United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, JOINT
BASE LACKLAND, San Antonio, TX, Employer
__________________________________________

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Appearances:
Dr. Anthony Rogers, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1497
Issued: September 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 10, 2019 appellant, through his representative, filed a timely appeal from a June 3,
2019 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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the June 3, 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.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,010.09, for which he was not at fault, because
he received FECA wage-loss compensation benefits and Social Security Administration (SSA)
age-related retirement benefits for the period August 1, 2015 through March 30, 2019 without an
appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly required recovery of the overpayment by deducting $100.00
every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
On August 4, 2014 appellant, then a 62-year-old security guard, filed a traumatic injury
claim (Form CA-1) alleging that on July 30, 2014 he injured his back, neck, right shoulder, and
legs when he tripped on a rubber mat laying over the curb and fell while in the performance of
duty. On the reverse side of the claim form, appellant’s supervisor noted appellant’s retirement
coverage as Federal Employees’ Retirement System (FERS). OWCP accepted appellant’s claim
for neck and lumbar sprains, right shoulder and upper arm sprains, right rotator cuff sprain, and
bilateral knee contusions. It paid him intermittent wage-loss compensation on the supplemental
rolls, and on the periodic rolls effective September 20, 2015.
On March 15, 2019 SSA forwarded a FERS/SSA dual benefits calculation form to OWCP.
The form provided appellant’s SSA benefit rates with and without FERS offset as follows:
beginning in August 2015 his SSA rate with FERS was $1,870.20 and without FERS $1,825.10;
beginning in December 2016, his rate with FERS was $1,875.70 and without FERS $1,830.60;
beginning December 2017, his SSA rate with FERS was $1,913.20 and without FERS $1,867.10;
and beginning in December 2018, his SSA rate with FERS was $1,966.70 and without FERS
$1,919.40.
OWCP prepared a FERS offset calculation worksheet verifying its calculations. This
worksheet showed that: during the period August 1, 2015 to November 30, 2016 appellant
received an overpayment in the amount of $725.56; during the period December 1, 2016 to
November 30, 2017 he received an overpayment of $542.69; during the period December 1, 2017
to November 30, 2018 he received an overpayment of $554.72; and during the period December 1,
2018 to March 30, 2019 appellant received an overpayment of $187.12, for a total overpayment of
$2,010.09.
In a letter dated April 18, 2019, OWCP notified appellant that, based on information
provided by SSA regarding the amount of his SSA benefit attributable to federal service, his FECA
wage-loss compensation had been adjusted.

4

Docket No. 17-0499 (issued June 22, 2017); Docket No. 17-0766 (issued July 3, 2017).

2

On May 2, 2019 OWCP issued a preliminary determination, finding that an overpayment
of compensation in the amount of $2,010.09 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA age-related benefits that he received for the period
August 1, 2015 through March 30, 2019 was based on credits earned while working in the Federal
Government, and that this portion of his SSA benefit was a prohibited dual benefit. OWCP found
him not at fault in the creation of the overpayment. It explained its calculation of the overpayment,
attached its calculation worksheet, and informed appellant of the actions he could take. OWCP
provided an overpayment action request form and an overpayment recovery questionnaire (Form
OWCP-20). It requested that appellant provide supporting financial documentation including
income tax returns, bank account statements, bills and cancelled checks, pay slips, and any other
records which supported income and expenses listed, and allotted 30 days for him to respond.
In correspondence dated May 11, 2019, appellant’s representative requested waiver. He
attached a completed Form OWCP-20, which reported monthly income from SSA of $1,831.00
and monthly expenses of $2,385.87 with assets totaling $165,328.00. Neither an overpayment
action request form nor supporting financial documentation were submitted.
By decision dated June 3, 2019, OWCP finalized the May 2, 2019 its determination that
appellant had received an overpayment of compensation in the amount of $2,010.09 for the period
August 1, 2015 through March 30, 2019 because a portion of his SSA age-related benefits was
based on credits earned while working in the Federal Government, and that this portion of his SSA
benefit was a prohibited dual benefit. It further found that he was without fault in the creation of
the overpayment, but denied waiver of recovery. OWCP noted that in addition to monthly income
of $1,831.00 from SSA, appellant received net FECA compensation of $1,660.94. It calculated
his monthly FECA compensation as $1,799.35. When the SSA and FECA compensation were
added together they equaled total monthly compensation of $3,630.35, and that was $1,244.48
greater than his claimed monthly expenses of $2,385.87, demonstrating that he did not need all his
monthly income for ordinary and necessary living expenses. OWCP also found that appellant had
not met the second prong of the test to demonstrate financial hardship, noting that he listed assets
of $165,328.00 which exceeded the accepted resource base. It concluded that recovery of the
overpayment would not defeat the purpose of FECA and would not be against equity and good
conscience. OWCP required recovery of the overpayment by deducting $100.00 every 28 days
from appellant’s continuing wage-loss compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.5 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.6 When an overpayment of compensation
has been made to an individual because of an error of fact or law, adjustment shall be made under

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

3

regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled.7
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.8 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.9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$2,010.09, as he received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period August 1, 2015 through March 30, 2019 without an appropriate offset
The record indicates that while appellant was receiving compensation for total disability
under FECA, he also received SSA age-related retirement benefits. A claimant cannot receive
concurrent FECA wage-loss compensation and SSA retirement benefits attributable to federal
service for the same period.10 OWCP therefore properly determined that an overpayment of
compensation occurred in this case.
To determine the amount of the overpayment, the portion of the SSA age-related benefits
appellant received during the period August 1, 2015 through March 30, 2019 that were attributable
to federal service must be calculated. OWCP received evidence from SSA with respect to the
specific amount of age-related SSA retirement benefits that were attributable to appellant’s federal
service. SSA provided the SSA rate with FERS and without FERS for specific periods
commencing in August 2015 through March 2019. OWCP provided its calculations for each
relevant period based on the SSA worksheets. No contrary evidence is of record.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period August 1, 2015 through March 30, 2019 and finds that an overpayment of compensation in
the amount of $2,010.09 has been established.11
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment of 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
7

Id. at § 8129(a).

8

20 C.F.R. § 10.421(d); see J.S., Docket No. 19-0824 (issued October 4, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
9

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

10

Supra notes 6 and 7.

11

See M.B., Docket No. 18-1101 (issued January 17, 2019).

4

conscience.12 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 on 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.13
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 10.434
to 10.437 of OWCP’s regulations.14
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 current income (including compensation benefits) to meet current ordinary and necessary
living expenses 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.15 For waiver under
the defeat the purpose of FECA standard, appellant must show that he or she needs substantially
all of his or her current income to meet current ordinary and necessary living expenses, and that
assets do not exceed the resource base.16 An individual is deemed to need substantially all or his
or her current income to meet current ordinary and necessary living expenses if monthly income
does not exceed monthly expenses by more than $50.00.17
OWCP’s procedures provide that the 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.18 An individual’s liquid assets include, but are not limited to, cash and
the value of stocks, bonds, saving accounts, mutual funds, and certificate of deposits. Nonliquid
assets include, but are not limited to, the fair market value of an owner’s equity in property such
as a camper, boat, second home, and furnishings/supplies.19
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 in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that

12

5 U.S.C. § 8129.

13

20 C.F.R. § 10.438.

14

Id. at §§ 10.434-10.437.

