United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CAPTAIN JAMES A. LOVELL FEDERAL
HEALTH CENTER, N. Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 17-0877
Issued: September 21, 2017

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 13, 2017 appellant, filed a timely appeal from a February 23, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied
modification of a February 5, 2015 decision denying her occupational disease claim. The Board
docketed the appeal as No. 17-0877.
OWCP initially denied appellant’s occupational disease claim in a February 5, 2015
decision. In an undated appeal request form received on May 28, 2015 and postmarked
May 18, 2015, appellant requested an oral hearing. In a June 17, 2015 decision, OWCP
denied appellant’s request for an oral hearing because it was untimely filed. It also further
denied the request as the issues in the case could be adequately addressed by requesting
reconsideration and submitting new evidence. On October 13, 2015, appellant appealed to the
Board. In a March 15, 2016 decision, the Board affirmed the June 17, 2015 decision of OWCP.1
In an appeal request form dated August 31, 2016 and received on November 28, 2016, appellant
requested reconsideration of the February 5, 2015 OWCP merit decision which denied her
occupational disease claim. In a decision dated February 23, 2017, OWCP denied modification
of the decision dated February 5, 2015.

1

Docket 16-0046 (issued March 15, 2016).

Section 10.607(a) of the implementing regulations provides that an application for
reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.2 In this case, appellant sought review of the February 5, 2015 decision, but
her request for reconsideration was not received until November 28, 2016. Thus, her request for
reconsideration was received after the one-year time limitation from the date of the decision
being appealed.
OWCP will consider an untimely application f o r r e c on s i d e r a t i o n only if the
application demonstrates clear evidence of error on the part of OWCP in its most recent
decision. The application must establish, on its face, that such decision was erroneous.3
The Board has duly considered the matter and finds that appellant’s request for
reconsideration was untimely. Because appellant filed an untimely reconsideration request, the
case will be remanded to OWCP for application of the correct standard for reviewing untimely
reconsideration requests, the clear evidence of error standard.4 The standard utilized by OWCP
in its February 23, 2017 decision is appropriate only for timely reconsideration requests.5 After
such further development as OWCP deems necessary, it should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the February 23, 2017 decision is set aside and the
case is remanded for further action consistent with this order.
Issued: September 21, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
2

20 C.F.R. § 10.607(a).

3

Id. at § 10.607. See also A.B., Docket No. 15-0521 (issued June 13, 2016).

4

Id. at § 10.607(b).

5

Id. at § 10.606(b).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF THE ARMY, HUMAN
RESOURCES COMMAND ARMY BENEFITS
CENTER, Presidio of Monterey, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 19-0895
Issued: April 2, 2020

Case Submitted on the Record

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

On March 22, 2019 appellant filed a timely appeal from a March 8, 2019 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 19-0895.
On December 14, 2017 appellant, then a 69-year-old human resources specialist, filed a
traumatic injury claim (Form CA-1) alleging that on February 6, 2014 he was exiting the
employing establishment’s back door when he slipped on mold on a step, tripped on a metal strip,
and fell to the sidewalk injuring his right knee while in the performance of duty. He reported that
the injury occurred at 6:00 p.m. as he was leaving work. OWCP assigned this claim File No.
xxxxxx784.1

1

The record reflects that appellant had a prior May 18, 2010 traumatic injury to the right knee, which was accepted
for a right knee collateral ligament sprain and localized unspecified osteoarthritis of the right lower leg under OWCP
File No. xxxxxx132. On February 19, 2014 appellant filed a recurrence claim (Form CA-2a), under OWCP File No.
xxxxxx132, alleging a recurrence on February 6, 2014, which occurred at 5:30 p.m. By decision dated June 2, 2014,
OWCP accepted appellant’s claim for a recurrence based on a May 12, 2014 medical report under OWCP File No.
xxxxxx132.

In a development letter dated December 29, 2017, OWCP advised appellant that additional
factual and medical evidence was necessary to establish his claim. It afforded appellant 30 days
to submit he necessary information.
By decision dated January 30, 2018, OWCP denied appellant’s claim, finding that he had
not established that he was in the performance of duty at the time of the alleged employment injury.
It noted that appellant’s work shift was from 7:00 a.m. to 4:30 p.m. and his injury occurred outside
of the scope of employment at 6:00 p.m.
Appellant subsequently requested a hearing.
By decision dated August 24, 2018, OWCP’s hearing representative affirmed the
January 30, 2018 decision, finding that the evidence of record was insufficient to establish that
appellant sustained an injury in the performance of duty because the incident occurred after his
work shift had ended. He acknowledged appellant’s February 9, 2014 Form CA-2a and that the
recurrence claim was not administratively converted to a new injury claim, which may have been
procedurally appropriate. The hearing representative requested OWCP administratively combine
the current claim with OWCP File No. xxxxxx132.
On October 9, 2018 appellant requested reconsideration and submitted a September 5,
2018 narrative statement from J.J., a retired supervisory human resource specialist. J.J. verified
that appellant had worked an alternate work schedule and supported his claim that he remained in
the performance of duty when injured.
By decision dated March 8, 2019, OWCP denied modification of the August 24, 2018
decision.
The Board, having duly considered the matter, concludes that the case is not in posture for
decision.
OWCP’s procedures provide that cases should be combined where correct adjudication
depends on cross-referencing between files. For example, if a new injury case is reported for an
employee who previously filed an injury claim for a similar condition or the same part of the body,
doubling is required. Here, appellant had a prior accepted claim for a traumatic injury to the right
knee, for which he filed a recurrence claim under File No. xxxxxx132. While the hearing
representative’s August 24, 2018 decision instructed OWCP to double the current case with File
No. xxxxxx132, the two claims are not combined as presented to the Board.
Appellant has received medical treatment and wage-loss compensation arising from his
accepted recurrence claim under OWCP File No. xxxxxx132. To properly adjudicate his claim,
as well as to avoid the possibility of duplicative payments of wage-loss compensation or medical
benefits, the case will be remanded to OWCP to administratively combine case files xxxxxx132
and xxxxxx784. Following this and such other such further development as deemed necessary,
OWCP shall issue a de novo decision.

