United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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Appearances:
James R. Linehan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-869
Issued: August 23, 2007

Case Submitted on the Record

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

JURISDICTION
On February 8, 2007 appellant, through his attorney, filed a timely appeal from the
December 19, 2006 decision of the Office of Workers’ Compensation Programs affirming the
termination of his medical and wage-loss benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits, effective June 24, 2004, on the grounds that he had no disability or residuals causally
related to his accepted employment injury; and (2) whether appellant established that he
continues to have disability or residuals related to his accepted employment injury. On appeal,
appellant contends that the medical evidence establishes that he is still disabled and has residuals
related to his accepted employment injury.

FACTUAL HISTORY
On March 26, 2003 appellant, then a 39-year-old letter carrier,1 sustained injury to his
legs, neck and back when he was involved in an automobile accident the previous day. On
March 26, 2003 an emergency room physician diagnosed contusions and pain, but no fractures
and released him to sedentary duties. On April 8, 2003 Dr. Daniel Gallagher, a Board-certified
orthopedic surgeon, diagnosed sprains of the back, neck, both wrists and right ankle, stated that
there should be no resulting permanent impairment and provided sedentary restrictions for four
weeks. The Office accepted appellant’s claim for sprains of the neck, lumbar spine, right wrist,
right ankle and aggravation of right medial meniscus tear.
On July 7, 2003 Dr. Gallagher found that appellant had no objective orthopedic
abnormalities that would explain his continued complaints of pain. He stated that, while
appellant was physically capable of working in his previous light-duty position, he had not been
working because he was unable to tolerate sitting. Dr. Gallagher transferred treatment of
appellant’s hands and wrists to Dr. Jefferson Kaye, a hand specialist. On July 23, 2003 appellant
was placed on the periodic rolls for wage-loss compensation.
On September 8, 2003 Dr. Gallagher released appellant from his care and transferred his
back treatment to a pain management specialist. On December 1, 2003 he reported that Dr. Kaye
could find no reason for appellant’s continued right wrist pain, but ordered a magnetic resonance
imaging (MRI) scan to rule out any ligamentous injury. The MRI scan revealed very mild
arthritis in the carpal bones, which Dr. Gallagher found to be insignificant. On December 19,
2003 the Office notified appellant that a second opinion evaluation was necessary.
On January 19, 2004 appellant’s spine, wrists, knees and ankles were examined by
Dr. Christopher Cenac, a Board-certified orthopedic surgeon, who found no objective evidence
of injury, but noted that appellant voluntarily limited motion in his cervical and lumbar regions
and did not use full effort in the grip strength test. Dr. Cenac noted no loss of motion, muscle
spasm or decreased sensation in the back, arms or legs. Review of x-rays revealed that the
cervical spine, lumbar spine, right knee, wrists and ankles were normal. Dr. Cenac stated that,
based upon his examination, appellant had no mechanical dysfunction or neurological deficits
and had reached maximum medical improvement.
On February 6, 2004 appellant underwent a functional capacity evaluation. The physical
therapist stated that he had used submaximal effort, which made it unclear whether appellant
could return to his previous employment. The therapist noted, however, that even with
diminished effort, appellant had demonstrated an ability to tolerate activities at a sedentary
physical level. Dr. Cenac reviewed the functional capacity evaluation report and reconfirmed his
opinion that there was no objective evidence that appellant had remaining disability or residuals.
On February 11, 2004 Dr. Gallagher refused appellant’s request to provide a prescription
for additional pain medication. He stated that, while appellant had degenerative disc disease in

1

The record indicates that appellant was on permanent light-duty status due to another employment injury related
to his right knee.

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the lumbar spine and an old knee injury with meniscal tear, he had no orthopedic abnormalities
requiring further care or intervention.
On February 12, 2004 Dr. Paul Hubbell, a Board-certified anesthesiologist, stated that
appellant had not yet reached maximum medical improvement and disagreed with the decision to
conduct a functional capacity examination. He stated that appellant had degenerative disc
disease at two levels and might also have internal disc derangement and sacroiliac joint pain. On
March 4, 2004 the Office provided Dr. Hubbell a copy of Dr. Cenac’s report and asked for his
opinion as to whether appellant was capable of working in his regular-duty capacity. A copy of
the letter was sent to Dr. Gallagher.
By letter dated March 30, 2004, the Office notified appellant that a conflict in medical
opinion arose related to his continued disability. Appellant was referred to Dr. Robert Ruel, a
Board-certified orthopedic surgeon, for an impartial medical examination scheduled for
April 27, 2004.2
On March 31, 2004 Dr. Hubbell notified the Office that, after reviewing Dr. Cenac’s
findings and the functional capacity evaluation, he was in agreement that appellant was capable
of working in his regular-duty capacity. He referred appellant for psychological evaluation and
treatment to address his exaggeration of symptoms and lack of effort on his functional capacity
evaluation. Dr. Hubbell postponed all treatment pending completion of the psychological
evaluation.
On April 14, 2004 Dr. Aaron Wolfson, a rehabilitation psychologist, examined appellant
and diagnosed moderate, recurrent major depression.
He opined that appellant was
“somatasizing as a way of dealing with his depression as opposed to deliberately feigning
physical problems.” Dr. Wolfson reported that appellant’s pain increased over the course of the
day; with certain activities, including housework, walking more than 10 minutes and sitting more
than 45 minutes; and with certain emotions, such as stress, anger and anxiety. He found that
there were no overt signs of malingering, but that there may be a tendency to exaggerate physical
symptoms during times of acute stress.
On May 3, 2004 Dr. Gallagher stated that he agreed with the functional capacity
examination and that appellant’s orthopedic condition was essentially normal. He also stated
that appellant was “certainly capable of performing his previous level of work activity.”
By notice dated May 24, 2004, the Office proposed termination of appellant’s wage-loss
compensation and medical benefits on the basis of Dr. Cenac’s reports, which represented the
weight of the medical evidence because they were comprehensive and well reasoned. The Office
noted that both Dr. Gallagher and Dr. Hubbell had seen and agreed with Dr. Cenac’s opinion and
had released appellant to his date-of-injury duties. The Office found that Dr. Cenac’s opinion
established that the strains of appellant’s cervical and lumbar spine, right wrist and right ankle
had ceased.

2

The record indicates that Dr. Ruel did not examine appellant until June 8, 2004 and did not issue a report until
July 19, 2004.

