United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
MUSEUM OF HEALTH & MEDICINE,
Silver Spring, MD, Employer
__________________________________________

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

Docket No. 19-0994
Issued: November 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 1, 2019 appellant filed a timely appeal from an October 18, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of disability, commencing on or after September 11, 2014, causally related to her accepted
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of
Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 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.

February 28, 2014 employment injury; and (2) whether appellant has met her burden of proof to
establish that the acceptance of her claim should be expanded to include additional medical
conditions causally related to her accepted February 28, 2014 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On March 6, 2014 appellant, then a 53-year-old management analyst, filed a traumatic
injury claim (Form CA-1) alleging that on February 28, 2014 she sustained injury to her right arm
when lifting binders at work while in the performance of duty.4 OWCP accepted her claim for a
sprain of her right shoulder and upper arm.5 Appellant began performing limited-duty work on a
full-time basis on March 16, 2014, but she periodically stopped work for intermittent periods of
disability thereafter. OWCP paid her wage-loss compensation benefits for intermittent periods of
disability on the daily rolls beginning April 6, 2014.
Appellant stopped work on September 11, 2014. On October 6, 2014 she filed a notice of
recurrence (Form CA-2a) claiming a recurrence of total disability commencing September 11,
2014 due to her accepted February 28, 2014 employment injury.
By decisions dated December 11, 2014 and June 12, September 14, and December 24,
2015, OWCP denied appellant’s recurrence claim because she did not submit sufficient medical
evidence to establish a recurrence of total disability on or after September 11, 2014 causally related
to her February 28, 2014 employment injury.
Appellant submitted several reports, dated between September 18, 2014 and April 2, 2015,
from Dr. David L. Taragin, a Board-certified neurologist, who determined that she was totally
disabled due to her February 28, 2014 employment injury. Dr. Taragin indicated that she had
disability due to employment-related right upper extremity conditions of complex regional pain
syndrome (CRPS) and brachial plexopathy. In reports dated between December 17, 2014 and
May 6, 2015, Dr. Dexter W. Love, a Board-certified orthopedic surgeon, also determined that
appellant was totally disabled due to her February 28, 2014 employment injury. He diagnosed
such conditions as employment-related degenerative disc disease of the cervical spine, cervical
radiculopathy, and anterior/inferior labrum tear of the right shoulder.

3

Docket No. 16-1279 (issued November 7, 2017).

4

OWCP assigned the claim OWCP File No. xxxxxx748. In reports dated beginning in March 2014, appellant
clarified the nature of the February 28, 2014 employment incident to her attending physicians by reporting that, on
that date, a group of binders fell on her right arm when she attempted to catch them.
5

Appellant previously filed a separate claim, OWCP File No. xxxxxx834, in which she alleged that on August 31,
2011 she sustained a traumatic injury when she stepped into a hole of a loading dock floor with her left leg and fell to
the floor. OWCP administratively handled the claim and paid a limited amount of medical benefits without formally
considering the merits of the claim. Appellant also had a history of a nonindustrial cervical radiculopathy from 2008.

2

In October 2014, OWCP had referred appellant to Dr. Robert A. Smith, a Board-certified
orthopedic surgeon, for a second opinion examination. In a November 19, 2014 report, Dr. Smith
determined that she ceased to have residuals of her February 28, 2014 employment injury. He also
noted that appellant did not have clinical findings of brachial plexopathy or CRPS and that she did
not sustain a condition other than right shoulder/upper arm sprain due to her February 28, 2014
employment injury. By decision dated February 5, 2015, OWCP terminated her wage-loss
compensation and medical benefits, effective February 2, 2015, based on Dr. Smith’s
November 19, 2014 report.6
Appellant appealed the December 24, 2015 OWCP decision to the Board and, by decision
dated November 7, 2017,7 the Board set aside the December 24, 2015 decision and remanded the
case to OWCP for further development. It found that the medical reports submitted by her were
sufficient to require further development with respect to the question of whether she sustained a
recurrence of disability on or after September 11, 2014 causally related to her accepted
February 28, 2014 employment injury. The Board specified that such development should include
consideration of whether appellant sustained a condition, other than a right shoulder/upper arm
sprain, causally related to the February 28, 2014 employment injury.
On remand, OWCP requested that Dr. Smith provide a supplemental report addressing the
questions of whether appellant had disability on or after September 11, 2014 causally related to
her February 28, 2014 employment injury, and whether her claim should be expanded to include
brachial plexopathy, CRPS, or any other medical condition causally related to her February 28,
2014 employment injury.
In a March 21, 2018 report, Dr. Smith advised that he had reviewed the medical evidence
of record and indicated that, when he examined appellant in November 2014, she had no clinical
findings of brachial plexopathy or CRPS. Moreover, the findings of her electromyogram and nerve
conduction velocity testing, considered in conjunction with her normal examination findings, ruled
out the existence of brachial plexopathy. Dr. Smith also noted that there were no magnetic
resonance imaging (MRI) scans, technetium bone scans, or x-rays to support the existence of
CRPS. He advised that he had no reason to revise the conclusions of his November 19, 2014 report
with respect to appellant’s claims for disability and expansion of the accepted conditions.8
On April 30, 2018 OWCP found a conflict in the medical opinion evidence between
Dr. Smith and Dr. Taragin regarding whether appellant had disability on or after September 11,
2014 causally related to her February 28, 2014 employment injury, and whether the acceptance of
her claim should be expanded to include additional conditions causally related to her February 28,
2014 employment injury. It referred appellant to Dr. Steven L. Friedman, a Board-certified
orthopedic surgeon, for an impartial medical examination and an opinion on these matters.

6

This termination action is not currently before the Board.

7

Supra note 3.

8
In a March 21, 2018 work capacity evaluation form (OWCP-5c), Dr. Smith indicated that appellant could return
to her regular work without restrictions.