15

Id. at. § 10.436.

16

Id.

17
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4a(3) (September 2018).
18

Id. at Chapter 6.400.4a(2).

19

Id.

5

such payments would be made, gives up a valuable right or changes his or her position for the
worse.20
OWCP’s regulations provide 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. The information is also used to
determine the repayment schedule, if necessary.21
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 was
required to 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.22
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because his assets exceed the resource base of $6,200.00, as provided in OWCP
procedures.23 The completed OWCP Form-20 of record documents assets of $165,328.00.
Because appellant has not met the second prong of the two-prong test of whether recovery of the
overpayment would defeat the purpose of FECA, it is not necessary to consider the first prong of
the test, i.e., whether his monthly income exceeded her monthly ordinary and necessary expenses
by more than $50.00.24
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience. He has not submitted evidence to substantiate that he would
experience severe financial hardship in attempting to repay the debt, or that in reliance on the
overpayment he gave up a valuable right or changed his position for the worse. Therefore, OWCP
properly found that recovery of the overpayment would not defeat the purpose of FECA or be
against equity and good conscience.25
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.26

20

20 C.F.R. § 10.437(a)(b).

21

Id. at § 10.438(a).

22

20 C.F.R. § 10.436.

23

Supra note 18.

24

Id.

25

20 C.F.R. § 10.437(a), (b).

26

20 C.F.R. § 10.441; see C.B., Docket No. 20-0031 (issued July 27, 2020).

6

Section 10.441 of OWCP’s regulations provides in pertinent part: “When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as the error is discovered or his or her attention is called to
the same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.”27
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$100.00 every 28 days from appellant’s continuing compensation payments.
In setting the recovery rate at $100.00 every 28 days, OWCP explained that the factors set
forth at 20 C.F.R. § 10.441(a) had been considered to minimize hardship, while liquidating the
debt, as appellant had financial resources sufficient for more than ordinary needs.28 As noted,
appellant submitted a Form OWCP-20 on May 16, 2019 showing that he had assets totaling
$165,328.00. Thus, OWCP did not abuse its discretion in setting the rate of recovery.29 The Board
therefore finds that OWCP properly required recovery of the overpayment from appellant’s
continuing compensation payments at the rate of $100.00 every 28 days.
Although appellant’s representative generally contends on appeal that the overpayment
was in error, there is no evidence of record to support this contention.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,010.09, for which he was not at fault, as he received FECA
wage-loss compensation benefits and SSA age-related retirement benefits for the period August 1,
2015 through March 30, 2019 without an appropriate offset. The Board further finds that OWCP

27

Id.

28

See R.D., Docket No. 19-0159 (issued April 17, 2020).

29

C.B., supra note 26.

7

properly denied waiver of recovery of the overpayment and properly required recovery of the
overpayment by deducting $100.00 every 28 days from his continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the June 3, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 9, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ZABLOCKI MEDICAL CENTER,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 09-2313
Issued: June 22, 2010

Case Submitted on the Record

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

JURISDICTION
On September 17, 2009 appellant filed a timely appeal from an August 11, 2009
overpayment decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly found that appellant received an
overpayment of $571.71 for the period January 2 to July 4, 2009 because she received dual
benefits from the Office of Personnel Management (OPM) and under the Federal Employees’
Compensation Act; and (2) whether the Office properly denied waiver of recovery of the
overpayment.
On appeal, appellant contends that she did not receive the overpayment in question.
While she received compensation checks based on her loss of wage-earning capacity following
her retirement from the employing establishment on January 3, 2009, she did not receive her first
OPM retirement check until April 2009. Appellant disputed the amount of the overpayment,

noting that she cashed compensation checks from January 3 to April 2009 but returned two
checks in the amount of $87.00 each to the Office on August 6, 2009. On August 28, 2009 she
returned another compensation check to the Office.
FACTUAL HISTORY
The Office accepted that on December 24, 1996 appellant, then a 56-year-old nursing
assistant, sustained a left elbow fracture and dislocation as a result of slipping on ice on a
sidewalk. It authorized left elbow surgery, which was performed on January 23, 1997. By
decision dated January 31, 2001, the Office reduced appellant’s compensation benefits based on
its finding that her actual wages as a program support clerk effective March 28, 1999 fairly and
reasonably represented her wage-earning capacity. It determined that she was entitled to $69.00
every four weeks.
On April 9, 2009 appellant elected to receive retirement benefits under OPM effective
January 3, 2009. A January 2, 2009 Form SF-50 indicated that she had been approved for
retirement from the employing establishment effective that date. On January 3, 2009 OPM
advised the Office that appellant’s monthly retirement annuity of $1,474.00 commenced
effective January 3, 2009. However, appellant continued to receive monetary compensation of
$87.00 every four weeks through July 4, 2009 based on a wage-earning capacity determination.
The amount of the checks totaled $571.71.
On July 10, 2009 the Office notified appellant of its preliminary determination that she
received an overpayment of $571.71 from January 2 to July 4, 2009 because she received dual
benefits from both the Office and OPM. It determined that she was paid her $87.00 every four
weeks for a total overpayment of $571.71. The Office found that appellant was without fault in
the creation of the overpayment. It requested that she complete an enclosed overpayment
recovery questionnaire and submit supporting financial documents. The Office notified
appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence or a prerecoupment hearing.
In an August 4, 2009 note, appellant stated that “enclosed with this note are two checks
of $87[.00] each which have not been cashed.” Images of the compensation checks indicated
that they were payable for the periods May 10 to June 6, 2009 and June 6 to July 3, 2009.
By decision dated August 11, 2009, the Office finalized its determination that appellant
received an overpayment of $571.71 for the period January 2 to July 4, 2009 and that she was
without fault in the creation of the overpayment. It advised her to forward a check for the entire
amount as repayment. In an accompanying August 11, 2009 letter, the Office advised appellant
that it did not receive the two $87.00 compensation checks she claimed to have enclosed with her
correspondence.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Act1 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.2
Section 8116 of the Act defines the limitations on the right to receive compensation
benefits. This section of the Act provides that, while an employee is receiving compensation, he
may not receive salary, pay or remuneration of any type from the United States, except for
services actually performed or for certain payments related to service in the Armed Forces,
including benefits administered by the Department of Veterans Affairs unless such benefits are
payable for the same injury or the same death being compensated for under the Act.3 The
implementing regulations provide that a beneficiary may not receive wage-loss compensation
concurrently with a federal retirement or survivor annuity.4 The beneficiary must elect the
benefit that he or she wishes to receive.5
ANALYSIS -- ISSUE 1
Appellant elected to receive OPM retirement benefits effective January 3, 2008 in lieu of
compensation under the Act for partial disability based on a loss of wage-earning capacity
determination. As she elected to receive OPM retirement benefits effective January 3, 2009, any
wage-loss compensation received after that date constitutes an overpayment of monetary
compensation.6 The record establishes that the Office continued to issue compensation checks to
appellant until July 4, 2009. The Board finds that she received an overpayment in compensation
from January 2 to July 4, 2009 due to the receipt of dual benefits from OPM and under the Act.
Appellant contended that an overpayment was not created as she did not receive any
retirement benefits until April 2009; however, OPM advised the Office that her benefits
commenced on January 3, 2009. The weight of the evidence of record establishes the fact of
overpayment based on the receipt of dual benefits.
With respect to the amount of the overpayment, the Office found that appellant received
compensation in the amount of $87.00 every four weeks from January 2 to July 4, 2009 or a total
of $571.71 in compensation. In response to the July 10, 2009 preliminary notice of
overpayment, appellant stated on August 4, 2009 that she was enclosing two checks in the
amount of $87.00 both of which had not been cashed. The checks cover the period May 10 to
1

