United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.M., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, Fort Polk, LA,
Employer
__________________________________________

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

Docket No. 19-0342
Issued: November 15, 2019

Case Submitted on the Record

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

JURISDICTION
On December 3, 2018 appellant filed a timely appeal from a November 20, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $67,261.65 for the period June 6, 2016 through

1

5 U.S.C. § 8101 et seq.

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

January 6, 2018 because she continued to receive monetary compensation after the expiration of a
schedule award; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On September 18, 2013 appellant, then a 58-year-old lead diagnostic radiologic
technologist, filed a traumatic injury claim (Form CA-1) alleging that on September 16, 2013 she
sustained an open wound and fracture to her right index finger when her hand slipped off of a door
knob and her finger got caught between the door and door jamb while in the performance of duty.
By decision dated January 21, 2014, OWCP accepted the claim for open wound to right index
finger and fracture to right index finger. It paid appellant intermittent wage-loss benefits on the
supplemental roll.
On April 4 and September 17, 2014, and June 1, 2015 appellant filed claims for schedule
award (Form CA-7) compensation.
In a report dated July 29, 2015, Dr. Michael M. Katz, a Board-certified orthopedic surgeon,
acting as OWCP’s district medical adviser (DMA) related that appellant had 15 percent permanent
impairment of the right upper extremity.
By decision dated August 13, 2015, OWCP granted appellant a schedule award for 15
percent permanent impairment of the fourth right finger. The award covered a period July 14 to
29, 2015. OWCP noted that appellant would not receive continuing payment as her award had
already been paid in full.
OWCP issued a corrected decision on January 29, 2016. By decision dated January 29,
2016, it granted appellant a schedule award for 15 percent of the fourth ring finger. OWCP noted
that her date of maximum medical improvement (MMI) was July 13, 2015, and that the award
covered a period of 46.8 weeks from July 14, 2015 to May 3, 2016. It noted that appellant’s initial
payment of $1,795.50 would cover the period July 14 to 29, 2015 and that he would subsequently
receive $3,203.00 in continuing compensation payments every four weeks.
In a memorandum dated January 29, 2016, OWCP indicated that the initial schedule award
payment was adjusted to correct the amount owed to appellant for the period July 14 to 29, 2015.
It noted that she was initially paid $1,351.27, that she should have been paid $1,795.50, and that
she was owed $444.23.
A fiscal worksheet dated February 12, 2018 related that appellant’s schedule award had
been keyed as payable for a finger, when it should have been keyed as a schedule award for the
arm/right upper extremity, per the DMA report dated July 29, 2015. The schedule award payment
was deleted to correct it from finger to arm. OWCP paid the schedule award from July 14
through 29, 2015. “Then it was deleted and mistakenly reentered as [leave without pay] LWOP
July 30, 2015 [to] January 6, 2018. Could not use SA Start date of July 13, 2015 since lost wage
paid for July 13, 2015. The correct SA Period is July 14, 2015 to June 5, 2016 per the adjudication
screen enclosed.” The overpayment period was identified as from June 6, 2016 through
January 6, 2018. The total overpayment amount was identified as $67,261.65.
By a preliminary determination dated September 12, 2018, OWCP declared an
overpayment of compensation in the amount of $71,120.57 had been created because the schedule
award failed to expire on July 29, 2015. It also noted that the schedule award should have run
2

from July 30, 2015 to June 5, 2016, however appellant was overpaid for the period June 16, 2016
through June 6, 2018. Regarding calculation of the overpayment, OWCP related: “The periodic
roll cycle net payment of $3,280.00 divided by 28 (number of calendar days in a cycle) multiplied
by 613 days (number of calendar days overpaid) = $71,808.57l. Currently owe $71,120.57.” It
further found that she was without fault in the creation of the overpayment and provided an
overpayment recovery questionnaire (Form OWCP-20) for her completion. OWCP afforded
appellant 30 days to respond and submit supporting financial documentation.
On October 10, 2018 appellant requested a telephonic conference with an OWCP
representative, and requested a waiver of overpayment. She submitted a completed Form OWCP20 and supporting financial documents along with her request. Appellant reported a total monthly
income of $3,043.14, and total monthly expenses of $2,999.00. She additionally reported a cashon-hand amount of $45.00, a checking account balance of $192.36, and a savings account balance
of $599.00, which totaled her assets at $836.36. Appellant argued that imposing a repayment to
recoup the overpayment would be a hardship on her and her dependent.
By decision dated November 20, 2018, OWCP finalized the overpayment of compensation,
finding that appellant was overpaid in the amount of $67,261.65 for the period June 6, 2016
through January 6, 2018 because she received continued schedule award compensation after her
schedule award had expired on June 5, 2016. Regarding calculation of the overpayment OWCP
related: “The following reflects the calculation of the final overpayment amount, i.e., the
difference between what was paid and what should have been paid: $3,203/28 = $114,39 x .6
(Fraction of the Day from the SA Calculator in file dated August 19, 2015 = $68.63. Overpayment
period: June 6, 2016 - January 6, 2018 $67,330.28-$68.63 = $67,261.65.” It also determined that
appellant was without fault in the creation of the overpayment. In addition, OWCP denied waiver
of recovery of the overpayment of compensation finding that there was no evidence to support that
she was financially unable to repay her overpayment, and ordered appellant to forward payment
in the amount of $100.00 every 30 days.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA3 and its implementing regulations4 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. Section 20 C.F.R. § 10.404
states that compensation is provided for specified periods of time for the permanent loss or loss of
use of certain members.5
OWCP’s procedures provide that an overpayment is created when a schedule award
expires, but compensation continues to be paid.6

3

Supra note 1.

4

20 C.F.R. § 10.404.

5

Id. Effective May 1, 2009, OWCP began using the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009). See E.V., Docket No. 17-2026 (issued July 11, 2018).
6

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment,
Chapter 6.200.1(f) (September 2018).

3

ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In both its preliminary determination and its finalized overpayment decision, OWCP found
that appellant received an overpayment of compensation because she was paid after the expiration
of her schedule award on June 5, 2016. In its decision dated January 29, 2016, it granted her a
schedule award for 15 percent permanent impairment of the fourth ring finger. While OWCP did
not issue a corrected schedule award, to reflect that the schedule award was actually payable for
permanent impairment of the right upper extremity, the record reflects that the 46.8 weeks of
compensation was actually paid for 15 percent permanent impairment of appellant’s right upper
extremity. It related in the January 29, 2016 schedule award decision that appellant’s date of MMI
was July 13, 2015, and that the award covered a period of 46.8 weeks from July 14, 2015.
However, OWCP continued to pay appellant’s award of compensation past the date of its
expiration. As it continued to pay her compensation until January 6, 2018, appellant received an
overpayment of compensation.7 Therefore, the Board finds that OWCP properly determined that
appellant received an overpayment of compensation.
However, the case is not in posture for decision with regard to the amount of the
overpayment. In its preliminary determination dated September 12, 2018, OWCP found an
overpayment of compensation in the amount of $71,120.57, for which appellant was without fault,
for the period June 16, 2016 through January 6, 2018, because she was paid after the expiration of
her schedule award. OWCP also noted in the conclusion of the preliminary memorandum that an
overpayment in the amount of $71,120.57 had occurred covering the period July 14 to 29, 2015.
However, in its finalized overpayment decision dated November 20, 2018, OWCP found an
overpayment of compensation in the amount of $67,261.65 for the period June 6, 2016 through
January 6, 2018. OWCP’s preliminary determination and finalized decision related discrepancies
with regard to both the amount of the overpayment and the dates of the overpayment. Due to these
inconsistencies, the Board is unable to adequately review this aspect of the case.
5 U.S.C. § 8124(a) provides: “[OWCP] shall determine and make a finding of facts and
make an award for or against payment of compensation.” Also, 20 C.F.R. § 10.126 provides in
pertinent part that the final decision of OWCP shall contain findings of fact and a statement of
reasons. It has a responsibility to set forth findings of fact and a clear statement of reasons
explaining the disposition so that the claimant can understand the basis for the decision, as well as
the precise defect and the evidence needed to overcome the denial of his traumatic injury claim.8

7

See N.C., Docket No. 18-1070 (issued January 9, 2019); E.E., Docket No. 14-1908 (issued April 22, 2015).

