development of the medical evidence.
She found that, while Dr. Foskett’s December 17, 2016 report was insufficiently rationalized, it
presented prima facie evidence of a causal relationship between the need to undergo left knee
surgery and the accepted January 15, 2015 employment injury. On remand the hearing
representative directed OWCP to obtain the medical records referenced by Dr. Foskett in his
report. Upon receipt of these medical records, OWCP was directed to prepare an updated SOAF
and provide the records to Dr. Shivaram for review and to obtain a supplemental report concerning
whether appellant had a material worsening of a preexisting condition causally related to the
January 15, 2015 employment injury and, if so, whether the left total knee replacement performed
on June 10, 2015 by Dr. Foskett was appropriate medical treatment and medically warranted for
the accepted work injury.
On remand Dr. Foskett submitted his reports and diagnostic test reports performed on his
behalf dated January 13, 2010 through August 11, 2015, which addressed appellant’s left knee
conditions, including a large lateral meniscus tear, instability, an ACL tear, and a cystic mass.
These records also addressed surgeries appellant underwent to treat these conditions and his work
capacity.
OWCP, by letter dated April 20, 2017, requested that Dr. Shivaram review the
accompanying additional reports from Dr. Foskett, reexamine appellant, and provide an opinion
as to whether he had a material worsening of his preexisting left knee condition due to the
January 15, 2015 employment injury and whether the total left knee replacement surgery was
warranted.
In a report dated May 31, 2017, Dr. Shivaram reviewed the SOAF and medical records that
accompanied OWCP’s April 20, 2017 letter. He noted that, unfortunately, appellant had a severe
left knee injury as early as 2004. Appellant also had chronic instability of the knee and early
arthritic changes were seen as early as 2010. He underwent reconstruction of the lateral ligaments
and revision of the ACL due to chronic instability of the knee. Dr. Shivaram indicated that, with
long-standing instability of the knee, abnormal joint mechanics would lead to degenerative
changes of the knee. He further indicated that appellant was seen on several occasions for
continued knee pain over the course of years and had repeat arthroscopic evaluation of the knee
for instability and continued knee pain. Dr. Shivaram related that the January 15, 2015

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employment injury was not very significant based on the presence of mild effusion in the knee and
no significant changes on a left knee MRI scan and subsequent arthroscopic evaluation of the knee.
However, he related that subsequent arthroscopy in 2015 revealed significant degenerative
changes involving the medial compartment and lateral and patellofemoral joint. Dr. Shivaram
related that appellant was frustrated with his long-standing left knee pain and problems and that a
total knee replacement was recommended since he had end-stage arthritis. He maintained that,
based on all these findings, his opinion remained that the accepted January 15, 2015 work injury
did not cause any permanent aggravation or acceleration of appellant’s left knee osteoarthritis.
Dr. Shivaram related that, as indicated above, appellant had severe degenerative arthritis of the left
knee at the time of the accepted injury. He reiterated his prior opinion that the left total knee
replacement should not be approved by OWCP since appellant had significant degenerative
arthritis of the knee prior to the January 15, 2015 employment injury. Dr. Shivaram noted that, as
indicated in the medical records, he had ongoing left knee problems with significant pain for
several years, which ultimately led to further surgical procedure. He indicated that, following the
left total knee replacement, revision of the left total knee replacement was performed for an
infected left total knee replacement. Dr. Shivaram reported that appellant was quite satisfied with
his recovery following the surgical procedure. He also reported that his left knee was stable for
examination. An examination revealed a well-healed scar and the knee was not warm to touch.
There was 1+ effusion in the joint and 0 to 110 degrees of range of motion. Alignment of the left
leg and left knee were satisfactory. Dr. Shivaram related that, at present, appellant advised that he
could walk for long distances and did not require the use of an assistive device for ambulation. He
maintained that overall appellant appeared to have a good result following revision arthroplasty of
the left knee. Appellant had no pain in the left knee. Dr. Shivaram advised that appellant
experienced left knee pain with constant movement and weather changes. In addition, kneeling,
excessive climbing, running, etc. aggravated his left knee pain. Ice and rest would resolve
appellant’s symptoms.
By decision dated June 28, 2017, OWCP again denied authorization for appellant’s left
knee surgery. Based on Dr. Shivaram’s May 31, 2017 opinion, it found that the June 10, 2015
total left knee replacement surgery was not necessitated by the accepted January 15, 2015 work
injury.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation.2
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.3

2

5 U.S.C. § 8103; see L.D., 59 ECAB 648 (2008).

3

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

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In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on OWCP’s
authority being that of reasonableness.4 Abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts. It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.5 To be entitled to
reimbursement of medical expenses, a claimant has the burden of proof to establish that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition. Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence.6 In order for a surgical procedure to be authorized, a claimant must submit
evidence to show that the surgery is for a condition causally related to an employment injury and
that it is medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.7
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying authorization for
appellant’s June 10, 2015 total left knee surgical procedure.
OWCP accepted that appellant sustained a tear of the medial meniscus of the left knee
while in the performance of duty on January 15, 2015. It authorized left knee arthroscopy with
partial lateral meniscectomy at the anterior horn and partial synovectomy and chondroplasty of
medial femoral condyle performed on March 11, 2015 by Dr. Foskett, an attending physician.
On May 19, 2015 Dr. Foskett requested authorization for a total left knee arthroplasty due
to preexisting severe osteoarthritis and a cystic mass on the left anterior knee that were aggravated
by the accepted injury. He performed the surgery on June 10, 2015. Subsequently, in a
December 17, 2016 report, Dr. Foskett opined that the accepted work-related injury significantly
contributed to and accelerated appellant’s underlying left knee arthritis which necessitated surgery
on June 10, 2015.
By decision dated March 31, 2016, OWCP denied the request for authorization of surgery
based on the opinions of Dr. Hellman, an OWCP medical adviser, and Dr. Shivaram, an OWCP
referral physician, who opined that appellant’s June 10, 2015 surgery was not necessitated by the
accepted employment injury. On January 27, 2017 an OWCP representative set aside the
March 31, 2016 decision, finding that, while Dr. Foskett’s December 17, 2016 opinion was not
sufficiently rationalized, it was prima facie evidence of a causal relationship between the
January 15, 2015 employment injury and the June 10, 2015 left knee surgery. She remanded the
case to OWCP to further develop whether the June 10, 2015 left knee surgery should be authorized.
On remand OWCP received a response to a request for further opinion from Dr. Shivaram
4

See D.K., 59 ECAB 141 (2007).