5 U.S.C. §§ 8101-8193.

2

Id. at § 8102.

3

Id. at § 8116(a).

4

20 C.F.R. § 10.421(a).

5

Id.

6

Franklin L. Bryan, 56 ECAB 310 (2005).

3

June 6, 2009 and June 6 to July 3, 2009. The Office advised appellant on August 11, 2009 that it
did not receive any compensation checks.
In Jessie M. Banks,7 the Board set aside the Office’s determination of the amount of
overpayment. While the employee acknowledged receiving and cashing two of the four
compensation checks she received, it was not established that she had cashed checks covering
certain periods of the overpayment that she maintained were returned to the Office. The Board
noted that the record contained no evidence the employee cashed a check for a specific period of
compensation and that evidence from the Department of the Treasury did not identify the dates
covered by any cancelled checks. The case was remanded for further development on the
amount of the overpayment. In the present case, the Office’s final overpayment decision did not
address appellant’s August 4, 2009 correspondence. There was no factual finding made as to
whether certain checks were returned by appellant to be cancelled, as alleged.8 For this reason,
the case will be remanded to the Office for further development on the amount of the
overpayment. After such further development, it should issue an appropriate decision. Based on
this determination it is premature to address the issue of waiver.9
As to appellant’s contention on appeal that she returned a third compensation check to the
Office on August 28, 2009, the Board’s jurisdiction is limited to consideration of the evidence of
record at the time of the Office’s August 11, 2009 final decision.
CONCLUSION
The Board finds that appellant received an overpayment of compensation because she
received dual benefits from OPM and the Office. The Board finds, however, that the case is not
in posture for decision regarding the amount of the overpayment.

7

Docket No. 00-481 (issued March 16, 2001).

8

The record contains a photocopy of the checks issued for May 10 to June 6, 2009 and June 6 to July 3, 2009.
There is no evidence regarding cancellation or whether the checks were cashed.
9

Regarding repayment of the overpayment, the Board’s jurisdiction is limited to reviewing those cases where the
Office seeks recovery from continuing compensation benefits under the Act. Ronald E. Ogden, 56 ECAB
278 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the August 11, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed, in part, as to the fact of overpayment. The
decision is set aside, in part and the case remanded for further proceedings consistent with this
decision on the amount of overpayment.
Issued: June 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Idaho Falls, ID, Employer
__________________________________________

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

Docket No. 11-1518
Issued: February 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 14, 2011 appellant, through her attorney, filed a timely appeal from a
February 23, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
affirming a denial of her claim for an employment-related injury. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury to her back in the performance of duty, causally related to factors of her federal
employment.
On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 5, 2010 appellant, then a 34-year-old mail processing clerk, filed an
occupational disease claim alleging that she suffered from disorders due to repeated trauma. She
noted that she first realized that the disease or illness was caused or aggravated by her
employment on October 28, 2009. Appellant stated that she sent in a light-duty request on
November 30, 2009 and that she was out seven weeks from that date. She contended that as
soon as she came back she realized something was going on with her back. In an attachment,
appellant states that starting on October 28, 2009 she started suffering from lower back pain and
stiffness that would occur after scanning parcels in the early morning hours. She noted that most
mornings she would scan for 90 minutes to 3 hours at a time. Appellant noted that on the
morning of November 20, 2009 her back was more bothersome and she went home.
Notes by a physician’s assistant, Wade K. Christensen, dated from December 16, 2009
through June 9, 2010 indicate that appellant was treated for headache and back pain. The record
also contains a January 14, 2009 progress note by him noting that appellant complained of back
pain for the last few days. Mr. Christensen noted that appellant fell one month ago and went to
the emergency room where they x-rayed her back and stated it was bruised, but that it had
improved. He assessed appellant with sacoiliitis at the time. Appellant also submitted notes
from a physical therapist.
Appellant submitted a request for light duty dated March 12, 2010 along with a note from
a physician’s assistant noting restrictions due to a herniated disc with radiculopathy. She also
submitted a note dated March 30, 2010 wherein she stated that she believed her job activities
contributed to her injury. Appellant submitted further notes alleging that she handled parcels for
90 to 180 minutes a shift. She stated that the first time she stopped working due to her alleged
injury was on November 20, 2009 and that she returned to work on January 25, 2010 part-time
light duty. Appellant noted that she again stopped working on February 2, 2010 and returned to
work on February 10, 2010 full-time light duty. She noted that she stopped working on
February 17, 2010 due to the injury and returned to work on March 19, 2010 full-time light duty.
A December 16, 2009 x-ray was interpreted by Dr. John Strobel, a Board-certified
radiologist, as evincing a negative lumbar spine.
In a February 24, 2010 report of a magnetic resonance imaging (MRI) scan of the lumbar
spine, Dr. L. Chris Bachman, a Board-certified diagnostic radiologist, noted moderately
advanced discogenic disease at L5-S1 with disc bulge resulting in minimal bilateral
neuroforminal narrowing but no significant central canal stenosis.
In a March 8, 2010 report, Dr. Strobel indicated that appellant received epidural and
Marcaine injections for lumbar disc displacement.
In an April 20, 2010 report, Dr. Wallace A. Baker, Board-certified in family medicine,
stated that appellant has likely had years of developing degenerative disc disease in her lumbar
spine. He noted that this was a normal occurrence which can become worse due to genetics,
weight and life style. Dr. Baker opined that appellant’s sudden increase of her symptoms of low
back pain with accompanying radicular symptoms are from a disc herniation at L5-S1
2