3

In a June 4, 2018 report, Dr. Friedman discussed appellant’s factual and medical history
and reported the findings of his physical examination. He noted that examination of her right
shoulder revealed no visible atrophy, deformity, warmth, or erythema. Appellant had diffuse
tenderness involving the anterior, posterior, superior, and lateral aspects of the right shoulder, but
tenderness was not well localized to any particular anatomic region.9 Dr. Friedman advised that
she suffered a relatively minor trauma on February 28, 2014 when she was holding some binders
in her right arm with her elbow flexed in a fixed position and some additional binders fell from a
shelf onto her right arm. He also indicated that, as early as 2011, there was x-ray evidence of
degenerative changes in appellant’s right shoulder. Dr. Friedman noted that her February 28, 2014
employment injury in the form of a right shoulder/upper arm sprain did render her disabled from
work at that time, but opined that she would have been totally disabled for approximately three
weeks. Dr. Friedman advised that appellant then would have been able to return to work at least
in a position that limited overhead reaching, pushing, pulling, and lifting for an additional three
weeks. He further advised that, during his examination, appellant did not exhibit objective
evidence of CRPS. Dr. Friedman noted that there was no cutaneous allodynia or abnormal pseudomotor activity. Skin temperature, texture, nail growth, hair distribution, and sweat patterns were
bilaterally symmetric.10
Dr. Friedman opined that when he conducted his physical examination there was no
objective evidence of brachial plexopathy when electrodiagnostic testing was performed.
Dr. Friedman also advised that the diagnosis of degenerative disc disease of the cervical spine was
not related to the February 28, 2014 employment injury. He maintained that there was no trauma
to the cervical spine on February 28, 2014 and advised that there was convincing diagnostic
evidence that degenerative disease of the cervical spine existed prior to February 28, 2014.
Dr. Friedman opined that the tear of the anterior/inferior glenoid labrum of appellant’s right
shoulder was not caused by the February 28, 2014 employment injury. He explained that an MRI
scan taken in March 2014 showed a degenerative labral tear, and that the mechanism of the
February 28, 2014 incident as described by her would not be consistent with a diagnosis of
traumatic anterior/inferior glenoid labial tear. Dr. Friedman maintained that anterior/inferior
glenoid labral tears occur when the arm is in a ﬂexed, abducted, and externally rotated position, or
when a violent force pushes the humerus anteriorly and inferiorly with respect to the glenoid
labrum. Therefore, Dr. Friedman concluded that she would have been able to return to work
without speciﬁc restrictions six weeks after February 28, 2014.
By decision dated July 12, 2018, OWCP found that appellant did not meet her burden of
proof to establish a recurrence of disability, commencing on or after September 11, 2014, causally
related to her accepted February 28, 2014 employment injury. It further found that she did not
meet her burden of proof to establish that the acceptance of her claim should be expanded to
include brachial plexopathy, CRPS or any other medical condition causally related to her accepted
February 28, 2014 employment injury.

Dr. Friedman also indicated that appellant had no signiﬁcant motor weakness with respect to resisted internal or
external rotation of the right shoulder. Appellant had pain with right shoulder impingement maneuvers and
examination of the cervical spine revealed that cervical extension caused right trapezial pain.
9

10

Dr. Friedman indicated that, in reviewing the medical records, he did not see any evidence of CRPS in the past.

4

Appellant requested reconsideration of the July 12, 2018 decision and argued that she
sustained more serious medical conditions related to her February 28, 2014 employment injury
than had been accepted by OWCP. She submitted a July 17, 2018 report of Dr. Love who indicated
that he had treated her since February 25, 2016. Dr. Love noted that appellant reported
experiencing chronic right shoulder pain following an injury at work on February 28, 2014. He
advised that her right shoulder condition could beneﬁt from further physical therapy, subacromial
corticosteroid injection, and, if necessary, arthroscopic repair of the rotator cuff/biceps tendon and
subacromial decompression. Dr. Love noted, “The shoulder procedures would more deﬁnitively
treat the shoulder injury sustained February 2014.”11
By decision dated October 18, 2018, OWCP denied modification of the July 12, 2018
decision.
LEGAL PRECEDENT -- ISSUES 1 & 2
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged, and
that any specific condition and/or disability for which compensation is claimed are causally related
to the employment injury.12 These are the essential elements of each and every compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.13
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 which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.14 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
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.15 OWCP’s
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. That
change must result from a previous injury or occupational illness rather than an intervening injury

11

Appellant also submitted a number of medical reports already of record.

12
J.F., Docket No. 09-1061 (issued November 17, 2009).
December 6, 2017.

See also J.T., Docket No. 17-0578 (issued

13

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Dolores C. Ellyett, 41 ECAB 992 (1990).
14

20 C.F.R. § 10.5(x); see J.D., Docket No. 18-1533 (issued February 27, 2019).

15

Id.

5

or new exposure to factors causing the original illness. It does not include a condition that results
from a new injury, even if it involves the same part of the body previously injured.16
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 the employment
injury, and supports that conclusion with medical reasoning.17 Where no such rationale is present,
the medical evidence is of diminished probative value.18
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.19 The medical evidence required to establish causal
relationship between a claimed period of disability or specific condition and an employment injury
is rationalized medical opinion evidence. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.20
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”21 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.22
ANALYSIS -- ISSUES 1 & 2
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability, commencing on or after September 11, 2014, causally related to her accepted
16
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).
17

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

18

H.T., Docket No. 17-0209 (issued February 8, 2018).

19

C.S., Docket No. 17-1686 (issued February 5, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

20

See E.J., Docket No. 09-1481 (issued February 19, 2010).

21

5 U.S.C. § 8123(a).

22
D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).

6

February 28, 2014 employment injury. The Board further finds that she has not met her burden of
proof to establish that the acceptance of her claim should be expanded to include additional
medical conditions causally related to her accepted February 28, 2014 employment injury.
The Board finds that OWCP properly determined that a conflict existed in the medical
opinion between Dr. Taragin, an attending physician, and Dr. Smith, an OWCP referral physician,
regarding whether appellant sustained a recurrence of disability, commencing on or after
September 11, 2014, causally related to her February 28, 2014 employment injury, and whether
the acceptance of her claim should be expanded to include additional medical conditions causally
related to her February 28, 2014 employment injury. In order to resolve the conflict, OWCP
properly referred her, pursuant to section 8123(a) of FECA, to Dr. Friedman for an impartial
medical examination and an opinion on the matter.23
The Board finds that the special weight of the medical opinion evidence regarding the
above-noted issues is represented by the thorough, well-rationalized opinion of Dr. Friedman.24
The June 4, 2018 report of Dr. Friedman establishes that appellant did not sustain disability on or
after September 11, 2014 causally related to her February 28, 2014 employment injury and that
she did not sustain any condition causally related to that injury other than the accepted right
shoulder/upper arm sprain.
In his June 4, 2018 report, Dr. Friedman explained that the February 28, 2014 employment
injury was relatively minor in nature and that it was the type of injury that would have fully
resolved to the extent that appellant would have been able to return to work without speciﬁc
restrictions six weeks after February 28, 2014. He further advised that he did not see objective
evidence upon his own examination or in the medical documents of record that she ever exhibited
objective evidence of CRPS or brachial plexopathy. Dr. Friedman also opined that the diagnosis
of degenerative disc disease of the cervical spine was not related to the February 28, 2014
employment injury as there was no trauma to the cervical spine on February 28, 2014 and there
was convincing diagnostic evidence that appellant had degenerative disease of the cervical spine
prior to February 28, 2014. He maintained that the tear of the anterior/inferior glenoid labrum of
her right shoulder was not caused by the February 28, 2014 employment injury. Dr. Friedman
explained that an MRI scan taken in March 2014 showed a degenerative labral tear, and that the
mechanism of the February 28, 2014 incident as described by appellant would not be consistent
with a diagnosis of traumatic anterior/inferior glenoid labial tear.
The Board finds that Dr. Friedman’s opinion has reliability, probative value, and
convincing quality with respect to its conclusions regarding the relevant issues of the present case.
Dr. Friedman provided a thorough factual and medical history, and he accurately summarized the
relevant medical evidence. He provided medical rationale for his opinion by explaining that the
findings of record did not support disability on or after September 11, 2014 causally related to the

23

See id.