5

Minnie B. Lewis, 53 ECAB 606 (2002).

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M.B., 58 ECAB 588 (2007).

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

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regarding whether appellant had a material worsening of his preexisting left knee arthritis due to
the accepted work injury that required surgery. By decision dated June 28, 2017, OWCP denied
authorization for the June 10, 2015 left knee surgery based on Dr. Shivaram’s report.
In his May 31, 2017 supplemental report, Dr. Shivaram found that appellant’s preexisting
left knee condition which warranted total left knee replacement surgery was not caused or
aggravated by the accepted January 15, 2015 employment-related injury. He noted appellant’s
medical history which revealed a severe left knee injury dating back to 2004, and chronic
instability and early arthritic changes were seen as early as 2010 resulting in reconstruction of the
lateral ligaments and revision of the ACL and repeat arthroscopic evaluation for instability and
continued knee pain. On physical examination of the left knee, Dr. Shivaram reported essentially
normal findings with the exception of limited range of motion. Appellant informed him that,
although he experienced left knee pain with constant movement and weather changes, he could
walk for long distance and did not require the use of an assistive device for ambulation.
Dr. Shivaram noted that he appeared to have a good result following revision arthroplasty of the
left knee. He explained that the January 15, 2015 employment injury was not very significant
based on the presence of mild effusion in the knee and no significant changes on a left knee MRI
scan and subsequent arthroscopic evaluation of the knee. Dr. Shivaram related that, although the
2015 arthroscopy revealed significant degenerative changes involving the medial compartment
and lateral and patellofemoral joint, his opinion remained that the accepted employment-related
injury did not cause any permanent aggravation or acceleration of appellant’s left knee
osteoarthritis.
The Board finds that Dr. Shivaram’s opinion that appellant did not sustain a material
worsening of his preexisting left knee arthritis that necessitated surgery on June 10, 2015 due to
the January 15, 2015 employment injury represents the weight of the medical evidence in this case.
Dr. Shivaram provided a well-rationalized medical opinion based on a complete factual and
medical background.
OWCP has discretion with respect to authorization for surgery. As previously noted, abuse
of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.8 Based on the medical evidence of record, the Board finds
that it did not abuse its discretion in this case.9
On appeal appellant contends that his physician’s opinion is sufficient to warrant
authorization of his surgery. An OWCP hearing representative set aside the denial of authorization
for the June 10, 2015 surgery, finding that, while Dr. Foskett’s opinion that the January 15, 2015
employment injury significantly contributed to and accelerated appellant’s underlying left knee
arthritis, which necessitated surgery on June 10, 2015, was not sufficiently rationalized, it
established prima facie evidence of causal relationship requiring further development of the
medical evidence. OWCP properly developed the medical evidence to resolve this issue by
8

Supra note 5

9

See L.C., Docket No. 16-1797 (issued March 10, 2017).

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obtaining additional medical records from Dr. Foskett and referring appellant to Dr. Shivaram for
another second opinion. Thus, the Board finds that appellant’s argument is not substantiated.
Appellant further contends on appeal that an OWCP referral physician did not perform a
complete physical examination, and spent only 20 minutes during his first evaluation and 5 minutes
during his second evaluation. Dr. Shivaram provided detailed examination findings and a wellrationalized medical opinion based on these findings. The Board finds, therefore, that appellant’s
argument is not substantiated.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion when it denied authorization for
appellant’s left knee surgery.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 17, 2018
Washington, DC

Christopher J. Godfrey, 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
__________________________________________
R.D., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISARY AGENCY, Lemoore, CA,
Employer
__________________________________________

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Appearances:
Norman R. McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1821
Issued: April 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 1, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 8, 2010 merit decision denying her occupational disease claim.
Pursuant to the Federal Employees’ Compensation Act1 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 sustained a neck/shoulder condition as a result of
employment activities.
On appeal, counsel contends that the medical evidence of record is sufficient to establish
that she sustained an injury as a result of her employment activities.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 11, 2008 appellant, then a 50-year-old store associate, filed an occupational
disease claim alleging that she developed right shoulder pain as a result of employment
activities. She submitted a February 15, 2008 disability slip from Dr. V. Randy Bernabe, a
Board-certified osteopath specializing in orthopedic surgery, reflecting that she was unable to
work from February 21 through March 10, 2008.
On February 25, 2008 the employing establishment controverted the claim, contending
that appellant had failed to establish that she sustained an injury as a result of her employment
duties. It also argued that pain was not an appropriate diagnosis.
By letter dated March 2, 2008, the Office informed appellant that the evidence submitted
was insufficient to establish that she sustained an injury as a result of employment activities.
Appellant was advised to submit additional information and evidence, including a physician’s
report, which contained a diagnosis and explanation as to how her diagnosed condition resulted
from the claimed employment activities.
On March 25, 2008 appellant stated that the pain had been continuous and had increased
over the previous two years and now included aches, pains and numbness in both shoulders, as
well as her arms, neck and back. She described her work duties, which allegedly caused her
neck and shoulder condition. Appellant’s nightly responsibility for maintaining the milk cooler
required her to move, lift and stack milk crates to a “6-high” level, often necessitating that she
turn and reach overhead to restock. Palletizing frozen merchandise in freezers required pushing
and pulling heavy loads weighing up to 70 pounds. Cleaning, rearranging and general stocking
of shelves required her to climb up and down a ladder 7 to 8 hours a day during a 36- to 39-hour
workweek.
In reports dated April 1, 2008, Dr. John M. Riddle, a treating physician, diagnosed
cervical radiculitis. He noted that appellant worked in freezers, lifting heavy milk crates.
Examination revealed that she could rotate her neck only 10 degrees to the right. Dr. Riddle
indicated by placing a checkmark in the “yes” box that he believed appellant’s condition to be
caused or aggravated by employment factors. He stated that “lifting motion of heavy objects
could have caused impingement.”
In a decision dated April 18, 2008, the Office denied appellant’s claim on the grounds
that the evidence was insufficient to establish that her diagnosed conditions were caused by
established work-related events.2 On March 25, 2009 appellant requested reconsideration.
Appellant submitted a February 1, 2008 report from Dr. Bernabe. He stated that
appellant had been experiencing bilateral shoulder pain, posterior neck pain and numbness and
tingling in her upper extremities for approximately eight years while working as a grocery
stocker, lifting up to 70 pounds every day, five days a week. An MRI scan of the cervical spine
showed multilevel degenerative disc disease. Examination of her bilateral shoulders showed a
2

The record reflects that appellant requested an oral hearing on May 13, 2008. She withdrew her request on
August 5, 2008.