documented on her MRI scan. He noted that her symptoms began after a change in her job
duties which required abnormal bending and lifting conditions which did not allow her to use
proper body mechanics which could have led to a herniation of the disc noted on the MRI scan.
The employing establishment submitted statements controverting the claim. In a May 11,
2010 report, Damon Addison, a supervisor, indicated that he was appellant’s direct supervisor,
that management was not made aware of any issues regarding her scanning or other duties until
November 30, 2009 and that at that time the postmaster was told that appellant was having issues
with her back. He indicated that she told the postmaster that she had been in a car accident that
injured her back in the previous year and that she was then instructed to request light-duty status
and that she brought a light-duty request form and has been working under those restrictions
since. Mr. Addison indicated that several employees came to the postmaster with concerns that
appellant was only trying to get out of scanning parcels. He described appellant’s duties,
indicating that her activities required some form of lifting, pushing, pulling, bending or stooping
on a daily basis. Mr. Addison noted that the specific task of scanning parcels is a 60- to 90minute task daily depending on the volume of parcels and the task was split between multiple
clerks when there were enough clerks to get the processing done on time. A note from Brett
Drake, a coworker, indicated that when appellant was working she stated that she hurt her back
at home and that she was going to get a Family and Medical Leave Act (FMLA) case number so
she would not have to do scanning. Ms. Drake indicated that appellant told her that “she has
been to work a day here and there” and was now okay to work. She stated that in her opinion
that when appellant runs out of FMLA she will try for workers’ compensation. In a statement
dated May 11, 2010, Paulette Thomas, a coworker, indicated that she was working full time with
appellant and that they had a lot of mail to scan. She indicated that she needed appellant to scan
some more mail, and that appellant stated that if she was going to scan any more she was going
home. Ms. Thomas stated that she asked appellant if she hurt her back at work and she stated no
that she had fallen at home about a year ago.
By decision dated August 9, 2010, OWCP determined that the factual evidence did not
establish that the events occurred as described and therefore denied appellant’s claim.
On August 24, 2010 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. At the hearing held on December 2, 2010, she testified that she
had worked for the employing establishment almost six years she was hired as a mail processing
clerk and handler and now she also distributes mail. Appellant testified that she never had a back
injury or any problem with her back or any workers’ compensation case prior to the current
injury. She testified that on October 28, 2009 she had to scan for about two and a half hours and
when she went home that day she thought she had pulled a muscle. Appellant noted that finally
she told her supervisor’s supervisor that she could not do this as it was hurting her back. She
contended that the tubs were not ergonomically designed for someone of her height and that this
makes it difficult to bend properly. Appellant alleged that scanning mail was difficult because
she was 35-years-old. She discussed her medical treatment. Appellant noted that when she saw
the physician’s assistant, he indicated that she had a fall last month, but that she actually told him
that the fall was last year. She indicated that the fall was in December 2006 and that it was more
of a slide. Appellant indicated that she saw the physician’s assistant and not the doctor because
you can wait six months to see the doctor. The back pain noted by the physician’s assistant in

3

September 2009 was due to the flu. The car accident was a little fender bender and she never
went to the doctor for it. Appellant testified that she had back surgery in July 2010.
In a July 26, 2010 operative report, Dr. Lynn Stromberg, a Board-certified orthopedic
surgeon, indicated that appellant underwent a L5-S1 laminotomy, discectomy. Accompanying
hospital notes indicate that appellant was being treated for an L5-S1 right lumbar disc herniation
and that she had been treated for back pain since October. Dr. Stromberg noted that appellant
was a post clerk and was seen by Dr. Baker for low back pain and right leg discomfort.
By decision dated February 23, 2011, OWCP’s hearing representative affirmed the
decision denying appellant’s claim, finding that she had not established that the incident occurred
as alleged and also did not submit medical evidence establishing a causal relationship.
LEGAL PRECEDENT
An employee seeking compensation under FECA2 has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence,3
including that she is an “employee” within the meaning of FECA4 and that he filed her claim
within the applicable time limitation.5 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.6 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury while in the performance of duty. However, the
employee’s statements must be consistent with the surrounding facts and circumstances and her
2

Id. at §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

6

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

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

4

subsequent course of action.9 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may cast doubt on an employee’s statements in
determining whether he or she has established a prima facie claim for compensation. The
employee has the burden of establishing the occurrence of an alleged injury at the time, place
and in the manner alleged by a preponderance of the evidence.10 An employee has not met this
burden when there are such inconsistencies in the evidence that cast serious doubt upon the
validity of the claim. However, an employee’s statement alleging that an injury occurred at a
given time and in a given manner is of great probative value and will stand unless refuted by
strong and persuasive evidence.11
Causal relationship is a medical issue12 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,13 must be one of reasonable medical certainty,14
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.15
ANALYSIS
The Board finds that appellant failed to establish her claim for a back injury.
The Board notes that appellant’s history is inconsistent. Appellant testified that she never
had any problem with her back until she suffered the work injury on or about October 28, 2009.
However, in a physician’s assistant’s note dated January 14, 2009, he indicated that she
complained of back pain for the last few days and that she told him that she fell one month prior
to that, had emergency room x-ray her back and was told that it was bruised. Mr. Addison
indicated in his statement that appellant had been in an automobile accident the year prior to
following her claim, although appellant testified that this was not a serious accident. He stated
that several employees came to him and stated that appellant was trying to get out of scanning
parcels. Ms. Drake indicated that appellant was working when she told her that she hurt her back
at home and was going to get a FMLA case number so that she would not have to do scanning.
Ms. Thomas indicated that appellant stated that if she needed to scan any more mail she was
9

See Mary Jo Coppolino, 43 ECAB 988 (1992).

10

R.H., Docket No. 11-535 (issued October 5, 2011).

11

See Allen C. Hundley, 53 ECAB 551 (2002); Earl David Seal, 49 ECAB 152 (1997).

12

Mary J. Briggs, 37 ECAB 578 (1986).

13

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

14

See Morris Scanlon, 11 ECAB 384, 385 (1960).

15

See William E. Enright, 31 ECAB 426, 430 (1980).

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going home and that when Ms. Thomas asked if she hurt her back at work she stated no that she
had fallen at home a year ago. All of these statements cast serious doubt on appellant’s
credibility. Appellant also inferred that scanning mail was difficult due to her age of, 35-yearsold, but did not explain or produce evidence regarding the significance of her age and in
scanning mail.
The evidence submitted contains such inconsistencies as to cast doubt on the validity of
appellant’s claim. Accordingly, the Board finds that appellant has not met her burden of proof in
establishing that she experienced an employment-related incident at the time, place and in the
manner alleged.16
Given that appellant did not establish an employment incident, further consideration of
the medical evidence is unnecessary.17
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 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury to her back in the performance of duty causally related to factors of her
federal employment.

16

R.H., supra note 10.