24

See id.

7

February 28, 2014 employment injury or that appellant sustained an injury other than a right
shoulder/upper arm sprain causally related to that injury.25
After OWCP denied appellant’s claims for recurrence of disability and expansion of
accepted conditions based on Dr. Friedman’s opinion, she submitted a July 17, 2018 report of
Dr. Love who indicated that her right shoulder condition could beneﬁt from further physical
therapy, subacromial corticosteroid injection, and, if necessary, arthroscopic repair of the rotator
cuff/biceps tendon and subacromial decompression. Dr. Love further indicated, “The shoulder
procedures would more deﬁnitively treat the shoulder injury sustained February 2014.” By
indicating that appellant might need surgery in the future to address her right shoulder condition
related to her February 28, 2014 employment injury, Dr. Love suggested that she sustained right
shoulder conditions related to that injury other than a right shoulder/upper arm sprain. However,
Dr. Love’s July 17, 2018 report does not establish her request to expand the accepted conditions
in that he did not provide a rationalized medical explanation for his ostensible opinion that she
sustained a more serious right shoulder condition related to her February 28, 2014 employment
injury than had already been accepted. The Board has held that a medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.26
Accordingly, the Board finds that the special weight of the medical evidence is represented
by the impartial medical examiner Dr. Friedman and establishes that appellant did not sustain a
recurrence of disability commencing on or after September 11, 2014, causally related to her
accepted February 28, 2014 employment injury and that the acceptance of her claim should not be
expanded to include additional medical conditions causally related to the accepted February 28,
2014 employment injury. As such, appellant has not met her 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 a recurrence of
disability, commencing on or after September 11, 2014, causally related to her accepted
February 28, 2014 employment injury. The Board further finds that she has not met her burden of
proof to establish that the acceptance of her claim should be expanded to include additional
medical conditions causally related to her accepted February 28, 2014 employment injury.

25

See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the
importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical
history, and the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion).
26

Y.D., Docket No. 16-1896 (issued February 10, 2017); C.M., Docket No. 14-0088 (issued April 18, 2014).

8

ORDER
IT IS HEREBY ORDERED THAT the October 18, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
A.F., Appellant

)
)
and
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DEPARTMENT OF HOMELAND SECURITY,
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CUSTOMS & BORDER PROTECTION,
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Newark, NJ, Employer
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___________________________________________ )

Docket No. 13-520
Issued: May 17, 2013

Appearances:
Richard Jacobowitz, for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On January 3, 2013 appellant, through her representative, filed a timely appeal from the
August 9, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) which
denied her claim for an injury in the performance of duty. 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 in the performance of duty.
FACTUAL HISTORY
On June 21, 2012 appellant, then a 57-year-old port director, filed a traumatic injury
claim alleging that on June 20, 2012 she was involved in a multiple vehicle accident in the
1

5 U.S.C. § 8101 et seq.

performance of duty. She alleged injuries to the head, face, chest, arms and lower extremities
following the accident and air bag deployment. Appellant’s supervisor stated that appellant was
in the performance of duty when the accident occurred. Appellant stopped work on
June 20, 2012.
By letter dated June 28, 2012, OWCP advised appellant that additional factual and
medical evidence was needed to establish her claim. Appellant was requested to provide dates of
examination and treatment, a history of injury given by her to a physician, a detailed description
of any findings, the results of any x-rays or laboratory tests, a diagnosis and course of treatment
followed and a physician’s opinion supported by a medical explanation as to how the reported
work incident caused the claimed injury. OWCP explained that the physician’s opinion was
crucial to her claim and allotted her 30 days within which to submit the requested information.
In attending physician’s reports dated June 27, 2012, Dr. Gary R. Weine, a Boardcertified internist, noted a history of appellant being involved in a motor vehicle accident on
June 20, 2012. He diagnosed chest wall trauma and checked the box “yes” in response to
whether the condition was caused or aggravated by an employment activity, noting “auto
accident.” Dr. Weine placed appellant off work. He also submitted partially legible June 27,
2012 treatment notes.
OWCP received hospital progress notes dated June 20 and 21, 2012 from Dr. Anthony
Kopatsis, a general surgeon, who treated appellant on the date of her injury for level-two trauma
after a motor vehicle accident and advised that she would stay overnight for observation.
Dr. Kopatsis advised that appellant was rear-ended, her air bag deployed and that she was
ambulatory at the accident scene and did not lose consciousness.
By decision dated August 9, 2012, OWCP denied appellant’s claim on the grounds that
she did not establish an injury as alleged. It found that the medical evidence was insufficient to
establish that her condition was caused by the motor vehicle accident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
Appellant was involved in a multiple vehicle accident in the performance of duty on
June 20, 2012; however, that is not disputed. OWCP found that the first component of fact of
injury, the claimed incident, occurred as alleged. However, the medical evidence is insufficient
to establish the second component of fact of injury, that the employment incident caused an
injury. The medical reports of record do not sufficiently establish that the multiple vehicle
accident on June 20, 2012 caused a personal injury. The medical evidence contains no firm
diagnosis, no rationale and no explanation of the mechanism of injury.
Appellant provided June 27, 2012 reports and treatment records from Dr. Weine who
noted that appellant was involved in a motor vehicle accident on June 20, 2012. Dr. Weine
diagnosed chest wall trauma and checked the box “yes” in response to whether he believed the
condition was caused or aggravated by an employment activity. However, checking of the box
“yes” that the disability was causally related to employment is insufficient without further
explanation or rationale, to establish causal relationship.9 Dr. Weine did not offer a rationalized
medical opinion explaining how appellant’s automobile accident caused or aggravated specific
diagnosed medical conditions.10
OWCP also received hospital progress notes dated June 20 and 21, 2012 from
Dr. Kopatsis. However, Dr. Kopatsis did not provide a clear opinion on causal relationship
6

John J. Carlone, 41 ECAB 354 (1989).