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On May 25, 2004 Dr. Hubbell notified the Office that he was changing his March 31,
2004 opinion on the basis of Dr. Wolfson’s April 14, 2004 report. He stated that, because
Dr. Wolfson found appellant to be acting psychologically correctly, appellant was not physically
able to return to work. Dr. Hubbell noted that appellant had degenerative disc disease at L3-4,
L4-5, C3-4 and C4-5 and recommended transforaminal epidural steroid injections.
By decision dated June 21, 2004, the Office terminated appellant’s medical and wageloss benefits effective June 24, 2004. The Office found that the opinion of the orthopedic
physicians, Dr. Cenac and Dr. Gallagher, carried the weight of the medical evidence and
established that appellant had no residuals causally related to his accepted employment injuries.
The Office emphasized that Dr. Gallagher, who was fully familiar with the history of appellant’s
work-related medical conditions and the treatment provided, believed that appellant was able to
return to his prior level of work activity.
On July 12, 2004 Dr. Gallagher reported that appellant continued to complain of chronic
neck pain, lower back pain and right knee pain. He again found that appellant was
neurologically intact and had good range of motion, with no muscle spasms, in his lumbar or
cervical spine. Dr. Gallagher noted that appellant was capable of performing under the
permanent light-duty restrictions associated with his prior knee injury. He also stated that he was
no longer appellant’s treating physician and deferred to other physicians for the treatment of the
spine.
On July 19, 2004 Dr. Ruel issued a report based on his June 8, 2004 examination of
appellant. He reviewed appellant’s medical history and diagnostic reports and conducted a
physical examination, in which he noted inconsistencies and symptom exaggeration. Based on
the physical examination, he stated that the only objective evidence of injury was in the right
knee. Dr. Ruel found that the accepted employment injury had not caused any permanent
residual injury to the right knee and that the sprains to the wrists and ankle had resolved. He
found that the accepted employment injury superimposed a sprain on preexisting cervical
spondylosis, but that a nonwork-related automobile accident that occurred a few weeks later
“significantly accentuated” these symptoms. Dr. Ruel stated that appellant had lumbar
spondylosis, osteochondrosis, minimal bulging of L4-5 and L5-S1 and chronic S1 radiculopathy,
which should be treated conservatively. He opined that appellant could work in a sedentary
capacity and did not need any further orthopedic treatment related to his employment injuries.
Dr. Ruel recommended that appellant be treated by a pain psychologist to address his
unsubstantiated subjective complaints.
On July 21, 2004 Dr. Hubbell stated that an electromyogram (EMG) study showed
evidence of chronic radiculopathy at C7, left-sided and S1, bilaterally. He noted, however, that a
follow-up MRI scan did not show significant nerve compression. Dr. Hubbell could not explain
the cause of appellant’s EMG, but recommended epidural injections to determine whether or not
that would decrease his pain.
On May 5, 2005 appellant requested reconsideration of the Office’s decision to terminate
his benefits. He submitted Dr. Ruel’s July 19, 2004 report and Dr. Wolfson’s psychological

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report.3 MRI scans conducted on June 17, 2004 showed evidence of spondylosis and herniation
in the cervical spine and spondylosis, osteochondrosis and minimal bulging of the lumbar spine.
July 7, 2004 nerve conduction studies of the upper and lower extremities showed chronic
cervical radiculopathy affecting the C7 root and chronic bilateral S1 radiculopathy. On
January 4, 2005 Dr. Stephan Pribil, a Board-certified neurological surgeon, reported on his initial
consultation with appellant. He reviewed the previous diagnostic reports and recommended a
“stand-up” MRI scan of the cervical and thoracic spine to see if that better explained appellant’s
pain and a new nerve conduction study to determine the progression of his radiculopathy. The
January 18, 2005 nerve conduction study diagnosed right L5-S1 radiculopathy, mild right carpal
tunnel syndrome and left mid-cervical radiculopathy. The February 3, 2005 MRI scan of the
thoracic spine showed eccentric bulging of the T3-4 intravertebral disc, dorsal spondylosis and
T7 Shmorl’s node. The MRI scan of the cervical spine showed herniation from C3 to 7, bulging
at C2-3, facet arthritis at the right C4-5 neural foramen and spondylosis.
On February 22, 2005 Dr. Pribil reported on the findings of the new diagnostic tests and
opined that appellant’s prognosis for a return to full duty was “quite guarded.” He recommended
surgery for the cervical spine. An April 12, 2005 report, from Dr. Morteza Shamsnia, a Boardcertified neurologist, stated that she had been treating appellant since September 2004 and
detailed the results of the various MRI scans and nerve conduction studies and Dr. Pribil’s
reports. Dr. Shamsnia stated that appellant would be unable to return to his previous work and
should proceed with the recommended surgery.
By decision dated September 20, 2005, the Office denied modification of its June 21,
2004 decision. The Office stated that Dr. Ruel “agreed that there were no residuals of the motor
vehicle (work[-]related) accident of March 26, 2003” and related appellant’s current condition to
his nonemployment-related automobile accident. It found that the opinions of Drs. Cenac,
Gallagher and Ruel were all in agreement that his work-related conditions had resolved. The
Office found that the reports from Dr. Pribil and Dr. Shamsnia and the MRI scan and nerve
conduction study reports were of little probative value as they did not evaluate the current state
of his work-related conditions. The Office also found that the psychological report was of no
probative value because the last page was missing and the author was not known and because it
did not appear to relate appellant’s depression to his accepted employment injury. Finding that
appellant had presented no well-rationalized medical evidence to overcome the medical opinions
of Dr. Gallagher and Dr. Ruel, the Office denied modification its June 21, 2004 decision.
On September 19, 2006 appellant requested reconsideration on the basis that Dr. Ruel’s
opinion was not properly sought and that he was not qualified to address appellant’s
nonorthopedic condition. He argued further that the Office erred in finding that he could return
to his prior employment because Dr. Ruel found that he could perform only sedentary work.
By decision dated December 19, 2006, the Office denied modification of its
September 20, 2005 decision. It found that Dr. Ruel had been properly appointed and that his
only objective findings related to a right knee injury sustained in 1999. The Office stated that
appellant had not submitted evidence sufficient to warrant modification of its prior decision.
3

The Board notes that the majority of these reports had been submitted prior to the reconsideration, but do not
appear to have been formally reviewed by the Office.

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LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 The Office may not terminate compensation without
establishing that disability has ceased or that it is no longer related to the employment injury.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for sprains of the neck, lumbar spine, right wrist,
right ankle and aggravation of right medial meniscus tear. The issue to be determined is whether
the Office has met its burden of proof to establish that appellant had no remaining disability or
residuals related to his accepted injury.
On December 19, 2003 the Office referred appellant to Dr. Cenac, a Board-certified
orthopedic surgeon, for an opinion on the extent and degree of his employment-related disability.
In his January 19, 2004 physical examination, Dr. Cenac found no objective evidence of injury,
but noted that appellant voluntarily limited motion in his cervical and lumbar regions and did not
use full effort. He found that appellant had no loss of motion, muscle spasm or decreased
sensation in the back, arms or legs. Dr. Cenac stated that x-rays of appellant’s cervical spine,
lumbar spine, right knee, wrists and ankles were in the normal range, that appellant had no
mechanical dysfunction or neurological deficits and that he had reached maximum medical
improvement. The functional capacity examination he ordered did not provide valid evidence of
disability because appellant used submaximal effort on the various tests. On review of the
functional capacity examination, Dr. Cenac stated that there was no objective evidence of
residual disability related to appellant’s accepted employment injury and that he was capable of
returning to his preinjury activity level.
Dr. Gallagher, a Board-certified orthopedic surgeon, made several findings from
July 2003 to May 2004 that appellant had no orthopedic abnormalities, was in need of no further
orthopedic treatment and was physically capable of returning to his date-of-injury employment.
The Board finds that the Office properly relied on the opinions of Dr. Cenac and
Dr. Gallagher to terminate appellant’s wage loss and medical benefits. These orthopedic
surgeons established that appellant had no orthopedic abnormalities and no ongoing condition
associated with his accepted injuries of sprains of the neck, lumbar spine, right wrist and right
ankle or aggravation of right medial meniscus tear. The Board finds that the opinions of
4

Elaine Sneed, 56 ECAB ___ (Docket No. 04-2039, issued March 7, 2005).

5

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

6

James F. Weikel, 54 ECAB 690 (2003).