8

See S.B., Docket No. 19-0634 (issued September 19, 2019).

4

A claimant is entitled to an overpayment decision that clearly explains how the amount
was calculated.9 The Board finds that the overpayment decision in this case does not provide such
an explanation. Therefore, the amount of overpayment has not been established.
On remand OWCP shall determine the exact amount of the overpayment in compensation,
and the correct dates on which the overpayments occurred. It should then issue a new preliminary
overpayment determination, with an appropriate overpayment action request form, an
overpayment recovery questionnaire, and instructions for appellant to provide supporting financial
information. After this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.10
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this opinion.
Issued: November 15, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
9

See A.J., Docket No. 18-1152 (issued April 1, 2019); J.W., Docket No. 15-1163 (issued January 13, 2016); see
also O.R., 59 ECAB 432 (2008) with respect to overpayment decisions, OWCP must provide clear reasoning showing
how the overpayment was calculated); see Jenny M. Drost, 56 ECAB 587 (2005) (to comply with OWCP’s
overpayment procedures, an overpayment decision must contain a clearly written explanation indicating how the
overpayment was calculated).
10

As the case is not in posture for decision regarding the amount of overpayment, the issue of waiver of recovery
of the overpayment is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Lewis, WA, Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1871
Issued: March 23, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 4, 2019 appellant, through counsel, filed a timely appeal from an August 6,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the August 6, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $73,266.30 for the period November 1, 2011
through April 28, 2018 because she concurrently received FECA wage-loss compensation and
Social Security Administration (SSA) age-related retirement benefits without an appropriate
offset; (2) whether OWCP properly found appellant at fault in the creation of the overpayment,
thereby precluding waiver of recovery of the overpayment; and (3) whether OWCP properly
required recovery of the overpayment by deducting $774.58 from appellant’s continuing
compensation payments every month.
FACTUAL HISTORY
On February 14, 2005 appellant, then a 59-year-old secretary, filed an occupational disease
claim (Form CA-2) alleging that on March 15, 2004 she first realized that her upper respiratory
condition was caused or aggravated by exposure to irritants in her workplace.4 She stopped work
on February 14, 2005 and has not returned. OWCP accepted an episode of chronic bronchitis.
Appellant was placed on the supplemental rolls effective March 14, 2005 and on the periodic rolls
effective May 14, 2006.
In a March 17, 2006 letter, OWCP noted the amount of appellant’s monthly FECA wageloss compensation. It advised her that, if she elected FECA benefits, she may concurrently receive
benefits from the Thrift Savings Fund and SSA benefits. OWCP noted, however, that FECA
benefits would be reduced by the SSA benefits paid on the basis of age and attributable to federal
service.
In a March 24, 2009 letter, the employing establishment advised that appellant was
presently at SSA retirement age of 63. It explained that if she chose to receive SSA retirement
benefits, part of her award may be used to reduce her federal compensation benefits. This would
occur no matter when appellant began receiving SSA retirement benefits. The employing
establishment advised that, under 5 U.S.C. § 8116(d)(2), FECA compensation benefits must be
offset if FERS employees received SSA retirement benefits. On March 26, 2009 appellant signed
the letter and acknowledged that she was in receipt of SSA benefits and that she knew that her
SSA benefit had been calculated using her federal service earnings.
In EN1032 forms dated November 12, 2009, November 10, 2010, November 4, 2011,
November 6, 2012, November 2, 2013, November 4, 2014, November 20, 2015, December 3,
2016, November 21, 2017, November 9, 2018 and December 3, 2019, appellant reported that she
was not receiving SSA benefits as part of an annuity for federal service. As of 2014, the EN1032
forms noted that “If you receive Social Security disability benefits, those SSA benefits may be
reduced due to your receipt of FECA benefits.”
On January 12, 2018 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form. On March 26, 2018 SSA submitted the completed
4
Appellant’s workstation was under the main heating vent and air conditioning (HVAC) system. She originally
stopped work on March 12, 2004 and OWCP accepted an episode of chronic bronchitis as related to the exposure to
hazardous irritants. Appellant returned to full duty on March 22, 2004. She had intermittent work stoppages due to
upper respiratory infections.

2

form which showed SSA benefit rates with a FERS offset and without a FERS offset from
November 2011 through December 2016. From November 1, 2011 appellant’s SSA rate with
FERS was $1,015.40 and SSA rate without FERS was $141.70; from December 1, 2011, her SSA
rate with FERS was $1,051.90 and SSA rate without FERS was $146.80; from December 1, 2012,
her SSA rate with FERS was $1,069.70 and SSA rate without FERS was $149.20; from
December 1, 2013, her SSA rate with FERS was $1,085.70 and SSA rate without FERS was
$151.40; from December 1, 2014 through December 1, 2015, her SSA rate with FERS was
$1,104.10 and SSA rate without FERS was $153.90; from December 1, 2016 her SSA rate with
FERS was $1,107.40 and SSA rate without FERS was $154.30; and from December 1, 2017, her
SSA rate with FERS was $1,129.50 and SSA rate without FERS was $153.30.5
In a letter dated May 4, 2018, OWCP advised appellant that she had been receiving
prohibited dual benefits as she had received FECA wage-loss compensation and SSA age-related
benefits since November 1, 2011. It noted that the portion of SSA benefits earned as a federal
employee under the FERS retirement program should have been offset from her FECA wage-loss
compensation. OWCP adjusted appellant’s FECA benefits to account for her SSA offset as of
April 29, 2018.
On September 28, 2018 OWCP issued a preliminary determination that appellant received
an overpayment of compensation in the amount of $73,266.30 because she received FECA wageloss compensation benefits concurrently with SSA age-related retirement benefits from
November 1, 2011 through April 28, 2018. It provided a calculation of the overpayment. OWCP
recommended that appellant be found not at fault in the creation of the overpayment because she
was not aware, nor could she reasonably have been expected to know, that it had paid
compensation incorrectly. It requested that she submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a fair repayment method. OWCP also noted that
appellant could request waiver of recovery of the overpayment. It provided her with appeal rights
and afforded 30 days for a response.
On October 4, 2018 appellant, through counsel, requested a telephonic prerecoupment
hearing. Appellant indicated that the overpayment occurred through no fault of her own and
requested waiver of recovery of the overpayment. She did not provide a completed Form
OWCP-20.
On January 4, 2019 OWCP’s Branch of Hearings and Review completed a preliminary
review and determined that the case was not in posture for a hearing. The hearing representative
set aside the September 28, 2018 preliminary overpayment decision finding that the case record
contained evidence that appellant had previously been put on notice of the prohibited dual benefit,
with language that was not ambiguous, namely her acknowledgement on March 26, 2009
regarding the status of her benefits. The hearing representative concluded that OWCP had not
sufficiently supported its finding of without fault. The case was remanded for the issuance of a
new preliminary overpayment determination with an appropriate discussion of whether appellant
was at or without fault in the creation of the overpayment.
On January 14, 2019 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $73,266.30 because she received FECA wage-loss
5

OWCP paid appellant wage-loss compensation for disability from August 2006 through October 2011.
Appellant’s SSA disability benefits automatically converted to retirement benefits on November 1, 2011.