7

Id.

8

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

9

Barbara J. Williams, 40 ECAB 649 (1989).

10

The opinion of the physician must be based upon a complete factual and medical background of the claimant,
must be one of reasonable medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the claimant. The
weight of the medical evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested and the medical rationale expressed in support of the physician’s opinion. See James Mack, 43
ECAB 321 (1991).

3

between the motor vehicle collision and a specific diagnosed medical condition. Medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.11 Consequently, the Board finds that
this evidence is insufficient to establish appellant’s claim.
Other reports submitted by appellant did not diagnose a specific condition or specifically
address causal relationship. For these reasons, she has not established that the June 20, 2012
employment incident caused or aggravated a specific injury.
On appeal, appellant argued that her medical evidence established her claim. However,
as noted above, the evidence does not sufficiently explain how the motor vehicle accident caused
or aggravated specific medical conditions. The Board also notes that, subsequent to the
August 9, 2012 decision, OWCP received additional medical evidence. The Board has no
jurisdiction to review this evidence for the first time on appeal.12
OWCP, however, did not adjudicate the issue of appellant’s incurred medical expenses.
It has broad discretionary authority in the administration of FECA to achieve the objective of
section 8103 of FECA. OWCP has discretionary authority to approve unauthorized medical care
which it finds necessary and reasonable and is required to exercise that discretion.13 Ordinarily,
when an employee sustains a job-related injury which may require medical treatment, the
designated agency official shall promptly authorize such treatment by giving the employee a
properly executed Form CA-16 authorizing medical treatment and expenses within four hours.14
The regulations provide that in unusual or emergency circumstances OWCP may approve
payment for medical expenses incurred otherwise than as authorized. It may approve payment
for medical expenses incurred even if a CA-16 form authorizing medical treatment and expenses
has not been issued and the claim is subsequently denied; payment in such situations must be
determined on a case-by-case basis.15 On return of the record, OWCP should issue a de novo
decision on the issue of reimbursement of medical expenses.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of the 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 in establishing that she
sustained an injury in the performance of duty.

11

Michael E. Smith, 50 ECAB 313 (1999).

12

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

13

See L.B., Docket No. 10-469 (issued June 2, 2010).

14

See 20 C.F.R. § 10.300(b).

15

Id. at 10.304.

4

ORDER
IT IS HEREBY ORDERED THAT the August 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2013
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
G.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, SPACE
& MISSILE SYSTEMS CENTER, LOS
ANGELES AIR FORCE BASE, El Segundo, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 14-1247
Issued: February 12, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 7, 2014 appellant timely appealed an April 17, 2014 nonmerit decision and a
November 14, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has greater than 51 percent permanent impairment
of the right leg; and (2) whether the Branch of Hearings and Review properly denied his
March 19, 2014 request for a hearing.

1

5 U.S.C. §§ 8101-8193 (2006).

FACTUAL HISTORY
Appellant, a 62-year-old police officer, injured his right knee on January 29, 2004 while
participating in work-related physical training.2 OWCP initially accepted the claim for right
medial meniscus tear. On April 6, 2004 appellant underwent a right knee partial medial
meniscectomy and chondroplasty. In March 2008 OWCP expanded the claim to include left
medial meniscus tear as a consequential injury. On October 27, 2011 appellant underwent a left
knee partial medial and lateral meniscectomy, synovectomy, and chondroplasty. Between
November 2005 and May 2012, OWCP issued multiple schedule awards for both the left and
right lower extremities. As of May 8, 2012, it granted a combined 51 percent impairment of the
right leg and 35 percent for the left leg.3
On April 23, 2013 appellant underwent a right partial knee replacement, which OWCP
authorized.
In an August 21, 2013 report, Dr. Harbinder S. Chadha indicated that appellant reached
maximum medical improvement following his latest right knee surgery.4 He found 21 percent
impairment of the right leg was based on a good result from the April 2013 knee replacement
surgery. Dr. Chadha referenced the A.M.A., Guides (6th ed. 2008) as the basis for the latest
impairment rating.5
In November 2013, appellant filed a claim for an additional schedule award based on
Dr. Chadha’s August 21, 2013 impairment rating.
By decision dated November 14, 2013, OWCP denied appellant’s claim for an additional
RLE schedule award. It noted that he had previously received awards totaling 51 percent right
leg impairment, and Dr. Chadha’s latest rating found only 21 percent impairment. As such,
appellant was not entitled to an additional schedule award.

2

Appellant’s injury occurred at the Federal Law Enforcement Training Center in Artesia, NM. He was running
with classmates when his right knee began to swell and became very painful.
3

On November 18, 2005 appellant received a schedule award for seven percent impairment of the right leg under
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (2001).
On August 13, 2008 he received an award for 5 percent impairment of the left leg and an additional 44 percent
impairment for the right leg under the A.M.A., Guides (5th ed. 2001). OWCP awarded an additional 15 percent left
leg impairment on May 13, 2011. On May 8, 2012 appellant received an award for an additional 15 percent left leg
impairment. The May 13, 2011 and May 8, 2012 left leg awards were pursuant to the sixth edition of the A.M.A.,
Guides (2008).
4

Dr. Chadha is a Board-certified orthopedic surgeon, who performed both the 2004 and 2013 right knee surgical
procedures.
5

Although Dr. Chadha did not cite Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 509, 511 (6th ed.
2008), he appears to have relied upon this table and the diagnosis of “status post knee replacement” as a basis for his
21 percent right leg impairment rating.

2

Approximately four months after the November 14, 2013 decision, appellant requested an
oral hearing. He submitted the appeal request form that accompanied OWCP’s November 14,
2013 decision. Appellant’s request was dated March 19, 2014, and postmarked March 20, 2014.
In an April 17, 2014 nonmerit decision, the Branch of Hearings and Review denied the
hearing request as untimely. The hearing representative also denied a discretionary hearing,
noting that appellant could instead file a request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.6 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.7 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).8
FECA and its implementing regulations provide for the reduction of compensation for
subsequent injury to the same schedule member.9 Benefits payable under 5 U.S.C. § 8107(c)
shall be reduced by the period of compensation paid under the schedule for an earlier injury if:
(1) compensation in both cases is for impairment of the same member or function or different
parts of the same member or function; and (2) the latter impairment in whole or in part would
duplicate the compensation payable for the preexisting impairment.10
If a claimant sustains increased impairment at a later date which is due to work-related
factors, an additional award will be payable if supported by the medical evidence.11 In this case,
the original award is undisturbed and the new award has its own date of maximum medical
improvement (MMI), percent of impairment, and period of award.12 This may occur if the
claimant sustains additional impairment due to the original work factors with no intervening or
additional exposure to those same work factors.13
6

For complete loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

7

20 C.F.R. § 10.404 (2014).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
9

5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

10

20 C.F.R. § 10.404(c)(1), (c)(2).

11

Supra note 8 at Chapter 2.808.9b (February 2013).