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Dr. Cenac and Dr. Gallagher represent the weight of the medical opinion evidence, as they are
experts in a pertinent field, had conducted physical examinations and had reviewed a
comprehensive medical history. Because there was no objective evidence that appellant had any
remaining disability or residuals from his accepted employment injuries, the Office properly
terminated his compensation for wage loss and medical benefits.
The Board also finds that Dr. Hubbell’s opinion is insufficient to overcome the weight of
the medical evidence. The Office provided Dr. Cenac’s report to Dr. Hubbell, a Board-certified
anesthesiologist, who initially agreed with the finding that appellant was physically capable of
returning to his date-of-injury employment. Shortly, after the notice of proposed termination
was issued, Dr. Hubbell notified the Office that he was changing his opinion that appellant was
able to return to work on the basis of a psychological examination conducted by Dr. Wolfson, a
rehabilitation psychologist, who found that appellant was not malingering, but “somatasizing as a
way of dealing with his depression.” Dr. Hubbell stated that because appellant was acting
psychologically correctly and had diagnosed spondylosis, he was not physically capable of
returning to work. The Board notes that the Office has not accepted depression and degenerative
disc disease conditions as related to the employment injury. Appellant has the burden of proof to
establish causal relationship to his employment, which he has not met. In this regard,
Dr. Hubbell did not provide any rationalized evidence that appellant’s spinal condition or
depression were causally related to his accepted employment injuries or the accepted March 26,
2003 automobile accident. The Board finds that the medical opinion evidence submitted by
Dr. Hubbell prior to the termination of appellant’s benefits is not sufficient to overcome the
weight of the medical evidence.
LEGAL PRECEDENT -- ISSUE 2
Once the Office meets its burden of proof to terminate appellant’s compensation benefits,
the burden shifts to appellant to establish that he had disability causally related to his accepted
injury.7 Appellant must submit rationalized medical evidence to establish the causal relationship
between his continuing disability and the employment injury.8 To be rationalized, the opinion
must be based on a complete factual and medical background of the claimant9 and must be one
of reasonable medical certainty,10 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.11 Neither
the fact that a disease or condition manifests itself during a period of employment nor the belief
that the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.12
7

Manuel Gill, 52 ECAB 282 (2001).

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Id.

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

John W. Montoya, 54 ECAB 306 (2003).

11

Judy C. Rogers, 54 ECAB 693 (2003).

12

Ernest St. Pierre, 51 ECAB 623 (2000).

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ANALYSIS -- ISSUE 2
Following the termination of appellant’s benefits, he requested reconsideration of the
Office’s decision based on the reports of Dr. Pribil, Dr. Shamsnia and Dr. Ruel. The issue to be
determined is whether he has submitted medical evidence sufficient to establish continuing
employment-related disability.
Both Dr. Pribil, a Board-certified neurological surgeon, and Dr. Shamsnia, a Boardcertified neurologist, diagnosed spondylosis and radiculopathy of the cervical and lumbar spine.
The Board notes, however, that neither of these medical opinions, nor the diagnostic reports on
which they were based, discussed the causal relationship between appellant’s diagnosed
conditions and his accepted employment injuries. Because they provide no rationale, the Board
finds that these reports are insufficient to establish that appellant has a disability or residual
causally related to his accepted employment injuries.
Appellant submitted the report of Dr. Ruel, a Board-certified orthopedic surgeon, as
evidence that he continued to be disabled from and require medical treatment for his accepted
employment injuries. Dr. Ruel was initially selected by the Office as an impartial medical
examiner to resolve the conflict between Dr. Cenac and Dr. Hubbell on appellant’s level of
disability. When Dr. Hubbell changed his opinion, finding that appellant was physically able to
return to his date-of-injury employment and postponing further treatment, there ceased to be a
conflict in medical evidence. The Board finds that, because there was no longer a conflict,
Dr. Ruel’s opinion was no longer necessary for the purpose of resolving a conflict. Further, the
Board finds that Dr. Hubbell’s retraction of agreement did not create a new conflict of medical
opinion evidence because his new opinion was based on the nonaccepted conditions of
depression and spondylosis and did not contain adequate rationale explaining how these
conditions were employment related. The Board has held that, when there is no actual conflict to
resolve, a physician selected to resolve the assumed conflict is not considered an impartial
medical specialist and his or her report may be considered for its intrinsic value, though is not
entitled to special weight.13
Dr. Ruel conducted a medical history review and a physical examination. Based on the
physical examination, in which he noted inconsistencies and symptom exaggeration, he stated
that the only objective evidence of orthopedic abnormality was related to his preexisting right
knee injury. Dr. Ruel found that the accepted injuries to the right knee, right wrist and right
ankle had resolved. He stated that the accepted employment injury had superimposed a sprain on
preexisting cervical spondylosis, but that a nonwork-related automobile accident that occurred a
few weeks later “significantly accentuated” these symptoms. Dr. Ruel found that appellant had
lumbar spondylosis, osteochondrosis, minimal bulging at L4-5 and L5-S1 and chronic S1
radiculopathy. He stated that appellant’s back conditions should be treated conservatively,
without surgery or injections. Dr. Ruel opined that appellant could work in a sedentary capacity
and did not need any further orthopedic treatment related to his employment injuries. He also
recommended that appellant be treated by a pain psychologist to address his unsubstantiated
subjective complaints.
13

Delphia Y. Jackson, 55 ECAB 373 (2004); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

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The Board finds that Dr. Ruel’s report does not establish that appellant’s current
disability or need for medical treatment is related to his accepted employment injuries. He
explicitly found that appellant had no remaining residuals related to his knee, wrists or ankles.
Additionally, as the Office has not accepted appellant’s depression as a consequential injury,14
Dr. Ruel’s opinion about the treatment needed for that condition cannot be considered. The only
argument that can be made from Dr. Ruel’s report is that he may have found that appellant’s
current cervical and lumbar conditions are related to his accepted employment injuries. The
Board finds that, at best, his report gives rise to the inference that appellant’s spinal condition is
employment related, but that it does not establish this fact. Dr. Ruel found that appellant was in
no further need of orthopedic treatment and that his only objective physical abnormalities related
to a previous employment-related knee injury. However, he also stated that appellant’s neck
strain overlaid preexisting cervical spondylosis and was then greatly aggravated by a subsequent
automobile accident. Dr. Ruel went on to list conditions affecting appellant’s lumbar spine, but
did not state explicitly that they were employment related. The Board finds that it is unclear
whether he found that the current conditions were caused by or still aggravated by his
employment-related sprains. Because appellant has the burden of proof, the Board finds that
Dr. Ruel’s ambiguous report is not adequate to establish to establish that he had disability
causally related to his accepted injuries.
The Board finds that appellant has not established that his continuing disability was
caused by his accepted employment injuries.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits,
effective June 24, 2004, on the grounds that he had no residuals or disability causally related to
his accepted employment injury. The Board further finds that appellant failed to meet his burden
of proof to establish continuing employment-related disability or residuals causally related to the
March 26, 2003 employment injuries.