2

IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for proceedings consistent with this
order of the Board.
Issued: April 2, 2020
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, DISTRICT
ADMINISTRATIVE OFFICE, Portland, ME,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-537
Issued: July 12, 2007

Case Submitted on the Record

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

JURISDICTION
On December 19, 2006 appellant filed a timely appeal from a September 22, 2006
decision of the Office of Workers’ Compensation Programs, denying her claim for an emotional
condition. 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’s claimed emotional condition is causally related to a
compensable factor of her employment.
FACTUAL HISTORY
On April 6, 2005 appellant, then a 48-year-old workplace improvement analyst, filed a
claim for a traumatic injury (Form CA-1) on March 23, 2005 alleging that Michael Donahue,
Manager of Human Resources, refused to allow her attendance at a March 22, 2005 meeting

regarding an employee who had a history of hostile behavior.1 She indicated that she should
have been included in the meeting to observe the employee and determine whether he should be
allowed to return to work. On March 23, 2005 an employee, who had been threatened by the
hostile employee, telephoned appellant and asked why she had not attended the meeting and how
he could protect himself from the hostile employee. Appellant felt frustrated and helpless
because she could not assist employees who were afraid of the hostile employee. She alleged
that she sustained an acute agitated depressive reaction on March 23, 2005. Appellant submitted
medical evidence in support of her claim.
On April 14, 2005 Mr. Donahue stated that the March 22, 2005 meeting was a
predisciplinary meeting generally attended by an employee, his or her supervisor and
management or union representatives. Attending predisciplinary meetings was not a function of
appellant’s position, nor was it included in her job description. It was not normal procedure to
have her attend a predisciplinary meeting. Mr. Donahue stated that several managers, including
appellant, had been invited to the March 22, 2005 meeting by another manager who noted that
this was a predisciplinary meeting. Appellant emailed Mr. Donahue asking him “What are your
thoughts on this?” Mr. Donahue responded that the meeting was predisciplinary in nature and
gave her a simple management instruction that she was not needed at the meeting. He was not
condescending to appellant in his response; he merely instructed her that the meeting was a
management matter that did not involve her.
On April 22, 2005 the Office asked appellant to explain how her job duties included her
attendance at a predisciplinary meeting or how management abused its administrative discretion
in not allowing her attendance at the March 22, 2005 predisciplinary meeting.
By decision dated June 3, 2005, the Office denied appellant’s claim on the grounds that
the evidence did not establish that her emotional condition was causally related to a compensable
factor of employment.
Appellant requested an oral hearing that was held on July 11, 2006. She testified that
Mr. Donahue was wrong in disallowing her participation in the March 22, 2005 predisciplinary
meeting. Appellant stated that she had attended other predisciplinary meetings in the past. On
August 7, 2006 Mr. Donahue responded to the hearing transcript. He stated that his instruction
to appellant that she not attend the March 22, 2005 predisciplinary hearing was not
condescending or abusive. Regarding appellant’s testimony that she had participated in
predisciplinary hearings in the past, Mr. Donahue noted that she was working as an Employee
and Workplace Intervention Specialist at that time, not a Workplace Improvement Analyst and
her duties had changed significantly from the previous position. On August 13, 2006 appellant
disputed Mr. Donahue’s statement, arguing error or abuse in his decision not to allow her
attendance at the March 22, 2005 predisciplinary meeting.
By decision dated September 22, 2006, the Office hearing representative affirmed the
June 3, 2005 decision.
1

Appellant submitted a CA-2 dated April 6, 2005 for a separate emotional condition claim under OWCP file
number 012029848. On April 3, 2006 the Office denied her claim. Appellant requested a hearing which had not
been held as of the September 22, 2006 decision in OWCP file number 012031852.

2

LEGAL PRECEDENT
To establish a claim that she sustained an emotional condition in the performance of duty,
a claimant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the concept
or coverage of workers’ compensation. Where the medical evidence establishes that the
disability results from an employee’s emotional reaction to her regular or specially assigned
employment duties or to a requirement imposed by the employing establishment, the disability
comes within coverage of the Federal Employees’ Compensation Act.3 The same result is
reached when the emotional disability resulted from the employee’s emotional reaction to the
nature of her work or her fear and anxiety regarding her ability to carry out her work duties.4 By
contrast, there are disabilities having some kind of causal connection with the employment that
are not covered under workers’ compensation law because they are not found to have arisen out
of the employment, such as when disability results from an employee’s fear of reduction-in-force
or frustration from not being permitted to work in a particular environment or to hold a particular
position.5
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship, and which are not deemed compensable
factors of employment and may not be considered.6 When a claimant fails to implicate a
compensable factor of employment, the Office should make a specific finding in that regard. If a
claimant does implicate a factor of employment, the Office should then determine whether the
evidence of record substantiates that factor.7 When the matter asserted is a compensable factor
of employment and the evidence of record establishes the truth of the matter asserted, then the
Office must base its decision on an analysis of the medical evidence.8 As a rule, allegations
2

Pamela D. Casey, 57 ECAB ___ (Docket No. 05-1768, issued December 13, 2005; George C. Clark, 56
ECAB ___ (Docket No. 04-1573, issued November 30, 2004).
3

5 U.S.C. §§ 8101-8193.

4

Lillian Cutler, 28 ECAB 125 (1976).

