United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
San Diego, CA, Employer
__________________________________________

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

Docket No. 15-0808
Issued: October 26, 2015

Case Submitted on the Record

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

JURISDICTION
On February 26, 2015 appellant filed a timely appeal from a September 23, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $917.43, as he was paid compensation at the
augmented rate for the period June 20 through July 27, 2013 while he had no eligible
dependents; (2) whether OWCP abused its discretion in denying waiver of recovery of the
overpayment; and (3) whether OWCP properly required repayment of the overpayment by
deducting two payments of $306.07 and one payment of $306.05 from appellant’s continuing
compensation payments.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 22, 1993 appellant, then a 33-year-old special agent, filed a timely neck and
back injury claim resulting from a collision between vehicles. OWCP accepted his claim for
thoracic strain on August 3, 1993. The record does not indicate that appellant initially stopped
work. On September 15, 1994 OWCP also accepted right inguinal strain under this claim. In a
decision upon reconsideration dated February 19, 2002, it additionally accepted a condition of
bulging discs at T10-11 under this claim.
In a letter dated April 4, 2002, OWCP informed appellant that a court order had been
received from the Superior Court of California instructing that payment of $1,419.00 per month
in child support should be made to appellant’s ex-wife. Therefore $1,309.85 would be withheld
every 28-day pay cycle and paid to his ex-wife. Appellant received compensation on the
periodic rolls as of June 16, 2002, at a 75 percent rate due to having one or more dependents.2
Through the years appellant completed EN1032 forms reporting his two sons as
dependents. Their birthdates were listed as February 6, 1993 and January 9, 1995.
By letter dated March 8, 2011, appellant informed OWCP that his oldest son would turn
18 on February 6, 2011, and that he would graduate from high school on June 16, 2011, at which
time his child support obligation to his oldest son would cease.
In a Form EN1032 completed on February 7, 2013, appellant continued to claim his two
sons as dependents. The form advised him regarding the circumstances when he would be
entitled to receive compensation at an augmented pay rate:
A claimant who has no eligible dependents is paid compensation at 66 2/3 percent
of the applicable pay rate. A claimant who has one or more eligible dependents is
paid compensation at 75 percent of the applicable pay rate. You must answer the
questions below to ensure your compensation is paid at the correct rate.
You may claim compensation for a dependent if you have one or more of the
following: (a) a husband or wife who lives with you; (b) an unmarried child,
including an adopted child or stepchild, who lives with you and is under 18 years
of age; (c) an unmarried child who is 18 or over, but who cannot support himself
or herself because of mental or physical disability; (d) an unmarried child under
23 years of age who is a full-time student and has not completed four years of
school beyond the high school level; and (e) a parent who totally depends upon
you for support.
On February 25, 2013 appellant advised OWCP by letter that his youngest son had turned
18 on January 6, 2013, and that he would graduate from high school on June 19, 2013, at which
time his child support obligation would cease.

2

This case has previously been before the Board. In an October 14, 2008 order, Docket No. 08-0342, the Board
remanded the case to OWCP to hold a telephone conference regarding a prior overpayment.

2

By letter dated July 19, 2013, appellant again advised OWCP that he had not received
any response to his letter dated February 25, 2013, and that an overpayment would occur if
payment was not corrected to reflect that his youngest son was no longer a dependent.
On August 5 and October 3, 2013 OWCP wrote to appellant advising that an
overpayment had occurred because information had only been received on July 19, 2013 that the
overpayment would occur if his pay rate was not adjusted. It advised him that he would have to
resolve the overpayment issue with his ex-wife.
In a payment worksheet dated April 10, 2014, an OWCP representative noted that
appellant was paid $8,293.50 for the period June 20 through July 27, 2013, at the 75 percent rate,
but was entitled only to $7,376.07 at the 66.66 percent rate for that period. As such, the
representative stated that appellant was overpaid by $917.43.
By letter dated April 28, 2014, OWCP advised appellant that a preliminary determination
had been made that he received an overpayment of compensation in the amount of $917.43 for
the period June 20 through July 27, 2013 because he received compensation benefits at the 75
percent augmented rate when he no longer had an eligible dependent. It noted that his youngest
son turned 18 on January 6, 2013 and graduated from high school on June 19, 2013, and
therefore he was not entitled to compensation at the dependent rate of 75 percent for the period
June 20 through July 27, 2013. OWCP also made a preliminary determination that appellant was
without fault in the creation of the overpayment because appellant was not aware nor could he
reasonably be expected to know that it had paid compensation incorrectly. It provided him 30
days to challenge the proposed overpayment, request a telephone conference, and to submit
financial information.
On May 15, 2014 appellant requested a telephone conference with an OWCP hearing
representative, noting that he disagreed with the preliminary determination because he was not at
fault and was requesting a waiver of recovery of the overpayment. He also provided a completed
overpayment recovery questionnaire detailing his monthly income of $6,000.00, monthly
expenses of $4,300.00, and assets of $500.00. Appellant submitted copies of bills documenting
his expenses. He noted in an attached statement that he had done his due diligence in alerting
OWCP to the upcoming graduation of his son, and that the overpayment actually went to a
different individual.
In a record of a telephone conversation dated August 21, 2014, an OWCP representative
advised appellant that OWCP had already determined that he was not at fault in creating the
overpayment, and that it would proceed to review his financial data.
In a memorandum of a conference dated September 3, 2014, appellant claimed that
OWCP had previously “pulled out money” from his ex-wife’s account. OWCP stated that it had
no ability to do so. Appellant explained that he had no way to contact his ex-wife in order to
recover the money. He had her address, but was under a restraining order not to contact her.
Appellant noted that he received social security of approximately $1,300.00 per month, expenses
of $500.00 per month for food, and $400.00 of other expenses. The claims examiner determined
that appellant appeared to have sufficient income to pay back the overpayment.

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In a September 23, 2014 decision, OWCP finalized the preliminary determination and
found that appellant received a $917.43 overpayment. It found that appellant was without fault
in the creation of this overpayment, but that waiver of recovery of the overpayment was denied,
as appellant appeared to have sufficient income and resources needed for ordinary and necessary
living expenses. OWCP found that the overpayment should be repaid through deduction of
$306.07 from the next two compensation payments and $306.05 from the payment thereafter.
LEGAL PRECEDENT -- ISSUE 1
The basic rate of compensation under FECA is 66 2/3 percent of the injured employee’s
monthly pay.3 When the employee has one or more dependents as defined by FECA, he is
entitled to have his compensation augmented at eight and one-third percent.4
The basic statutory rate of compensation under FECA is 66 2/3 percent of the injured
employee’s monthly pay.5 Under section 8110 of FECA, a claimant is entitled to augmented
compensation at 75 percent of his or her weekly pay if he or she has one or more dependents.6
Under FECA a dependent includes an unmarried child, while living with the employee or
receiving regular contributions from the employee toward his support, who is either under 18
years of age, or over 18 years of age and incapable of self-support because of physical or mental
disability.7 FECA further provides that compensation payable for a child that would otherwise
end at the time he or she reaches 18 years of age shall continue if he or she is a student as defined
by 5 U.S.C. § 8101.8
ANALYSIS -- ISSUE 1
Because appellant’s youngest son graduated high school on June 19, 2013, appellant
should have received compensation at the adjusted rate of 66 2/3 percent commencing
June 20, 2013. However, the evidence reflects that appellant received compensation at the
augmented rate from June 20 through July 27, 2013.
The record contains logs of appellant’s compensation payments from OWCP and a
payment worksheet reflecting OWCP’s calculation of his overpayment during that period. The
documents reveal that appellant was entitled to receive the amount of $7,376.07, but actually
received $8,293.50, an overpayment of $917.43. The Board finds that OWCP properly

3

5 U.S.C. § 8105(a).

4

Id. at § 8105(b).

5

Id. at 8105(a).

6

Id. at § 8110.

7

Id. at § 8110(a)(3).