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negative two-finger drop test and a negative subscapularis lift-off test. Range of motion
examination revealed 120 degrees of forward flexion and 90 degrees of abduction. There was
significant pain on palpation along the spinous process of the posterior cervical spine from the
C2 to T1 region, with decreased side bending, rotation, flexion and extension, with a positive
Spurling’s test. Dr. Bernabe diagnosed multilevel cervical degenerative disc disease with
cervical spinal stenosis. In a March 6, 2008 attending physician’s report, he indicated by placing
a checkmark in the “yes” box his belief that appellant’s diagnosed multilevel cervical
degenerative disc disease with cervical spinal stenosis was caused or aggravated by employment
activities.
Appellant submitted a December 12, 2007 report from Dr. Martin Rindahl, a Boardcertified radiologist. On examination of the cervical spine, Dr. Rindahl found no gross
deformities and mild, diffuse paraspinous tenderness. He diagnosed severe degenerative changes
of the neck with spinal stenosis.
Appellant submitted reports from Dr. Donald Meyers, a treating physician, for the period
September 8, 2008 to April 22, 2009. On September 22, 2008 Dr. Meyers diagnosed C5-6
radiculopathy and described appellant’s history of cervical pain, noting that she began having
cervical problems two years earlier while doing heavy work and pulling a pallet. In the course of
time, appellant developed problems with her neck and lower back and, in February 2008, was
unable to use her right arm and shoulder due to severe pain. Sensory testing showed C5-6
hypoesthesia on the right side. There was also tenderness on the biceps and quadriceps muscles
on the right side. An MRI scan of the cervical spine showed multilevel degenerative changes
with a slight reversal of curvature, which was worse at the C5-6 level. There was a modest C5-6
disc protrusion with some degree of foraminal stenosis. Appellant demonstrated significant pain
in and about her shoulder with impingement and tenderness in the bicipital tendon. Dr. Myers
stated that it was “likely that her problem [was] coming primarily from her neck as the upper
rhomboid spasm at the C5-6 level with the right combined with the C5-6 hypoesthesia and
tenderness in the biceps muscle on the right, all tend to suggest C5-6 acute radiculopathy.”
On November 4, 2008 Dr. Myers recommended C5-6 anterior discectomy and fusion,
which he performed on February 14, 2009. On February 27, 2009 he opined that appellant was
totally disabled and had been disabled since February 2008. The record also contains diagnostic
test results, including October 17, 2007 and June 10, 2008 reports of MRI scans of the cervical
spine and a February 13, 2009 report of a computerized tomography (CT) scan of the cervical
spine.
By decision dated June 17, 2009, the Office denied modification of its April 18, 2008
decision. On January 20, 2010 appellant again requested reconsideration, contending that new
medical evidence established that appellant sustained a shoulder injury in the performance of
duty.
In support of her reconsideration request, appellant submitted a December 7, 2009 report
from Dr. John W. Ellis, a Board-certified osteopath specializing in family medicine. Dr. Ellis
described appellant’s work activities, which required her to repetitively scan items. Appellant’s
duties maintaining the milk cooler consisted of moving and stacking milk crates up to six crates
high, turning to reach overhead to uncrate and crate to restock milk racks on a nightly basis. She

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also was required to break down frozen merchandise in the freezers, a task which required a lot
of pushing, pulling cases weighing up to 70 pounds, reaching overhead and moving side to side.
In 2006, appellant began to experience pain in the back of her neck, between her shoulders, and
in the proximal shoulder joints, as well as some numbness down her arms. She continued to
experience severe pain in her neck and shoulders following a February 12, 2009 C5-6 anterior
cervical discectomy and fusion.
Examination of the right shoulder revealed tenderness of the AC joint, biceps tendon and
supraspinatus muscle. Gentle pressure on the trapezius muscle reproduced tingling down the
right arm, and there was crepitation and audible and palpable popping, as well as decreased
range of motion of the right shoulder, especially on internal rotation. Examination of the left
shoulder revealed tenderness of the AC joint, but with full range of motion. Examination of the
right elbow showed hypertrophy and tenderness over the medial epicondyle. Tinel’s sign was
positive over the cubital tunnel, but not the radial tunnel, with decreased range of motion.
Examination of the left elbow revealed no tenderness over the medial or lateral epicondyle.
Examination of the right hand revealed a positive Finkelstein’s test, with a positive Tinel’s sign
over the median and ulnar nerves at the right hand. There was decreased range of motion and
grip strength of the right hand. Examination of the left hand reveals decreased grip strength
Examination of the back reveals tenderness over the iliolumbar and sacroiliac ligaments.
Dr. Ellis found decreased sensation on the chest and abdomen, greater on the right side,
as well as in the upper and lower extremities, greater on the right side. Reflexes were 2+ and
equal in the biceps and triceps, but absent in the wrists. Dr. Ellis found no evidence of symptom
magnification or malingering.
Due to repetitive work at the employing establishment, Dr. Ellis diagnosed: muscle
tendon unit strains of the neck and back; deranged discs in the neck and back; herniated disc at
C5-6 requiring fusion; bilateral cervical radiculopathy; right L5 and S1 nerve root impairment;
left S1 nerve root impairment; repetitive strains of the shoulders with traumatic arthritis and
internal derangement of the right shoulder; bilateral brachial plexus impingement; right medial
epicondylitis with cubital tunnel syndrome; right carpal tunnel syndrome; and de Quervain’s
stenosing tenosynovitis of the right wrist.
Dr. Ellis opined, to reasonable medical certainty, that appellant’s work duties contributed
to, aggravated and/or caused appellant’s diagnosed conditions. Appellant’s repetitive scanning
caused the muscles and ligaments in her neck, shoulders, upper back, lower back, shoulder
joints, elbows and wrists to become hypertrophied and thickened. Due to her short stature (four
feet, nine inches), stocking merchandise caused repetitive strains in the neck, shoulder girdles,
upper and lower back. The strains caused increased pressure on the cervical discs in the neck,
which in turn caused impingement of the cervical nerves down her upper extremities. Once the
cervical nerves were impinged, then all of the nerves in her upper extremities became very
sensitive to any hypertrophy in her right elbow and right hand, resulting in right cubital tunnel
syndrome and right carpal tunnel syndrome. Appellant’s lifting and storing merchandise caused
strains and tears of the ligaments and joint in her right shoulder, causing internal derangement
and traumatic arthritis of the right shoulder. The tightness in her neck and shoulder girdles from
her neck and shoulder injuries caused the muscles and ligaments external to the cervical spine to
impinge the brachial plexus of nerves down her arms. The injuries to her back caused