5

Id.

6

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

7

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

8

See Charles D. Edwards, 55 ECAB 259 (2004).

3

alone by a claimant are insufficient to establish a factual basis for an emotional condition claim
but rather must be corroborated by the evidence.9
ANALYSIS
The Board finds that appellant has not established a compensable factor of employment
under the Act.
Appellant’s allegation that Mr. Donahue erred or acted abusively when he told her not to
attend the March 22, 2005 predisciplinary meeting concerns an administrative or personnel
matter. The Board has found that an administrative or personnel matter will be considered to be
an employment factor only where the evidence discloses error or abuse on the part of the
employing establishment.10 In determining whether the employing establishment erred or acted
abusively, the Board has examined whether the employing establishment acted reasonably.11
Appellant stated that her emotional condition was sustained on March 23, 2005 when an
employee, who had been threatened by the employee who was the subject of the March 22, 2005
predisciplinary meeting, telephoned appellant and asked why she did not attend the meeting and
how he could protect himself from the hostile employee. She felt frustrated and helpless because
she could not assist employees who were afraid of this employee.
Mr. Donahue stated that the March 22, 2005 meeting was a predisciplinary meeting
generally attended by an employee, his or her supervisor and their representatives. Attending
predisciplinary meetings was not a function of appellant’s position, nor was it included in her job
description. It was not normal procedure to have appellant attend a predisciplinary meeting.
Mr. Donahue gave her instruction that she was not needed at the March 22, 2005 meeting. He
stated that his instruction to appellant that she not attend the March 22, 2005 predisciplinary
hearing was not condescending or abusive. Regarding her hearing testimony that she had
participated in predisciplinary hearings in the past, Mr. Donahue noted that she was working in a
different position then and her duties had since changed.
The Board finds that appellant has not submitted sufficient evidence to show that
Mr. Donahue committed error or abuse with respect to this administrative matter, his
management decision not to include appellant in the March 22, 2005 predisciplinary meeting.
Mr. Donahue provided a reasonable explanation for instructing appellant not to attend the
predisciplinary meeting: that it was not normal procedure for her to attend such meetings and
that attending these meetings was not a function of her position. He denied that he was abusive
in his instruction to appellant that she not attend the March 22, 2005 predisciplinary meeting.
Appellant has not established that Mr. Donahue erred or acted abusively in instructing her not to
attend the March 22, 2005 predisciplinary meeting. Thus, appellant has not established a
compensable employment factor under the Act with respect to this administrative matter.
9

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

10

Charles D. Edwards, supra note 8.

11

Janice I. Moore, 53 ECAB 777 (2002).

4

For the foregoing reasons, appellant has not established a compensable employment
factor under the Act. Therefore, she has not met his burden of proof in establishing that she
sustained an emotional condition in the performance of duty.12
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty causally related to compensable
factors of employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 22, 2006 is affirmed.
Issued: July 12, 2007
Washington, DC

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

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

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

12

Unless appellant alleges a compensable factor of employment substantiated by the record, it is unnecessary to
address the medical evidence. See Barbara J. Latham, 53 ECAB 316 (2002); Garry M. Carlo, 47 ECAB
299 (1996).

5


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

)
)
)
)
)
)
)
)

Docket No. 21-1054
Issued: March 30, 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 July 6, 2021 appellant filed a timely appeal from a January 7, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1054.
This case has previously been before the Board. 1 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 15, 2015 appellant, then a 57-year-old customer care agent, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
factors of her federal employment, including an increase of work activities. She asserted that she
first became aware of her claimed condition on February 7, 2000 and first realized its relation to

1

Docket No. 19-0925 (issued September 25, 2019).

her federal employment on March 28, 2015. Appellant stopped work on March 17, 2015. OWCP
assigned OWCP File No. xxxxxx503. 2
Appellant submitted a series of medical reports in support of the present claim, including
a June 4, 2015 report from Dr. Sophia Grias-Radwanski, a Board-certified physiatrist. Dr. GriasRadwanski diagnosed bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and neck
pain with radiculopathy symptoms.
After extensive development of the medical evidence, OWCP found a conflict in the
medical opinion evidence between Dr. Grias-Radwanski and Dr. Allen L. Babcock, a Boardcertified orthopedic surgeon serving as an OWCP referral physician, regarding whether appellant
sustained a new occupational injury due to employment factors. After additional development of
the medical evidence,3 it referred appellant for an impartial medical examination with
Dr. Clifford M. Buchman, an osteopath and Board-certified orthopedic surgeon, who produced a
July 25, 2018 report.
By decision dated August 23, 2018, OWCP denied appellant’s claim for a new
employment-related occupational condition, finding that the special weight of the medical opinion
evidence rested with the well-rationalized opinion of Dr. Buchman, the impartial medical
specialist.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed OWCP’s
August 23, 2018 decision.
Appellant appealed to the Board and, by decision dated September 25, 2019,4 the Board
affirmed OWCP’s March 8, 2019 decision.
In a letter dated September 21, 2020 and entered into the Integrated Federal Employees’
Compensation System (iFECS) on September 28, 2020, appellant requested reconsideration of her

2
Appellant has a prior claim OWCP File No. xxxxxx427, for which she filed an occupational disease claim (Form
CA-2) in January 2003. In March 2003 OWCP accepted the claim for bilateral carpal tunnel syndrome. Appellant
filed a notice of recurrence (Form CA-2a) in October 2008 alleging a recurrence of disability due to the accepted
bilateral carpal tunnel syndrome condition. OWCP converted appellant’s recurrence claim to a claim for a new
occupational injury, and assigned OWCP File No. xxxxxx340. In May 2009, it accepted that claim for aggravation
of bilateral carpal tunnel syndrome. OWCP administratively combined OWCP File Nos. xxxxxx427, xxxxxx340, and
xxxxxx503, with OWCP File No. xxxxxx427 designated as the master file.
3

Prior to the referral to Dr. Buchman, OWCP referred appellant to three other impartial medical specialists, but it
found deficiencies in their evaluations, which required the referral to Dr. Buchman.
4

Supra note 1.