3

compensation benefits concurrently with SSA age-related retirement benefits from November 1,
2011 through April 28, 2018. It recommended that she be found with fault as she failed to provide
information which she knew or should have known to be material. OWCP requested that appellant
submit a completed overpayment recovery questionnaire (Form OWCP-20) to determine a fair
repayment method. It also noted that she could request waiver of recovery of the overpayment.
OWCP provided appellant with appeal rights and afforded 30 days for a response.
On January 19, 2019 appellant, through counsel, requested a prerecoupment hearing. She
contested the preliminary determination as to the fact and amount of the overpayment, and the
finding of fault.
In a May 9, 2019 letter, counsel provided a recoupment proposal asserting that appellant
should be treated as though she had not responded to the overpayment decision. He argued that
25 percent of appellant’s four-week pay after deductions, or $327.12 monthly over a period of 14
years, was reasonable based on her life expectancy of 14 years. Counsel also requested that the
one percent per annum interest be waived. Alternatively, he proposed recovery of $391.38 per
month. Evidence pertaining to appellant’s health, 2018 life expectancy tables, and financial
information was received.
In a May 17, 2019 telephonic hearing, appellant testified that there was some confusion
over the term annuity when she filled out the EN1032 forms. She also testified that she and her
husband had health issues which created a hardship for them. Appellant testified as to her monthly
income and expenses, noting that she had savings in excess of $80,000.00.
After the hearing, OWCP received additional financial information. Appellant totaled her
monthly expenses at $10,667.05 and indicated a monthly income of $9,466.96. Documentation of
a mutual fund in the amount $74,866.42 was submitted. A completed OWCP-20 form was not
submitted.
By decision dated August 6, 2019, an OWCP hearing representative finalized the
preliminary determination that appellant received an overpayment of compensation of $73,166.306
for the period November 1, 2011 through April 28, 2018 because she concurrently received FECA
wage-loss compensation and SSA age-related retirement benefits without an appropriate offset.
The hearing representative found that appellant was at fault in the creation of the overpayment,
precluding waiver of recovery of the overpayment. The hearing representative further determined
that the overpayment could be recovered by deducting $774.587 monthly from appellant’s
continuing compensation payments and that no compromise of principle was necessary.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.8 Section 8116 limits the right of an employee to receive
6

This figure appears to be a typographical error and should be $73,266.30 as supported by the evidence of record.

7

The hearing representative found that a $715.00 deduction from appellant’s 28-day payments amounted to $774.58
monthly.
8

5 U.S.C. § 8102(a).

4

compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.9
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.10 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $73,266.30 for the period November 1, 2011 through
April 28, 2018.
The record supports that appellant received SSA age-related retirement benefits beginning
in November 2011. As noted, a claimant cannot receive FECA compensation for wage-loss
compensation and SSA age-related retirement benefits attributable to federal service for the same
period.12 The information provided by SSA indicated that appellant received age-related SSA
benefits that were attributable to her federal service beginning November 1, 2011. OWCP,
however, neglected to offset her FECA benefits until April 29, 2018. Accordingly, the Board finds
that it properly determined that appellant received an overpayment of wage-loss compensation for
the period November 1, 2011 through April 28, 2018.
Based on the information provided by SSA, OWCP calculated the overpayment of
compensation by determining the portion of SSA benefits that were attributable to appellant’s
federal service. The SSA provided appellant’s SSA rate with FERS and without FERS for the
period November 1, 2011 through April 28, 2018. OWCP provided its calculations of the amount
that it should have offset during the relevant period based on the SSA worksheet. No contrary
evidence was provided. While appellant initially contested the fact and amount, her counsel
subsequently indicated that her case should be treated as though she did not respond to the
overpayment notice. The Board has reviewed OWCP’s calculations and finds that it properly
determined that appellant received prohibited dual benefits totaling $73,266.30, which created an
overpayment of compensation in that amount for the period November 1, 2011 through
April 28, 2018.13

9

Id. at § 8116.

10

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

11
FECA Bulletin No. 97-09 (February 3, 1997); see also J.B., Docket No. 19-1244 (issued December 20, 2019);
N.B., Docket No. 18-0795 (issued January 4, 2019).
12

Id.; A.C., Docket No. 18-1550 (issued February 21, 2019).

13

L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) provides that adjustment or recovery by the United States may not be made
when incorrect payment has been made to an individual who is without fault and when adjustment
or recovery would defeat the purpose of FECA or would be against equity and good conscience.14
A claimant who is at fault in the creation of the overpayment is not entitled to waiver.15 On the
issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at fault if he or she
has done any of the following: (1) made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; (2) failed to provide information which he or she
knew or should have known to be material; or (3) accepted a payment which he or she knew or
should have known was incorrect.
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.16
When a claimant receives benefits from the SSA as part of an annuity under the Federal
Employees Retirement System concurrently with disability/wage loss compensation, the claimant
should be found without fault unless there is evidence on file that the claimant was aware that the
receipt of full SSA benefits concurrent with disability/wage loss compensation was prohibited.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant was at fault in the
creation of the overpayment of compensation for the period November 1, 2011 through
April 28, 2018.
The Federal (FECA) Procedure Manual identifies that, regarding an SSA dual benefits
scenario, where the claimant receives SSA benefits as part of an annuity under FECA, which
results in an overpayment, the claimant should be found not at fault unless there is evidence on file
that the claimant was aware that the receipt of full SSA benefits concurrent with disability/ wageloss compensation was prohibited.18 Because of the complex nature of SSA benefits
administration, appellant could not have been expected to be able to calculate the amount of an

14

5 U.S.C. § 8129(b).

15

See B.R., Docket No. 18-0339 (issued January 24, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018);
Gregg B. Manston, 45 ECAB 344, 354 (1994); Robert W. O Brien, 36 ECAB 541, 547 (1985).
16
Id. at § 10.433(b); see also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Determinations in an Overpayment, Chapter 6.300.4(d) (September 2018).
17

Id. at Chapter 6.300.4g(4) (September 2018).

18

Id.

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offset. Therefore, he could not reasonably have been aware during the relevant period that his
concurrent receipt of SSA benefits constituted an actual prohibited dual benefit.19
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.20 The Board finds that appellant was without other options to avoid a
potential FECA overpayment. Therefore, based on the circumstances described, the Board finds
that OWCP has not met its burden of proof to establish that appellant was at fault in the creation
of the overpayment for the period November 1, 2011 through April 28, 2018.
As appellant was not at fault in the creation of the overpayment for the period November 1,
2011 through April 28, 2018, the case will be remanded to OWCP to consider the issue of waiver
of recovery of the overpayment.21
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $73,266.30 for the period November 1, 2011 through April 28,
2018 because she concurrently received FECA wage-loss compensation and SSA age-related
retirement benefits without an appropriate offset. The Board finds that she was without fault in
the creation of the overpayment.