4

impingement of the nerves from the spine down into her legs. It also caused tightness and strains
of her buttocks with bilateral lumbosacral plexus impingement. Dr. Ellis explained that once any
part of the nervous system has been impinged, the other nerves in the extremities become more
sensitive to impingement, resulting in a condition known as double crush syndrome. He opined
that appellant was temporarily and totally disabled as a result of her work-related activities.
Dr. Ellis stated: “But for her work at [the employing establishment, [appellant] would not be
having the problems in her neck, shoulder, back, right elbow and right wrist that are occurring.”
By decision dated April 8, 2010, the Office denied modification of its prior decision,
finding that the medical evidence did not support that appellant had a diagnosed condition
causally related to accepted work factors. It found that Dr. Ellis failed to provide rationale for
his opinion on causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Act3 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6 However, it is well established that
3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

Id.

5

proceedings under the Act are not adversarial in nature and while the claimant has the burden of
establishing entitlement to compensation, the Office shares responsibility in the development of
the evidence to see that justice is done.7
ANALYSIS
The Board finds that this case is not in posture for a decision on whether appellant
sustained a shoulder injury as a result of her employment activities. The Office accepted that
she was engaged in employment duties, as alleged. It denied her claim, however, on the grounds
that the evidence failed to establish a causal relationship between those activities and her
diagnosed neck and shoulder conditions. The Board finds that the medical evidence of record
supports a causal relationship between appellant’s work activities and her neck and shoulder
conditions.
On December 7, 2009 Dr. Ellis diagnosed muscle tendon unit strains and deranged discs
in the neck and back; a herniated disc at C5-6; bilateral cervical radiculopathy; right L5 and S1
nerve root impairment; left S1 nerve root impairment; repetitive strains of the shoulders with
traumatic arthritis and internal derangement of the right shoulder; bilateral brachial plexus
impingement; right medial epicondyitis with cubital tunnel syndrome; right carpal tunnel
syndrome; and de Quervain’s stenosing tenosynovitis of the right wrist. He provided detailed
examination findings in support of his diagnoses and accurately described appellant’s work
activities, which he opined, to reasonable medical certainty, contributed to, aggravated and/or
caused appellant’s diagnosed conditions. Dr. Ellis explained that repetitive scanning caused the
muscles and ligaments in her neck, shoulders, upper back, lower back, shoulder joints, elbows
and wrists to become hypertrophied and thickened. Due to appellant’s short stature (four feet,
nine inches), stocking merchandise caused repetitive strains in the neck, shoulder girdles, upper
and lower back. The strains caused increased pressure on the cervical discs in the neck, which in
turn caused impingement of the cervical nerves down her upper extremities. Once the cervical
nerves were impinged, then all of the nerves in appellant’s upper extremities became very
sensitive to any hypertrophy in her right elbow and right hand, resulting in right cubital tunnel
syndrome and right carpal tunnel syndrome. Her lifting and storing merchandise caused strains
and tears of the ligaments and joint in her right shoulder, causing internal derangement and
traumatic arthritis of the right shoulder. The tightness in appellant’s neck and shoulder girdles
from her neck and shoulder injuries caused the muscles and ligaments external to the cervical
spine to impinge the brachial plexus of nerves down her arms. The injuries to her back caused
impingement of the nerves from the spine down into her legs. It also caused tightness and strains
of appellant’s buttocks with bilateral lumbosacral plexus impingement. Dr. Ellis explained that
once any part of the nervous system has been impinged, the other nerves in the extremities
become more sensitive to impingement, resulting in a condition known as double crush
syndrome. He concluded that, “but for” her work at the employing establishment, appellant
would not be experiencing her current symptoms. Although Dr. Ellis did not fully explain how
appellant’s employment activities were competent to cause each of her diagnosed conditions, his

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell,
36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

6

report strongly supports a causal relationship between the identified activities and the diagnosed
neck and shoulder conditions.
On April 1, 2008 Dr. Riddle provided examination findings and diagnosed cervical
radiculitis. He described appellant’s work activities and noted with a checkmark that he
believed that appellant’s condition was caused or aggravated by employment factors. Dr. Riddle
opined that lifting heavy objects could have caused impingement. He provided a specific
diagnosis and identified the employment factors believed to have caused or contributed to
appellant’s condition. Although his report lacks a full explanation as to how appellant’s lifting
activities caused or contributed to her condition,8 it does support a causal relationship between
the cervical condition and the established activities.
Similarly, Dr. Bernabe described the development of appellant’s bilateral shoulder pain,
posterior neck pain and numbness and tingling in her upper extremities over an eight-year period
while working as a grocery stocker, lifting up to 70 pounds every day, five days a week. He
provided detailed examination findings and diagnosed multilevel cervical degenerative disc
disease with cervical spinal stenosis. On March 6, 2008 Dr. Bernabe indicated by placing a
checkmark in the “yes” box his belief that appellant’s diagnosed condition was caused or
aggravated by employment activities. As his report does not contain an explanation as to how
appellant’s employment activities were causally related to the diagnosed condition, it is
insufficient to establish her claim.9 It does, however, strongly suggest a causal connection
between the work activities and the diagnosed condition.
On December 12, 2007 Dr. Rindahl reported examination findings and diagnosed severe
degenerative changes of the neck with spinal stenosis. On September 22, 2008 Dr. Meyers
described the development of appellant’s neck and shoulder condition, provided examination
findings and diagnosed C5-6 radiculopathy. After performing C5-6 anterior discectomy and
fusion in February 2009, he opined that appellant was totally disabled. These reports do not
contain an opinion as to the cause of appellant’s diagnosed cervical condition and, therefore, are
of limited probative value. They do, however establish that she was diagnosed and treated for a
cervical condition during the applicable period of time.
The Board notes that, while none of the reports of appellant’s attending physicians are
completely rationalized, they are consistent in indicating that she sustained an employmentrelated cervical and shoulder condition, and are not contradicted by any substantial medical or
factual evidence of record. While the reports are not sufficient to meet her burden of proof to
establish her claim, they raise an uncontroverted inference between appellant’s diagnosed
condition and the identified employment factors and are sufficient to require the Office to further
develop the medical evidence and the case record.10 The case will be remanded to the Office to
8

A mere checkmark or affirmative notation in response to a form question on causal relationship is not sufficient
to establish a claim. See Gary J. Watling, 52 ECAB 278 (2001).
9

Medical conclusions unsupported by rationale are of little probative value.
379 (2004).
10

Willa M. Frazier, 55 ECAB

See Virginia Richard, 53 ECAB 430 (2002); see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J.
Carlone, 41 ECAB 354 (1989).