2

claim. On September 28, 2020 OWCP received a February 17, 2020 report from Dr. GriasRadwanski who provided an extensive discussion of appellant’s work duties and opined that she
had sustained several new occupational conditions due to these duties. 5
By decision dated October 19, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. In reaching
this decision, it did not discuss any evidence submitted by appellant in connection with her
reconsideration request.
In an October 28, 2020 letter, appellant argued that she filed a timely reconsideration
request in that a postal record demonstrated that, on September 25, 2020, OWCP had received her
reconsideration request letter, dated September 21, 2020. She submitted a U.S. Postal Service
tracking document that indicated a package was delivered on September 25, 2020 to an address in
London, Kentucky.
In a September 21, 2020 letter received by OWCP on November 4, 2020, appellant argued
that she had submitted sufficient medical evidence to establish several new employment-related
occupational conditions. She indicated that she had submitted additional medical evidence,
including a new report of Dr. Grias-Radwanski.
In an October 28, 2020 letter received by OWCP on the same date, appellant again argued
that she filed a timely reconsideration request on September 25, 2020.
By decision dated January 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that she had, in fact, filed a timely
reconsideration request, but determined that she had not submitted evidence or argument entitling
her to merit review. OWCP asserted that appellant had not submitted any new medical evidence
in connection with her reconsideration request.
The Board finds that this case is not in posture for decision with respect to whether
appellant sustained a new employment-related occupational condition.
FECA provides that OWCP shall determine and make ﬁndings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.6 Since
the Board’s jurisdiction of a case is limited to reviewing the evidence which is before OWCP at the
time of its final decision, 7 it is necessary that OWCP review all evidence submitted by a claimant
and received by OWCP prior to issuance of its final decision. As the Board’s decisions are final as

5

Appellant also submitted a May 15, 2018 report from Dr. Peter E. Metropoulos, an attending osteopath and Boardcertified occupational medicine specialist, and a March 3, 2020 report from Dr. Mitchell Pollak, a Board-certified
orthopedic surgeon. The reports had previously been submitted and considered by OWCP.
6

5 U.S.C. § 8124(a)(2).

7

20 C.F.R. § 501.2(c).

3

to the subject matter appealed, 8 it is crucial that all evidence relevant to that subject matter which
was properly submitted to OWCP prior to the time of issuance of its final decision be addressed by
OWCP.9
In the present case, OWCP did not review evidence received p rior to the issuance of its
January 7, 2021 decision, i.e., a February 17, 2020 report of Dr. Grias-Radwanksi. The Board,
therefore, must set aside this decision of OWCP and remand the case so that OWCP may fully
consider the evidence that was properly submitted by appellant prior to the issuance of the January 7,
2021 decision. Following this and such other further development it deems necessary, OWCP shall
issue an appropriate decision regarding appellant’s occupational disease claim.
IT IS HEREBY ORDERED THAT the January 7, 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 30, 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

8

Id. at § 501.6(d).

9

T.B., Docket No. 19-1841 (issued July 7, 2020); E.P., Docket No. 14-0278 (issued February 26, 2014). See also
William A. Couch, 41 ECAB 548, 553 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0062
Issued: March 19, 2018

Case Submitted on the Record

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

JURISDICTION
On October 10, 2017 appellant filed a timely appeal from a May 19, 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 over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted February 9, 2017 employment incident.
FACTUAL HISTORY
On March 22, 2017 appellant filed a traumatic injury claim (Form CA-1) alleging that on
February 9, 2017 he sustained a back injury due to lifting a toolbox while at work. He asserted

1

5 U.S.C. § 8101 et seq.

that he felt a pull in his lower back when he lifted the toolbox.2 Appellant did not stop work. On
the reverse side of the claim form, his immediate supervisor checked a box marked “Yes”
indicating that the claimed injury occurred in the performance of duty.
In an April 5, 2017 e-mail, a coworker indicated that on February 9, 2017 appellant pulled
a toolbox from the back of a van at work. The coworker noted that appellant remarked, while
carrying the toolbox to a jet, that his back hurt.
In a February 14, 2017 report, Dr. Kayvaan Mortazavi, an attending Board-certified family
practitioner, noted that appellant reported sustaining injury due to lifting a toolbox weighing
approximately 40 pounds on February 9, 2017. Appellant complained of experiencing lower
lumbar pain (without leg pain) after the incident. Dr. Mortazavi detailed physical examination
findings, noting lumbar pain upon palpation, positive straight leg raise test on the left, and
decreased range of motion of the back. He diagnosed low back strain and recommended work
restrictions, including lifting no more than 20 pounds. Dr. Mortazavi referred appellant for
physical therapy.
In an April 14, 2017 development letter, OWCP requested that appellant submit additional
evidence in support of his claim, including a physician’s opinion supported by a medical
explanation as to how the reported employment incident caused or aggravated a medical condition.
It afforded him 30 days to provide such evidence.
Appellant submitted a March 29, 2017 report of Dr. Mortazavi which contained a history
of injury similar to that contained in his February 14, 2017 report. Dr. Mortazavi reported the
findings of his March 29, 2017 physical examination and again diagnosed low back strain.
By decision dated May 19, 2017, OWCP denied appellant’s claim for a February 9, 2017
work injury. It found that he established the occurrence of a February 9, 2017 employment
incident in the form of lifting a toolbox while at work. However, OWCP further found that
appellant failed to submit medical evidence sufficient to establish causal relationship between a
diagnosed medical condition and the accepted February 9, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability or specific condition for which compensation is claimed is causally related

2

Appellant indicated that he then started to feel stiffness in his back, and that the stiffness went away after a few
minutes. However, he started to experience stiffness and pain in his back later in the day.
3

See supra note 1.