12
13

Id.
Id.

3

If a claimant who has received a schedule award calculated under a previous edition of
the A.M.A., Guides is entitled to additional benefits, the increased award will be calculated
according to the sixth edition.14 Should the subsequent calculation result in a percentage of
impairment lower than the original award, as sometimes occurs, a finding should be made that
the claimant has no more than the percentage of impairment originally awarded, that the
evidence does not establish an increased impairment, and that OWCP has no basis for declaring
an overpayment.15
ANALYSIS -- ISSUE 1
OWCP previously awarded a combined 51 percent right leg impairment and the most
recent prior award is dated August 13, 2008. This schedule award was largely based on
impairment due to right knee arthritis under Table 17-31, A.M.A., Guides 544 (5th ed. 2001).
Since then appellant has undergone a right partial knee replacement involving the medial
compartment.
In an August 21, 2013 report, Dr. Chadha rated appellant based on the diagnosis of
“status post knee replacement.” Appellant had a good result from the April 23, 2013 knee
replacement surgery, which Dr. Chadha identified as class 2 Class of Diagnosis (CDX 2)
impairment, with a default lower extremity rating of 25 percent.16 Dr. Chadha then calculated a
net adjustment of -5 based on grade modifiers for Functional History (GMFH 0), Physical
Examination (GMPE 1), and Clinical Studies (GMCS 0).17 Based on the negative net
adjustment, he adjusted appellant’s rating downward to 21 percent right leg impairment.
Appellant has not demonstrated a greater impairment than the prior right leg schedule
awards totaling 51 percent and is not entitled to an additional schedule award for his right leg.
LEGAL PRECEDENT -- ISSUE 2
A claimant, injured on or after July 4, 1966, who has received a final adverse decision by
OWCP may obtain a hearing by writing to the address specified in the decision.18 The hearing
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought.19 The claimant must not have
previously submitted a reconsideration request (whether or not it was granted) on the same
14
15

Id. at Chapter 2.808.9d.
Id.

16

See Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 509, 511 (6th ed. 2008). Dr. Chadha rated
appellant based on a total knee replacement; however, he only performed a partial knee replacement involving the
medial compartment.
17

Net Adjustment (-5) ꞊ (GMFH 0 - CDX 2) + (GMPE 1 - CDX 2) + (GMCS 0 - CDX 2). See Section 16.3d,
A.M.A, Guides 521 (6th ed. 2008).
18
19

20 C.F.R. § 10.616(a).
Id.

4

decision.20 If the request is not made within 30 days, a claimant is not entitled to a hearing as a
matter of right. However, the Branch of Hearings and Review may exercise its discretion to
either grant or deny a hearing.21
ANALYSIS -- ISSUE 2
OWCP issued its latest merit decision on November 14, 2013. Appellant had 30 days to
request a hearing, but the hearing request was postmarked March 20, 2014. The regulations
provide that “[t]he hearing request must be sent within 30 days ... of the date of the decision for
which a hearing is sought.”22 Because appellant’s March 20, 2014 request was untimely, he was
not entitled to a hearing as a matter of right. The Branch of Hearings and Review also denied
appellant’s hearing request because it found that his claim for an additional schedule award could
be equally well-addressed by requesting reconsideration before OWCP. The Board finds that the
hearing representative properly exercised her discretionary authority in denying appellant’s
request for a hearing.23
CONCLUSION
Appellant failed to establish that he has greater than 51 percent impairment of the right
leg. The Board also finds that the Branch of Hearings and Review properly denied appellant’s
hearing request.

20

Id.

21

5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006); Herbert C. Holley, 33
ECAB 140 (1981).
22

20 C.F.R. § 10.616(a).

23

Mary B. Moss, 40 ECAB 640, 647 (1989). Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from known facts. See André Thyratron, 54 ECAB 257, 261 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the April 17, 2014 and November 14, 2013
decisions of the Office of Workers’ Compensation Programs are affirmed.24
Issued: February 12, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

24

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015 and did not participate in the preparation of this order.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.D., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
Albany, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1974
Issued: May 15, 2014

Case Submitted on the Record

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

JURISDICTION
On August 23, 20131 appellant filed a timely appeal from a February 26, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment of
compensation. 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

For final adverse OWCP decisions issued on and after November 19, 2008, a claimant has 180 days to file an
appeal with the Board. See 20 C.F.R. § 501.3(e). Under the Board’s Rules of Procedure, an appeal must be filed
within 180 days from the date of the last OWCP decision. An appeal is considered filed upon receipt by the Clerk of
the Appellate Boards. One hundred and eighty days from February 26, 2013, the date of OWCP’s decision, was
August 26, 2013. Since using August 28, 2013, the date the appeal was received by the Clerk of the Board, would
result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is August 23, 2013, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly found a $51,005.68 overpayment of
compensation for the period February 1, 2002 to February 11, 2012 as he received wage-loss
compensation and Social Security Act (SSA) benefits without an appropriate offset; (2) whether
OWCP properly denied waiver of the overpayment; and (3) whether OWCP properly directed
recovery of the overpayment by deducting $230.80 every 28 days from appellant’s continuing
compensation payments.
On appeal, appellant contends that he accurately reported his SSA benefits from 2002
onward. He contends that OWCP alone is responsible for any overpaid compensation from the
time it discovered the dual benefit in 2010, as it delayed taking action until 2012. Appellant
asserts that he is unable to repay the overpaid compensation due to financial hardship, noting that
he is still making payments on a prior overpayment. He also asserts that SSA overstated the
amount of his earnings, but acknowledged that he could not recall all periods of employment.
FACTUAL HISTORY
OWCP accepted that on or before January 3, 1997 appellant, then a 59-year-old
construction representative, sustained depressive disorder due to supervisory harassment.
Appellant had intermittent work absences from February to October 1997, then applied for
disability retirement on November 12, 1997 and did not return to work. He received
compensation on the daily rolls effective December 1, 1997. OWCP adjusted appellant’s
benefits retroactively to May 10, 1997 to reflect his marriage. On January 4, 1999 appellant
elected FECA benefits as of May 10, 1997. OWCP adjusted his compensation from the 2/3 rate
to the 75 percent rate retroactive to May 10, 1997 as he was married but had been erroneously
paid at the 66 2/3 percent rate for an unmarried individual. It placed appellant on the periodic
compensation rolls effective January 31, 1999. Appellant received compensation through
electronic funds transfer effective March 28, 1999.3
On annual affidavits of earnings and employment (Form CA-1032) submitted from
March 31, 2000 to February 27, 2012,4 appellant stated that he was in receipt of SSA retirement
annuity benefits and had a CSA number.
In an April 22, 2010 memoranda, SSA advised OWCP that appellant received monthly
benefits beginning in February 2002 at the following monthly rates: $1,003.50 from February to
December 2002; $1,017.50 from December 2002 to December 2003; $1,038.80 from
December 2003 to December 2004; $1,066.80 from December 2004 to December 2005;
$1,110.50 from December 2005 to December 2006; $1,147.10 from December 2006 to
3