14

The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct
injury, is compensable if it is the direct and natural result of a compensable primary injury. See S.M., 58 ECAB ___
(Docket No. 06-536, issued November 24, 2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2006 is affirmed.
Issued: August 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.R., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kansas City, MO,
Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0973
Issued: November 26, 2019

Case Submitted on the Record

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

On April 5, 2019 appellant, through counsel, filed a timely appeal from a February 15, 2019
decision of the Office of Workers’ Compensation Programs. The Clerk of the Appellate Boards
assigned Docket No. 19-0973.2
On October 16, 2014 appellant, then a 45-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that she injured her left knee at work that day while moving a full
skid of mail that weighed more than 70 pounds. OWCP assigned the claim File No. xxxxxx183.
After initially denying appellant’s claim, it accepted that she sustained left knee medial and lateral
1

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

The Board notes that following the February 15, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence
for the first time on appeal. Id.

meniscus tears, and left knee anterior cruciate ligament tear.3 On March 16, 2016 appellant
underwent left knee arthroscopic surgery, which OWCP authorized. OWCP paid appellant wage-loss
compensation for temporary total disability on the supplemental rolls through July 17, 2016.
Appellant was released to resume her full-time, regular duties, effective July 18, 2016.
On March 30, 2017 appellant filed a claim for a schedule award (Form CA-7). In a
September 13, 2017 report, Dr. M. Stephen Wilson, a Board-certified physiatrist, found 10 percent
left lower extremity permanent impairment pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 Dr. Wilson rated
appellant based on a diagnosis of partial medial and lateral meniscectomy.5
In a January 2, 2018 report, Dr. Todd Fellars, acting as district medical adviser (DMA), agreed
with Dr. Wilson’s impairment rating of 10 percent for the left lower extremity, but noted it was the
total impairment rating not added to any previous impairment already paid.
By decision dated July 17, 2018, OWCP denied appellant’s schedule award claim. It indicated
that appellant was previously paid a schedule award for 10 percent impairment of the left lower
extremity under a prior claim in File No. xxxxxx597. OWCP further explained that neither
Dr. Wilson nor the DMA had found that there had been any increase in the 10 percent permanent
impairment previously awarded.
Counsel subsequently requested a hearing before a representative of OWCP’s Branch of
Hearings and Review. By decision dated February 15, 2019, the hearing representative referenced
three prior claims involving appellant’s left knee and noted that, in one of those claims, OWCP File
No. xxxxxx597, appellant previously received a schedule award for 10 percent permanent impairment
of the left lower extremity. He further noted that the current medical evidence established 10 percent
permanent impairment of the left lower extremity and, therefore, failed to demonstrate an increased
permanent impairment for schedule award purposes. Consequently, the hearing representative
affirmed OWCP’s July 17, 2018 decision. Additionally, he advised that OWCP should combine all
of appellant’s left knee claims as they were for the same part of the body and required cross
referencing.
The Board finds that this case is not in posture for decision.
Pursuant to 20 C.F.R. § 501.2(c)(1), 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. Decisions on claims are based
on the written record, which may include forms, reports, letters, and other evidence of various types
such as photographs, videotapes, or drawings.6 Evidence may not be incorporated by reference, nor
3

After OWCP initially denied appellant’s left knee traumatic injury claim, she filed an occupational disease claim
(Form CA-2) for a knee injury that allegedly occurred on October 16, 2014. It assigned the claim File No. xxxxxx941,
and later combined appellant’s two October 16, 2014 left knee injury claims, with File No. xxxxxx183 designated the
master file.
4

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

5

Table 16-3, Knee Regional Grid, A.M.A., Guides 509 (6th ed. 2009).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a (June 2011).

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may evidence from another claimant’s case file be used.7 Evidence contained in another of the
claimant’s case files may be used, but a copy of that evidence should be placed into the case file being
adjudicated.8 All evidence that forms the basis of a decision must be in that claimant’s case record.9
In adjudicating appellant’s claim for a schedule award under OWCP File No. xxxxxx183,
OWCP’s hearing representative specifically referenced medical evidence obtained from her other
claim, OWCP File No. xxxxxx597. However, OWCP has not combined the case records for her left
lower extremity claims or otherwise incorporated the referenced evidence into the current case
record.10 As OWCP neglected to include the referenced information from OWCP File No. xxxxxx597
in the current case record, the Board is not in a position to make an informed decision regarding
appellant’s entitlement to FECA benefits.11 Therefore, the case shall be remanded to OWCP to
combine appellant’s multiple left knee injury claims in accordance with the hearing representative’s
February 15, 2019 directive. After OWCP has developed the record consistent with this order, it shall
issue a de novo decision regarding appellant’s entitlement to a schedule award with respect to her
October 16, 2014 traumatic injury claim. Accordingly,
IT IS HEREBY ORDERED THAT the February 15, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action consistent
with this order.

7

Id.

8

Id.

9

Id.

10

See supra note 6 at File Maintenance and Management, Chapter 2.400.8c (February 2000).

11

See L.H., Docket No. 17-1960 (issued August 16, 2018); K.P., Docket No. 15-1945 (issued February 10, 2016).

3

Issued: November 26, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Concord, NH, Employer
__________________________________________

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Appearances:
Juli D. Hincks, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1619
Issued: April 12, 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 August 20, 2018 appellant, through counsel, filed a timely appeal from a June 11, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On September 16, 2016 appellant, then a 54-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) under OWCP File No. xxxxxx043, alleging that on September 12, 2016 while
driving his delivery vehicle in the performance of duty, he was struck from behind by a school
bus, causing head and neck injuries. OWCP accepted the claim for a concussion, cervical strain,
left upper extremity abrasion, left knee contusion, and left knee abrasion. Appellant returned to
modified duty casing mail for four hours a day on January 31, 2017. OWCP paid wage-loss
compensation for the remaining hours. Appellant resumed full-time, full-duty work on
February 25, 2017.
On September 9, 2017 under OWCP File No. xxxxxx043, appellant filed a notice of
recurrence (Form CA-2a) alleging that on August 18, 2017 a discussion with managers caused a
recurrence of post-concussion syndrome symptoms and anxiety. He noted that after the accepted
concussion, he had been prescribed medication for depression and had difficulty functioning. On
the back of the form, appellant’s supervisor, A.M., contended that on August 18, 2017, appellant
refused to follow her instructions and was escorted from the premises by police. Appellant did not
return to work. OWCP administratively converted the claim to one for a new occupational disease
and assigned File No. xxxxxx853.
In a statement dated August 18, 2017, A.M. contended that at 8:00 a.m. that day she met
with appellant and a union steward, T.G., regarding appellant’s refusal to climb steps to deliver
packages to the front door of a residence. As appellant became agitated, A.M. located Postmaster
J.L. When A.M. and J.L. returned, appellant refused to continue the discussion and insisted on
returning to his case. J.L. asked him to leave the premises. As appellant refused, J.L. telephoned
the police, who arrived several minutes later and escorted appellant from the premises.3
In a statement dated August 18, 2017, T.G. explained that A.M. had called appellant to her
office to discuss his refusal to deliver packages to a location on his assigned route. She
corroborated that appellant became agitated, refused to follow instructions, and was escorted from
the premises by police officers.
In a separate statement dated August 18, 2017, J.L. describing the same incident, indicated
that during the discussion earlier that day appellant began shouting and returned to his mail case.
As he would not follow instructions to return to the office or leave the building J.L. called the
police, who arrived approximately 10 minutes later and escorted appellant from the premises.

3

The employing establishment provided witness statements dated August 18, 2017 from appellant’s coworkers.
Two of the coworkers, T.H. and D.L., noted that they heard appellant raise his voice. Coworkers R.T. and K.I. recalled
that appellant became agitated and shouted that he wanted everyone’s attention.