2

to the employment injury.4 These are the essential elements of each compensation claim regardless
of whether the claim is predicated upon a traumatic injury or an occupational disease.5
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, an employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.6 Second, an employee must submit evidence, in the form
of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
ANALYSIS
Appellant alleged that he sustained a back injury due to lifting a toolbox at work on
February 9, 2017. By decision dated May 19, 2017, OWCP denied his claim for a work injury. It
found that appellant established the occurrence of a February 9, 2017 employment incident, but
found that he failed to submit medical evidence sufficient to establish causal relationship between
a diagnosed medical condition and the accepted employment incident.
Appellant submitted a February 14, 2017 report in which Dr. Mortazavi noted that he
reported sustaining injury due to lifting a toolbox weighing approximately 40 pounds on
February 9, 2017. Dr. Mortazavi detailed physical examination findings, noting lumbar pain upon
palpation, positive straight leg raise test on the left, and decreased range of motion of the back. He
diagnosed low back strain and recommended work restrictions, including lifting no more than 20
pounds. In a March 29, 2017 report, Dr. Mortazavi provided a history of injury similar that
contained in his February 14, 2017 report. He reported the findings of his March 29, 2017 physical
examination and again diagnosed low back strain.
The Board finds that the submission of these reports fails to establish appellant’s claim for
a February 9, 2017 work injury because they provide no probative value regarding this mater given
4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury caused
by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period longer
than a single workday or work shift. 20 C.F.R. § 10.5 (q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
6

Julie B. Hawkins, 38 ECAB 393 (1987).

7

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

8

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

3

their lack of an opinion on the cause of the medical condition diagnosed in the reports. The Board
has held that medical evidence which does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.9 OWCP provided appellant an
opportunity to submit evidence which would support his claim for a February 9, 2017 work injury,
but he failed to submit such evidence.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to a February 9, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 19, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 19, 2018
Washington, DC

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

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

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

9

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
FEDERAL JUDICIARY, U.S. BANKRUPTCY
COURT NORTHERN DISTRICT OF
OKLAHOMA, Tulsa, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0272
Issued: July 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 19, 2018 appellant filed a timely appeal from an August 29, 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 29, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period April 1 through October 16, 2015 causally related to her accepted employment
injury.
FACTUAL HISTORY
On September 29, 2015 appellant, then a 51-year-old analyst, filed an occupational disease
claim (Form CA-2) alleging that she developed a cervical condition due to factors of her federal
employment including holding a telephone receiver in an awkward position against her neck while
using three computer screens for 15 years. She advised that she first became aware of her claimed
condition on March 4, 2015 and realized its relation to her federal employment on
August 18, 2015.3 Appellant had voluntarily resigned from the employing establishment on
March 31, 2015 and began working as a claims analyst for a private employer in November 2015.
OWCP accepted appellant’s claim for sprain of ligaments of the cervical spine, spondylosis of the
cervical region, and cervical disc displacement, and it paid her wage-loss compensation on the
supplemental rolls for intermittent dates of disability during the period December 30, 2015 through
May 17, 2016.
On September 29, 2015 appellant also filed a separate occupational disease claim alleging
that she developed bilateral carpal tunnel syndrome as a result of performing her repetitive job
duties which included typing on a computer for 15 years. She advised that she first became aware
of her claimed condition on August 16, 2013 and realized its relation to her federal employment
on August 18, 2015. After extensive development of this claim, it was accepted for bilateral carpal
tunnel syndrome.4
Appellant received treatment from Dr. Jeffrey Tallant, a chiropractor, for complaints of
cervical pain which radiated into both shoulders. In a June 2, 2015 note, Dr. Tallant assessed and
adjusted multiple subluxations, including those at the C1, C5, T2, L5, and S1 disc levels. He
provided a post-treatment analysis of “improved subjective complaints.” In additional notes dated
between June 3 and July 30, 2015, Dr. Tallant provided similar findings.
In an August 18, 2015 report, Dr. Zeeshaan Khan, a Board-certified orthopedic surgeon,
noted that appellant visited his office complaining of neck pain with numbness radiating into both
hands. The findings on physical examination of the upper extremities revealed normal sensation
and a negative Hoffman’s test. Dr. Khan noted that x-ray testing he obtained of appellant’s neck
contained an impression of multilevel cervical spondylosis with cervical kyphosis. On
September 23, 2015 he diagnosed cervical stenosis and recommended treatment of appellant’s
cervical condition with epidural steroid injections.

3

OWCP assigned OWCP File No. xxxxxx451.

4

OWCP assigned OWCP File No. xxxxxx452.