8

Id. at § 8101(17).

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determined that appellant received an overpayment of compensation for the period June 20
through July 27, 2013 in the amount of $917.43.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA10 provides that, where an overpayment of compensation has
been made because of an error of fact or law, adjustments shall be made by decreasing later
payments to which an individual is entitled.11 The only exception to this requirement is found in
section 8129(b) of FECA, which provides that adjustments or recovery may not be made when
incorrect payments has been made to an individual who is without fault and when such
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.12
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment.13 OWCP must exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience, pursuant to the guidelines provided in sections 10.434 and 10.437 of the
implementing federal regulations.14
As the only limitation on OWCP’s authority is reasonableness, 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.15
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of compensation
and considered whether he was entitled to waiver of recovery. The fact that OWCP may have
been negligent in the creation of the overpayment does not entitle appellant to waiver of the
overpayment.16 An overpayment may be waived only upon a showing that recovery would
defeat the purpose of FECA or would be against equity and good conscience.
To establish that repayment of the overpayment would defeat the purpose of FECA,
appellant must show that he requires substantially all of his income to meet current, ordinary,

9

See K.S., Docket No. 15-940 (issued September 9, 2015).

10

5 U.S.C. § 8129(a).

11

Id.

12

Id. at § 8129(b).

13

James Lloyd Otte, 48 ECAB 334, 338 (1997); see William J. Murphy, 40 ECAB 569, 571 (1989).

14

20 C.F.R. §§ 10.434 and 10.437.

15

Daniel J. Perea, 42 ECAB 214, 221 (1990).

16

See M.C., Docket No. 07-1613 (issued August 26, 2008).

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and necessary living expenses and that his assets do not exceed the established limit as
determined by OWCP procedures.17
Appellant provided an overpayment recovery questionnaire indicating that he had an
income of $6,000.00 per month, monthly expenses of $4,300.00, and assets of $500.00. At the
conference, he noted that he received social security payments of $1,300.00 per month, and
$400.00 of additional expenses. The record of payments to appellant reveals that he receives
gross compensation in the amount of $5,534.00 every 28 days. The evidence of record does not
demonstrate that repayment of the overpayment would be against equity and good conscience.
Moreover, appellant submitted no evidence or argument that he relied upon the incorrect
payments to his detriment or that he would experience severe financial hardship attempting to
repay the debt. Thus, the Board finds that he is not entitled to waiver of recovery of the
overpayment of compensation as he has not established that recovery would be against equity or
good conscience, or defeat the purpose of FECA.18
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. Section
10.441(a) of OWCP regulations provide that 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 soon as the error is discovered or his or her attention is called to same.19
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.20
ANALYSIS -- ISSUE 3
OWCP reduced appellant’s future compensation payments by $306.07 from the next two
compensation payments and $306.05 from the payment thereafter, taking into account the
amount of compensation and the financial circumstances of appellant to minimize hardship, as
well as the factors set forth in section 10.441 of its regulations. It found that this method of
recovery would minimize any resulting hardship on him. The Board finds that OWCP properly
17

20 C.F.R. § 10.436.

18

The Board notes that a portion of this overpayment was paid to appellant’s ex-wife as child support under a
court order. While this portion of the overpayment was not deposited directly into appellant’s bank account, it was
paid in his name. The implementing regulations contemplate garnishment of compensation and allow such
garnishment as proved by a court order for the purposes of child support or alimony. See id. at § 10.423. OWCP
mistakenly continued garnishment of appellant’s compensation after the expiration of the child support order.
However, the payments were still being made to appellant as a beneficiary. OWCP has no authority to collect an
overpayment from a nonbeneficiary under these circumstances. As such, the portion of the overpayment resulting
from OWCP’s continued garnishment of compensation after the expiration of a child support order must remain
attributable to appellant.
19

Id. at § 10.441.

20

Id.

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required repayment of the overpayment of compensation by deducting $306.07 from the next
two compensation payments and $306.05 from the payment thereafter. However, it appears that
the total amount OWCP found to be deducted for the overpayment is greater than the combined
compensation payment rates by 76 cent. As such, the Board finds that the last payment should
be $305.29.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $917.43 for the period June 20 through July 27, 2013, for which he was not at fault. The
Board further finds that appellant is not entitled to waiver of recovery of the overpayment of
compensation and that OWCP properly required repayment of the overpayment by deducting
$306.07 from the next two compensation payments and $305.29 from the payment thereafter.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: October 26, 2015
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________

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

Docket No. 16-0041
Issued: February 11, 2016

Case Submitted on the Record

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

JURISDICTION
On October 13, 2015 appellant filed a timely appeal from a September 29, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has proven a schedule award for permanent impairment of
the right upper extremity.
FACTUAL HISTORY
On January 14, 2011 appellant, then a 56-year-old letter carrier, sustained an injury when
he slipped on ice as he was trying to step off of a porch. OWCP accepted the claim for bilateral
rotator cuff rupture, right recurrent dislocation of the shoulder region, right biceps tendon
1

5 U.S.C. § 8101 et seq.

rupture, right sprain of shoulder upper arm rotator cuff, and other affections of the shoulder
region not elsewhere classified. Appellant stopped work and received wage-loss compensation
benefits. He sought treatment with Dr. Ammar Anbari, a Board-certified orthopedic surgeon,
and underwent biceps tenotomy surgery on October 11, 2011. Appellant was placed on the
periodic rolls, effective November 6, 2011. On June 13, 2012 he returned to work part time with
restrictions.
In a June 2, 2014 medical report, Dr. Anbari examined appellant’s post-bilateral shoulder
arthroscopy for submission of an impairment rating. He noted that appellant could return to full
duty without restrictions except for no lifting over four feet above the ground. Dr. Anbari opined
that appellant reached maximum medical improvement (MMI). In accordance with the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), he opined that appellant had 11 percent permanent impairment of
the right shoulder due to distal clavicle resection and 7 percent permanent impairment of the left
shoulder.
On July 7, 2014 appellant filed a claim for a schedule award (Form CA-7).
By letter dated July 18, 2014, OWCP requested that appellant submit an impairment
evaluation from his attending physician in accordance with the sixth edition of the A.M.A.,
Guides (6th ed. 2009).2 It provided him 30 days to submit the requested impairment evaluation.
The only current medical evidence received was a November 7, 2014 report from David
Farrington, a physician assistant (PA-C). Mr. Farrington provided findings on physical
examination and recommended a new magnetic resonance imaging (MRI) scan of the right
shoulder to evaluate whether the rotator cuff had retorn.
By decision dated September 29, 2015, OWCP denied appellant’s claim for a schedule
award. It noted that the medical evidence supported a finding that his condition had not yet
reached a fixed and permanent state.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.3 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

2

On March 15, 2009 the Director exercised authority to advise that as of May 1, 2009 all schedule award
decisions of OWCP should reflect use of the sixth edition of the A.M.A., Guides. The applicable edition of the
A.M.A., Guides is determined as of the date that the schedule award decision reached. It is not determined by either
the date of MMI or when the claim for such award was filed. Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
3