2

A.M. provided a supplemental statement dated September 12, 2017. She noted that
following the accepted September 12, 2016 injuries, appellant had returned to full duty, but had
bid on a different route. On Saturday, May 20, 2017 A.M. was in appellant’s delivery area to
investigate an issue, located appellant to ask him a question, and noted that he was not wearing a
lap or shoulder belt. Appellant became defensive and accused A.M. of spying on him. He called
in sick the following Monday. On May 27, 2017 appellant became agitated when A.M. requested
that he sign a leave slip for his unscheduled absence. On August 15 and 17, 2017 the customer
who resided at location in question reported difficulties with appellant’s delivery of packages.
A.M. called appellant and T.G. to her office for a meeting at 8:00 a.m. August 18, 2017.
Appellant also provided September 25, 2017 reports from Dr. Mark Walrod, an attending
Board-certified family practitioner, noting a history of a September 12, 2016 concussion with a
frontal headache commencing August 18, 2017. Dr. Walrod held appellant off work through
October 17, 2017 pending a neurologic consultation.4
In a development letter dated October 4, 2017, OWCP notified appellant of the additional
factual and medical evidence needed to establish his occupational disease claim, including a
detailed description of the August 18, 2017 incident, and a report from his attending physician
explaining how and why that event would cause the claimed condition. It afforded him 30 days
for submission of the necessary evidence.
In a statement dated October 10, 2017, A.M. noted that appellant had used his own vehicle
to deliver his route and had done so without incident “until he was instructed to effect a particular
delivery a certain way.” In June 2016, appellant had been issued a letter of warning as he left his
keys in the ignition while delivering his route.
In a statement dated October 25, 2017, T.G. contended that the employing establishment
had become stressful due to a “lack of employees and high mail volume.” She further noted that
since returning to work in February 2017, appellant experienced chronic headaches, visual
problems, and dizziness that made it difficult for him to perform his duties.
Appellant provided a statement dated October 25, 2017 asserting that stress at work on
August 18, 2017 caused a recurrence of his concussion symptoms, including headaches, dizziness,
and nervousness.
Appellant also submitted a report dated September 27, 2017 from Dr. Irena R. Danys, an
attending Board-certified neurologist, who diagnosed post-concussive syndrome, anxiety, and
depression. She held appellant off work.
By decision dated November 14, 2017, issued under File No. xxxxxx853, OWCP denied
appellant’s emotional condition claim finding that the factual evidence of record failed to establish
any compensable factors of employment.
On December 13, 2017 appellant requested a hearing before an OWCP hearing
representative. In a letter dated March 9, 2018, counsel contended that appellant had claimed a
4

Appellant also submitted forms signed by Sarah Bell, a certified physician assistant.

3

recurrence of disability and not a new injury. He noted that appellant was not a native English
speaker and had difficulty with oral and written communication.
At the telephonic hearing held on April 19, 2018, D.L., a coworker, attested that
management treated appellant unfairly by forcing him to climb hazardous stairs to deliver
packages, and demanding his badge on August 18, 2017. T.G. testified that appellant had refused
to ascend the steps at a residential address as they were hazardous. Dr. John Crampton, an
attending licensed clinical psychologist, testified that the September 12, 2016 work-related motor
vehicle accident caused traumatic brain injury with major depressive disorder, post-traumatic
stress disorder (PTSD), post-concussion syndrome, and major neurocognitive disorder.
Dr. Crampton found that appellant remained totally disabled from work due to sequelae of the
accepted September 12, 2016 accident.
Following the hearing, counsel submitted a letter dated May 4, 2018 contending that
appellant predicated his emotional condition claim on sequelae from the September 12, 2016
concussion and not only the August 18, 2017 meeting and submitted additional evidence.
In a statement dated November 2, 2017, D.L., contended that on August 18, 2017 A.M.
accompanied appellant to his mail case and stood behind him in an intimidating manner, and that
J.L. deliberately embarrassed and belittled appellant by demanding his badge.
In a statement dated May 10, 2018, A.M. contended that on August 18, 2017, appellant
stated that he would continue to refuse to deliver parcels to the residential address at issue as he
did not do favors for rural customers. He claimed that he did not have his badge, but later
surrendered it to the police officers who escorted him from the building. Appellant also refused
to report for duty on August 19, 2017 as directed.5
By decision dated June 11, 2018, an OWCP hearing representative modified and affirmed
the prior decision. She found that appellant had established the accepted September 12, 2016
motor vehicle accident as a compensable employment factor. The hearing representative further
found that the May 20 and 27, and August 18, 2017 supervisory discussions were administrative
matters related to the assignment and supervision of work, and that no error or abuse was
established. She also found that appellant had not established as factual that he had difficulty
performing his duties after he returned to work in February 2017, or that managers harassed or
otherwise mistreated him. In conclusion, the hearing representative determined that the only
compensable employment factor was the accepted employment incident of September 12, 2016
under File No. xxxxxx043. Therefore, it was unnecessary to address the medical evidence of
record under File No. xxxxxx043. The hearing representative noted that as the September 12,
2016 injury had been cross referenced in the present claim, that it would be appropriate for OWCP
to combine the claim under File No. xxxxxx043 with the present claim, File No. xxxxxx853.

5
The employing establishment also provided coworker statements regarding parcel delivery procedures and the
September 12, 2016 motor vehicle accident.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence7 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.9 There are situations where an injury or illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation.10 In the case of Lillian Cutler,11 the Board explained that
there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition under FECA. Where the injury or illness results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employing establishment or by the nature of the work, the injury or illness comes within the
coverage of FECA.12 On the other hand, when an injury or illness results from an employee’s
feelings of job insecurity per se, fear of a reduction-in-force, or his or her frustration from not
being permitted to work in a particular environment or hold a particular position, unhappiness with
doing work, or frustration in not given the work desired or hold a particular position, such injury
or illness falls outside FECA’s coverage because they are found not to have arisen out of
employment.13
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
work factors of employment and are to be considered by a physician when providing an opinion
on causal relationship and which working conditions are not deemed compensable factors of
employment and may not be considered.14 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. As a rule,
allegations alone by a claimant are insufficient to establish a factual basis for an emotional

6

Supra note 2.

7

J.P. 59 ECAB 178 (2007).

8

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

10

A.K. 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

11

28 ECAB 125 (1976).

12

Lillian Cutler, id.; see also Trudy A. Scott, 52 ECAB 309 (2001).

13

William E. Seare, 47 ECAB 663 (1996).

14

Dennis J. Balogh, 52 ECAB 232 (2001).

5

condition claim. The claim must be supported by probative evidence.15 If a compensable factor
of employment is substantiated, OWCP must base its decision on an analysis of the medical
evidence.16
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that on September 12, 2016 appellant sustained a concussion in the
performance of duty when a school bus struck his delivery vehicle. In his September 9, 2017 claim
for recurrence of disability, appellant asserted that the accepted concussion had caused ongoing
depression, anxiety, and difficulty functioning. OWCP administratively converted appellant’s
recurrence claim into a new occupational disease claim as he attributed his emotional condition,
in part, to an August 18, 2017 meeting with his supervisor. In converting the claim to a new
occupational disease claim it did not develop appellant’s original contention that the accepted
September 12, 2016 employment incident was a precipitating event.
The Board finds that the September 12, 2016 motor vehicle accident is a compensable
factor of employment under Cutler.17 OWCP’s hearing representative found that the accepted
September 12, 2016 employment incident was a compensable employment factor, but did not
review the medical evidence. The Board finds, however, that as appellant established the
September 12, 2016 employment incident as a compensable employment factor in the
development of his claimed emotional condition, OWCP must review the medical evidence of
record in order to determine if he has submitted sufficient evidence to substantiate his claim.18
Following this and any necessary further development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

Charles E. McAndrews, 55 ECAB 711 (2004).

16

Norma L. Blank, 43 ECAB 384, 389-90 (1992).