2

Appellant submitted the August 18, 2015 x-ray reviewed by Dr. Khan and an August 25,
2015 magnetic resonance imaging (MRI) scan of the cervical spine which revealed disc
degeneration/bulges at multiple levels.
In an October 12, 2015 report, Dr. Anne S. May, Board-certified in family medicine,
discussed appellant’s reported medical history, including her complaints at that time of cervical
spine pain with numbness/tingling in her left arm and hand. The findings on examination showed
spasm of the cervical paraspinous musculature, tenderness of the left trapezius muscle, and reduced
bilateral grip strength. Dr. May opined that, due to the constant movement and looking down
required by her employment, appellant developed a severe cervical spine strain and exacerbated
the conditions of spondylosis and disc derangement at C5-6 and C6-7. She advised that appellant
also experienced episodic radiculopathy of the left upper extremity consistent with a lower cervical
nerve injury.
In separate October 12, 2015 report, Dr. May noted that appellant complained of pain and
numbness in both hands/wrists and weakness in both hands. She reported that examination of the
upper extremities revealed tenderness of the carpometacarpal joints of both thumbs, positive
Phalen’s sign and full range of motion of both wrists, and reduced grip strength of both hands.
Dr. May noted that appellant had clinical signs and symptoms of bilateral carpal tunnel syndrome
and opined that the major cause of her bilateral hand and wrist injuries was the repetitive physical
work she had performed for the employing establishment. She found that appellant was
temporarily partially disabled with the ability to perform light-duty work and recommended that
she be restricted from repetitive work involving her hands and wrists.
On December 17, 2015 and May 5, 2016 appellant underwent epidural steroid injections
performed by Dr. Rainer Kohrs, a Board-certified anesthesiologist. Dr. Kohrs diagnosed cervical
radiculopathy. In an April 1, 2016 report, Dr. Kenneth Chekofsky, a Board-certified orthopedic
surgeon, diagnosed bilateral carpal tunnel syndrome, bilateral ulnar nerve compression at the
elbows/forearms, and cervical radiculopathy.
In reports dated December 30, 2015 and June 1 and August 1, 2016, Dr. Khan discussed
appellant’s reported symptoms and diagnosed cervicalgia with cervical radiculopathy. On
August 22, 2016 he diagnosed disc herniation with cervical radiculopathy. In a September 19,
2016 report, Dr. Khan diagnosed cervical stenosis with radiculopathy.
In reports dated March 9 and April 20, 2016, David Maddux, a physician assistant, treated
appellant in follow-up for progressive neck pain and numbness in the hands. He diagnosed cervical
stenosis with radiculopathy.
Appellant continued to be treated by Dr. Khan who indicated in October 31, December 14
and 19, 2016 reports that she reported progressive symptoms in her neck. Dr. Khan diagnosed
cervical stenosis with radiculopathy and recommended surgery at C5-7.5

5
In a February 21, 2017 form report, Dr. Khan indicated that appellant would be disabled from the proposed date
of the surgery, February 28, 2017, until an estimated date of May 25, 2017.

3

Under OWCP File No. xxxxxx451, Dr. Khan performed OWCP-authorized cervical
surgery on February 28, 2017, including anterior cervical discectomy and fusion at C5-7. He
described his follow-up treatment in a report dated March 1, 2017.6 For disability due to this
surgery, OWCP paid appellant wage-loss compensation on the supplemental rolls from April 3
through May 27, 2017.
On July 17, 2017 OWCP administratively combined OWCP File Nos. xxxxxx451 and
xxxxxx452, the former being designated as the master file.
Appellant submitted a June 20, 2016 report from Dr. May who noted that appellant
continued to complain of cervical spine symptoms and opined that she was temporarily partially
disabled. Dr. May further opined that the major cause of appellant’s injuries and need for further
treatment was the cumulative trauma she experienced at work.
On October 24, 2017 appellant filed a claim for compensation (Form CA-7) alleging total
disability for the period April 1 through October 16, 2015 due to the employment injuries accepted
in connection with both OWCP File Nos. xxxxxx451 and xxxxxx452.
Appellant subsequently submitted a report dated October 11, 2017 from Dr. Stephen
Wilson, Board-certified in physical medicine and rehabilitation, who diagnosed cumulative trauma
injury to the cervical spine. Dr. Wilson opined that appellant sustained nine percent permanent
impairment of the left upper extremity due to chronic radicular symptoms.
In a letter dated November 15, 2017, OWCP requested that appellant submit additional
information to support her claim for wage-loss compensation for the period April 1 through
October 16, 2015 including medical evidence establishing that her disability was due to the
accepted conditions for the period claimed.
Appellant subsequently submitted an October 2, 2017 report from Dr. Chekofsky who
diagnosed bilateral tunnel syndrome, bilateral ulnar nerve compression at the elbows/forearms,
and status post cervical surgery. A December 18, 2017 electromyogram/nerve conduction velocity
(EMG/NCV) study of the upper extremities revealed mild bilateral median nerve entrapment
across the wrists. Dr. Chekofsky treated appellant in follow-up on January 5, 2018 and
recommended a left carpal tunnel release. He performed OWCP-authorized surgeries, including
left carpal tunnel release on March 8, 2018 and right carpal tunnel release on May 1, 2018.
On March 27, 2018 OWCP granted appellant a schedule award for nine percent permanent
impairment of her left upper extremity. The award ran for 28.08 weeks from October 11, 2017 to
April 25, 2018.7
By decision dated April 24, 2018, OWCP denied appellant’s claim for compensation for
the period April 1 through October 16, 2015 finding that she had failed to submit sufficient
On April 21, 2017 Mr. Maddux also described the follow-up care he provided for appellant’s cervical/upper
extremity condition.
6

7
OWCP then paid appellant wage-loss compensation on the supplemental and periodic rolls for the period April 26
through January 8, 2019.