On April 15, 2003 OWCP and OPM determined that appellant received simultaneous FECA compensation and
OPM Civil Service Retirement System (CSRS) retirement annuity benefits from January 31, 1999 to April 1, 2003,
creating an overpayment to OPM of $73,348.57. OPM recovered the overpayment by deducting $500.00 from his
continuing monthly compensation benefits effective June 10, 2006.
4

Appellant signed the forms on the following dates: March 31, 2000; April 24, 2001; May 15, 2002; February 5,
2003; July 14, 2004; February 19, 2006; March 13, 2007; February 16, 2008; February 25, 2009; February 25, 2010;
February 27, 2011; February 27, 2012.

2

December 2007; $1,173.40 from December 2007 to December 2008; $1,241.40 from
December 2008 to December 2009. On February 29, 2012 OWCP applied the December 2011
3.6 percent cost-of-living allowance (COLA) to appellant’s monthly SSA payments to determine
an offset amount of $427.11 every 28 days from December 2009 to November 30, 2011, and a
$442.49 offset from December 1, 2011 to February 11, 2012. It noted that increasing the offset
by 3.6 percent was “much easier than going back to SSA.” OWCP found that appellant had been
overpaid $51,005.68 in compensation for the period February 1, 2002 to February 11, 2012.
Effective February 12, 2012, OWCP adjusted his wage-loss compensation under FECA to reflect
the appropriate offset of his SSA benefits.
By notice dated February 29, 2012, OWCP advised appellant of its preliminary finding
that a $51,005.68 overpayment of compensation was created as he was paid dual compensation
under FECA and SSA for the period February 1, 2001 to February 11, 2012 without an
appropriate offset. It found that he was without fault in creating the overpayment.
On March 20, 2012 appellant completed an Overpayment Recovery Questionnaire (Form
OWCP-20) listing $5,721.00 in monthly income, $5,888.00 in monthly expenses and assets of
$484.24 in a checking account. He did not provide complete information regarding his wife’s
income, assets and expenses. Appellant contested the fact and amount of the overpayment and
requested waiver. He requested a decision based on a review of the record.
In an April 12, 2012 letter, appellant noted intermittent lapses in federal employment
prior to January 1, 1984 when OPM changed from the CSRS to Federal Employees’ Retirement
System (FERS). He returned to federal employment from July 1985 until he stopped work in
1997.
In an April 16, 2012 letter, OWCP explained that, if appellant “rejoined career [f]ederal
service on or after January 1, 1984,” the employing establishment likely placed him in CSRSoffset status rather than FERS, which required him to continue to pay into social security.
OWCP noted that the record established that he “paid into [s]ocial [s]ecurity as a [f]ederal
employee on or after January 1, 1984.”
By decision February 26, 2013, OWCP finalized the fact and amount of the preliminary
overpayment finding. It found that appellant was without fault in creating the overpayment, but
that waiver could not be granted as he did not submit required financial information. OWCP
found that, according to a report from a vocational rehabilitation counselor early in the claim,
appellant was federally employed by the U.S. Air Force from 1965 to 1970, by another agency
from 1978 to 1982, then worked in the private sector until he began new federal employment in
1985. Therefore, he had a break in service of more than one year after December 31, 1983.
“While [appellant] previously was a CSRS employee, by law all newly hired and rehired career
federal employees had mandatory SSA coverage.”5 Also, he reached full retirement age under
social security in February 2002. OWCP denied waiver as appellant failed to provide the
requested financial information regarding his wife’s income, assets and expenses. It further
5

CSRS Interim/Offset was a precursor to FERS that required contributions to both CSRS and OASDI. It
generally applied to certain new hires or former CSRS-covered employees who had been separated from service for
at least one year and rehired after December 31, 1983.

3

found that recovery would not be against equity and good conscience as there was no indication
that he changed his position for the worse in reliance on the overpaid compensation. OWCP
directed recovery of the overpayment by deducting $230.80 from his continuing compensation
payments every 28 days.
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 duty.6 Section 8129(a) of FECA provides, in pertinent part, that when “an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”7
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee received SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.8
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply. In disability cases, FECA benefits will be reduced by
the SSA benefits paid on the basis of age and attributable to the employee’s federal service.9 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: Where a claimant had received SSA benefit, OWCP will obtain information from SSA
on the amount of the claimant’s SSA benefits beginning with the date of eligibility to FECA
benefits.
SSA will provide the actual amount of SSA benefits received by the
claimant/beneficiary. SSA will also provide a hypothetical SSA benefit computed without the
FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual benefit
to determine the amount of benefits which are attributable to federal service and that amount will
be deducted from FECA benefits to obtain the amount of compensation payable.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained depressive disorder due to work factors on or
before January 3, 1997. Appellant received total disability compensation on the periodic rolls
beginning on January 31, 1999. He received SSA retirement annuity benefits beginning on
February 1, 2002, when he reached retirement age. Appellant disclosed these payments on
6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8116(d); Janet K. George (Angelos George), 54 ECAB 201 (2002).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997);
Chapter 2.1000.11(a)(b) (February 1995).
10

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

4

annual affidavits of earnings and employment (Form CA-1032) from March 31, 2000 to
February 27, 2012. However, OWCP did not begin to offset appellant’s FECA benefits by the
amount of his SSA benefits attributable to his federal employment under FERS until
February 12, 2012.11 As appellant is not entitled to receive both FECA benefits and that portion
of his SSA benefits attributable to his federal employment, OWCP properly determined that an
overpayment was created for the period February 1, 2002 to February 11, 2012.12
The Board finds, however, that the case is not in posture regarding the amount of
overpayment. The SSA memorandum listing the amount appellant received only covers the
period February 1, 2002 through December 2009. In a February 29, 2012 memorandum, OWCP
noted that it did not obtain payment information from SSA for the period December 2009 to
February 11, 2012. Therefore, the actual amount of the overpayment is not of record. OWCP
has not established that the correct amount of the overpayment is $51,005.68. The case will be
remanded to OWCP to obtain complete payment information from SSA regarding the payments
appellant received from February 1, 2002 to February 11, 2012, the entire period of the
overpayment. OWCP shall then recalculate the amount of the overpayment, based on the SSA
payment information. Following this development and any other action deemed necessary,
OWCP shall issue an appropriate decision in the case.
ISSUES 2 and 3
As the case is not in posture for a decision degrading the amount of the overpayment, it is
premature to address the issues of waiver and recovery. The second and third issues are
therefore moot.
CONCLUSION
The Board finds that, although OWCP has established that appellant received an
overpayment of compensation from February 1, 2002 to February 11, 2012, the case is not in
posture for a decision as to the amount of the overpayment.