17

W.F., Docket No. 17-0640 (issued December 7, 2018); Z.S., Docket No. 16-1783 (issued August 16, 2018)

18

Id.; Margaret S. Krzycki, 43 ECAB 496 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the June 11, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: April 12, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Vienna, VA, Employer
__________________________________________

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

Docket No. 08-1467
Issued: January 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated May 1, 2007. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merit issues of this case.1
ISSUES
The issues are: (1) whether the Office met its burden of proof in reducing appellant’s
compensation based on its determination that the constructed position of legal assistant/paralegal
represented her wage-earning capacity; (2) whether the Office properly determined that appellant
forfeited compensation for the period November 10, 2003 to February 10, 2005 because she did
not report earnings; (3) whether the Office properly determined that appellant received an
overpayment in compensation in the amount of $35,998.41 because she forfeited compensation
for this period; (4) whether the Office properly determined that she was at fault and therefore not

1

The Board notes that oral argument was initially scheduled for September 24, 2008. At appellant’s request, the
oral argument was rescheduled for 10:00 a.m. on November 6, 2008. She did not appear for the oral argument.

entitled to waiver of the overpayment; and (5) whether the Office properly found that the
overpayment was payable in full.
FACTUAL HISTORY
On October 22, 1999 the Office accepted that appellant, then a 40-year-old rural carrier
who was working four hours a day, sustained an employment-related low back strain when she
injured her back on September 18, 1999 picking up tubs of mail. She stopped work on
September 22, 1999. Appellant returned to limited duty and, after several recurrences of
disability, she stopped work on February 24, 2001, did not return and was placed on the periodic
rolls for eight hours daily. The accepted conditions were later expanded to include aggravated
lumbar stenosis and a bulging disc at L4-5.
In December 2002, appellant was referred to Mary Billingsley for vocational
rehabilitation and a rehabilitation plan for a bachelor’s degree in legal studies was approved. She
enrolled in the University of Maryland University College in the fall of 2003. While going to
school, appellant participated in a work-study program as an intern at the District of Columbia
courts and she completed her paralegal training in the fall of 2005. She submitted Office Forms
EN1032 on January 21, 2004, February 10, 2005 and February 6, 2006.
Following the completion of her paralegal training, appellant did not secure
employment.2 In June 2003, Ms. Billingsley had identified the positions of paralegal and title
examiner as within the light and sedentary strength categories respectively, within appellant’s
work restrictions and qualifications and reasonably available in the local labor market. She
updated this information on January 30, 2006 and advised that the legal assistant/paralegal
position, Department of Labor, Dictionary of Occupational Titles, No. 119.267-026, at a weekly
pay of $725.00 was most appropriate, finding that it met appellant’s medical restrictions with
light strength of no lifting over 20 pounds, no prolonged standing, climbing, walking, balancing,
stooping, kneeling, crouching, pushing, pulling or crawling. Ms. Billingsley also noted that
appellant had over 24 months of specific and general work experience from education,
vocational training and previous government employment and the job was reasonably available.
By letter dated March 2, 2006, the Office proposed to reduce appellant’s compensation
benefits based on her capacity to earn wages as a legal assistant/paralegal. In a March 26, 2006
response, appellant disagreed with the proposed reduction, stating that she was not physically
capable of work because she could not sit or stand for more than 15 minutes without severe pain.
She attached reports dated March 22, 2006 in which Dr. P. Steven B. Macedo, a Board-certified
neurologist, provided physical findings, diagnosed postlaminectomy syndrome of the cervical
region and thoracic or lumbosacral neuritis or radiculitis and advised that she could not work.3

2

Appellant was offered one position but turned it down.

3

Magnetic resonance imaging scan studies dated March 20, 2006 demonstrated a stable appearance of the lumbar
spine including spondylosis most notably at L4-5 and foraminal narrowing at that level. The cervical spine
demonstrated mild foraminal narrowing and postoperative changes at C5-6.

2

An April 13, 2006 report of investigation by the Office of the Inspector General of the
employing establishment found that appellant participated in a work-study program while a
student at the University of Maryland and was granted an award for work at the District of
Columbia courts between July 2004 and March 2005. The report noted that appellant did not
report that she had worked on an EN1032 form submitted on February 10, 2005. Attached
exhibits included the work-study agreement, payroll information, timesheets and a cancelled
check.
By report dated June 1, 2006, Dr. Stephen T. Michaels, a Board-certified orthopedist,
reported a history that appellant sustained several injuries at work including a head injury that
occurred in 1999. He provided findings of decreased range of motion of the cervical spine,
spasm in the paracervical and trapezial region and pain in the mid thoracic and lower paralumbar
region. Straight leg raising was negative, deep tendon reflexes intact and distal neurologic
function intact. Dr. Michaels advised that appellant had degenerative disc disease of the cervical
and lumbosacral spine. In a June 5, 2006 report, Dr. Macedo repeated his diagnoses and advised
that he had reviewed the proposed jobs identified by the Department of Labor and that appellant
was medically unable to perform either job due to her accepted work-related condition. He also
recommended that appellant’s cervical condition be included as employment related as this had
been exacerbated by her lumbar spine condition.
On June 12, 2006 the Office referred appellant to Dr. Kevin F. Hanley, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a June 22, 2006 report, Dr. Hanley noted
the history of injury, appellant’s complaint of back pain and his review of the medical record.
He advised that she walked comfortably and had no outward appearance of any ongoing
problem. Straight leg raising was to 90 degrees with minimal pain, no spasm was present and
lower extremity reflexes were intact. Dr. Hanley diagnosed degenerative disc disease of the
lumbosacral spine. He noted that he had reviewed the job descriptions for title examiner and
paralegal and commented:
“In my mind there is absolutely no reason that [appellant] cannot do both of these
jobs without any difficulty whatsoever. Obviously, she would disagree. She
claims to only be able to sit for [10] minutes but that can[no]t be the case because
she sat at least that long in my office at the time of the exam[ination.] It is my
belief that she is perfectly capable of everyday sedentary activities and the
activities of daily living without any significant restriction. Dr. Smith saw her in
the past and limited her lifting to 20 pounds and that clearly is enough capability
to perform these duties. I believe that her chronic pain syndrome which has kept
her disabled all of these years really is a minimal pain syndrome. The amount of
treatment that she is receiving is minimal. As to her physical capabilities, the
functional capacity evaluations contained in the medical record are probably of no
value since functional capacity evaluations are only beneficial and helpful in
patients that want to go back to work not in patients that do n[o]t want to go back
to work. Patients that do n[o]t want to go back to work for whatever reason,
typically do not fully cooperate with the exam[ination] and the results arc
invalid.”