4

medical evidence to establish causal relationship between the claimed period of disability and her
accepted employment conditions.8
On May 21, 2018 OWCP reissued the April 24, 2018 decision with a copy of appeal rights
that it previously failed to provide.
On May 30, 2018 appellant requested reconsideration of the May 21, 2018 decision.9 She
submitted a September 11, 2017 report from Dr. Khan who diagnosed cervical radiculopathy.
Appellant also submitted administrative documents, including position classifications for a docket
clerk and deputy clerk case administrator, and system transaction records from the employing
establishment for the period March 2 through 31, 2015.
By decision dated August 29, 2018, OWCP denied modification of its May 21, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.10
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.11 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.12 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.13 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for loss of wages.14

In its April 24, 2018 decision, OWCP inadvertently listed October 16, 2016 as the ending date for appellant’s
claimed period of disability, but the content and context of OWCP’s decision show that OWCP meant to list the date
as October 16, 2015.
8

9

Appellant indicated that she was requesting reconsideration of an April 24, 2018 decision, but OWCP corrected
that decision and reissued a new decision on May 30, 2018 which addressed her disability claim for the period April 1
through October 16, 2015.
10

S.W., Docket No. 18-1529 (issued April 19, 2019); J.F., Docket No. 09-1061 (issued November 17, 2009).

11

20 C.F.R. § 10.5(f).

12

See L.W., Docket No. 17-1685 (issued October 9, 2018).

13

See K.H., Docket No. 19-1635 (issued March 5, 2020).

14

See D.R., Docket No. 18-0323 (issued October 2, 2018).

5

The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the claimed disability and the specific employment factors
identified by the claimant.15
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period April 1 through October 16, 2015 causally related to her accepted employment
injury.
Appellant submitted a series of reports which were produced during the claimed period of
employment-related disability, i.e., April 1 through October 16, 2015. In an October 12, 2015
report, Dr. May noted that appellant had clinical signs and symptoms of bilateral carpal tunnel
syndrome and opined that the major cause of her bilateral hand and wrist injuries was the repetitive
physical work she had performed for the employing establishment. She found that appellant was
temporarily partially disabled with the ability to perform light-duty work and recommended that
she be restricted from repetitive work involving her hands and wrists. Although Dr. May provided
an opinion that appellant developed employment-related disability during the latter part of her
claimed period of disability, her opinion is of limited probative value regarding appellant’s
disability claim because she did not provide a rationalized opinion on causal relationship. She did
not explain how objective findings on physical examination and diagnostic testing showed that
appellant could not perform her regular work due to the effects of her accepted employment
conditions which included sprain of ligaments of the cervical spine, spondylosis of the cervical
region, cervical disc displacement, and bilateral carpal tunnel syndrome.17 The Board has held
that a report is of limited probative value regarding causal relationship if it does not contain
medical rationale explaining how a given medical condition/period of disability has an
employment-related cause.18 Therefore, Dr. May’s October 12, 2015 report is insufficient to
establish appellant’s disability claim.

15

Y.S., Docket No. 19-1572 (issued March 12, 2020).

16

J.B., Docket No. 19-0715 (issued September 12, 2019).

17

The latter condition was accepted under OWCP File No. xxxxxx452 and the other conditions were accepted
under OWCP File No. xxxxxx451. OWCP administratively combined the two files, designating OWCP File No.
xxxxxx451 as the master file.
18

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

6

Other reports produced during the claimed period of employment-related disability include
August 18 and September 23, 2015 reports in which Dr. Khan collectively diagnosed cervical
stenosis and multilevel cervical spondylosis with cervical kyphosis. In addition, Dr. May
produced a second report dated October 12, 2015 in which she opined that, due to the constant
repetitive movement and looking down required by her employment, appellant developed a severe
strain injury of the cervical spine and exacerbated the conditions of spondylosis and disc
derangement at C5-6 and C6-7. She advised that appellant also experienced episodic
radiculopathy of the left upper extremity consistent with a lower cervical nerve injury. However,
these reports are of no probative value regarding appellant’s disability claim because they do not
contain an opinion that she had disability during the period April 1 through October 16, 2015
causally related to an accepted employment condition. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship.19 Therefore, these reports are insufficient to
establish appellant’s disability claim.
Appellant also submitted reports which were produced after a separate claimed period of
employment-related disability. In reports dated December 30, 2015 through December 19, 2016,
Dr. Khan discussed appellant’s cervical/upper extremity problems and collectively diagnosed
cervicalgia, cervical disc herniation, and cervical stenosis with radiculopathy. In other reports
dated February 21 through September 11, 2017, he further discussed appellant’s medical
condition, including reports in which he discussed her February 28, 2017 cervical surgery and the
follow-up treatment for that surgery. These reports are of no probative value regarding appellant’s
disability claim because Dr. Khan did not indicate that appellant’s accepted employment
conditions caused disability during the claimed period, i.e., April 1 through October 16, 2015.20
The Board will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.21
Appellant also submitted December 17, 2015 and May 5, 2016 reports from Dr. Kohrs who
diagnosed cervical radiculopathy and discussed his administering of epidural steroid injections. In
addition, in an October 11, 2017 report, Dr. Wilson diagnosed cumulative trauma injury to the
cervical spine and provided an opinion on the permanent impairment of appellant’s left upper
extremity. On June 20, 2016 Dr. May opined that constant data entry and typing while working
caused cumulative trauma injury to appellant’s hands and wrists, causing her to be temporarily
partially disabled for an unspecified period. In several reports dated between April 1, 2016 and
May 1, 2018, Dr. Chekofsky discussed his treatment of appellant’s upper extremity conditions,
including surgeries for bilateral carpal tunnel syndrome. However, these reports also are of no
probative value regarding appellant’s disability claim because they do not contain an opinion that
she had disability during the period April 1 through October 16, 2015 causally related to her

19

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

20

Id.

21

See supra note 17.