19

See J.B., Docket No. 19-1244; G.G., Docket No. 19-0684 (issued December 24, 2019) (The Board affirmed
OWCP’s finding that, due to the complexity of SSA age-related retirement benefits administration, appellant was not
with fault in the creation of the overpayment because he could not have reasonably known that an improper payment
had occurred. OWCP determined that appellant was not expected to be able to calculate the amount of the offset prior
to receipt of information for the SSA).
20

Supra note 19.

21

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

7

ORDER
IT IS HEREBY ORDERED THAT the August 6, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part and the case is remanded
for further action consistent with this decision of the Board.
Issued: March 23, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 13-1023
Issued: September 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 20, 2013 appellant, through her attorney, filed a timely appeal from a
February 26, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
affirming the termination of her compensation benefits. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss and medical
compensation benefits effective July 19, 2012 on the grounds that her accepted left foot
conditions ceased without residuals.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the February 26, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, counsel contends that OWCP’s decision was contrary to fact and law.
FACTUAL HISTORY
On April 1, 1992 appellant, then a 31-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging a left foot injury in the performance of duty on
December 20, 1991. In File No. xxxxxx698,OWCP accepted the claim for avulsion fracture of
the left talonavicular joint. Appellant returned to limited-duty work and sustained a recurrence
of disability on August 14, 1992.
Appellant, through her attorney, filed claims for compensation (Form CA-7s) for periods
beginning August 14, 1992.
By decision dated July 5, 1994, OWCP accepted left tarsal tunnel syndrome and
appellant received wage-loss compensation for the period August 14 through 29, 1992.
On August 2, 1994 appellant, through her attorney, filed a claim for a schedule award.
In File No. xxxxxx822, OWCP accepted that appellant sustained a left ankle sprain on
October 28, 1994 in the performance of duty. Following an approved surgical procedure,
appellant returned to restricted duty in December 1994. OWCP combined the claims under
Master File No. xxxxxx698.
By decision dated July 25, 1997, OWCP granted appellant a schedule award for a 14
percent permanent impairment of the left leg.
The record reveals that the employing establishment reduced appellant’s hours to four a
day effective June 2010 because it could not accommodate her limitations. Effective May 9,
2011, the employing establishment could no longer accommodate her restrictions and she
stopped work. OWCP placed appellant on the periodic rolls.
On February 14, 2011 Dr. Joseph Salama, an attending physician and Board-certified
orthopedic surgeon, reported that appellant had undergone a tarsal tunnel release as well as
surgery on her left Achilles tendon. Appellant was fitted with a brace and had been working at a
sit-down job. She stated that she had to do some walking from the area where she worked and
noted increasing discomfort in her left ankle. Dr. Salama advised appellant to continue to work
in a sit-down position in a chair, not on a rolling stool or platform. He restricted her from
excessive walking, stairs, bending, kneeling or squatting and that she had been working with
these permanent restrictions.
OWCP referred appellant to Dr. Michael E. Kosinski, a Board-certified orthopedic
surgeon, for a second opinion examination to determine the nature and extent of her
employment-related condition. In a June 21, 2011 report, Dr. Kosinski conducted a physical
examination and reviewed her medical history and a statement of accepted facts. He found no
evidence of swelling or neurogenic complaints with excellent range of motion of both ankles.
Dr. Kosinski found no residuals from the left ankle avulsion fracture or left tarsal tunnel
syndrome from 1991 or the left ankle sprain from 1994. Heopined that appellant was capable of
working eight hours a day at a sit-down job only.
In a July 8, 2011 addendum
2

report,Dr. Kosinski indicated that she had no residuals of the surgical procedures performed on
August 24, 1994 for the tarsal tunnel and November 4, 1994 for the Achilles tendon. Henoted
that appellant did have residuals of osteoarthritis of the joints.
Appellant submitted reports dated July 12 and 21, 2011 from Dr. Salama. On July 21,
2011 Dr. Salama indicated that he had reviewed Dr. Kosinski’s June 21, 2011 report. He
diagnosed osteoarthritis of the tarsal joint and talonavicular and opined that appellant’s
employment injuries caused her to develop arthritic changes in the left foot and ankle.
OWCP referred appellant to Dr. Emmanuel Obianwu, a Board-certified orthopedic
surgeon, to resolve the conflict in medical opinion between Dr. Kosinski and Dr. Salama on her
disability or residuals of the accepted employment conditions. In a December 27, 2011 report,
Dr. Obianwu reviewed a statement of accepted facts, the medical evidence of record and
performed a physical examination.He concluded that appellant had no residuals of the left ankle
avulsion fracture explaining that the diagnosis was made on the basis of x-rays, which did not
reveal any avulsion fracture. Dr. Obianwu opined that she had no residuals of the left tarsal
tunnel syndrome as the Tinel’s test over the nerve was negative and there was no sensory
discrepancy over the top or dorsal aspect of the left foot. He found no residuals of the left ankle
sprain as there was no positive response of significant discomfort. Dr. Obianwu concluded that
there were no residuals of the exploration of the left Achilles tendon because, although appellant
could not walk on her toes, close palpation of the Achilles tendon revealed no defects and the
Thompson’s test was negative. He explained that the diagnosis of osteoarthritis in her left foot
was age related and not related to the surgical procedures as they were all soft tissue releases and
the bones and joints were not affected. Dr. Obianwuconcluded that appellant had no residuals
related to heremployment injuries. He opined that she had reached maximum medical
improvement and was able to continue working in her modified position.
On April 23, 2012 Dr. Salamadiagnosed post left tarsal tunnel release and left ankle
arthritis. He released appellant to her modified position with restrictions.
By letter dated June 7, 2012, OWCP notified appellant that it proposed to terminate her
compensation benefits based on the weight of the medical evidence, as represented by
Dr. Obianwu.
Appellant submitted a June 20, 2012 report from Dr. Salama, who reiterated his diagnosis
of osteoarthritis and his opinion that it was employment related.3
By decision dated July 19, 2012, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that day.4 It found that the weight of the evidence was represented
by Dr. Obianwu.

3

On June 18, 2012 appellant, through her attorney, filed a notice of recurrence.

4

OWCP noted that, since the periodic rolls cycle did not end until July 28, 2012, appellant would be paid wageloss compensation through that date and the termination on wage-loss compensation would be effective
July 29, 2012.

3

On August 1, 2012 appellant, through her attorney, requested a telephone hearing before
an OWCP hearing representative. She submitted reports dated February 29 and November 5,
2012 from Dr. Salama, who reiterated his diagnoses and medical opinions.
A hearing was held before an OWCP hearing representative on December 17, 2012. At
the hearing, appellant had representation and provided testimony. The hearing representative
held the record open for 30 days for the submission of additional evidence.
By decision dated February 26, 2013, the hearing representative affirmed the July 19,
2012termination decision, finding that Dr. Obianwu represented the weight of the medical
evidence.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.6 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.8 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.9
Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.10 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.11

5

See S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

6

See I.J., 59 ECAB 408, 412 (2008); Elsie L. Price, 54 ECAB 734 (2003).

7

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

8

See T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

9

See James F. Weikel, 54 ECAB 660 (2003).

10

5 U.S.C. § 8123(a).See R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

11

See V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB
215 (1994).