17

See Bonnie A. Conteras, 57 ECAB 364, 368 n.10 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2011 is affirmed.
Issued: February 9, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, CHICAGO
NETWORK DISTRIBUTION CENTER,
Forest Park, IL, Employer
__________________________________________

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

Docket No. 20-1229
Issued: August 6, 2021

Case Submitted on the Record

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

JURISDICTION
On May 29, 2020 appellant, through counsel, filed a timely appeal from an April 2, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period March 11 through May 10, 2019, causally related to her accepted November 4, 2018
employment injury.
FACTUAL HISTORY
On November 4, 2018 appellant, then a 34-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she fractured her left fifth toe when a forklift driver
backed up and ran over her left foot while in the performance of duty. On the reverse side of the
claim form, the employing establishment indicated that she stopped work on the date of injury.
By decision dated November 14, 2018, OWCP accepted the condition of closed displaced
fracture of the fifth toe of the left foot, as work related.
In a duty status report (Form CA-17) dated February 11, 2019, Dr. George A. Sisson, Jr.,
an orthopedic surgeon, released appellant to full-time, full-duty work as of February 12, 2019.
In a February 28, 2019 letter, Dr. Tomasz M. Budz, an attending podiatrist, advised that
appellant may not return to work at that time due to severe left lower extremity pain. He requested
that she be excused from work for two weeks pending x-ray and magnetic resonance imaging
(MRI) scan reports. Dr. Budz, in a March 14, 2019 letter, indicated that appellant was evaluated
on that date for a left foot condition sustained when a forklift crushed her foot on
November 4, 2018. He noted that an MRI scan showed no acute fractures or ligament tears. The
MRI scan also showed stress reaction to bones of the left foot. Dr. Budz noted that appellant was
currently undergoing treatment for her continued left foot pain.
A Form CA-17 report dated March 12, 2019 by Dr. Ameer Matariyeh, a podiatrist,
diagnosed left foot contusion due to the November 4, 2018 employment injury and found that
appellant was unable to perform her regular work, and listed her work restrictions. In a May 7,
2019 report, he advised that appellant may not return to work at that time. Dr. Matariyeh noted
that physical examination findings and MRI scan test results confirmed left lateral foot pain and
bone marrow edema. He requested that appellant be excused from work until she had been cleared
by physical therapy and seen in a podiatry clinic for a follow-up evaluation.
OWCP also received an unsigned and undated report which provided a history of the
November 4, 2018 employment injury and findings on physical examination of appellant’s
foot/ankle, and referred her to physical therapy for the treatment of her left foot pain.
On May 17, 2019 appellant filed a claim for compensation (Form CA-7) for disability from
work for the period March 11 through May 10, 2019.
OWCP, in a May 21, 2019 development letter, informed appellant of the deficiencies of
her wage-loss compensation claim. It advised her of the type of medical evidence needed and
afforded her 30 days to respond. No additional evidence was received.

2

By decision dated June 26, 2019, OWCP denied appellant’s claim for compensation for the
period March 11 through May 10, 2019. It noted that she had not responded to its May 21, 2019
development letter.
OWCP subsequently received physical therapy reports dated June 27 and July 3, 2019.
On July 2, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review regarding the June 26, 2019 decision.
OWCP continued to receive physical therapy reports dated July 2 and 19, 2019.
OWCP also received an August 15, 2019 electromyogram/nerve conduction velocity
(EMG/NCV) study by Dr. David J. Weiss, a Board-certified physiatrist. Dr. Weiss provided an
impression that the study was normal. He also provided impressions of no electrodiagnostic
evidence of a left lower extremity neuropathy, left lumbosacral radiculopathy, or peripheral
neuropathy.
In reports dated March 12, April 23, June 24, July 30, and August 20, 2019, Dr. Budz
reiterated the history of the November 4, 2018 employment injury. He conducted an examination
and provided assessments of left foot pain, neurapraxia of the left lower extremity, subsequent
encounter, and neuritis. In reports dated July 30 and August 20, 2019, Dr. Budz noted that
appellant’s November 4, 2018 employment injury resulted in a nerve injury to the left dorsal
intermediate cutaneous nerve causing chronic pain. In the July 30, 2019 report, he released her to
part-time work with restrictions, effective August 7, 2020. In the August 20, 2019 report,
Dr. Budz advised that appellant may return to full-time, limited-duty work with restrictions,
effective September 11, 2019.
A telephonic hearing was held on November 5, 2019. By decision dated January 10, 2020,
the hearing representative affirmed the June 26, 2019 decision.
OWCP thereafter received a December 23, 2019 report by Dr. Budz. He reiterated that she
was released to part-time work with restrictions on August 7, 2019 and full-time work with
restrictions on September 11, 2019. Dr. Budz explained that appellant was unable to work from
March 11 through August 7, 2019 due to uncontrolled left foot pain, a left contusion with bone
marrow edema, and a nerve injury to the left dorsal intermediate cutaneous nerve as noted on the
March 9, 2019 MRI scan. He further advised that she developed neurapraxia resulting from her
crush injury.
On January 22, 2020 appellant, through counsel, requested reconsideration of the
January 10, 2020 decision.
OWCP, by decision dated April 2, 2020, denied modification of the January 10, 2020
decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period March 11 through May 10, 2019, causally related to her accepted November 4,
2018 employment injury.
In support of her claim for compensation, appellant submitted reports from Dr. Budz. In a
December 23, 2019 report, Dr. Budz found that she was totally disabled from work from March 11
4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see e.g., G.T., Docket No. 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB
397 (1999).
9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).

4

to August 7, 2019 due to uncontrolled left foot pain, a left contusion with bone marrow edema, a
nerve injury to the left dorsal intermediate cutaneous nerve, and neurapraxia resulting from her
crush injury. Although he opined that appellant developed employment-related disability during
the claimed period of disability, his opinion is of limited probative value because he did not
explain, with rationale, how or why she was unable to perform her regular work due to the effects
of her accepted employment condition of closed displaced fracture of the fifth toe of the left foot.
The Board has held that a report is of limited probative value regarding causal relationship if it
does not contain medical rationale explaining how a given medical condition/period of disability
has an employment related cause.12 Therefore, Dr. Budz’ December 23, 2019 report is insufficient
to establish appellant’s disability claim.
Dr. Budz’ remaining reports dated February 28 through August 20, 2019, noted a history
of the November 4, 2018 employment injury, diagnosed left foot pain, neurapraxia of the left lower
extremity, subsequent encounter, and neuritis. He opined that appellant was totally disabled from
work for two weeks commencing February 28, 2019. Dr. Budz subsequently released her to parttime work with restrictions as of August 7, 2020 and full-time, limited-duty work with restrictions
as of September 11, 2019. However, these reports are of no probative value regarding appellant’s
disability claim because they do not contain an opinion that she had disability during the claimed
period causally related to an accepted employment condition. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition or disability
is of no probative value on the issue of causal relationship.13 Therefore, these reports are
insufficient to establish appellant’s disability claim.
Likewise, the medical evidence from Dr. Matariyeh is also insufficient to establish that
appellant’s disability commencing March 11, 2019 was causally related to the November 4, 2018
employment injury. In a March 12, 2019 Form CA-17 report, he diagnosed left foot contusion due
to the November 4, 2018 employment injury. Dr. Matariyeh opined that appellant was unable to
perform her regular work and listed her work restrictions. In addition, in a May 7, 2019 report, he
confirmed that she had left lateral foot pain and bone marrow edema based on his physical
examination and MRI scan test results. Dr. Matariyeh opined that appellant could not return to
work until she was medically cleared. However, he did not offer an opinion regarding whether
she was totally disabled from work during the claimed period due to the accepted injury. Thus,
the Board finds that Dr. Matariyeh’s March 12 and May 7, 2019 reports are of no probative value
and are insufficient to establish her disability claim.14
Appellant also submitted Dr. Weiss’ August 15, 2019 EMG/NCV study. The Board has
held, however, that diagnostic studies, standing alone, lack probative value on the issue of causal