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

2

all claimants. The A.M.A., Guides (6th ed. 2009) (A.M.A., Guides) has been adopted by the
implementing regulations as the appropriate standard for evaluating scheduled losses.4
It is the claimant’s burden to establish that he has sustained a permanent impairment of
the scheduled member or function as a result of any employment injury.5 Before an award may
be made, it must be medically determined that no further improvement can be anticipated and the
impairment must reach a fixed and permanent state, which is known as MMI.6 OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which describes the impairment in sufficient detail so that it can be visualized on
review, and computes the percentage of impairment in accordance with the A.M.A., Guides.7
The sixth edition requires identifying the impairment class for the Class of Diagnosis
(CDX) condition, which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).8 The net adjustment
formula is GMFH-CDX + GMPE-CDX + GMCS-CDX.
ANALYSIS
OWCP accepted appellant’s claim for bilateral rotator cuff rupture, right recurrent
dislocation of the shoulder region, right biceps tendon rupture, right sprain of the shoulder upper
arm rotator cuff, and right other affections of shoulder region not elsewhere classified. On
July 7, 2014 appellant filed a claim for a schedule award. By decision dated September 29,
2015, OWCP denied his schedule award claim finding that he had not submitted an impairment
evaluation to establish that he sustained a permanent impairment resulting from his work injury.
The Board finds that appellant has not submitted sufficient evidence to establish that, as a
result of his employment injury, he sustained permanent impairment to a scheduled member to
establish a schedule award. By letter dated July 18, 2014, OWCP informed him of the type of
evidence necessary to establish his schedule award claim and specifically requested that he
submit an impairment evaluation from his attending physician in accordance with the sixth
edition of the A.M.A., Guides.
In a June 2, 2014 medical report, Dr. Anbari examined appellant post-bilateral shoulder
arthroscopy and opined that appellant reached MMI. In accordance with the fifth edition of the
A.M.A., Guides, he opined 11 percent permanent impairment of the right shoulder due to distal
clavicle resection and 7 percent permanent impairment of the left shoulder. The Board finds that
Dr. Anbari’s report is not sufficient to establish that appellant is entitled to a schedule award.
4

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
5

Tammy L. Meehan, 53 ECAB 229 (2001).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (January 2010).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.7 (February 2013).
8

A.M.A., Guides 494-531.

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The Board notes that Dr. Anbari improperly utilized the fifth edition of the A.M.A., Guides when
providing his impairment rating. In Harry D. Butler,9 the Board noted that Congress delegated
authority to the Director regarding the specific methods by which permanent impairment is to be
rated. Pursuant to this authority, the Director adopted the A.M.A., Guides as a uniform standard
applicable to all claimants and the Board has concurred in the adoption.10 On March 15, 2009
the Director exercised authority to advise that as of May 1, 2009 all schedule award decisions of
OWCP should reflect use of the sixth edition of the A.M.A., Guides.11 As Dr. Anbari failed to
utilize the sixth edition of the A.M.A., Guides, his opinion is of no probative value.
The only other current evidence received was a November 7, 2014 report from
Mr. Farrington who provided findings on physical examination and recommended a right
shoulder MRI scan to determine whether the rotator cuff had retorn. The Board has held
however that an opinion from a physician assistant has no probative medical value in
establishing appellant’s schedule award claim. A physician assistant is not considered to be a
physician as defined under FECA.12 The opinion expressed by Mr. Farrington regarding
maximum medical improvement is therefore of no probative medical value.
It is appellant’s burden of proof to establish that he sustained permanent impairment of a
scheduled member as a result of an employment injury.13 The medical evidence must include a
description of any physical impairment in sufficient detail so that the claims examiner and others
reviewing the file would be able to clearly visualize the impairment with its resulting restrictions
and limitations.14 Appellant did not submit such evidence and thus, did not meet his burden of
proof.15
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he is entitled to a schedule award
for permanent impairment of the left upper extremity.
9

43 ECAB 859 (1992).

10

Id. at 866.

11

FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.5(a)
(February 2013).
12

J.B., Docket No. 13-0976, (issued September 5, 2013); Roy L. Humphrey, 57 ECAB 238, 242 (2005); 5 U.S.C.
§ 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law).
13

Supra note 5.

14

See A.L., Docket No. 08-1730 (issued March 16, 2009).

15

V.W., Docket No. 09-2026 (issued February 16, 2010); L.F., Docket No. 10-343 (issued November 29, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 29, 2015 is affirmed.
Issued: February 11, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 09-96
Issued: March 19, 2009

Case Submitted on the Record

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

JURISDICTION
On October 15, 2008 appellant, through counsel, filed a timely appeal from decisions of
the Office of Workers’ Compensation Programs dated December 31, 2007 and February 27 and
September 23, 2008 denying his claim for a lower back condition. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established that he sustained a lower back condition
causally related to factors of his employment.
FACTUAL HISTORY
On October 8, 2007 appellant, then a 50-year-old mail handler, filed an occupational
disease claim alleging that on March 20, 2006 he first realized his lower back condition was due
to his repetitive work duties. The employing establishment noted his last work exposure was
March 20, 2006.

In support of his claim, appellant submitted reports for the period April 17, 2006 through
October 9, 2007 by Laura Mays, a physician’s assistant, and an August 1, 2007 letter stating that
appellant underwent back surgery that day; an August 1, 2007 lumbar discectomy surgery report
and unsigned September 18, 2006 report by Dr. Thomas Perlewitz, an attending Board-certified
orthopedic surgeon; and a July 5, 2006 report by Dr. Jamie Edwards, a Board-certified family
practitioner.
In the July 5, 2006 report, Dr. Edwards diagnosed C4-6 discectomy and fusion with
chronic pain and L5-S1 disc degeneration with spondylosis and referred pain. A physical
examination revealed limited range of motion in the neck and lumbar spine.
In a September 18, 2006 report, Dr. Perlewitz noted that appellant continued to have
complaints of significant low back pain. He indicated that appellant “has received extensive care
in relation to his low back through the Veterans Administration Medical Center in the past.”
Dr. Perlewitz stated that appellant had been on permanent light duty with a restriction on lifting
no more than 40 pounds. He noted options available to appellant and suggested surgery would
be “the best case scenario for improvement.”
In various reports during the period April 17, 2006 to October 9, 2007, Ms. Mays
diagnosed L4-5 degenerative disc disease with discogenic referred pain and status post anterior
cervical discectomy with fusion at C4 to C6 with adjacent segment degeneration. She diagnosed
severe L5-S1 disc degeneration with discogenic referred pain and reported on appellant’s
progress following his August 1, 2007 lumbar surgery.
By letter dated November 5, 2007, the Office advised appellant that additional factual
and medical evidence was needed to support his claim. Appellant was requested to describe the
work factors that caused his conditions and to submit records from a physician which included
dates of examination and treatment, a history of injury, a detailed description of findings, the
results of all x-rays and laboratory tests, a diagnosis, prognosis and course of treatment. The
Office explained that a physician’s opinion on causal relation was crucial to his claim and
allotted 30 days to submit the requested information.
In response to the Office’s request, appellant submitted a November 21, 2007 disability
note by Dr. Perlewitz indicating that appellant was currently disabled due to his cervical fusion
and reports dated November 8 and December 10, 2007 by Ms. Mays. The physician’s assistant
diagnosed status post anterior lumbar interbody fusion surgery and reported on his progress.
By decision dated December 31, 2007, the Office denied his claim on the grounds that
the medical evidence failed to establish that his lower back condition was caused or aggravated
by his employment.
Subsequent to the Office’s decision, it received disability notes, an August 1, 2007
lumbar discectomy surgery report and an unsigned August 1, 2007 report by Dr. Perlewitz and
reports by Ms. Mays for the period April 17, 2006 through December 10, 2007.
On January 25, 2008 appellant requested reconsideration.

2

By decision dated February 27, 2008, the Office denied modification of the December 31,
2007 decision.
On March 4, 2007 the Office received an August 1, 2007 letter from Ms. Mays. It also
received a July 5, 2006 report by Dr. Edwards and disability notes, an August 1, 2007 surgery
report and unsigned dictated reports dated September 18, 2006 and August 1 and 20 and
September 10 and 22, 2007 and February 4, 2008 by Dr. Perlewitz. In the August 20 and
September 10, 2007 reports, Dr. Perlewitz stated that appellant was doing well following his
anterior lumbar interbody fusion surgery. He noted in the September 22, 2007 report that
appellant would be assessed in six weeks for his ability to return to light-duty work.
In a letter dated June 27, 2008, appellant’s counsel requested reconsideration.
By decision dated September 23, 2008, the Office again denied modification of the
December 31, 2007 decision.1
LEGAL PRECEDENT
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.2 The medical
evidence required to establish causal relationship, generally, is rationalized medical evidence.3
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on whether there is a causal relationship between the employee’s diagnosed
condition and the compensable employment factors.4 The opinion of the physician must be
based on a complete and accurate factual and medical background of the employee, 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.5

1

The Board notes that, following the September 23, 2008 decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); Donald R. Gervasi, 57
ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
2

See R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008); Roy L. Humphrey, 57 ECAB 238, 241
(2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).
3

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008).