4

ANALYSIS
OWCP accepted appellant’s claim for left talonavicular joint avulsion fracture, left tarsal
tunnel syndrome and left ankle sprain. It terminated her compensation benefits effectiveJuly 19,
2012 on the grounds that the accepted employment-related conditions had resolved without
residuals based on the opinion of the impartial medical examiner, Dr. Obianwu. The issue to be
determined is whether OWCP met its burden to terminate appellant’s compensation benefits.
Dr. Salama, appellant’s treating physician, opined that she continued to have residuals of
her accepted left fact and ankleinjuries. Dr. Kosinski, an OWCP referral physician, opined that
she no longer had any residuals or disability due to the accepted employment injuries,
concluding that her left foot conditions had resolved. The Board finds that there was a conflict
of medical opinion evidence between appellant’s physician and OWCP’s referral physician on
the issues of medical residuals and disability. The Board finds that OWCP properly referred
appellant to Dr. Obianwu to resolve the conflict in the medical opinion evidence, pursuant to 5
U.S.C. § 8123(a).
The Board finds that OWCP met its burden of proof to terminate appellant’s medical and
wage-loss compensation benefits based on the December 27, 2011 report of Dr. Obianwu who
reviewed her medical history, examined her and found no objective evidence of ongoing
residuals or disability due to her left foot conditions. Dr. Obianwu reviewed the statement of
accepted facts and the medical record. He found no objective evidence of symptoms related to
the left talonavicular joint avulsion fracture, left tarsal tunnel syndrome and left ankle strain.
Dr. Obianwu found no evidence of other conditions or residuals related to appellant’s
employment.He explained that the diagnosis of osteoarthritis in her left foot was agerelated and
not related to the surgical procedures as they were all soft tissue releases and the bones and joints
were not affected. Dr. Obianwu concluded that appellant had recovered from her left foot
conditions and advised that shewas able to continue working in her modified position.
The Board finds that Dr. Obianwu’s report represents the special weight of the medical
evidence. OWCP properly relied on his report in terminating appellant’s benefits. The Board
finds that he had full knowledge of the relevant facts and evaluated the course of her condition.
Dr. Obianwu is a specialist in the appropriate field. His opinion is based on proper factual and
medical history and his report contained a detailed summary of this history. Dr. Obianwu
addressed the medical records to make his own examination findings to reach a reasoned
conclusion regarding appellant’s condition.12 At the time benefits were terminated, he found no
basis on which to attribute any residuals or continued disability to appellant’s accepted
conditions. Dr. Obianwu’s opinion as set forth in his December 27, 2011 report is found to be
probative evidence and reliable. The Board finds thathisopinion constitutes the special weight of
the medical evidence and is sufficient to justify OWCP’s termination of benefits for the accepted
left foot conditions had ceased.

12

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).

5

Dr. Salama submitted reports diagnosing osteoarthritis and opining that it was
employment related. Ashe was on one side of the conflict, his reports, without more by way of
medical rationale, are insufficient to create a new conflict in medical opinion to overcome the
special weight properly accorded to Dr. Obianwu.13 Thus, the Board finds that OWCP properly
terminated appellant’s compensation benefits effective July 19, 2012 relating to the accepted left
talonavicular joint avulsion fracture and left tarsal tunnel syndrome.
On appeal, appellant’s attorney contends that OWCP’s decision was contrary to fact and
law. However, as explained, Dr. Obianwu’s report represents the special weight of the medical
evidence and establishes that appellant’s accepted conditions resolved.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss and medical
compensation benefits effective July 19, 2012 on the grounds that her accepted left foot
conditions had ceased without residuals.
ORDER
IT IS HEREBY ORDERED THATthe February 26, 2013decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 24, 2013
Washington, DC

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

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

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

13

See J.M., Docket No. 11-1257 (issued January 18, 2012); Dorothy Sidwell, 41 ECAB 857 (1990).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 11-924
Issued: October 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 3, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) October 4, 2010 merit decision denying her occupational
disease claim and a January 7, 2011 nonmerit decision denying her hearing request as untimely.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. § 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an injury causally related to factors of her federal employment; and (2) whether OWCP
properly denied her request for an oral hearing as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 20, 2010 appellant, a 36-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that she developed carpal tunnel syndrome (CTS) as a result of
repetitive employment activities, including lifting up to 70 pounds of mail, dumping and opening
sacks and pushing equipment.
In a July 13, 2010 first report of occupational illness or injury, Dr. Anton Volpicelli, a
treating physician, diagnosed neck, shoulder and arm sprains and enthesopathy of the wrist
bilaterally. He related appellant’s report that she developed pain and numbness in her wrists,
hands, arms, shoulders and neck due to years of repetitious work duties. On examination of the
wrists, he noted full range of motion, tenderness, muscle weakness and sensory changes to light
touch and pin pricks. Tinel’s and Phalen’s tests were positive. Examination of the neck revealed
posterior cervical tenderness, as well as tenderness of the paracervical and trapezius muscles.
In a letter dated July 28, 2010, OWCP informed appellant that the evidence submitted
was insufficient to establish her claim. It advised her to submit details regarding the employment
duties she believed caused or contributed to her claimed condition, as well as a comprehensive
medical report from a treating physician, which contained symptoms, a diagnosis and an opinion
with an explanation as to the cause of her diagnosed condition.
In a July 13, 2010 report, Dr. Volpicelli noted that appellant’s job duties at the time of her
May 27, 2010 injury included repetitive use of the hands, prolonged standing and walking and
lifting up to 50 pounds. The report reflected that she had been working at the employing
establishment for 12 years. Dr. Volpicelli diagnosed bilateral CTS/tendonitis and trapezius
sprain. By placing a checkmark in the “yes” box, he indicated that his findings were consistent
with appellant’s description of events. The record contains treatment notes from Dr. Volpicelli
for the period July 13 through September 14, 2010 reiterating his diagnoses.
The record contains treatment notes and form reports, bearing illegible signatures, for the
period July 15 through September 14, 2010. Appellant also submitted physical therapy notes for
the period July 15 through September 8, 2010.
By decision dated October 4, 2010, OWCP denied appellant’s claim on the grounds that
she had not established the fact of injury. It found that the medical evidence was insufficient to
establish a causal relationship between the diagnosed condition and identified work events.
On December 1, 2010 appellant requested a review of the written record. By decision
dated January 7, 2011, an OWCP hearing representative denied her request as untimely.2

2

The Board notes that appellant submitted additional evidence after OWCP rendered its January 7, 2011 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. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47
ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under OWCP3 has the burden of establishing the essential
elements of her claim, including the fact that an injury was sustained in the performance of duty
as alleged4 and that any disability and/or specific condition for which compensation is claimed is
causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.6
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to claimant’s diagnosed
condition. To be of probative value, the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish a causal relationship.8
ANALYSIS -- ISSUE 1
It is not disputed that appellant performed repetitive employment activities, including
lifting up to 70 pounds of mail, dumping and opening sacks and pushing equipment as a mail
handler for 12 years. The Board finds, however, that the medical evidence submitted by her is
insufficient to establish that her diagnosed medical condition was caused or aggravated by
factors of her federal employment. Therefore, appellant has failed to meet her burden of proof.
3

5 U.S.C. §§ 8101-8193.

4

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and manner alleged. He must
also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
5

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

6

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

7

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

8

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 5 at 218.