12

See S.K., Docket No. 19-0272 (issued July 21, 2020); T.T., Docket No. 18-1054 (issued April 8, 2020);
Y.D., Docket No. 16-1896 (issued February 10, 2017).
13
See J.M., Docket No. 19-1169 (issued February 7, 2020); A.L., 19-0285 (issued September 24, 2019);
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
14

Id.

5

relationship as they do not address whether the accepted employment injuries resulted in
appellant’s period of disability on specific dates.15
Appellant submitted an unsigned and undated report which provided a history of the
November 4, 2018 employment injury and examination findings, and referred her to physical
therapy for the treatment of her left foot pain. The Board has held that reports that are unsigned
or bear an illegible signature lack proper identification and cannot be considered probative medical
evidence as the author cannot be identified as a physician.16 Accordingly, this report is insufficient
to establish appellant’s claim.
The record also contains physical therapy reports dated June 27 and July 2, 3, and 19, 2019.
Certain healthcare providers such as physical therapists, nurses, physician assistants, and social
workers are not considered physicians as defined under FECA. Consequently, their medical
findings and/or opinions will not suffice for purposes of establishing entitlement to FECA
benefits.17
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury.18 Because appellant has not submitted rationalized medical opinion evidence
to establish employment-related total disability during the claimed period due to her accepted left
foot condition, the Board finds that she has not met her burden of proof to establish her claim.
On appeal, counsel contends that OWCP failed to adjudicate the claim in accordance with
the proper standard of causation and failed to give due deference to the findings of the attending
physician. As explained above, to establish causal relationship between the disability claimed and
the employment injury, an employee must submit rationalized medical evidence, based on a
complete factual and medical background, supporting such causal relationship.19 The opinion of
the physician 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

15
See D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued October 8, 2020);
R.J., Docket No. 19-0179 (issued May 26, 2020).
16

See Y.D., Docket No. 20-0097 (issued August 25, 2020); M.A., Docket No. 19-1551 (issued April 30, 2020);
T.O., Docket No. 19-1291 (issued December 11, 2019).
17

Section 8101(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013 ); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also R.L., Docket No. 19-0440 (issued July 8, 2019) (physical therapists); F.H., Docket No. 180160 (issued August 23, 2019); J.L., Docket No. 17-1207 (issued December 8, 2017) (a physical therapist is not
considered a physician under FECA).
18

Supra note 5.

19

Supra note 11.

6

employment factors identified by the employee.20 The medical evidence of record is insufficient
to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability for
the period March 11 through May 10, 2019, causally related to her accepted November 4, 2018
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 2, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 6, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

20

Supra note 12.

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

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Appearances:
Erik B. Blowers, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1273
Issued: June 3, 2021

Case Submitted on the Record

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

JURISDICTION
On June 16, 2020 appellant, through counsel, filed a timely appeal from a May 15, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 15, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability commencing July 15, 2018, causally related to her accepted February 10, 2017
employment injury.
FACTUAL HISTORY
On February 10, 2017 appellant, then a 35-year-old rural carrier associate (RCA), filed a
traumatic injury claim (Form CA-1) alleging that on February 10, 2017 she hit her head on the
“front glass” and her right knee when her privately owned vehicle was rear-ended while in the
performance of duty. She stopped work on February 11, 2017 and returned to part-time, modifiedduty for four hours per day on March 20, 2017. OWCP accepted appellant’s claim for right knee
contusion and scalp contusion and subsequently expanded the acceptance of her claim to include
right knee meniscus tear. It paid appellant wage-loss compensation on the supplemental rolls for
partial disability beginning April 1, 2017.
On July 12, 2017 appellant underwent right knee arthroscopic and partial medial
meniscectomy surgery and stopped work. OWCP paid wage-loss compensation on the
supplemental rolls until she returned to full-time, limited-duty on August 11, 2017. On April 3,
2018 appellant returned to full-duty work.4
In a July 20, 2018 urgent care report, Peter Nkyesiga, a physician assistant, noted that
appellant sustained injuries to her right knee and neck after a February 10, 2017 employment
injury. He indicated that appellant had returned to full duty three weeks prior and was complaining
of neck and right shoulder pain, as well as headaches originating from the neck pain. Mr. Nkyesiga
reported cervical spine examination findings of mild tenderness on palpation and good range of
motion and strength. He diagnosed posterior neck pain.
In an August 6, 2018 duty status report (Form CA-17), Dr. Tuan Huynh, a family medicine
specialist, noted the February 10, 2017 date of injury and a diagnosis of neck pain. The provider
indicated that appellant could not work regular duty, but could work modified duty with
restrictions of walking and driving a vehicle up to six hours, sitting and reaching above the
shoulder up to five hours, bending and stooping up to four hours, standing up to three hours,
climbing up to two hours, and kneeling, pulling, and pushing up to one hour.
Appellant stopped work on July 15, 2018. On August 9, 2018 she filed a notice of
recurrence (Form CA-2a) claiming disability from work beginning on July 15, 2018, causally
related to her accepted February 10, 2017 employment injury. Appellant indicated that her
physician had given her more restrictions due to her cervical issues. She described her medical
condition as “headaches almost daily, cervical pain, and shoulder pain.”
In a development letter dated September 4, 2018, OWCP informed appellant that the
evidence of record was insufficient to establish that she was unable to work full duty beginning
August 6, 2018. It advised her of the definition of a recurrence of disability and of the type of
4
In an April 2, 2018 examination report and Form CA-17, Dr. Harrison A. Latimer, a Board-certified orthopedic
surgeon, noted normal right knee examination findings and indicated that appellant could return to regular work.