7

obtain a rationalized opinion from a qualified physician as to whether appellant’s shoulder and
cervical conditions are causally related to the identified work activities. After such development
as it deems necessary, the Office should issue an appropriate decision in order to protect
appellant’s rights on appeal.
CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant
sustained a shoulder or neck condition as a result of identified employment activities.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for action consistent
with the terms of this decision.
Issued: April 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION-FEDERAL AIR
MARSHAL SERVICE, College Park, GA,
Employer
__________________________________________

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

Docket No. 17-1943
Issued: January 28, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 18, 2017 appellant filed a timely appeal from a June 9, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated March 15, 2017, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the June 9, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUES
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 9, 2015 appellant, then a 42-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that on February 6, 2015 he injured his left arm and shoulder
when he fell backwards while training in an airplane simulator. He indicated that in the simulation
activity he was shot point blank several times with “simunition” and he lost his balance and fell as
he tried to avoid getting shot.
In a February 5, 2015 attending physician’s report (Form CA-20), Dr. James S. Kercher, a
Board-certified orthopedic surgeon, noted that on February 5, 2015 appellant fell on his left
shoulder during a training exercise at work. He diagnosed shoulder pain with possible rotator cuff
tear. Dr. Kercher checked the box marked “yes” with regard to whether the condition was caused
or aggravated by an employment activity. He noted “fall at work.” Dr. Kercher also recommended
a magnetic resonance imaging (MRI) scan. He completed a modified-duty form advising that
appellant could perform sedentary duties, which included answering telephones, using a computer
and greeting visitors in a seated position, doing light duties, and driving a 15-passenger van.
Appellant returned to modified duty on February 6, 2015.
A March 9, 2015 MRI scan interpreted by Dr. Gerald Domescik, a Board-certified
diagnostic radiologist, revealed “no evidence of acute trauma ... rotator cuff and labrum are
intact.... Minor arthropathy AC [acromioclavicular] joint.”
In a March 18, 2015 report, Dr. Kercher noted that he had reviewed the MRI scan and it
demonstrated no evidence of an acute injury and that clinically, his shoulder pain was more
consistent with AC joint arthritis. He recommended appellant return to sedentary work. In a
March 19, 2015 report, Dr. Kercher completed an attending physician’s report (Form CA-20) and
indicated that appellant had shoulder strain and “neck pain.” He advised that the primary
complaint was due to neck pain and recommended a referral to a neck specialist. Dr. Kercher
recommended physical therapy and sedentary duties. He saw appellant on April 21, 2015, and
noted that he had reviewed the MRI scan, which demonstrated AC joint arthritis and neck strain.
Dr. Kercher recommended a neck specialist.
In an April 28, 2015 report, Dr. Kercher explained that appellant initially presented for left
shoulder and arm pain. He opined that the shoulder condition improved and the MRI scan
demonstrated no evidence of shoulder injury, despite appellant’s complaints of pain. Dr. Kercher
explained that an examination of the cervical spine revealed that appellant’s complaints of pain
were likely related to a neck condition. He noted that because appellant’s symptoms had “largely”
improved, he recommended a return to full-duty work.
In a May 1, 2015 report, Dr. Chad M. Kessler, a Board-certified orthopedic surgeon,
diagnosed cervical strain/shoulder pain. He placed appellant on temporary light-duty work.
Dr. Kessler examined the neck and alignment midline and found that a normal degree of lordosis
was present, with no deformities. He explained that he did not believe the complaints of left
2

shoulder pain were due to the cervical spine. Dr. Kessler recommended a referral to
Dr. Michael V. Cushing, an orthopedic surgeon, for evaluation of the left shoulder.
Appellant accepted a limited-duty job offer on May 1, 2015.
In a May 14, 2015 report, Dr. Cushing diagnosed a superior labral tear from anterior to
posterior (SLAP) tear, impingement syndrome of the left shoulder, and pain in joint involving
shoulder region. He noted that he was concerned for a labral tear, explaining that these commonly
do not show up on MRI scans, but the physical examination and history were consistent with a
labral tear.
By decision dated May 20, 2015, OWCP accepted appellant’s claim for sprain of the neck
and sprain of the left shoulder.
In a June 1, 2015 report, Dr. Kessler recommended surgical intervention based on
appellant’s continued complaints of pain. In a June 24, 2015 operative report, Dr. Cushing
performed a left shoulder SLAP tear and left shoulder impingement. In a September 14, 2015
report, he released appellant from care from the shoulder standpoint. Dr. Cushing noted that
appellant had complaints of pain and tightness in the neck and recommended physical therapy and
a cervical spine MRI scan.
A September 16, 2015 MRI scan of the cervical spine read by Dr. Kanda Vogt, a Boardcertified diagnostic radiologist, revealed posterior disc osteophyte (bone spurs) with super imposed
disc protrusion at C6-7 and multilevel spondylosis.
In a September 18, 2015 report, Dr. Cushing noted that appellant “appears to have an
aggravation of a preexisting degenerative disc.”
By decision dated December 14, 2015, OWCP expanded acceptance of the claim to include
aggravation of cervical disc degeneration.
On January 8, 2016 Dr. Cushing released appellant to full-duty work. He advised that
appellant reached maximum medical improvement (MMI) with no follow up required.
In a January 14, 2016 report, Dr. Kessler completed a work capacity evaluation (OWCP5c) advising that appellant had no limitations directly related to the reported injury, but he might
be limited by noninjury-related complaints.
On January 20, 2016 appellant requested that OWCP further expand the acceptance of his
claim to include additional left shoulder diagnoses.
Appellant returned to full-duty employment on January 25, 2016.
In a February 17, 2016 report, Dr. Kevin Park, a Board-certified orthopedic surgeon,
diagnosed “neck pain, patient without objective weakness in [right upper extremity] RUE but
subjective evidence.” He opined that from an orthopedic spine perspective, appellant would be at
MMI. Dr. Park noted that his examination of the cervical spine revealed no ecchymosis or muscle
atrophy and the alignment was normal. Furthermore, he found that active range of motion was