5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

ANALYSIS
It is not disputed that appellant’s duties as a mail handler included repetitive activities. It
is also not disputed that appellant has been diagnosed with a lower back or lumbar condition.
However, appellant has not submitted sufficient medical evidence to establish that the lower
back or lumber spine condition is causally related to specific employment factors or conditions.
Appellant’s burden of proof includes the submission of rationalized medical opinion
evidence addressing causal relationship. The Board finds that he has not submitted sufficient
evidence in support of his claim for a lower back or lumbar condition. There is no explanation
by a physician how factors of appellant’s employment caused or contributed to his lower back or
lumbar condition or aggravated a preexisting medical condition. The record contains no
rationalized medical opinion explaining how the implicated employment factors caused
appellant’s lumbar back condition.
Appellant submitted various reports and disability notes from Dr. Perlewitz. In a
September 18, 2006 report, Dr. Perlewitz noted that appellant continued to have complaints of
significant low back pain and recommended surgery. In reports dated August 20 and
September 10, 2007, he stated that appellant was doing well following his anterior lumbar
interbody fusion surgery. In a September 22, 2007 report, Dr. Perlewitz stated that appellant
would be assessed in six weeks for his ability to return to light-duty work. Appellant also
submitted a July 5, 2006 report by Dr. Edwards who diagnosed C4-6 discectomy and fusion with
chronic pain and L5-S1 disc degeneration with spondylosis and referred pain. However, neither
Dr. Edwards nor Dr. Perlewitz offered any opinion as to whether appellant’s lumbar back
condition was caused or aggravated by his employment duties.6 As this medical evidence does
not offer any opinion as to the cause of appellant’s diagnosed condition, it is insufficient to
establish appellant’s claim.
The record also contains reports from Ms. Mays, a physician’s assistant. However, these
reports have no weight or probative value as medical evidence as they have not been signed or
approved by a physician and physician’s assistants are not defined as physicians in the Act.7
Section 8101(2) of the Act 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.8
The Office advised appellant of her responsibility to provide a comprehensive medical
report which described employment injury history, his symptoms, test results, diagnosis,
treatment and the doctor’s opinion, with medical reasons, on the cause of his condition.
6

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007); J.M., 58 ECAB ___ (Docket No. 062094, issued January 30, 2007) (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).
7

See J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007); Lyle E. Dayberry, 49 ECAB 369
(1998) (the reports of a physician’s assistant are entitled to no weight as a physician’s assistant is not a “physician”
as defined by section 8101(2) of the Act).
8

5 U.S.C. § 8101(2). See also Thomas O. Bouis, 57 ECAB 602 (2006).

4

Appellant failed to do so. As there is no probative, rationalized medical evidence addressing
how his claimed lumbar back condition was caused or aggravated by his employment duties, he
has not met his burden of proof to establish that he sustained a lumbar back condition in the
performance of duty.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a lumbar back condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 23 and February 27, 2008 and December 31, 2007 are
affirmed.
Issued: March 19, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1275
Issued: December 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On May 3, 2012 appellant filed a timely appeal from a January 9, 2012 final overpayment
decision of the Office of Workers’ Compensation Programs (OWCP). The claim was docketed
as No. 12-1275. The Board finds that this case is not in posture for decision.
By letter dated September 26, 2011, OWCP made a preliminary finding that appellant
received an overpayment in compensation in the amount of $5,246.27 for the period April 22,
2003 to March 20, 2006 because she received compensation at an incorrect pay rate.1 It found
appellant not at fault in the creation of the overpayment. Appellant was provided an
overpayment action request form and an overpayment questionnaire. On October 4, 2011 she
requested a telephone conference, with OWCP, regarding the issue of overpayment and
submitted a completed overpayment questionnaire with financial information.2 These documents
were received by OWCP on October 12, 2011. The record does not establish that OWCP
conducted a telephonic conference. By decision dated January 9, 2012, OWCP finalized the
1

Appellant received wage-loss compensation and was placed on the periodic rolls beginning October 5, 2003
based on her annual salary of $42,808.00 or $915.56 per week, including night differential and Sunday premium
pay, at the time of her date of injury. The record reveals, however, that at the time of her date of injury appellant’s
annual salary was $42,558.00 or $818.42 per week. With night differential and Sunday premium pay, her total
weekly pay was $882.51. An overpayment worksheet revealed that appellant received $97,633.85 in compensation
from April 22, 2003 to March 20, 2006, but she should have received $92,387.58, resulting in an overpayment of
$5,246.27.
2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Conferences, Chapter 2.500 (September 2011).

preliminary determination, finding that appellant received an overpayment in the amount of
$5,246.27. It stated that the overpayment had occurred not because of an incorrect pay rate, but
because health premiums were not deducted. No finding was made on waiver.
The Board has duly considered the matter and notes that when adjudicating a claim,
OWCP is obligated to consider all relevant evidence properly submitted by a claimant and
received by OWCP before the final decision is issued.3 Following the issuance of OWCP’s
preliminary decision, appellant submitted the overpayment action request form and requested a
telephone conference. She also submitted an overpayment questionnaire with financial
information relevant to the issue of waiver of recovery. OWCP, however, did not acknowledge
appellant’s request for telephone conference and did not consider the evidence and argument
appellant submitted following the preliminary decision.
The Board finds that the case is not in posture for decision as OWCP did not address
appellant’s request for telephone conference and its additional documentation.
The Board concludes that the January 9, 2012 decision was issued prematurely. The case
must be remanded to OWCP to respond to appellant’s request for a telephone conference
regarding the fact of overpayment of compensation and review of the additional documentation
submitted regarding waiver. Following this and other such development as deemed necessary,
OWCP shall issue an appropriate final decision.
IT IS HEREBY ORDERED THAT the January 9, 2012 decision of the Office of
Workers’ Compensation Programs be vacated and the case remanded to OWCP for proceedings
consistent with this order of the Board.
Issued: December 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3

See Willard McKennon, 51 ECAB 145 (1999); William A. Couch, 41 ECAB 548 (1990).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cranston, RI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0921
Issued: March 15, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On May 27, 2021 appellant filed a timely appeal from a January 28, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as Docket No. 21-0921.
On August 24, 2020 appellant, then a 34-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on August 18, 2020 she sustained shoulder and lower back sprains
when trying to avoid a dog attack while in the performance of duty. She stopped work on
August 18, 2020.
On August 20, 2020 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16) authorizing appellant to seek medical care related to
her back strain. The portion of the form designated as Part B attending physician’s report was
signed on August 20, 2020 by Dr. Alexandra S. Ruggiero, a Board-certified family medicine
physician, who noted appellant’s history of injury and diagnosed a muscle strain. In a duty status
form (Form CA-17) dated August 20, 2020, Dr. Ruggiero diagnosed lumbar and right shoulder
strains due to the claimed August 20, 2020 employment incident.
OWCP subsequently received CA-17 form reports dated August 27 and September 3
and 17, 2020 diagnosing low back muscle sprain/pain/low back pain, and narrative reports dated