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factual and medical evidence required to establish her recurrence of disability claim. OWCP
afforded appellant 30 days to provide the requested evidence.
OWCP received a November 13, 2017 report by Dr. Latimer who noted appellant’s
complaints of right knee pain. He indicated that appellant was tolerating work for eight-hour days.
Dr. Latimer reviewed appellant’s history and provided examination findings. He diagnosed status
post right knee arthroscopy. Dr. Latimer completed CA-17 forms dated November 13, 2017,
January 2, and April 2, 2018 and checked a box marked “Yes” indicating that appellant was able
to return to full duty.
In an October 9, 2018 decision, OWCP denied appellant’s claim for a recurrence of
disability commencing July 15, 2018, finding that the medical evidence of record was insufficient
to establish that she was disabled due to a material change or worsening of her February 10, 2017
employment injuries.
Appellant subsequently filed claims for compensation CA-7 forms on November 1 and 13,
2018, claiming that she was in a leave without pay status for the period October 16 through
November 10, 2018.
In a November 13, 2018 letter, appellant, through counsel, alleged that although OWCP
had denied appellant’s recurrence claim, it was still obligated to process and pay CA-7 forms for
disability related to appellant’s original injury. He requested that OWCP process his disability
claims for the period October 16 through November 10, 2018.
In a July 30, 2018 report, Dr. Huynh indicated that appellant was seen in his office for
complaints of neck pain as a result of an automobile collision. He described the February 10, 2017
automobile accident and reported that appellant had initially injured her neck, shoulder, and knee,
but primarily focused on treating and repairing her injured knee. Upon physical examination of
appellant’s cervical spine, Dr. Huynh observed restricted range of motion of her cervical spine and
moderate pain. He diagnosed cervical spine sprain and right shoulder sprain. Dr. Huynh opined
that appellant’s neck and right shoulder sprains were a direct result of the February 10, 2017 motor
vehicle collision. He reported that appellant was finding it increasingly difficult to do her job of
lifting packages, delivering mail, and driving her mail truck.
On November 19, 2018 appellant, through counsel, requested reconsideration.
On November 27, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions to Dr. Seth Jaffe, an osteopath who
specializes in orthopedic surgery, for a second opinion evaluation, regarding the status of her
February 10, 2017 employment injury and her ability to work. In a December 14, 2018 report,
Dr. Jaffe described the February 10, 2017 employment injury and noted that appellant’s claim was
accepted for scalp contusion and right knee medial meniscus tear. He noted that appellant had
returned to full-duty work on April 3, 2018 and had additional restrictions placed on her by a
different physician on July 15, 2018. Upon examination of appellant’s cervical spine, Dr. Jaffe
observed tenderness to palpation and mild limitation on range of motion with right trapezium
spasm. Examination of appellant’s right knee revealed no swelling or tenderness and normal
valgus stress, varus stress, and McMurray’s tests. Dr. Jaffe diagnosed right knee medial meniscus
tear and neck strain. He reported that appellant’s right knee and scalp contusions and right knee

3

medial meniscus tear had resolved. Dr. Jaffe reported that appellant had no additional conditions
related to the February 10, 2017 employment injury and that she could return to normal work
duties.
By decision dated January 2, 2019, OWCP denied modification of the October 9, 2018
decision. It found that the weight of the medical evidence rested with the December 14, 2018
report of Dr. Jaffe, a second opinion examiner.
In a January 24, 2019 letter, appellant, through counsel, requested that the acceptance of
appellant’s claim be expanded to include cervical sprain as causally related to the original
February 10, 2017 employment injury.
On February 20, 2019 appellant, through counsel, requested reconsideration. Counsel
noted that appellant’s recurrence claim alleged headaches and daily cervical and right shoulder
sprain, but Dr. Jaffe failed to address these symptoms.
In an April 25, 2019 letter, appellant, through counsel, requested an update on the request
to expand the acceptance of her claim to include a cervical strain and sprain.
By decision dated May 21, 2019, OWCP denied modification of the January 2, 2019
decision.
On June 11, 2019 appellant, through counsel, requested reconsideration. Counsel indicated
that he was submitting new medical evidence to demonstrate that appellant was unable to work
full duty due to her cervical condition, which she sustained as a result of the February 10, 2017
employment incident.
In a June 10, 2019 statement and completed questionnaire, appellant reported that she had
experienced neck pain since the February 10, 2017 motor vehicle accident. She listed the dates
that she received medical care and noted that she had now been diagnosed with disc bulges from
the motor vehicle accident.
Appellant submitted a May 9, 2019 cervical spine magnetic resonance imaging (MRI) scan
report, which showed mild disc bulges at C4-5, C5-6, and C6-7.
OWCP also received a June 3, 2019 report by Dr. Dawn Quashie, a Board-certified family
medicine physician. Dr. Quashie described the February 10, 2017 employment incident and
indicated that she had reviewed appellant’s medical history. She noted that appellant had
complained of continued cervical and shoulder pain since the accident and that a recent cervical
spine MRI scan report had revealed disc bulges at C4-5, C5-6, and C6-7. Dr. Quashie opined that
appellant’s diagnosed cervical disc bulges were consistent with the type of motor vehicle accident
that occurred on February 10, 2017. She described the mechanism of injury for a disc bulge and
explained that the migration of a disc could take months or longer to manifest. Dr. Quashie
diagnosed cervical disc disorder at C4-5, C5-6, and C6-7 with radiculopathy.
By decision dated September 4, 2019, OWCP denied modification of the May 21, 2019
decision.