3

normal. Dr. Park provided work restrictions of 20 pounds and recommended a functional capacity
evaluation (FCE) for permanent disability.
Appellant underwent an FCE on March 3, 2016, which revealed that appellant was capable
of light-duty physical work. It was also noted that he had a cyst removed from his spine in 2008,
which left residuals of left lower extremity weakness, a bone spur removal in 2008, stitches to his
head and chin, and dizziness.
On May 20, 2016 the employing establishment accommodated appellant’s light-duty
restrictions with a modified employment position of driving a 15-passenger van.
On May 20, 2016 OWCP referred appellant for a second opinion, along with a statement
of accepted facts, a set of questions, and the medical record to Dr. Alexander Doman, a Boardcertified orthopedic surgeon to determine the current nature of his condition, the extent of his
disability, and appropriate treatment.
In a June 16, 2016 second opinion, Dr. Doman noted appellant’s history of injury and
treatment and indicated that he was currently working full time in a light-duty capacity. He related
that on June 24, 2015 appellant underwent arthroscopic surgery on the left shoulder due to ongoing
shoulder pain. Dr. Doman also noted that a tear of the left labrum was found. He examined
appellant and explained that there were no medical findings that indicated that the accepted workrelated conditions were still active and causing objective symptoms. Dr. Doman noted that there
was a lack of objective evidence on physical examination and in the radiographic studies to
indicate ongoing medical findings to support the accepted work conditions. He also explained that
the aggravation of cervical degeneration was temporary and he also explained that the temporary
aggravation had long ago subsided. Dr. Doman advised that appellant’s current condition was due
to the natural history of his preexisting degenerative disc disease of the cervical spine. He
explained that the rationale was that the type of injury that appellant sustained could only have
resulted in a minor temporary aggravation, which would have subsided within three months and
also noted that the cervical sprain was also temporary and would have resolved within this time.
Dr. Doman noted that the MRI scan performed shortly after the injury indicated no evidence of
acute injury. He related that the subjective complaints did not correspond to the lack of objective
findings. Dr. Doman further explained that the MRI scan of the shoulder was normal at the time
of the injury and there were no objective findings on physical examination. He indicated that there
were no physical limitations resulting from any work injury.
Regarding the SLAP tear, Dr. Doman noted that it was not related to the incident of
February 6, 2015. He explained that his rationale was that the MRI scan performed on May 9,
2015, clearly indicated that there was no injury to the labrum. Dr. Doman further noted that any
diagnosis of labrum injury that was noted later in surgery, would therefore not be related to his
injury and occurred sometime after March 9, 2015.
On August 2, 2016 OWCP advised appellant of its proposed termination of medical
benefits and wage-loss compensation based upon Dr. Doman’s June 16, 2016 report. It found that
the accepted conditions had resolved. OWCP afforded appellant 30 days to submit evidence and/or
argument should he disagree with the proposed termination of benefits.

4

On August 9, 2016 appellant disagreed with the notice of proposed termination.
In a March 16, 2016 status report, Dr. Park noted that appellant was seen for neck pain. He
explained that full details from the FCE revealed a demonstrated good effort. Dr. Park indicated
that walking and standing could be performed on a continuous basis without limitations and there
were no limitations with stair climbing. He also indicated that lifting be limited to 15 pounds,
intermittent to 35 pounds, and provided permanent restrictions of light physical and physical
demand level. Dr. Park diagnosed sprain of joints and ligaments of unspeciﬁed parts of neck,
sequela.
OWCP received a June 1, 2015 impairment rating from Dr. Cushing and a June 24, 2015
operative report from Dr. Cushing, who noted that appellant had what appeared to be a posterior
superior labral tear just behind the biceps anchor.
By decision dated September 13, 2016, OWCP finalized the proposed termination of
appellant’s wage-loss compensation and medical benefits, effective September 13, 2016.
In September 1, 2016 report, Dr. Qingng Ni, a Board-certified neurologist, who noted that
appellant had headache, painful neck, benign paroxysmal positional vertigo nystagmus, skin rash,
and rebound headache.
On October 14, 2016 appellant requested reconsideration. However, on January 12, 2017,
he clarified that he wished a review of the written record by an OWCP hearing representative.
Appellant submitted additional evidence.
By decision dated March 15, 2017, OWCP’s hearing representative affirmed the
September 13, 2016 decision. She found that the weight of the medical evidence of record clearly
established that all of the accepted medical conditions in the claim had resolved. The hearing
representative noted that appellant’s own treating physicians, Dr. Cushing and Dr. Kessler, had
found him to have attained MMI without the need for treatment of his shoulder and cervical spine
conditions. She explained that the lack of ongoing disability following MMI was confirmed by
the second opinion physician, Dr. Doman, who provided a well-rationalized report noting no
ongoing disability or need for additional medical treatment. The hearing representative further
found that the opinions of Dr. Park and Dr. Ni both failed to provide medical opinions which
supported ongoing disability, and that Dr. Ni’s reports discussed other diagnoses which had not
been accepted by OWCP.
Appellant requested reconsideration on March 31, 2017 providing a statement of his
arguments as to why he had continuing disability. Along with his reconsideration request he
resubmitted a June 24, 2015 operative report.
By decision dated June 9, 2017, OWCP denied modification of the March 15, 2017
decision.

5

LEGAL PRECEDENT -- ISSUE I
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
The request for reconsideration must also be received by OWCP within one year of the
date of its decision for which review is sought.5 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.6 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
With his March 31, 2017 reconsideration request, appellant did not establish that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Thus, he was not entitled to a review of the merits of his
claim based on the first and second above-noted requirements under section 10.606(b)(3).8
Along with a narrative statement which outlined the history of his treatment and why he
felt his case should be reopened, the only evidence submitted in support of his request for
reconsideration was a June 24, 2015 operative report which was previously of record. A claimant
may be entitled to a merit review by submitting relevant and pertinent new evidence, but in this
case the only evidence submitted was not new, nor was it relevant to the issue of continuing

3

5 U.S.C. § 8128(a); see also D.L., Docket No. 18-1007 (issued November 28, 2018).

4

20 C.F.R. § 10.606(b)(3); see also P.H., Docket No. 18-0896 (issued November 21, 2018).

5

Id. at § 10.607(a). See also D.L., supra note 3.