August 27 and September 3, 2020 diagnosing acute midline low back pain without sciatica and
acute left-side low back pain without sciatica from Dr. Manoj Garg, an osteopath Board-certified
in family practice. In August 27, 2020 x-ray report, Dr. Christina Pinto, an osteopath Boardcertified in family medicine, diagnosed mild multilevel degenerative disc disease most pronounced
in the lower thoracic and lower lumbar spine. OWCP also received an August 27, 2020 report
from Dr. Mark Mulak, a chiropractor, who diagnosed lower back and thorax muscle and tendon
strains and thoracic and lumbar segmental and somatic dysfunction, which he attributed to the
claimed August 18, 2020 employment incident.
By decision dated October 2, 2020, OWCP denied the claim, finding that appellant failed
to submit any medical evidence diagnosing a medical condition in connection with the accepted
August 24, 2020 employment incident. It concluded, therefore, that the requirements had not been
met to establish an injury as defined by FECA.
Subsequent to the denial of her claim, OWCP received an October 1, 2020 Form CA-17
from Dr. Garg diagnosing low back and right shoulder strain, and an October 22, 2020 Form
CA-17 which diagnosed lumbar strain from Barbara Burchard, an advanced practice registered
nurse.
On October 23 and November 2, 2020 appellant requested reconsideration. She submitted
a November 4, 2020 report and referral by Ms. Burchard.
By decision dated January 28, 2021, OWCP denied modification. It found that the medical
evidence of record did not include a valid diagnosis from a qualified physician under FECA.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
OWCP denied appellant’s claim finding that the medical evidence of record did not
establish a diagnosed medical condition. It however failed to review the August 20, 2020 Part B
attending physician’s report and August 20, 2020 Form CA-17 report from Dr. Ruggiero. In the
case of William A. Couch,1 the Board held that, when adjudicating a claim, OWCP is obligated to
consider all evidence properly submitted by a claimant and received by OWCP befo re the final
decision is issued. As the Board’s decisions are final as to the subject matter appealed, it is crucial
that all evidence relevant to the subject matter of the claim which was properly submitted to OWCP
prior to the time of issuance of its final decision be reviewed and addressed by OWCP. 2 Because
OWCP did not review and address the August 20, 2020 medical evidence from Dr. Ruggiero, the
Board cannot review such evidence for the first time on appeal.3 The case will therefore be
remanded to OWCP to enable a proper consideration of the evidence that was of record at the time

1

41 ECAB 548 (1990).

2

Id.; see also E.P., Docket No. 20-0655 (issued March 17, 2021); J.S., Docket No. 18-1111 (issued April 30, 2020);
S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004).
3

20 C.F.R. § 501.2(c). A.C., Docket No. 20-0917 (issued January 27, 2021); E.P., id.

2

of its January 28, 2021 decision to be followed by an de novo decision regarding appellant’s
request for reconsideration. Accordingly,
IT IS HEREBY ORDERED THAT the January 28, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 15, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AIR RESERVE STATION, Niagara Falls, NY,
Employer
__________________________________________

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

Docket No. 08-2350
Issued: August 4, 2009

Case Submitted on the Record

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

JURISDICTION
On August 27, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 28, 2008, denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
August 17, 2007.
FACTUAL HISTORY
On August 31, 2007 appellant, then a 48-year-old firefighter, filed a traumatic injury
claim (Form CA-1) alleging that he had pain in his left shoulder and neck area from shoveling
stones to fill a hole in the ground on August 17, 2007. The reverse of the claim form indicated
that appellant stopped work on August 25, 2007.

The record contains a hospital form report indicating that appellant was seen at a hospital
emergency room on August 27, 2007 with complaints of shoulder and neck pain. In a Form
CA-16 (authorization for examination/treatment) dated September 10, 2007, Dr. Robert Bull
diagnosed “likely rotator cuff” and noted that appellant had a prior rotator cuff surgical repair.
He checked a box “yes” that the condition found was causally related to employment activity.
Dr. Bull reported appellant was shoveling stones on August 18, 2007.
In a report dated September 19, 2007, neurologists, Drs. Ravi Pande and Edward Fine,
stated that appellant started having pain on August 17, 2007 and it was aggravated enough that
he presented to the emergency room on August 27, 2007. Drs. Pande and Fine diagnosed
cervical myelopathy. Appellant also submitted an October 16, 2007 report from Dr. Jeffrey
Chianchetti, a chiropractor, who diagnosed acute multilevel cervical intervertebral disc injuries,
sprain/strains, ligamentous instability, myofascitis and radiculopathy.
Dr. Young Yu, a neurosurgeon, provided a November 5, 2007 Form CA-20 (attending
physician’s report) diagnosing disc herniations at C4-5 and C5-6, with cervical disc disease at
C6-7. He checked a box “yes” that the condition was employment related, stating “Immediate
excruciating neck pain and left side shoulder and arm pain following the shoveling.”
By decision dated February 1, 2008, the Office denied the claim for compensation. It
indicated that appellant had not established either the factual or medical aspect of the claim. On
February 28, 2008 the Office received a request for reconsideration. Appellant submitted a
January 22, 2008 report from Dr. Bull, who reported that appellant experienced left shoulder
pain on August 17, 2007 when shoveling stones into a hole. Dr. Bull indicated that appellant
underwent a left shoulder rotator cuff repair in 1993, with minimally reduced range of motion
and grip strength asymmetry. He stated that appellant was working without restrictions on
August 17, 2007. Dr. Bull concluded, “I feel that his current difficulties are causally related to
this accident.”
By decision dated May 28, 2008, the Office reviewed the case on its merits. It indicated
that appellant had established the factual aspect to the claim, but the medical evidence was
insufficient to establish an injury in the performance of duty.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for the payment of compensation
for “the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.”1 The phrase “sustained while in the performance of duty” in the Act is
regarded as the equivalent of the commonly found requisite in workers’ compensation law of
“arising out of an in the course of employment.”2 An employee seeking benefits under the Act
has the burden of establishing that he or she sustained an injury while in the performance of
duty.3 In order to determine whether an employee actually sustained an injury in the
1

5 U.S.C. § 8102(a).

2

Valerie C. Boward, 50 ECAB 126 (1998).

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

2

performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally “fact of injury” consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury, and generally this can
be established only by medical evidence.4
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.5 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.6
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
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 medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.7
ANALYSIS
The Office has accepted that appellant was shoveling stones on August 17, 2007. To
meet his burden of proof to establish an injury causally related to the employment incident, he
must submit rationalized medical evidence on the issue of causal relationship.
While Drs. Pande and Fine noted appellant’s pain complaints as of August 17, 2007 and
disease of cervical myelopathy, their report did not contain a history of injury or any opinion
causally relating appellant’s diagnosed condition to his alleged employment incident. With
respect to a form report containing a checkmark “yes” that the condition was employment
related, this does not constitute a rationalized medical opinion.8
As such Dr. Yu’s simple check exposure of causal relationship is of little probative value.
The Board also notes that under 5 U.S.C. § 8101(2) the term ‘“physician’ … includes
4

See John J. Carlone, 41 ECAB 354, 357 (1989).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

6

Id.

7

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

8

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

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chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist.”9 Dr. Chianchetti does not diagnose a subluxation based on x-rays, therefore he is not
considered a physician under the Act and his reports are of no probative value. The record also
contains reports from a nurse practitioner, and this evidence is of no probative value as nurse
practitioners are not physicians under the Act.10
The January 22, 2008 report from Dr. Bull provided a medical history, noting that
appellant had a prior left shoulder rotator cuff injury. Dr. Bull concluded that appellant’s
“current difficulties” were related to the employment incident, without further explanation. It is
not clear what specific diagnosed conditions he felt were causally related to the August 17, 2007
employment incident. Dr. Bull had previously diagnosed “likely rotator cuff” in his
September 10, 2007 report, and the record also contained a diagnosis of cervical disc herniations
and cervical myelopathy. Moreover, he did not support his opinion with medical rationale.
Dr. Bull indicated that appellant was not having symptoms prior to August 17, 2007, but that
does not itself establish causal relationship. The Board has held that an opinion that a condition
is causally related to an employment injury because the employee was asymptomatic before the
injury but symptomatic after it is not sufficient, without supporting rationale, to establish causal
relationship.11 In the present case, the physician must provide a clear diagnosis and explain how
the August 17, 2007 incident contributed to the condition.
It is appellant’s burden of proof to submit the necessary medical evidence to establish the
claim. The Board finds that appellant did not meet his burden of proof in this case.12
CONCLUSION
The medical evidence is not sufficient to establish an injury in the performance of duty
on August 17, 2007.