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In a separate decision dated September 4, 2019, OWCP expanded the acceptance of
appellant’s claim to include cervical spine sprain.
On October 9, 2019 appellant, through counsel, requested reconsideration. Counsel
alleged that appellant was partially disabled and that the employing establishment was unable to
accommodate her new work restrictions due to her cervical injury.
Appellant submitted a September 25, 2019 letter from Dr. Riyaz Jinnah, a Board-certified
orthopedic surgeon, who noted that he would address the concerns in the September 4, 2019
OWCP decision. Dr. Jinnah indicated that he had reviewed appellant’s medical history and agreed
with Dr. Quashie’s medical opinion that appellant suffered from diagnosed disc bulges at C4-5,
C5-6, and C6-7 due to the February 10, 2017 motor vehicle accident. He also explained that it
was reasonable for Dr. Latimer and Dr. Jaffe to opine that appellant’s orthopedic conditions had
resolved because it was common for cervical symptoms involved with disc bulges to wane for
short durations or to develop later. Dr. Jinnah provided a detailed discussion of intervertebral discs
and bulging discs and how bulging discs develop. He reported that disc injuries, such as disc
bulges, follow a progression as the “nucleus pulposus places pressure on the annulus fibrous,
slowly making its way through successive layers.” Dr. Jinnah indicated that direct physical injury,
such as a rear-end collision in which the head is tossed forward is a common cause. He explained
that when appellant was rear-ended and tossed forward, she endured a “severe compressive load
on her cervical spine. Once injured and weakened, the discs would have slowly migrated, resulting
in the delay of presence on [appellant’s] diagnostic testing and intermittent symptoms, and now
displaying disc bulges whose origin began on the date of impact, February 10, 2017.” Dr. Jinnah
concluded that appellant’s disc bulges at C4-5, C5-6, and C6-7 were directly related to the
February 10, 2017 employment injury.
Dr. Jinnah further indicated that beginning October 2018, appellant’s symptoms required
a “reasonable accommodation” from her full duties. He noted that, as an RCA, appellant was
required to lift substantial loads and engage in repetitious turning, bending, reaching, and placing
stress on her spinal column. Dr. Jinnah reported that appellant had remained off work because the
employing establishment would not accommodate her medical restrictions. He noted that
appellant continued to need medical accommodations from work.
On October 25, 2109 OWCP referred appellant, along with an updated SOAF,5 a copy of
the case record, and a series of questions to Dr. Joseph Estwanik, a Board-certified orthopedic
surgeon, for a second opinion evaluation. Dr. Estwanik was asked to address whether appellant
had residuals of her accepted right knee meniscus tear and cervical sprain injuries and whether she
could perform the duties of the position described in the SOAF. In a December 16, 2019 report,
Dr. Estwanik noted that he had reviewed the SOAF and that appellant had stopped work entirely
more than one year prior. He described that appellant complained of lower back pain, neck pain,
right shoulder pain, right knee pain, headache, sleeping problems, neck stiffness, and tingling and
numbness in her arms and hands since the February 10, 2017 motor vehicle accident. Dr. Estwanik
noted that appellant denied current problems with her right knee. He discussed appellant’s medical
records and noted that an August 9, 2018 computerized tomography scan of the head had
confirmed a brain tumor meningioma on appellant’s right frontal lobe. Upon examination of
5
The October 25, 2019 SOAF noted that appellant’s claim was accepted for scalp contusion, right knee contusion,
right knee meniscus tear, and cervical sprain. It also described appellant’s job duties as an RCA.

5

appellant’s cervical spine, Dr. Estwanik observed normal range of motion and negative Spurling
sign. He also reported tenderness over the right trapezius when sitting. Examination of appellant’s
bilateral knees revealed no instability or patellofemoral crepitance. McMurry and Lachman signs
were negative.
Dr. Estwanik reported that appellant had no objective findings related to her right knee
meniscal tear. He noted that there were no positive physical examination findings and that
appellant had no complaints regarding her right knee. Dr. Estwanik also opined that there were no
objective findings of a cervical strain, “other than some residual periscapular levator scapula and
rhomboid tendinitis.” He also reported that he could not confirm that the cervical disc bulges noted
in the May 19, 2019 MRI scan resulted from the February 10, 2017 motor vehicle accident because
they appeared two years later. Dr. Estwanik concluded that appellant was capable of working as
a full-time RCA and completed a work capacity evaluation form (Form OWCP-5c) indicating that
she could return to full duty.
In a January 7, 2020 decision, OWCP denied modification of the September 4, 2019
decision.
OWCP subsequently received a September 25, 2019 Form CA-17 by an unknown provider
with an illegible signature who indicated that appellant could work with restrictions.
On January 17, 2020 appellant returned to full-duty work.
On February 19, 2020 appellant, through counsel, requested reconsideration. He indicated
that he was submitting a new medical report by Dr. Jinnah that addressed the concerns in the
January 7, 2020 OWCP decision.
Appellant submitted a January 15, 2020 report by Dr. Jinnah. He confirmed that he had
actually examined appellant on the date of the September 25, 2019 report and indicated that his
medical opinion was based on a comprehensive history and physical examination. Dr. Jinnah also
reported that appellant’s brain tumor had no impact on her symptomology. He affirmed his opinion
from the September 25, 2019 report that the February 10, 2017 employment incident was the direct
and proximate cause of appellant’s diagnosed medical conditions that resulted in her work
restrictions beginning October 2018.
By decision dated May 15, 2020, OWCP denied modification of the January 7, 2020
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition that had resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.6 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
6
20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).

6

of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.7
OWCP procedures provide that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
The change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. OWCP does not include a condition
that results from a new injury, even if it involves the same part of the body previously injured.8
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that
for each period of disability claimed, the disabling condition is causally related to employment
injury and supports that conclusion with medical reasoning.9 Where no such rationale is present,
the medical evidence is of diminished probative value.10
ANALYSIS
The Board finds that this case is not in posture for decision.
In November 2018 OWCP referred appellant to Dr. Jaffe for a second opinion examination
regarding the status of her February 10, 2017 employment injury and her ability to work. Dr. Jaffe
noted that appellant had returned to full-duty work on April 3, 2018 until her physician placed her
on work restrictions on July 15, 2018. He conducted an examination and reported that appellant’s
accepted right knee and scalp conditions had resolved. Dr. Jaffe opined that appellant could return
to her normal work duties. OWCP subsequently expanded acceptance of her claim to include
cervical spine sprain. It then referred appellant to Dr. Estwanik for another second opinion
evaluation to address whether appellant had residuals of her accepted right knee meniscus tear and
cervical sprain injuries and whether she could perform the duties of the position described in the
SOAF. In a December 16, 2019 report, he reviewed appellant’s history and noted cervical spine
examination findings of normal range of motion and tenderness over the right trapezius when
sitting. Dr. Estwanik opined that appellant no longer had objective findings related to her right
knee meniscal tear or cervical spine strain. He concluded that appellant was capable of returning
to her normal duties.
The Board finds that OWCP failed to properly develop appellant’s recurrence of disability
claim. While OWCP referred appellant to Drs. Jaffe and Estwanik for second opinion evaluations
regarding the status of her February 10, 2017 employment injuries, neither physician addressed
7

Id.

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R.
Love, 50 ECAB 193, 199 (1998).
9

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

10

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

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whether appellant sustained a recurrence of disability on July 15, 2018 due to a material change or
worsening of her February 10, 2017 employment injuries.11 When OWCP referred the case for
second opinion evaluations, it should have inquired as to whether appellant’s employment-related
conditions had worsened, such that she was unable to work full duty beginning July 15, 2018 due
to her accepted injury.12
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.13 While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.14 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in a manner that will resolve the relevant issues in the case.15
As noted above, proceedings under FECA are not adversarial in nature, and OWCP is not
a disinterested arbiter.16 On remand, OWCP shall request a supplemental report from Dr. Estwanik
addressing specifically whether appellant’s employment-related conditions had materially
changed or worsened such that she was disabled from work commencing July 15, 2018 due to her
accepted injury. Following any necessary further development, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

11

See D.M., Docket No. 19-1181 (issued December 2, 2019).

12

See P.R., Docket No. 19-1313 (issued August 11, 2020); see also S.S., Docket No. 18-0397 (issued
January 15, 2019).
13

N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019); B.A.,
Docket No. 17-1360 (issued January 10, 2018).
14

Id.; see also Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

15

T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

16

Supra note 13.

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ORDER
IT IS HEREBY ORDERED THAT the May 15, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: June 3, 2021
Washington, DC

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

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

9