6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); see also P.H., supra note 4.

8

See J.B., Docket No. 17-0628 (issued June 28, 2017).

6

disability.9 Thus, he was also not entitled to a review of the merits of his claim based on the third
above-noted requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3) and thus OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 9, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 28, 2019
Washington, DC

Christopher J. Godfrey, 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

9

See G.T., Docket No. 18-0158 (issued May 11, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________

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

Docket No. 21-0701
Issued: March 3, 2022

Case Submitted on the Record

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

JURISDICTION
On April 1, 2021 appellant, through counsel, filed a timely appeal from a February 23,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 23, 2021 decision, OWCP received additional evidence, and
appellant submitted additional evidence upon 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 was before OWCP at the time of its final
decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R.
§ 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $16,873.21 during the periods July 1, 2014 through
July 20, 2019 and February 3 through April 15, 2020, for which she was without fault, as she
concurrently received Social Security Administration (SSA) age-related retirement benefits and
FECA wage-loss compensation benefits without appropriate offset; and (2) whether OWCP
properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On June 3, 1992 appellant, then a 40-year-old data transcriptionist, filed a claim for
occupational disease (Form CA-2) alleging that she sustained injuries due to factors of her federal
employment. OWCP accepted her claim for calcifying tendinitis of the right shoulder, right
complete rotator cuff tear, and right tenosynovitis of the hand and wrist.
By decision dated September 2, 1999, OWCP finalized a proposed reduction of appellant’s
compensation, finding that she was not totally disabled and capable of earning wages in the
constructed position of a hostess.
Appellant began working as a self -employed childcare provider in January 2001. OWCP
compensation history records indicate that she received payments for loss of wage -earning
capacity (LWEC) on the periodic rolls as of June 16, 2002.4
On July 16, 2020 OWCP provided SSA with a FERS/SSA dual benefits form to obtain
information regarding appellant’s receipt of SSA age-related retirement benefits.
On July 29, 2020 SSA completed the dual benefits form, which reported appellant’s SSA
age-related retirement benefit rates with a FERS offset and without a FERS offset from July 2014
through December 2019. Beginning July 2014, the SSA rate with FERS was $718.20 and without
FERS was $481.20. Beginning December 2014 and December 2015, the SSA rate with FERS was
$730.40 and without FERS was $489.30. Beginning December 2016, the SSA rate with FERS
was $732.50 and without FERS was $490.80. Beginning December 2017, the SSA rate with FERS
was $747.10 and without FERS was $500.60. Beginning December 2018, the SSA rate with FERS
was $795.10 and without FERS was $514.50. Beginning December 2019, the SSA rate with FERS
was $810.00 and without FERS was $522.70.
In a letter dated August 28, 2020, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her age-related retirement benefits which were
attributable to federal service, her FECA wage-loss compensation had been adjusted. It explained
that she was in receipt of SSA age-related retirement benefits every four weeks in the amount of
$810.00. However, appellant’s federal service increased her monthly SSA age-related retirement
benefit payments by $287.30, which must be offset as this portion of her SSA age-related
retirement benefits was attributable to her federal service. OWCP explained that the $287.30
4

In a claim for compensation (Form CA-7) dated May 16, 2018, appellant requested a schedule award. By decision
dated October 2, 2019, OWCP granted her a schedule award for an additional 9 percent permanent impairment of the
right upper extremity, for a total of 16 percent permanent impairment. The award ran for 28.08 weeks from
September 15, 2019 through February 2, 2020.

2

monthly offset would be adjusted to a 28-day payment cycle to result in a $265.20 offset.
Appellant was advised that, following the SSA offset and deduction of health benefits premiums,
her 28-day gross FECA payment would be reduced from a gross payment of $531.00 to a new net
FECA compensation payment of $20.18, every 28 days. Her compensation benefits were adjusted
effective August 16, 2020.
In a FERS offset overpayment calculation worksheet dated August 31, 2020, OWCP
calculated appellant’s total overpayment amount from July 1, 2014 through September 20, 2019
and February 3 through August 15, 2020 as $16,873.21. It noted that, as she received a schedule
award from July 21, 2019 through February 2, 2020, this period was not affected by the FERS
offset. OWCP indicated that from July 1 until November 30, 2014 the amount of the overpayment
was $1,195.42; from December 1, 2014 to November 30, 2015 the amount of the overpayment
was $2,901.15; from December 1, 2015 to November 30, 2016 the amount of the overpayment
was $2,909.10; from December 1, 2016 to November 30, 2017 the amount of the overpayment
was $2,908.37; from December 1, 2017 to November 30, 2018 the amount of the overpayment
was $2,966.13; from December 1, 2018 to July 20, 2019 the amount of the overpayment was
$2,146.13; and from February 3 to August 15, 2020 the amount of the overpayment was $1,846.93.
On September 1, 2020 OWCP issued a preliminary overpayment determination that
appellant had received an overpayment of compensation, for which she was without fault, in the
amount of $16,846.93 because she concurrently received SSA age-related retirement benefits and
FECA wage-loss compensation for the periods July 1, 2014 through September 20, 2019 and
February 3 through August 15, 2020. It provided an overpayment calculation and found that she
was without fault in the creation of the overpayment. 5 OWCP requested that appellant submit a
completed overpayment recovery questionnaire (Form OWCP-20). It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, pay slips, and any other records to support income and expenses. Additionally,
OWCP provided appellant with an overpayment action request form and further notified her that,
within 30 days of the date of the letter, she could request a telephone conference, a final decision
based on the written evidence, or a pre-recoupment hearing.
On September 11, 2020 appellant requested a pre-recoupment hearing before a
representative of OWCP’s Branch of Hearings and Review regarding possible waiver of recovery
of the overpayment. The hearing was held on January 6, 20201.
In a Form OWCP-20 dated January 21, 2021, appellant listed her monthly income as
consisting of $1,192.00 in SSA benefits and $16.73 in state or local welfare payments. Her
monthly expenses were listed as $704.81 for rent or mortgage; $400.00 for food; $100.00 for
clothing; $240.00 for utilities; and $100.00 for other expenses. Appellant’s assets included $10.00
in cash on hand, a checking account balance of $8,081.46 and a savings account balance of
$10,008.70. No supporting financial documentation was received.
By decision dated February 23, 2021, OWCP’s hearing representative finalized the
preliminary overpayment determination that appellant had received an overpayment of
compensation, for which she was without fault, because she had received FECA wage -loss
compensation benefits concurrently with SSA retirement benefits. He modified the total
5

The Board notes that OWCP’s overpayment calculation included in its preliminary overpayment determination of
September 1, 2020 reflected a total overpayment amount of $16,873.21.