3

The medical evidence of record consisted of reports and treatment notes from
Dr. Volpicelli. On July 13, 2010 he provided examination findings and diagnosed bilateral
CTS/tendonitis and trapezius sprain. By placing a checkmark in the “yes” box, Dr. Volpicelli
indicated that his findings were consistent with appellant’s description of events. He related her
report that she developed pain and numbness in her wrists, hands, arms, shoulders and neck due
to 12 years of repetitious work duties. Dr. Volpicelli noted that appellant’s job duties at the time
of her May 27, 2010 injury included repetitive use of the hands, prolonged standing and walking
and lifting up to 50 pounds. His report lacks probative value on several counts. Most
significantly, Dr. Volpicelli did not sufficiently describe appellant’s job duties or explain the
medical process through which such duties would have been competent to cause the claimed
conditions. Medical conclusions unsupported by rationale are of limited probative value.9 The
Board has held that a report that addresses causal relationship with a checkmark, without a
medical rationale explaining how the work conditions caused the alleged injury, is of diminished
probative value and is insufficient to establish causal relationship.10 Additionally, Dr. Volpicelli
did not indicate that his opinion was based on a review of a complete factual and medical
background of the claimant. For all of these reasons, his reports are of diminished probative
value. Dr. Volpicelli’s treatment notes, which do not contain an opinion on the cause of
appellant’s condition, are of limited probative value.11
Appellant also submitted physical therapy notes for the period July 15 through
September 8, 2010. As a physical therapist is not considered a “physician” under FECA, these
reports do not constitute probative medical evidence.12 The record also contains form reports,
bearing illegible signatures. As the authors of these reports cannot be identified as physicians as
defined by FECA, they lack probative value.13
Appellant expressed her belief that her alleged condition resulted from her duties as a
mail handler. However, her belief that her condition was caused by the alleged work-related
injury is not determinative.14
OWCP advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the
9

Willa M. Frazier, 55 ECAB 379.

10

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

11

Medical evidence which does not offer an opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB
313 (1999). Medical conclusions unsupported by rationale are of little probative value. Willa M. Frazier, 55
ECAB 379.
12

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). Section 8101(2) of OWCP provides
as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J.
Sills, 39 ECAB 572, 575 (1988).
13

Id.

14

See supra note 8.

4

physician’s opinion, with medical reasons, on the cause of her condition. Appellant failed to do
so. As there is no probative, rationalized medical evidence addressing how she claimed
conditions were caused or aggravated by her employment, she has not met her burden of proof in
establishing that she sustained an occupational disease in the performance of duty causally
related to factors of employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of OWCP provides that, before review under section 8128(a) of
OWCP, a claimant not satisfied with a decision of OWCP is entitled to an oral hearing or review
of the written record on his claim, on request made within 30 days after the date of the issuance
of the decision.15
The hearing request must be sent within 30 days (as determined by postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought.16 OWCP has
discretion, however, to grant or deny a request that is made after this 30-day period.17 In such a
case, it will determine whether to grant a discretionary hearing and, if not, will so advise the
claimant with reasons.18
ANALYSIS -- ISSUE 2
Appellant had 30 calendar days from OWCP’s October 4, 2010 decision to request an
oral hearing before an OWCP hearing representative. Accordingly, she had until November 3,
2010 to file her request.19 Because appellant’s request was filed on December 1, 2010, it was
untimely. Therefore, she was not entitled to an oral hearing as a matter of right under section
8124(b)(1) of FECA.
Exercising its discretion to grant a discretionary hearing, OWCP denied appellant’s
request on the grounds that she could equally well address any issues in her case by requesting
reconsideration. Because reconsideration exists as an alternative appeal right to address the

15

5 U.S.C. § 8124(b)(1).

16

20 C.F.R. § 10.616(a).

17

Herbert C. Holley, 33 ECAB 140 (1981); G.W., Docket No. 10-762 (issued April 23, 2010).

18

G.W., id.

19

In computing a time period the date of the event from which the designated period of time begins to run shall
not be included while the last day of the period so computed shall be included unless it is a Saturday, a Sunday or a
legal holiday. See John B. Montoya, 43 ECAB 1148, 1151 (1992); Marguerite J. Dvorak, 33 ECAB 1682 (1982).
See also FECA Program Memorandum No. 250 (January 29, 1979).

5

issues raised by the October 4, 2010 decision, the Board finds that OWCP did not abuse its
discretion in denying appellant’s untimely request for an oral hearing.20
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty. The Board further finds that OWCP properly
denied her request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2011 and October 4, 2010 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

The Board has held that the denial of a hearing on these grounds is a proper exercise of OWCP’s discretion.
E.g., Jeff Micono, 39 ECAB 617 (1988). Appellant has one year to make a timely request for reconsideration of
OWCP’s June 23, 2009 merit decision. See 20 C.F.R. § 10.607.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Flint MI, Employer
__________________________________________

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

Docket No. 13-297
Issued: April 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2012 appellant filed a timely appeal of the May 25, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) which denied her request for an oral
hearing pursuant to 5 U.S.C. § 8124(b)(1). 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
the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On February 16, 2012 appellant, then a 43-year-old revenue agent, filed a traumatic
injury claim alleging that, on February 1, 2012, while retrieving taxpayer documents from her
1

5 U.S.C. §§ 8101-8193.

car, fell injuring her back, right shoulder, neck and knees. She stopped work on February 2,
2012 and returned on February 6, 2012. The employing establishment noted that appellant was
in the performance of duty at the time of the incident.
By letter dated February 22, 2012, OWCP requested that appellant submit additional
information including a comprehensive medical report from her treating physician which
included a reasoned explanation as to how the specific work factors or incidents identified by
appellant had contributed to her claimed back injury.
Appellant was initially treated by Dr. Andrea Towers, a chiropractor, from February 2 to
March 16, 2012 for nerve root compression of the cervical, thoracic and lumbar spine. In work
excuse slips dated February 2, 16 and 28, 2012, Dr. Towers noted that appellant was unable to
work due to nerve root compression of the cervical, thoracic and lumbar spine. She noted that
spinal adjustments were performed in the cervical, thoracic and lumbar region with mechanical
traction. In a March 13, 2012 duty status report, Dr. Towers diagnosed misalignment of C5 and
L5 spines and noted that appellant could return to work with restrictions. On March 16, 2012
she indicated that appellant slipped and fell at work and had pain in all levels. On February 2
and 17, 2012 appellant was treated by a physician’s assistant for a medical condition and was off
work from February 2 to 6, 2012. In a March 20, 2012 attending physician’s report, Dr. Keith
McKenzie, a family practitioner, noted that on February 1, 2012 appellant was walking and
slipped on ice and fell. He diagnosed strain/sprain contusion of both shoulders, neck and
thoracic, cervical and lumbar spine. Dr. McKenzie noted with a checkmark “yes” that
appellant’s condition was caused or aggravated by an employment activity. In a March 9, 2012
statement, appellant indicated that she slipped on snow, ice and salt.
In a decision dated March 27, 2012, OWCP denied appellant’s claim for compensation
on the grounds that the medical evidence failed to establish that the claimed medical condition
was related to the established work-related event.
In an appeal request form dated April 3, 2012 and postmarked April 27, 2012, appellant
requested an oral hearing. With her request, she submitted additional evidence.
In a decision dated May 25, 2012, OWCP denied appellant’s request for an oral hearing.
It found that the request was not timely filed. Appellant was informed that her case had been
considered in relation to the issues involved, and that the request was further denied for the
reason that the issues in this case could be addressed by requesting reconsideration from OWCP
and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied
with a decision of the Secretary ... is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on her claim before a representative of the Secretary.”2
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
2