11

5 U.S.C. § 8116(d).

12

Janet K. George (Angelos George), supra note 8. See G.B., Docket No. 11-1568 (issued February 15, 2012).

5

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further development
consistent with this decision.
Issued: May 15, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY,
)
COMMANDER FLEET FORCES COMMAND -- )
SHIPYARDS, Portsmouth, VA, Employer
)
___________________________________________ )
D.H., Appellant

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

Docket No. 14-294
Issued: May 23, 2014

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 November 24, 2013 appellant filed a timely appeal from the August 14, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on May 8, 2013.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence with her appeal contending that it supported causal
relationship. The Board cannot consider such evidence, however, for the first time on appeal. The Board’s review
of the case is limited to the evidence of record which was before OWCP at the time of its final decision.
20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

FACTUAL HISTORY
On May 9, 2013 appellant, then a 63-year-old engineering technician, filed a traumatic
injury claim alleging that on May 8, 2013 she reached in to the bottom of a safe to get some
compact discs (CDs) when she fell striking her right shoulder. In a May 9, 2013 statement, she
noted that she had a prior back injury in 1984, which was occupational.3 Appellant was off work
from May 9 to 29, 2013.
By letter dated May 15, 2013, OWCP advised appellant that the claim initially appeared
to be a minor injury. It administratively approved payment of limited medical expenses. As
appellant’s medical bills exceeded $1,500.00, it would adjudicate the claim. OWCP informed
her of the evidence needed to establish her claim.
In a May 24, 2013 statement, appellant’s supervisor concurred with appellant’s
description of injury. The injury was reported on May 9, 2013, the day of the incident and
appellant continued to work for two hours.
OWCP received reports from Dr. Arthur W. Wardell, a Board-certified orthopedic
surgeon and treating physician. On May 10, 2013 Dr. Wardell noted that appellant was injured
at work on May 8, 2013 when she was reaching into a safe at work. Appellant twisted her body
awkwardly and fell against boxes trying to pick up the CDs. Dr. Wardell advised that, since the
incident, she had neck pain which radiated to her right shoulder with pain in the upper and lower
back, which radiated to the right buttock and down to the right posterior thigh. On examination,
appellant had right paracentral tenderness and spasm and right trapezius tenderness and spasm.
Shoulder motion was normal. Appellant had right deltoid tenderness, bilateral parathoracic
tenderness, right parathoracic spasm, bilateral paralumbar tenderness, right piriformis tenderness
and moderate restriction of low back flexion with pain radiating to the right buttock and right
posterior thigh. Dr. Wardell noted that cervical spine x-rays showed C6-7 narrowing while the
right shoulder, dorsal spine, pelvis and lumbosacral spine x-rays were essentially normal. He
diagnosed cervical spine sprain, dorsolumbar spine sprain, right shoulder sprain and right sciatica
due to the history of injury. Dr. Wardell checked a box “yes” in response to a form question as
to whether appellant’s condition was caused or aggravated by an employment activity. He noted
that she was unable to return to work.
In reports dated May 29, 2013, Dr. Wardell noted that appellant had eight sessions of
physical therapy. On examination, appellant’s neck pain was worse together with her lower back
pain. Dr. Wardell stated that she had 25 percent restricted motion of her neck and tenderness
over the right trapezius, with moderate restriction of the low back. He repeated advised that
appellant was unable to return to work.
On July 1, 2013 Dr. Wardell noted that appellant continued to have some stiffness in her
neck and lower back, but therapy had helped. Appellant wanted to return to work with
restrictions. Dr. Wardell determined that she had 10 percent restriction of neck extension and
flexion, mild right paracervical pain and tenderness, moderate restriction of low back flexion and
3

Appellant also indicated that she had a prior injury to her head. The record reflects that she filed several
traumatic injury claims. The other claims are not presently before the Board.

2

negative straight leg raising. He recommended that appellant continue with therapy and resume
work with restrictions. Dr. Wardell provided a 15-pound lifting restriction and a six-hour
limitation on bending, stooping, pulling and pushing.
OWCP also received May 8, 2013 emergency room records noting that appellant was
treated by a physician’s assistant for cervical muscle spasm. A May 9, 2013 chest x-ray and
computerized tomography scan of the head were reported as normal. OWCP also received
reports from attending nurses, physician’s assistants and physical therapists.
By decision dated August 14, 2013, OWCP denied appellant’s claim. It found that the
medical evidence did not establish that the claimed medical condition was causally related to the
accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA5 and that an injury was sustained in the performance of duty.6 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical

4

5 U.S.C. §§ 8101-8193.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

James E. Chadden, Sr., 40 ECAB 312 (1988).

7

Delores C. Ellyett, 41 ECAB 992 (1990).

8

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
9

See John J. Carlone, 41 ECAB 345, 358 (1989). For a definition of the term “traumatic injury,” see 20 C.F.R.
§ 10.5(ee).

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10
ANALYSIS
Appellant alleged that on May 8, 2013 she reached into a safe to get some CDs and fell
on a box striking her right shoulder. Her head started hurting along with her back, right shoulder
and neck. The evidence supports that the May 8, 2013 incident occurred, as alleged. Appellant
fell against her right shoulder as she reached into a safe.
The Board finds that the medical evidence is insufficient to establish that the May 8, 2013
incident caused her injury. The medical evidence contains insufficient rationale on how the
May 8, 2013 incident caused or contributed to her diagnosed medical condition.11
Dr. Wardell noted that appellant was injured at work on May 8, 2013 when she fell while
reaching into a safe at work. Appellant twisted her body awkwardly and fell. After the incident,
she had pain in the neck which radiated to her right shoulder and pain in the upper and lower
back, which radiated to the right buttock and to the right posterior thigh. Dr. Wardell diagnosed
cervical spine sprain, dorsolumbar spine sprain, right shoulder sprain and right sciatica and noted
they were due to the injury. He checked a box “yes” in response to whether he believed the
condition was caused or aggravated by an employment activity. Dr. Wardell indicated that
appellant was unable to return to work. The Board has held that the checking of a box “yes” on a
form report, without additional explanation or rationale, is not sufficient to establish causal
relationship.12 Dr. Wardell did not otherwise address why the work incident caused or
contributed to any of the diagnosed conditions.
The subsequent reports from Dr. Wardell addressed appellant’s status but did not offer
any opinion on causal relationship. Medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.13 Similarly, reports of diagnostic testing are insufficient because these reports do
not specifically address whether the May 8, 2013 work incident caused or contributed to a
diagnosed medical condition.
OWCP also received reports from nurses, physician’s assistants and physical therapists.
However, the Board has held that lay individuals such as a physician’s assistant, nurse and
physical therapist are not competent to render a medical opinion under FECA.14 Only medical
10

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

11

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
12

Linda Thompson, 51 ECAB 694 (2000); Calvin E. King, 51 ECAB 394 (2000).