3

overpayment amount to $16,873.21 for the periods July 1, 2014 through July 20, 2019 and
February 3 through August 15, 2020. The hearing representative noted that appellant’s assets of
$18,090.16 exceeded the resource base of $6,200.00 and therefore she did not meet hardship
criteria and recovery of the overpayment would not defeat the purpose of FECA. He further noted
that she had not submitted documentation supporting her income and expenses. However, the
hearing representative concluded that minimum collection guidelines would not collect the debt
promptly as she was currently receiving $4.29 in net compensation on the periodic rolls every 28
days. In this regard, he indicated that appellant’s monthly income included $1,192.00 in SSA agerelated retirement benefits plus $16.73 in state assistance, for a total income of $1,208.73. As
appellant had expenses of $1,544.81, the hearing representative determined that they exceeded her
income by $336.08. However, he noted that appellant had $8,081.46 in her checking account and
$10,008.70 in her savings account, for a total of $18,090.16 in her bank accounts. As to appellant’s
continuing compensation payments, and the recovery of the overpayment, the hearing
representative stated: “The claimant is being paid $4.29 in net compensation benefits on the
periodic roll and paying the overpayment at $1.07 ($4.29 x 25% = $1.07) every 28 days would not
collect the debt promptly.” He concluded therefore that, as appellant’s assets exceeded the
overpayment, she should repay the overpayment in full, immediately.6
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.7 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States. 8
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA age-related retirement benefits that are attributable to
federal service of the employee. 9 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.10

6

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing com pensation benefits under FECA. As the hearing
representative required recovery in full, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act. See T.C., Docket No. 21-0612 (issued December 2, 2021); R.W., Docket
No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 55 ECAB 610 (2004).
7

5 U.S.C. § 8102(a).

8

Id. at § 8116.

9

20 C.F.R. § 10.421(d); see L.W., Docket No. 19-0787 (issued October 23, 2019); S.M., Docket No. 17-1802
(issued August 20, 2018).
10

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

4

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$16,873.21 for the periods July 1, 2014 through July 20, 2019 and February 3 through April 15,
2020, for which she was without fault, because she concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for that period without appropriate offset.
The record indicates that, while appellant was receiving wage-loss compensation under
FECA, she also received SSA age-related retirement benefits attributable to her federal service
during the relevant period. A claimant cannot concurrently receive FECA wage-loss compensation
and SSA age-related retirement benefits attributable to federal service without an appropriate
offset.11 Consequently, the fact of the overpayment has been established.
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA on
July 29, 2020 with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. The SSA provided the SSA age-related retirement benefit rates with
FERS and without FERS for specific periods from July 2014 through December 2019. In a FERS
offset overpayment calculation worksheet dated August 31, 2020, OWCP calculated appellant’s
total overpayment amount from July 1, 2014 through September 20, 2019 and February 3 through
August 15, 2020 as $16,873.21, noting that, as she received a schedule award from July 21, 2019
through February 2, 2020, this period was not affected by the FERS offset.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
periods July 1, 2014 through September 20, 2019 and February 3 through August 15, 2020 finds
that an overpayment of compensation in the amount of $16,873.21 was created. 12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience. 13 The waiver or refusal to waive an overpayment of compensation by OWCP is a
matter that rests within OWCP’s discretion pursuant to statutory guidelines. 14
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.436
to 10.438 of OWCP’s regulations. 15 Section 10.436 provides that recovery of an overpayment
would defeat the purpose of FECA if recovery would cause hardship because the beneficiary needs
substantially all of his or her income (including compensation benefits) to meet current ordinary
11

See D.M., Docket No. 19-1369 (issued June 30, 2020).

12

See L.W., supra note 9; L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued
June 21, 2018).
13

5 U.S.C. § 8129.

14

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

15

20 C.F.R. §§ 10.436-10.438.

5

and necessary living expense, and, also, if the beneficiary’s assets do not exceed a specified amount
as determined by OWCP from data provided by the Bureau of Labor Statistics. 16
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 17 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the paym ent(s) or on the notice
of payment. 18
Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver
and no further request for waiver shall be considered until the requested information is furnished. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 20 In order to establish
that, recovery of the overpayment would defeat the purpose of FECA, appellant must show that
she requires substantially all of her income to meet current ordinary and necessary living expenses
and that her assets do not exceed the established limit as determined by OWCP procedures. 21 It
considered her financial information, as reported in her completed Form OWCP-20, to determine
if recovery of the overpayment would defeat the purpose of FECA. Appellant did not submit any
supporting financial documentation.

16
Id. at § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a.(3) (September 2020). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a.(2).
17

Id. at § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

18

Supra note 16 at Chapter 6.400.4(c)(3) (September 2020).

19

20 C.F.R. § 10.438.

20

Id. at § 10.436.

21

D.M., Docket No. 19-1311 (issued February 4, 2020); supra note 15.

6

The Board finds that OWCP properly determined that appellant’s assets of $18,090.16
exceeded the relevant resource base of $6,200.00 for an individual as provided in OWCP’s
procedures. 22 Additionally, the evidence of record does not demonstrate that recovery of the
overpayment would be against equity and good conscience. Appellant did not submit any evidence
that she relied upon the incorrect payments to her detriment or that she would experience severe
financial hardship attempting to repay the debt. 23
As appellant has not established that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$16,873.21, during the periods July 1, 2014 through July 20, 2019 and February 3 through
April 15, 2020, for which she was without fault, as she concurrently received SSA a ge-related
retirement benefits and FECA wage-loss compensation benefits without proper offset. The Board
further finds that OWCP properly denied waiver of recovery of the overpayment.

22

See supra note 16 at Chapter 6.400.4.a.(2) (September 2020).

23

See supra note 16 at Chapter 6.400.4a.(3) (September 2020); D.M., supra note 21.

24

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
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

8