9

5 U.S.C. § 8101(2).

10

See Vincent Holmes, 53 ECAB 468 (2002).

11

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (because the employee is symptomatic after an injury
is not sufficient to establish causal relationship without supporting rationale).
12

The Board notes the employing establishment issued a CA-16 to appellant. A properly executed Form CA-16
creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination
or treatment regardless of the action taken on the claim. Elaine M. Kreymborg, 41 ECAB 256, 259 (1989);
Pamela A. Harmon, 37 ECAB 263, 264-65 (1986). The Office did not address the issue in its May 28 and
February 1, 2008 decisions.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 28 and February 1, 2008 are affirmed.
Issued: August 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 17-0077
Issued: March 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 17, 2016 appellant filed a timely appeal from a July 14, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than five percent permanent impairment of the
right lower extremity and six percent permanent impairment of the left upper extremity, for
which he received schedule awards.
FACTUAL HISTORY
On April 9, 2011 appellant, then a 52-year-old mail processor, filed a traumatic injury
claim (Form CA-1) alleging that on February 4, 2011 he injured his back, knees, and right hand
1

5 U.S.C. § 8101 et seq.

when he fell on the ground. He stopped work on February 5, 2011 and returned to work on
February 7, 2011. OWCP accepted the claim, assigned File No. xxxxxx553, for an aggravation
of a closed dislocation of a lumbar vertebra and displacement of a cervical intervertebral disc.
OWCP also later accepted that appellant sustained a left shoulder and upper arm sprain,
left wrist sprain, left rotator cuff syndrome, and left shoulder adhesive capsulitis due to an
October 18, 2012 injury, assigned File No. xxxxxx633.2 In a report dated September 23, 2014,
an OWCP medical adviser found that he had five percent permanent impairment of the left upper
extremity due to his full-thickness rotator cuff tear under Table 15-5 of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). Appellant filed a claim for a schedule award (Form CA-7). By decision dated
December 19, 2014, OWCP granted appellant a schedule award for six percent permanent
impairment of the left upper extremity under File No. xxxxxx633.
Appellant began working four hours per day beginning September 20, 2011. OWCP paid
compensation for partial disability for the remaining four hours per day.3 On July 25, 2013
appellant elected disability retirement.
In an impairment evaluation report dated April 13, 2016, Dr. Daniel C. Valdez, a Boardcertified orthopedic surgeon, discussed appellant’s treatment for multiple cervical disc
herniations with right radiculopathy and an L5-S1 disc herniation with right radiculopathy
following a work injury. On examination of the arms, the physician found moderately reduced
range of motion, pain on palpation of the upper extremities, right motor deficits, and radicular
pain and sensory deficits on the right at C6. For the lower extremities, Dr.Valdez found right
radicular pain from the L5 and S1 nerve roots with no loss of motor function or strength. The
physician referenced the sixth edition A.M.A., Guides and The Guides Newsletter
(July/August 2009). In reaching his impairment rating, however, Dr. Valdez applied Table 1515 and Table 15-16 on page 424 of the fifth edition of the A.M.A., Guides. He multiplied the
value for the identified nerves by the maximum allowed for sensory and motor impairments of
each nerve to find six percent permanent impairment of the right upper extremity due to motor
and sensory deficits at C6 and five percent right lower extremity impairment due to sensory
deficits at L5 and S1. Dr. Valdez found no impairment of the left upper and lower extremities.
Appellant on May 23, 2016 filed a claim for a schedule award (Form CA-7).
An OWCP medical adviser reviewed the evidence on June 23, 2016. He diagnosed
cervical strain, cervical disc herniations at C4-5, C5-6, and C6-7, lumbar strain, and degenerative
2

OWCP further accepted that appellant sustained right knee strain as the result of a December 19, 2001 injury,
assigned File No. xxxxxx591.
3

By decision dated August 2, 2011, OWCP denied appellant’s claim for disability compensation from April 10 to
July 13, 2011. In decisions dated November 8, 2011 and May 1, 2012, it denied his claim for compensation for total
disability from August 4 to 15, 2011, and, in decisions dated January 18 and March 19, 2012, denied his claim for
wage-loss compensation from August 18 to 26, 2011. OWCP, in a decision dated May 8, 2012, denied appellant’s
request for an oral hearing on the November 8, 2011 decision as it was untimely filed and was made after he
received reconsideration. By decision dated January 16, 2013, it denied his claim for compensation from April 8 to
June 15, 2012.

2

joint and disc disease of the lumbar spine. The medical adviser found that appellant had three
percent impairment for loss of sensation at L5, two percent impairment for loss of sensation at
S1, which he combined to find five percent right lower extremity impairment. He found no
upper extremity impairment, noting that he had previously received six percent left upper
extremity impairment.
By decision dated July 14, 2016, OWCP granted a schedule award for five percent
permanent impairment of the right lower extremity. The period of the award ran for 14.4 weeks
from April 13 to July 22, 2016. OWCP indicated that Dr. Valdez additionally found six percent
left upper extremity impairment, but noted that he had already received an award for six percent
impairment of the left arm, and thus, was not entitled to an additional award for the left upper
extremity.
On appeal appellant contends that OWCP’s medical adviser denied an award for his left
shoulder as he had received a prior award. He related that he had continued problems with his
neck, arm, and fingers, as found by Dr. Valdez.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulation,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments. OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables as outlined in The Guides
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

A.M.A., Guides 494-531.

3

Newsletter, Rating Spinal Nerve Extremity Impairment (July/August 2009 edition) of the sixth
edition.9
ANALYSIS
OWCP accepted that appellant sustained an aggravation of a closed dislocation of a
lumbar vertebra and displacement of a cervical intervertebral disc due to a February 4, 2011
employment injury under File No. xxxxxx553. It also accepted that he sustained a sprain of the
left wrist, a sprain of the left shoulder and upper arm, left rotator cuff syndrome, and left
shoulder adhesive capsulitis due to an October 18, 2012 injury under File No. xxxxxx633.
OWCP had awarded six percent permanent impairment of the left upper extremity under File
No. xxxxxx633 as a result of his full-thickness rotator cuff tear.
On May 23, 2016 appellant filed a claim for a schedule award under the current file
number. In support of his claim, he submitted an April 13, 2016 impairment evaluation from
Dr. Valdez. Dr. Valdez found reduced upper extremity range of motion, pain on palpation, and
motor deficits and sensory deficits on the right at C6. He further found that appellant had
radicular pain in his lower extremity from the L5 and S1 nerve roots without reduced motor
function or strength. Dr. Valdez indicated in his report that he was applying the sixth edition of
the A.M.A., Guides and The Guides Newsletter. In reaching his impairment determination,
however, Dr. Valdez used Table 15-15 and Table 15-16 on page 424 of the outdated fifth edition
of the A.M.A., Guides to find six percent permanent impairment of the right upper extremity due
to motor and sensory deficits at C6 and five percent right lower extremity impairment due to
sensory deficits at L5 and S1. He found no impairment of the left upper and lower extremities.
OWCP, however, uses the sixth edition of the A.M.A., Guides to calculate schedule awards.10 A
medical opinion based on an inappropriate edition of the A.M.A., Guides is of diminished
probative value in determining the extent of permanent impairment.11
An OWCP medical adviser reviewed Dr. Valdez’ finding and concurred with his
impairment rating. He did not, however, reference The Guides Newsletter in explaining his
rating. The medical adviser further did not address whether an adjustment from the default value
was warranted due to grade modifiers.12 Consequently, his opinion is insufficient to establish the
extent of the right lower extremity impairment.
Regarding the upper extremity, the Board finds that appellant has not submitted any
evidence showing that he has more than the previously awarded six percent impairment of the

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5
(January 2010). The Guides Newsletter is included as Exhibit 4; see also E.P., Docket No. 16-1154 (issued
October 26, 2016).
10

See supra note 7.