3

By letter dated June 23, 2006, the Office issued a preliminary decision, advising appellant
that if she had engaged in work activity for the 15 months prior to her signature of a 1032 form
on February 10, 2005, she had forfeited her right to compensation for the period November 10,
2003 to February 10, 2005.
In a June 24, 2006 letter, appellant disagreed with the June 23, 2006 decision, arguing
that the work-study award was not earnings and that she did not intentionally not report income.
She also stated that pain made it difficult for her to keep up with her course work, that her
medication made her “loopy” which clouded her judgment and that it never entered her mind to
include the internship and financial aid from the University of Maryland on the EN1032 form.
By decision dated July 26, 2006, the Office finalized the March 2, 2006 proposed
reduction in benefits, effective July 21, 2006, based on appellant’s ability to earn wages as a
legal assistant. Dr. Macedo continued to submit reports and in an August 18, 2006 report,
Dr. Warren Yu, a Board-certified orthopedic surgeon, noted midline tenderness from L4 to S1,
with pain on flexion. Appellant had no motor or sensory deficit, atrophy or clonus and pain with
straight leg raising. Dr. Yu diagnosed discogenic back pain at L4-5 and discussed surgical
options with appellant. An August 18, 2006 lumbar spine x-ray demonstrated degenerative
changes and no evidence of instability.
On August 23, 2006 the Office finalized the preliminary forfeiture finding of June 23,
2006 on the grounds that appellant failed to report earnings on Office 1032 forms as required
and, as such, an overpayment in compensation was created for which she was at fault. It also
issued a preliminary finding that an overpayment had been created because appellant failed to
report earnings on an Office 1032 form signed on February 10, 2005 and thus forfeited
compensation for the period November 10, 2003 to February 10, 2005. An Office computer
print-out and overpayment worksheet indicated that appellant received wage-loss compensation
totaling $35,998.41 for this period. On August 24, 2006 appellant requested a hearing regarding
the July 26, 2006 decision, on September 7, 2006, requested a hearing of the August 23, 2006
final forfeiture decision and on September 19, 2006, requested a hearing regarding the
August 23, 2006 preliminary overpayment finding and submitted an overpayment questionnaire.
In reports dated September 11 and 28, 2006, Dr. Robert Gerwin, a Board-certified
neurologist, noted appellant’s complaints of neck and back pain and a history that she sustained a
head injury in 1997 and an employment injury in 1999. Physical findings included restricted
back motion and diffuse trigger points in the muscles of the head, neck, shoulders thoracics,
paraspinals, quadriceps and buttock muscles bilaterally. Dr. Gerwin diagnosed spinal stenosis of
the lumbar region, herniated disc syndrome and myofascial pain.
Two hearings were held on March 9, 2007. At the first, on the issue of whether appellant
had the capacity to earn wages as a legal assistant, she argued that the medical evidence used to
determine that she had the physical capacity for the position was old. She stated that the position
was vocationally appropriate but that the salary was too high and that she was not physically
capable of working full time. At the second hearing, on the issue of forfeiture and overpayment,
appellant testified that she did not consider her work-study grant earnings although she
acknowledged it was somehow linked with work she did at the District of Columbia courts and

4

that she did not intend to mislead anyone. She also testified about her income and expenses,
noting that she worked 10 to 20 hours a week in private employment.
In separate decisions dated May 1, 2007, an Office hearing representative affirmed the
July 26, 2006 decision finding that appellant had the capacity to earn wages as a legal assistant
and that she forfeited compensation for the period November 10, 2003 to February 10, 2005,
thereby creating an overpayment in compensation in the amount of $35,998.41, for which she
was at fault. He determined that the entire amount of the overpayment was due and payable.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.4 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.5
Section 8115 of the Federal Employees’ Compensation Act6 and Office regulations
provide that wage-earning capacity is determined by the actual wages received by an employee if
the earnings fairly and reasonably represent his wage-earning capacity. If the actual earnings do
not fairly and reasonably represent wage-earning capacity or the employee has no actual
earnings, his wage-earning capacity is determined with due regard to the nature of his injury, the
degree of physical impairment, his usual employment, his age, his qualifications for other
employment, the availability of suitable employment and other factors or circumstances which
may affect his wage-earning capacity in his disabled condition.7
The Office must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which the Office relies must provide a detailed description of the
condition.8 Additionally, the Board has held that a wage-earning capacity determination must be
based on a reasonably current medical evaluation.9
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office for selection of a position listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age and prior experience.
4

James M. Frasher, 53 ECAB 794 (2002).

5

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

6

5 U.S.C. §§ 8101-8193.

7

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, supra note 5.

8

William H. Woods, 51 ECAB 619 (2000).

9

John D. Jackson, supra note 5.

5

Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service.10 Finally, application of the principles set forth in Albert C. Shadrick11 will result in the
percentage of the employee’s loss of wage-earning capacity.12
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, the Office must consider the degree of physical impairment,
including impairments resulting from both injury related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.13
ANALYSIS -- ISSUE 1
The Board finds that the well-rationalized opinion of Dr. Hanley, who provided a second
opinion evaluation for the Office, established that appellant had the capacity to earn wages as a
legal assistant. Appellant, who had stopped work in February 2001, was referred for vocational
rehabilitation in December 2002 and a rehabilitation program for paralegal studies at the
University of Maryland was approved. She completed her paralegal training in the fall of 2005
but did not secure employment. In June 2003, the vocational rehabilitation counselor,
Ms. Billingsley, had identified two positions that fit appellant’s capabilities: title examiner and
legal assistant/paralegal. In his June 12, 2006 report, Dr. Hanley noted his review of the medical
record, the history of injury and appellant’s complaints and provided findings on physical
examination. He advised that appellant was capable of everyday sedentary activities and the
activities of daily living without significant restriction and felt she was capable of lifting
20 pounds. Dr. Hanley reviewed the legal assistant position and advised that there was no reason
that she could not do the job.
Although appellant submitted medical reports from Drs. Yu, Gerwin and Michaels, their
reports do not support that she was unable to perform the duties of the legal assistant/paralegal
position due to her employment injuries or any preexisting conditions as they did not provide any
opinion regarding her ability to perform the duties of the selected position. While Dr. Macedo
advised that appellant could not perform the duties of the selected position, he did not explain the
mechanics of why her diagnosed conditions prevented her from performing the relatively
10

James M. Frasher, supra note 4.

11

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403. The Office calculates an employee’s wage-earning capacity
in terms of percentage by dividing the employee’s earnings by the current pay rate for the date-of-injury job. Under
Shadrick, the Office’s determination rests on three variables: (1) claimant’s base annual pay at the time of injury,
the time disability began or the time compensable disability recurs; (2) the base annual pay for the same grade and
step on the date the Office used to compare pay rates under Shadrick; and (3) claimant’s base annual pay on the
same date in her limited-duty position. If any of these figures are incorrect or unreliable, then the Office did not
properly determine appellant’s wage-earning capacity.
12

James M. Frasher, supra note 4.

13

John D. Jackson, supra note 5.

6

sedentary duties of the position. The Board has long held that medical opinions not containing
rationale are of diminished probative value.14 The medical evidence thus establishes that
appellant could perform the duties of the legal assistant/paralegal position.
On January 30, 2006 Ms. Billingsley updated the labor market survey information. She
provided a job description for the legal assistant/paralegal position, noting that it required light
strength, found that appellant fit the educational requirements, that the position was within
appellant’s medical restrictions and was available in sufficient numbers so as to make it
reasonably available within her commuting area, at a weekly wage of $725.00.
The Board finds that the Office considered the proper factors, such as availability of
suitable employment and appellant’s physical limitations, usual employment and age and
employment qualifications, in determining that the position legal assistant/paralegal represented
her wage-earning capacity.15 The weight of the evidence of record establishes that appellant had
the requisite physical ability, skill and experience to perform this position and that it was
reasonably available within the general labor market of her commuting area. The Office
therefore properly determined that the position of legal assistant/paralegal reflected appellant’s
wage-earning capacity and, using the Shadrick formula,16 reduced her compensation effective
July 21, 2006.17
LEGAL PRECEDENT -- ISSUE 2
Section 10.5(g)(1) of Office regulations defines earnings as gross earnings or wages
before any deductions and includes the value of subsistence, quarters, reimbursed expenses and
any other goods or services received in kind as remuneration.18
Section 8106(b) provides that the Secretary of Labor may require a partially disabled
employee to report his earnings from employment or self-employment, by affidavit or otherwise,
in the manner and at the times the Secretary specifies. It provides that an employee who fails to
make an affidavit or report when required or knowingly omits or understates any part of his or
her earnings forfeits his or her right to compensation with respect to any period for which the
affidavit or report was required.19 Section 10.529 of Office regulations further provides that a
false or evasive statement, omission, concealment, or misrepresentation with respect to
employment activity or earnings in a report may also subject an employee to criminal
prosecution20
14

N.J., 59 ECAB ____ (Docket No. 07-45, issued November 14, 2007).