5 U.S.C. § 8124(b)(1).

2

record by a representative of the Secretary.3 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.4 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.5 OWCP’s procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).6
ANALYSIS
Appellant requested a hearing in an appeal form dated April 3, 2012 and postmarked
April 27, 2012. The evidence of record reflects that OWCP’s decision was issued on March 27,
2012; therefore, the Board finds that appellant’s hearing request is not timely. The 30-day time
period for determining the timeliness of her hearing request commences on the first day
following the issuance of OWCP’s decision.7 As OWCP’s decision was issued on March 27,
2012, the 30-day period for requesting a hearing began to run on from March 28, 2012 and the
last or 30th day was April 26, 2012. Since appellant’s hearing request was postmarked April 27,
2012, it was untimely as it fell on the 31st day after the issuance of OWCP’s decision.
Accordingly, appellant was not entitled to a hearing as a matter of right.
Therefore, OWCP was correct in finding in its May 25, 2012 decision that appellant was
not entitled to an oral hearing as a matter of right because her request was not made within 30
days of OWCP’s March 27, 2012 decision.
OWCP also notified appellant that it had considered the matter in relation to the issue
involved and indicated that additional argument and evidence could be submitted with a request
for reconsideration. It has broad administrative discretion in choosing means to achieve its
general objective of ensuring that an employee recovers from his or her injury to the fullest
extent possible in the shortest amount of time. An abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts.8 There is no
indication that OWCP abused its discretion in this case in finding that appellant could further
pursue the matter through the reconsideration process.
Consequently, OWCP properly denied appellant’s request for an oral hearing.
3

20 C.F.R. §§ 10.616, 10.617.

4

20 C.F.R. § 10.616(a).

5

Delmont L. Thompson, 51 ECAB 155 (1999); Eddie Franklin, 51 ECAB 223 (1999).

6

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
7

See Donna A. Christley, 41 ECAB 90, 91 (1989). See also John B. Montoya, 43 ECAB 1148, 1151-52 (1992).

8

Samuel R. Johnson, 51 ECAB 612 (2000).

3

On appeal, appellant asserted that she submitted sufficient medical evidence to support
that her diagnosed condition was work related. As explained, the Board does not have
jurisdiction to review the merits of the claim, only whether appellant filed a timely request for an
oral hearing. As noted above, the hearing request was made more than 30 days after issuance of
the March 27, 2012 OWCP decision and was untimely and there was no indication that OWCP
abused its discretion in finding that appellant could further pursue the matter through the
reconsideration process.9
CONCLUSION
The Board further finds that OWCP properly denied appellant’s request for an oral
hearing pursuant to 5 U.S.C. § 8124(b)(1).
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 24, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence for the first time on appeal; see 20 C.F.R. § 501.2(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-509
Issued: September 29, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 27, 2010 appellant filed a timely appeal from an October 7, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on May 15, 2009.
FACTUAL HISTORY
On May 20, 2009 appellant, then a 46-year-old sales and service associate, filed a
traumatic injury claim alleging that he sustained severe lower back pain on May 15, 2009 due to
twisting, bending, lifting and pulling mail trays from postal containers. He stopped work on
1

5 U.S.C. § 8101 et seq.

May 15, 2009 and did not return. The employing establishment controverted the claim, asserting
that appellant did not promptly report the injury and had a preexisting condition.
OWCP informed appellant in a May 27, 2010 letter that additional evidence was needed
to establish his claim. It gave him 30 days to submit a physician’s report offering a reasoned
opinion explaining how the May 15, 2009 incident caused an injury.
Appellant submitted various medical records. A July 9, 2004 magnetic resonance
imaging (MRI) scan report from Dr. Steven S. Ham, a Board-certified diagnostic radiologist,
exhibited a central L5-S1 disc herniation. In a June 9, 2009 note, Dr. Rajesh K. Patel, a Boardcertified anesthesiologist, related that appellant experienced chronic lower back pain since 2001
and more recently complained of bilateral hip and thigh symptoms. On examination, he
observed lumbar paraspinal muscle and left sacroiliac joint tenderness and positive straight left
leg raise results. Dr. Patel diagnosed L5-S1 disc bulge.2 Appellant also provided an illegible
June 24, 2009 attending physician’s report.
By decision dated July 2, 2009, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that the accepted May 15, 2009 employment incident caused or
aggravated an injury.
Appellant furnished additional medical evidence.
In a June 24, 2009 report,
Dr. Steven L. Goodman, a Board-certified orthopedic surgeon, noted that appellant developed
back pain as a result of moving mail and twisting repetitively. He added that appellant had a
prior history of intermittent back problems. Dr. Goodman observed tenderness on palpation
along the thoracolumbar junction and sacroiliac joints and left hip discomfort during range-ofmotion (ROM) evaluation. X-rays of the lumbar region demonstrated degenerative changes to
the thoracolumbar junction and mild vertebral wedging. Dr. Goodman assessed lumbar
radiculopathy and osteoarthritis. Appellant continued to complain of back pain in July 15 and
August 12, 2009 follow-up reports.
In a report dated September 16, 2009, Dr. Goodman commented that a recent MRI scan
showed a left L5-S1 lateral extruded disc herniation, which caused mild stenosis in the left lateral
recess,3 and observed mild lateral bending and rotation discomfort. He diagnosed low back pain
and lumbar radiculopathy. Dr. Goodman reiterated his findings in a November 4, 2009 followup report.
Appellant requested an oral hearing, which was held on November 18, 2009. He testified
that he had minor problems with his back before the May 20, 2009 incident and had not yet
returned to work. Following the hearing, appellant provided December 1, 2009 medical records
from Dr. Leo E. Batash, a physiatrist, who related that he was injured on the job and checked
“yes” in response to a form question asking whether this incident was the competent cause.
Dr. Batash noted a history of lower back, bilateral thigh and knee pain and a previous left knee
2

While Dr. Patel duplicated this diagnosis in a subsequent June 12, 2009 note, he assessed lumbar disc herniation
in a June 11, 2009 letter to OWCP requesting authorization of medical treatment.
3

The record indicates that an MRI scan was performed on September 9, 2009.