11

See P.O., Docket No. 15-1631 (issued June 2, 2016); Fritz A. Klein, 53 ECAB 642 (2002).

12

The Guides Newsletter provides that the default value may be adjusted using the formula described in the
A.M.A., Guides based on functional history, physical examination, and clinical studies.

4

left upper extremity.13 Dr. Valdez, however, found that he had six percent permanent
impairment of the right upper extremity. OWCP determined that the physician’s upper extremity
impairment rating duplicated the prior award. However, the prior award was for the left rather
than the right upper extremity. On remand, it should obtain clarification regarding the extent of
appellant’s right lower extremity impairment and determine whether he is entitled to a schedule
award for the right upper extremity as the result of his accepted work injury.14 Following such
further development as deemed necessary, OWCP should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 14, 2016 decision is set aside and the case
is remanded for further proceedings consistent with this decision of the Board.
Issued: March 6, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993) (it is appellant’s burden to submit
medical evidence supporting the degree of permanent impairment).
14

See T.H., Docket No. 14-0943 (issued November 25, 2016) (the Board held that to ensure consistent results and
equal justice under the law, OWCP shall, through its implementing regulations and/or internal procedures, establish
a consistent method for rating upper extremity impairment under the sixth edition of the A.M.A., Guides prior to
further development of medical evidence relating to permanent impairment for upper extremity claims).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTION
INSTITUTE, Dublin, CA, Employer
__________________________________________

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

Docket No. 18-0084
Issued: July 27, 2018

Case Submitted on the Record

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

JURISDICTION
On October 12, 2017 appellant filed a timely appeal from a September 12, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3 the Board has
jurisdiction to consider the merits of the case.

1

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,607.37; and (2) whether OWCP properly
determined that appellant was at fault in the creation of the overpayment of compensation thereby
precluding waiver of recovery of the overpayment.2
FACTUAL HISTORY
On April 25, 2013 appellant, then a 41-year-old correctional officer, filed a traumatic injury
claim (Form CA-1) alleging that on April 23, 2013 an inmate passed out and fell on her, causing
injuries to her neck, back, and shoulder. On May 14, 2013 OWCP accepted her claim for right
shoulder strain, right femoral hernia, cervical sprain, and thoracic sprain. It paid compensation
benefits commencing June 8, 2013, and placed appellant on the periodic rolls effective
September 22, 2013.
On December 12, 2016 appellant completed a form indicating that she elected to receive
benefits from the Civil Service Retirement System (CSRS) instead of benefits under FECA
effective December 31, 2016.
On January 20, 2017 OWCP sent appellant a letter advising that it had been informed that
appellant received compensation under the Civil Service Retirement Act. It advised her that
annuity benefits by the Office of Personnel Management (OPM) and wage-loss compensation paid
by OWCP are not payable for the same period of time. OWCP sent appellant a form to complete
(Form CA-1105) to advise OWCP which benefits she elected. Appellant completed the form on
January 26, 2017 and elected to receive benefits under CSRS. She noted that the effective date of
her election was December 31, 2016.
In a June 23, 2017 letter to OPM, OWCP indicated that appellant elected to receive benefits
from OPM effective December 31, 2016 in lieu of compensation benefits under FECA. It asked
OPM to reimburse it in the amount of $3,607.37 for FECA benefits paid from December 31, 2016
through February 4, 2017.
On July 21, 2017 OWCP made a preliminary determination that appellant was overpaid in
the amount of $3,607.37 for the period December 31, 2016 to February 4, 2017 because she
concurrently received benefits from OWCP and OPM for the same period, which constituted a
prohibited dual benefit. It advised appellant that she was at fault in the creation of this
overpayment because she accepted a payment that she knew or reasonably should have known to
be incorrect. OWCP sent to appellant an Overpayment Action Request that provided the options
she had for challenging the finding along with a financial form, Overpayment Recovery
Questionnaire (OWCP-20), and instructed appellant to complete the form and provide the
information within 30 days. It advised appellant that under 20 C.F.R. § 10.438, failure to submit
2

The Board notes that appellant submitted additional evidence after OWCP rendered its September 12, 2017
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

2

the requested information within 30 days would result in the denial of waiver of recovery of the
overpayment, and no further request for waiver shall be considered until the requested information
is provided.
On August 10, 2017 OWCP received appellant’s response wherein she requested a decision
based on written evidence. Appellant stated that she believed that the overpayment occurred
through no fault of her own and requested a waiver of recovery. She contended that she did not
receive retirement pay during the time stated, so there was no overpayment.
An OWCP memorandum of record indicates that, on September 12, 2013, the claims
examiner called appellant. The memorandum reflects that appellant told the claims examiner that
she did not receive money from OPM for the period December 31, 2016 through February 4, 2017.
The note further indicates that the claims examiner told appellant that she would have to submit
something from OPM to confirm this, but that in the meantime, OWCP must issue a final
determination because appellant had not submitted any evidence to support her contention and did
not submit a completed financial form.
By decision dated September 12, 2017, OWCP finalized the determination that appellant
received an overpayment of compensation in the amount of $3,607.37 for the period December 31,
2016 through February 4, 2017, and also determined that the preliminary finding that appellant
was at fault in the creation of the overpayment was correct. It requested payment of the full amount
within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 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 duty.3 Section 8116 of FECA defines the limitations on the right to receive
compensation benefits.4 Section 8116(a) provides that, while an employee is receiving workers’
compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return 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 FECA.5 Section 10.421(a) of OWCP’s implementing regulations provide that a
beneficiary may not receive wage-loss compensation concurrently with a federal retirement or
survivor annuity.6 The beneficiary must elect the benefit that he or she wishes to receive.7

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

Id. at § 8116(a).

6

20 C.F.R. § 10.421(a).

7

Id.

3

ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision. OWCP based its
overpayment finding on its determination that appellant had received prohibited dual OPM and
FECA benefits for the period December 31, 2016 through February 4, 2017. While the record
reflects that appellant received FECA benefits for this period, OWCP has not established that she
also received OPM benefits for this period.8
Appellant elected OPM retirement benefits effective December 31, 2016. On June 23,
2017 OWCP requested that OPM commence retirement benefit payments and that OPM reimburse
any FECA benefits paid to appellant after December 31, 2016. However, there is no evidence of
record which establishes, as a matter of fact, that appellant actually received OPM benefits, the
periods during which she received such benefits, or the amount of benefits she received.9 The
record is also silent as to whether OPM reimbursed OWCP for FECA benefits paid to appellant
during the period in question.
Given that the case is not in posture regarding whether OWCP properly determined that
appellant received an overpayment of compensation in the amount of $3,607.37, it is premature
for the Board to consider whether OWCP properly determined that she was at fault in the creation
of any overpayment.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

R.R., Docket No. 18-0032 (issued May 3, 2018); see also B.G., Docket No. 14-2002 (issued August 13, 2015).

9
R.R., id. The election form signed by appellant on December 12, 2016 is insufficient to show that she actually
began receiving OPM benefits at any time.

4

ORDER
IT IS HEREBY ORDERED THAT the September 12, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: July 27, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, U.S. FOOD & DRUG
ADMINISTRATION, Rockville, MD, Employer
__________________________________________

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Appearances:
Brian R. Bregman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-661
Issued: November 8, 2007

Oral Argument October 9, 2007

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

JURISDICTION
On January 13, 2006 appellant timely appealed the December 14, 2005 merit decision of
the Office of Workers’ Compensation Programs, which denied her claim for recurrence of a
medical condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of the claim.1

1

The record on appeal includes additional medical evidence received after the Office issued its December 14,
2005 decision. The Board cannot consider evidence for the first time on appeal. The review of a case shall be
limited to the evidence in the case record which was before the Office at the time of its final decision. 20 C.F.R.
§ 10.501.2(c) (2007).