15

James M. Frasher, supra note 4.

16

Supra note 11.

17

James Smith, 53 ECAB 188 (2001).

18

20 C.F.R. § 10.5(g)(1).

19

5 U.S.C. § 8106(b); see F.C., 59 ECAB ____ (Docket No. 07-1541, issued November 16, 2007).

20

20 C.F.R. § 10.529(a).

7

The Board has held that it is not enough to merely establish that there were unreported
earnings or employment. Appellant can be subjected to the forfeiture provisions of section
8106(b) only if he or she knowingly failed to report employment or earnings.21 The term
knowingly, as defined by section 10.5(n) of Office regulations, means “with knowledge,
consciously, willfully or intentionally.”22
Section 10.525(b) of Office regulations provides that the employee must report even
those earnings which do not seem likely to affect his or her level of benefits.23 The language on
Office EN1032 forms is clear and unambiguous in requiring a claimant to report earnings for the
previous 15 months from any employer, self-employment or a business enterprise in which he or
she worked. The forms further emphasize that severe penalties may be applied for failure to
report all work activities thoroughly and completely.
ANALYSIS -- ISSUE 2
The Board finds that appellant forfeited her right to compensation for the period
November 10, 2003 to February 10, 2005 because she did not report earnings on an Office
EN1032 form signed by her on February 10, 2005. The language clearly advises that all income
or payment in any kind must be reported. The record supports that appellant received a workstudy grant from the University of Maryland for work at the District of Columbia courts. The
agreement, signed by appellant on June 10, 2004, shows an hourly wage of $12.00 and that she
was available to work for 680 hours. Under these circumstances, the Board finds that appellant’s
failure to fully report her work-study employment a knowing omission,24 and she forfeited her
right to compensation for the period November 10, 2003 to February 10, 2005.
LEGAL PRECEDENT -- ISSUE 3
Section 10.529(b) of Office regulations states that, where the right to compensation is
forfeited, the Office shall recover any compensation already paid for the period of forfeiture
pursuant to section 8129 of the Act and other relevant statutes.25
ANALYSIS -- ISSUE 3
As discussed above, appellant forfeited her right to compensation for the period
November 10, 2003 to February 10, 2005, because she knowingly failed to report earnings. An
overpayment in compensation was therefore created. In calculating the amount of the
overpayment, the Office properly determined that appellant received wage-loss compensation
totaling $35,998.41 for the period in question. As appellant was not entitled to receive
21

F.H., 60 ECAB ____ (Docket No. 07-1379, issued November 24, 2008).

22

20 C.F.R. § 10.5(n).

23

Id. at § 10.525(b).

24

Id. at § 10.5(n); F.H., supra note 21.

25

20 C.F.R. § 10.529(b).

8

compensation benefits during a period that she knowingly failed to report earnings, the Office
permissibly determined that an overpayment in compensation in the amount of $35,998.41 had
been created for the period November 10, 2003 to February 10, 2005.26
LEGAL PRECEDENT -- ISSUE 4
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”27
Section 10.433(a) of the Office’s regulations provides:
“The Office may consider waiving an overpayment only if the individual to whom
it was made was not at fault in accepting or creating the overpayment. Each
recipient of compensation benefits is responsible for taking all reasonable
measures to ensure that payments he or she receives from [the Office] are proper.
The recipient must show good faith and exercise a high degree of care in reporting
events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault in creating an
overpayment: (1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; (2) Failed to provide information
which he or she knew or should have known to be material; or (3) Accepted a
payment which he or she knew or should have known to be incorrect. (This
provision applies only to the overpaid individual).”28
To determine if an individual was at fault with respect to the creation of an overpayment,
the Office examines the circumstances surrounding the overpayment. The degree of care
expected may vary with the complexity of those circumstances and the individual’s capacity to
realize that he or she is being overpaid.29
ANALYSIS -- ISSUE 4
In this case, the Office found appellant at fault in creating the overpayment in
compensation because she knowingly failed to report earnings. Appellant had an obligation to
show good faith and to exercise a high degree of care in reporting events that could affect the
amount of her compensation.30 On an Office EN1032 form, signed by appellant on February 10,
2005, she indicated that she had no earnings or income. As demonstrated by a work-study
26

F.C., supra note 19.

27

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

28

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

29

Id. at § 10.433(b); Duane C. Rawlings, 55 ECAB 366 (2004).

30

Sinclair L. Taylor, supra note 28.

9

agreement found in the record, appellant knew that she was being paid under a work-study grant
for work at the District of Columbia courts during the periods covered by the Office’s EN1032
form. The form clearly advised appellant that a false or evasive answer to any question could be
grounds for forfeiting compensation benefits and advised that severe penalties could be applied
for failure to report all income and work activities thoroughly and completely. When appellant
signed her name to the form, she certified that she understood that she must immediately report
to the Office any employment or work activities. She failed to inform the Office of her workstudy grant, information that she knew or should have known was material to the calculation of
her wage-loss compensation. The Board finds the fact that appellant did not report her earnings
is probative evidence that she was aware of the consequences of reporting and that she knew or
should have known that she was not entitled to receive wage-loss compensation while she was
performing work activities and was thus at fault in the creation of the overpayment in
compensation.31 Because she is at fault in the creation of the overpayment, she is not entitled to
waiver.
LEGAL PRECEDENT -- ISSUE 5
Section 10.441 of the Office’s regulations provide that when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to the
Office the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, the Office shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate of
compensation, the financial circumstances of the individual and any other relevant factors, so as
to minimize hardship.32
ANALYSIS -- ISSUE 5
In this case, appellant is receiving continuing compensation benefits for disability.33
While the Office should follow minimum collection guidelines, in general government claims
should be collected in full and, if an installment plan is accepted, the installments should be large
enough to collect the debt properly.34 In the May 1, 2007 decision, an Office hearing
representative found the entire amount of the overpayment, $35,998.41, payable in full at that
time. He stated that, after a review of the financial information supplied by appellant in the
record and at the hearing, her monthly expenses exceeded her income and it was thus his opinion
that a reasonable repayment plan could not be established based on the evidence of record. He
concluded that he had no alternative but to find the entire amount payable in full. The Board

31

F.C., supra note 19.

32

20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

33

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where the
Office seeks recovery from continuing compensation benefits under the Act. D.R., 59 ECAB ___ (Docket No. 07823, issued November 1, 2007).
34

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4d(1)(b) (September 1994).

10

finds that, as the hearing representative considered all relevant factors, the Office properly
required repayment of the $35,998.41 overpayment.35
CONCLUSION
The Board finds that the Office met its burden of proof in reducing appellant’s
compensation based on her ability to earn wages in the constructed position of legal assistant,
that she forfeited compensation for the period November 10, 2003 to February 10, 2005 and was
thus at fault in the creation of an overpayment in the amount of $35,998.41 and that the Office
permissibly required that the overpayment be paid in full.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 1, 2007 be affirmed.
Issued: January 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

35

See Steven R. Cofrancesco, supra note 32.

11