2

arthroscopy. On examination, he observed an antalgic gait, difficulties tip toeing, heel walking
and squatting, left knee tenderness, crepitation and hematoma and thoracolumbar pain and
tenderness. Dr. Batash diagnosed lumbosacral sprain, chronic pain and left hip contusion.
On December 31, 2009 OWCP’s hearing representative affirmed the July 2, 2009
decision.
Appellant’s counsel filed a brief in support of reconsideration on August 9, 2010. He
attached as an exhibit a June 7, 2010 report from Dr. Batash specifying that appellant’s lower
back, left hip and bilateral knee symptoms stemmed from moving trays of mail on May 15, 2009,
which entailed lifting, bending and twisting. On examination, Dr. Batash observed lumbosacral
spinal and paraspinal muscle pain, spasms and tenderness as well as limited ROM secondary to
pain. Appellant also exhibited an antalgic gait and difficulties tip toeing, heel walking and
squatting while palpation revealed pain in the left hip joint and socket extending into the greater
trochanteric muscle area and mediolateral tenderness, crepitation and limited ROM of the knees.
Dr. Batash pointed out that September 9 and December 3, 2009 MRI scans showed an L5-S1
disc herniation and a torn left medial meniscus, respectively.4 Based on these findings, he
diagnosed traumatic lumbosacral sprain and radiculitis with an L5-S1 disc herniation, left hip
contusion and greater trochanteric bursitis, left knee internal derangement with a medial
meniscal tear and right knee sprain and strain. Dr. Batash opined that appellant’s injuries were
causally related to the May 15, 2009 incident and were susceptible to premature degenerative
changes. Concerning the back condition, he detailed:
“[T]he sudden forceful violent impact caused by the accident exerted tremendous
pressure upon the annulus fibrosis, nucleus pulposus and facet joints of the
lumbosacral spine, with herniation of the disc material which encroaches upon the
spinal nerve roots, causing excruciating pain and discomfort to the patient on the
sensitive nerves whose vital functions are impaired…. The loss of full range of
motion of the lumbosacral spine will give rise to calcification in the form of
arthritic deposits which tend to further limit motion. The connective tissue has
been stretched and torn causing it to lose its tonicity and become lax, giving rise
to spinal instability, allowing misalignment of the vertebral bodies and posterior
joints with the result of compression of the posterior nerve roots at the involved
spinal segments.”
With respect to appellant’s left knee, Dr. Batash explained that appellant had “rotational
insult … with subsequent devascularization and accumulation of edema fluid with
deposition of dense collagen and reticulin fibers compressing the capillary circulation
and resulting in healing by scar tissue which adds more limitation to the knee’s [ROM].”
He concluded that[,] although appellant’s left hip and right knee contusions and
abrasions had resolved, these members still experienced intermittent pain.5
4

The record contains a December 3, 2009 MRI scan report from Dr. Howard J. Gelber, a Board-certified
diagnostic radiologist.
5

Appellant also submitted Dr. Batash’s medical records from December 1, 2009 to August 17, 2010. These
documents contained findings that were incorporated into in the June 7, 2010 report.

3

On October 7, 2010 OWCP denied modification of the December 31, 2009 decision.6
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,7
including that he is an “employee” within the meaning of FECA and that he filed his claim
within the applicable time limitation.8 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.10
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.11
ANALYSIS
The Board finds that the case is not in posture for decision.
An employee who claims benefits under FECA has the burden of establishing by the
weight of reliable, probative and substantial evidence that the condition for which compensation
is sought is causally related to a specific employment incident or work factors. As part of this
burden, the employee must present rationalized medical opinion evidence based on a complete
and accurate factual and medical background. However, it is well established that proceedings
6

The Board notes that appellant submitted new evidence after issuance of this decision. The Board lacks
jurisdiction to review such evidence for the first time on appeal. 20 C.F.R. § 501.2(c).
7

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

8

R.C., 59 ECAB 427 (2008).

9

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

10

T.H., 59 ECAB 388 (2008).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

under FECA are not adversarial in nature and OWCP is not a disinterested arbiter. While an
employee has the burden to establish entitlement to compensation, OWCP shares responsibility
in the development of the evidence and has the obligation to see that justice is done.12
The evidence supports that appellant lifted and pulled mail trays from postal containers
on May 15, 2009 and that such activity involved twisting and bending. OWCP denied his
traumatic injury claim, finding the medical evidence insufficient to establish that the accepted
employment incident contributed to a back, hip or knee condition.13
Reports from Dr. Goodman for the period June 24 to November 4, 2009 diagnosed
lumbar radiculopathy and osteoarthritis and attributed appellant’s condition due to moving mail
and twisting repetitively. However, Dr. Goodman’s opinion did not sufficiently establish causal
relationship because he failed to explain how lifting and pulling mail trays from postal containers
pathophysiologically caused or aggravated appellant’s back condition.14 The need for medical
rationale is particularly important in this case as Dr. Ham’s July 9, 2004 MRI scan report
indicated a preexisting injury. In addition, Dr. Patel’s June 2009 notes diagnosing L5-S1 disc
bulge and herniation were of limited probative value as they did not address whether appellant’s
federal employment caused or aggravated his injuries.15
Dr. Batash’s initial December 1, 2009 medical records included an affirmative
checkmark response to a form question asking whether a workplace incident was the competent
cause of his lower back and left hip injuries. A checkmark response, without further explanation
or fortifying rationale, is of diminished probative value on the issue of causal relationship.16 In a
subsequent June 7, 2010 report, after examining appellant and reviewing previous records,
Dr. Batash clarified that appellant’s diagnosed traumatic lumbosacral sprain and radiculitis with
an L5-S1 disc herniation, left hip contusion and greater trochanteric bursitis, left knee internal
derangement with a medial meniscal tear and right knee sprain and strain were due to the lifting,
bending and twisting motions involved with moving mail trays on May 15, 2009. Although he
described appellant’s ongoing left hip and bilateral knee pathologies, he did not specify how they
were caused by the employment incident. Dr. Batash detailed that the “sudden forceful impact
caused by the accident exerted tremendous pressure upon the annulus fibrosis, nucleus pulposus
and facet joints of the lumbosacral spine,” leading to disc herniation, nerve root compression,
restricted ROM, prospective calcification and vertebral body and posterior joint misalignment,
inter alia. This explanation, however, conflicts with appellant’s account of the May 15, 2009

12

William J. Cantrell, 34 ECAB 1233 (1983); E.J., Docket No. 09-1481 (issued February 19, 2010).

13

The Board notes that appellant initially filed for a back condition only. However, the evidence of record
indicates that he amplified and expanded his claim to include allegations of hip and knee injuries related to the
May 15, 2009 work event. See Wilfred M. Hamilton, 41 ECAB 524 (1990).
14

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994). The Board also notes
that Dr. Goodman did not identify the date of injury. See M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB
1805 (1980) (medical opinions based on an incomplete or inaccurate history are of diminished probative value).
15

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

16

Alberta S. Williamson, 47 ECAB 569 (1996). See also George Randolph Taylor, 6 ECAB 986, 988 (1954).

5

incident, which only depicted twisting, bending, lifting and pulling mail trays. These activities
did not implicate a collision or anything else suggestive of a “sudden forceful impact.”17
The Board therefore finds that the medical evidence was not sufficiently rationalized to
meet appellant’s burden of proof as none of the reports offered a sound pathophysiological
explanation of causal relationship.18 Nonetheless, Dr. Batash’s June 7, 2010 report raised an
uncontroverted inference of causal relationship with respect to appellant’s back injury and the
accepted May 15, 2009 employment incident, which is sufficient to require further medical
development by OWCP.19 On remand OWCP should prepare a statement of accepted facts and
develop the medical evidence by referring appellant to an appropriate Board-certified specialist
for a rationalized medical opinion regarding whether appellant’s job duties caused or aggravated
his low back condition. After conducting such further development as it may find necessary, it
shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision and must be remanded for
further development of the record.

17

See Robert P. Bourgeois, 45 ECAB 745 (1994); Kenneth J. Deerman, 34 ECAB 641 (1983) (medical evidence
required to prove causal relation is that necessary to convince the adjudicator that the conclusion drawn is rational,
sound and logical).
18

The Board points out that the illegible June 24, 2009 attending physician’s report lacked probative value
because it cannot be determined whether the report was signed by a qualified physician as defined in section
8101(2) of FECA. R.M., 59 ECAB 690, 693 (2008).
19

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

ORDER
IT IS HEREBY ORDERED THAT the October 7, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed in part. The case is remanded for further action
consistent with this decision of the Board.
Issued: September 29, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7