ISSUE
The issue is whether appellant sustained a recurrence of a medical condition causally
related to her February 18, 1993 employment injury.
FACTUAL HISTORY
Appellant, a 71-year-old laboratory associate, sustained an employment-related injury on
February 18, 1993 when she inadvertently punctured the thenar region of her left hand with a
needle containing an allergenic extract. The puncture caused an allergic reaction, which was
treated with a corticosteroid, Prednisone.2 The Office initially accepted the claim for left hand
puncture wound and allergic reaction. In March 1993, laboratory test results revealed an
elevated blood glucose level and appellant was diagnosed with steroid-induced diabetes
mellitus.3 However, by November 1993, appellant’s blood sugar level had returned to normal
and it was believed that there were no long-term deleterious effects from the Prednisone she
received. The Office, therefore, expanded appellant’s claim to include temporary aggravation of
diabetes mellitus as an accepted condition.4
On September 13, 2004 appellant filed a notice of recurrence for medical treatment only.
She indicated that her condition had not changed since the February 18, 1993 employment
injury. Appellant further indicated that she had been receiving medical treatment on a regular
basis, which included monthly visits to her podiatrist and biannual eye examinations. She also
stated that she took medications for her diabetes on a daily basis and saw her doctor every three
months to monitor her blood sugar level.5

2

The oral steroid therapy was administered by the National Institutes of Health, Occupational Medical Service.

3

In a May 22, 1993 report, appellant’s treating physician, Dr. Barbara G. Douglas, a Board-certified internist,
indicated that she diagnosed steroid-induced diabetes mellitus based on March 8, 1993 laboratory results and a prior
history of appellant having been treated with oral steroids following the February 18, 1993 employment injury.
Dr. Douglas explained that prior to the February 1993 employment incident, appellant had been in relatively good
health. Her prior medical history included treatment for occasional arthritis, allergic rhinitis and hyperlipidemia.
Dr. James Vorosmarti, an employing establishment consultant, disagreed with Dr. Douglas’ diagnosis of steroidinduced diabetes mellitus. In a January 24, 1994 report, Dr. Vorosmarti explained that steroid-induced diabetes
takes much longer to develop and occurs only in 10 percent of patients taking high doses of steroids for long periods
of time. In contrast, appellant’s dosage was relatively small and occurred over a very short period of time.
Dr. Vorosmarti believed appellant already had sub-clinical diabetes and her condition became evident when the
stress of steroid administration was added.
4

The Office’s acceptance of appellant’s diabetic condition was based on the November 23, 1993 report of
Dr. Frank C. Blackburn, a Board-certified internist and Office referral physician. Dr. Blackburn indicated that
appellant was genetically predisposed to developing diabetes. He further explained that appellant had Syndrome X,
characterized by overeating and weight gain, which allowed for the expression of diabetes and hyperlipidemia.
According to Dr. Blackburn, the steroid therapy appellant received merely brought to light a hidden problem.
5

Although appellant reported seeing her treating physician every three months, the most recent report from
Dr. Douglas regarding her diabetic condition is dated November 28, 1994.

2

In support of her claim, appellant submitted a March 16, 2005 report from
Dr. Nathaniel G. Clark, a Board-certified endocrinologist, who initially examined appellant in
January 2005, found that her ongoing diabetes was related to the steroids she received in 1993.
Dr. Clark diagnosed Type II diabetes mellitus and noted a history of injury in 1993 when
appellant was treated with a steroid taper for an allergic reaction. He explained that while the
steroid taper was discontinued in early March 1993, appellant continued to have significantly
high blood glucose levels throughout 1993. Almost 12 years after the incident, appellant
continued to take medication for her diabetes. Dr. Clark noted that appellant’s blood glucose
levels were currently under control and thus, he was unsure whether continued medication was
necessary. He explained that he was in the process of tapering appellant off of her current
medications to see if it would have any effect on her blood glucose levels. Dr. Clark further
indicated that, regardless of whether appellant needed medication, she continued to have
diabetes.
In a December 14, 2005 decision, the Office denied appellant’s recurrence claim. The
Office found that appellant had not submitted rationalized medical evidence explaining how her
current diabetic condition was still aggravated by the February 18, 1993 employment injury.
LEGAL PRECEDENT
A recurrence of a medical condition is defined as a “documented need for further medical
treatment after release from treatment for the accepted condition or injury….”6 Continuous
treatment for the original condition or injury is not considered a recurrence of a medical
condition nor is an examination without treatment.7 As distinguished from a recurrence of
disability, a recurrence of a medical condition does not involve an accompanying work
stoppage.8 It is the employee’s burden to establish that the claimed recurrence is causally related
to the original injury.9
ANALYSIS
Appellant’s position on appeal is that the steroids she received in February and
March 1993 either caused or aggravated her diabetic condition and that the effects of the steroids
are ongoing despite the Office’s acceptance of only a temporary aggravation. Her counsel
argued that there was no recent medical evidence indicating that the current diabetic condition
was unrelated to the February 18, 1993 employment injury and subsequent steroid treatment.
However, appellant has the burden of production and persuasion before the Board.
The Office is not obligated to continue to produce medical evidence in support of its
decision to accept the claim for only a temporary aggravation of diabetes mellitus. Based on the
contemporaneous medical evidence, appellant’s blood glucose level had returned to normal when
6

20 C.F.R. § 10.5(y).

7

Id.

8

Id.; 20 C.F.R. § 10.5(x).

9

See 20 C.F.R. § 10.104; Mary A. Ceglia, 55 ECAB 626, 629 (2004).

3

she was examined by Dr. Blackburn in November 1993. He expressed the opinion that appellant
was genetically predisposed to developing diabetes and that the steroids she received earlier that
year merely uncovered a hidden condition. Dr. Blackburn also cautioned that appellant’s
diabetes would manifest itself again if she did not maintain a proper diet and continue to reduce
her weight. He unequivocally stated that the steroids appellant received had no long-term
deleterious effects. Thus, the probative medical evidence at the time indicated that appellant’s
diabetes was temporarily aggravated by the steroid therapy she received in response to her
February 18, 1993 employment injury and that the aggravating effects had subsided as of
November 23, 1993.
If appellant disagrees with the Office’s decision to rely on Dr. Blackburn’s November 23,
1993 assessment, it is her responsibility to produce credible medical evidence to the contrary. In
this case, appellant has failed to produce such evidence. While Dr. Clark opined in March 2005
that appellant’s current diabetic condition was steroid related, he did not offer a reasoned
explanation for his opinion. The only apparent justification for his opinion on causal relationship
is that appellant took steroids in 1993 and she has been on diabetic medication ever since.10
Noticeably, absent from Dr. Clark report is any discussion of other potential causative factors
such as genetics, obesity, diet, exercise, ethnicity, gender or age. He also did not mention the
fact that appellant’s blood glucose level had returned to normal by November 1993. Because
steroid usage is only one of several generally recognized causes for diabetes mellitus, it is
incumbent upon Dr. Clark, or any other physician appellant might consult, to explain how it is
possible to distinguish the 1993 steroid usage from other causative factors, such as those
identified by Dr. Blackburn.
The Board finds that appellant has not met her burden of proof. Dr. Clark’s March 16,
2005 report is insufficient to establish that appellant’s ongoing diabetic condition is causally
related to the steroid treatment she received as a result of the February 18, 1993 employment
injury. Accordingly, the Office properly denied her September 13, 2004 claim for recurrence of
a medical condition.
CONCLUSION
Appellant failed to establish that her current diabetic condition is causally related to the
February 18, 1993 employment injury.

10

Apart from her visits to a podiatrist, there is an 11-year gap in documented medical treatment for appellant’s
diabetes-related conditions. While Dr. Clark’s reference to a 12-year treatment history for diabetes may ultimately
be proven to be accurate, it is currently not supported by the record.

4

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5