13

K.W., 59 ECAB 271 (2007).

14

E.K., Docket No. 09-1827 (issued April 21, 2010). See 5 U.S.C. § 8101(2) (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 the applicable state law).

4

evidence from a physician as defined under FECA will be accorded probative value. This
evidence has no probative medical value.15
Appellant may submit evidence or argument with a written request for reconsideration
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 did not meet her burden of proof in establishing that she
sustained a traumatic injury in the performance of duty on May 8, 2013.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2014
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

15

See Jane A. White, 34 ECAB 515, 518 (1983).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Hebbronville, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Aaron B. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1124
Issued: December 14, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On May 5, 2020 appellant, through counsel, filed a timely appeal from a January 10, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated April 5, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks 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 OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 8, 2016 appellant, then a 44-year-old border patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that on June 7, 2016 he sustained neck, middle back, left shoulder,
and left elbow injuries when he tried to prevent a large printer on a cart he was moving from
falling. He did not stop work following the injury. OWCP accepted the claim for traumatic
symphysis rupture, cervical strain, cervical radiculopathy, left shoulder joint sprain, thoracic spine
ligaments sprain, left elbow tendon sprain, other specified disorders of left elbow tendon, cervical
spine sprain, and lumbar spine sprain. OWCP paid appellant wage-loss compensation on the
supplemental rolls beginning October 3, 2015 and on the periodic rolls beginning
December 11, 2016.
On July 12, 2018 OWCP referred appellant for a second opinion evaluation, together with
a statement of accepted facts (SOAF), list of questions, and medical evidence, to Dr. Douglas
Porter, a Board-certified orthopedic surgeon. In a July 19, 2018 report, Dr. Porter opined that all
of appellant’s accepted conditions due to the June 7, 2106 employment injury had resolved and
that no further medical treatment was necessary. He also indicated that appellant’s accepted
conditions of cervical strain and radiculopathy, thoracic sprain, and lumbar sprain had been
temporarily aggravated. Dr. Porter opined that appellant had permanent work restrictions due to
unrelated preexisting bilateral shoulder and left elbow conditions.
On August 17, 2018 OWCP issued a notice of proposed termination of compensation
finding that the weight of the medical evidence of record established that appellant no longer
suffered from any residuals or continuing disability from work stemming from his June 7, 2016
employment injury. It afforded him 30 days to submit additional evidence to refute the proposed
termination of benefits.
By decision dated September 19, 2018, OWCP finalized the termination of appellant’s
wage-loss compensation and medical benefits, effective September 20, 2018, based on Dr. Porter’s
opinion that his accepted conditions had resolved.
In a letter dated September 25, 2018, appellant, through counsel, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review, which was held on
February 5, 2019.
By decision dated April 5, 2019, OWCP’s hearing representative affirmed the
September 19, 2018 termination decision.
On January 3, 2020 appellant, through counsel, requested reconsideration and submitted
an August 1, 2019 report from Dr. Kevin T. Smith, a Board-certified anesthesiologist, in support
of his request. Dr. Smith noted appellant’s history of injury, summarized diagnostic tests
reviewed, performed a physical examination, and diagnosed lumbar and cervical radiculopathy,

2

cervicalgia, cervical spondylosis, post-traumatic stress disorder, severe supraspinatus
tendinopathy tendinosis, multilevel degenerative mid and lower lumbar spine facet hypertrophy,
bilateral knee pain, moderate lateral epicondylitis, moderate C5-6 joint space narrowing,
patellofemoral joint chondromalacia, and right shoulder complex superior labral tear with tiny
adjacent paralabral cyst. He disagreed with the conclusion that the accepted employment
conditions had resolved without disability. Specifically, Dr. Smith disagreed with Dr. Porter’s
opinion that the June 7, 2016 employment injury caused a temporary rather than permanent
aggravation of preexisting conditions and that the accepted conditions had resolved without
residuals or disability.
By decision dated January 10, 2020, OWCP denied appellant’s request for reconsideration
of the merits of his claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.5
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6
When a timely application for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.7
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

3

Supra note 2 at § 8128(a).

4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6

Id. at § 10.606(b)(3); see B.R., Docket No. 19-0372 (issued February 20, 2020).

7

Id. at 10.608

3

Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law, and he did not advance a new and relevant legal argument not
previously considered. Accordingly, appellant is not entitled to a review of the merits of his claim
based on the first and second above-noted requirements under section 10.606(b)(3).8
On reconsideration counsel submitted new medical evidence from Dr. Smith, which
addressed the relevant issue of whether appellant’s has continuing disability and the need for
medical treatment on or after the termination of his wage-loss compensation and medical benefits.
The Board finds that the findings and opinions expressed in Dr. Smith August 1, 2019
report constitutes relevant and pertinent new evidence not previously considered by OWCP. This
report directly addresses whether appellant has residuals or continuing disability following the
termination of his wage-loss compensation and medical benefits on or after September 20, 2018.9
Dr. Smith provided a supportive medical opinion in favor of appellant’s claim for continuing
wage-loss compensation and medical benefits, and is thus relevant and pertinent new evidence in
support of his claim. Appellant’s request for reconsideration therefore met one of the standards
for obtaining merit review of his case. Accordingly, the Board finds that he is entitled to a merit
review.
The Board will therefore set aside OWCP’s January 10, 2020 decision and remand the case
for an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

8

Id. at § 10.606(b)(3); see J.W., Docket No. 19-1795 (issued March 13, 2020).

9

The Board has held that, in support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof. A claimant need only submit relevant and
pertinent evidence not previously considered by OWCP. See J.W., id.; M.C., Docket No. 17-1983 (issued August 17,
2018); S.H., Docket No. 17-1101 (issued August 3, 2017); Helen E. Tschantz, 39 ECAB 1382 (1988).

4

ORDER
IT IS HEREBY ORDERED THAT the January 10, 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 order of the Board.
Issued: December 14, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5