7

accepted employment conditions.22 Therefore, these reports are insufficient to establish appellant’s
disability claim.
Appellant submitted reports dated June 2 and 3, and July 31, 2015 from Dr. Tallant, a
chiropractor. He indicated that appellant had subluxations at the C1, C5, T2, L5, and S1 disc
levels, but he did not demonstrate that these subluxations were documented by x-ray to exist.
Under FECA, chiropractors are only considered physicians, and their reports considered medical
evidence, to the extent that they treat spinal subluxations as demonstrated by x-ray to exist.23 These
submitted reports of Dr. Tallant are not considered to be medical evidence and are of no probative
value regarding appellant’s disability claim because he did not treat spinal subluxations that were
demonstrated by x-ray to exist.
Appellant submitted reports dated March 9 and April 20, 2016, and April 21, 2017 from
Mr. Maddux, a physician assistant, who discussed his treatment of appellant’s cervical/upper
extremity condition. These reports are of no probative value regarding appellant’s disability claim.
The Board has held that the reports of a physician assistant are of no probative value as a physician
assistant is not considered a physician as defined under FECA and therefore is not competent to
provide a medical opinion.24
Appellant submitted an August 18, 2015 x-ray, August 25, 2015 MRI scan, and
December 18, 2017 EMG/NCV study. However, the Board has held that reports of diagnostic
tests, standing alone, lack probative value as they do not provide an opinion on causal relationship
between accepted employment conditions and a given claimed period of disability.25
The Board finds that appellant failed to provide a comprehensive medical report from a
physician which included a rationalized medical opinion explaining how an accepted employmentrelated medical condition worsened such that she was unable to work during the period April 1
through October 16, 2015.26

22

See supra note 20.

23
5 U.S.C. § 8101(2). See A.M., Docket No. 16-1875 (issued August 23, 2017); Jack B. Wood, 40 ECAB 95,
109 (1988).
24

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
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. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006); see also E.T., Docket No. 17-0265 (issued May 25, 2018) (physician assistants are
not considered physicians under FECA).
25

See A.V., Docket No. 19-1575 (issued June 11, 2020).

26

The Board notes that appellant had voluntarily resigned from the employing establishment on March 31, 2015.
However, the Board has held that when a claimant stops work for reasons unrelated to the accepted employment
injury, there is no disability within the meaning of FECA. See S.I., Docket No. 18-1582 (issued June 20, 2019);
John W. Normand, 39 ECAB 1378 (1988).

8

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period April 1 through October 16, 2015 causally related to her accepted employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-290
Issued: October 5, 2010

Case Submitted on the Record

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

JURISDICTION
On November 9, 2009 appellant, through counsel, filed a timely appeal of the
September 29, 2009 merit decision of an Office of Workers’ Compensation Programs’ hearing
representative affirming the termination of her compensation benefits. 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 the Office properly terminated appellant’s compensation benefits
effective February 17, 2009 on the grounds that she no longer had any residuals or disability
causally related to her April 16, 2008 employment-related injury.
On appeal, appellant’s attorney contends that the Office’s decision is contrary to fact and
law.

FACTUAL HISTORY
The Office accepted that on April 16, 2008 appellant, then a 59-year-old tax examining
technician, sustained a lumbar strain when she slipped and fell on a recently mopped floor. It
paid wage-loss compensation for temporary total disability commencing on June 23, 2008.
By letter dated July 8, 2008, the Office granted appellant’s request to change her
attending physician to Dr. Ralph Taylor, a Board-certified internist. It requested that she submit
a medical report from Dr. Taylor which provided a history of injury, a diagnosis of all
conditions, objective findings, subjective complaints, test results, an opinion regarding the
relationship between the diagnosed conditions and her employment, treatment recommendations
and discussion of work restrictions.
A September 9, 2008 treatment note from Dr. Jonathan G. Brody, a general practitioner,
advised that appellant was off work until September 12, 2008 due to bronchitis.
A September 23, 2008 magnetic resonance imaging (MRI) scan of appellant’s lumbar
spine by Dr. Douglas A. Linville, a Board-certified orthopedic surgeon, revealed facet
spondylosis and back pain status post a fall. In a October 28, 2008 treatment note, Dr. Linville
advised that appellant was off work until November 5, 2008. Appellant could return to work on
that date with physical restrictions.
In a December 10, 2008 report, Dr. Moacir Schnapp, a neurologist, noted appellant’s
complaint of low back pain for the past several months. He obtained a history of the April 16,
2008 employment injury and medical treatment. On physical examination, Dr. Schnapp found
that appellant was depressed due to her pain and she had a substantial component of histrionic
behavior. He could barely touch her low back without her folding at the knees. Appellant had
deep tendon reflexes that were symmetrical. At times there was a hint of a Hoffman’s sign on
the left, but it could not be confirmed. There were no long tract signs, atrophy, fasciculations,
changes in temperature or signs of dystrophy. Examination of appellant’s strength again
revealed histrionic behavior with the use of her lower extremities. She could not extend her leg
against the resistance of Dr. Schnapp’s little finger or elevate her hip against any resistance at all.
Appellant’s cranial nerves were intact and coordination in the upper extremities was good.
Dr. Schnapp reported normal findings on cardiovascular examination. He advised that appellant
had unspecified myofascial pain. Dr. Schnapp discussed alternative treatment plans with
appellant, but believed that he could not offer her anything. He stated that the lack of findings
associated with her severe histrionic behavior indicated that treatment probably would not be
successful.
On December 5, 2008 the Office referred appellant, together with a statement of accepted
facts and medical record, to Dr. Bret Sokoloff, a Board-certified orthopedic surgeon, for a second
opinion on the nature and extent of her employment-related residuals and disability. In a
December 18, 2008 report, Dr. Sokoloff noted appellant’s symptoms of low and middle back
pain going up to her right shoulder. He reviewed a history of her April 16, 2008 employment
injury, subsequent limited-duty work assignment and the medical records. On physical
examination, Dr. Sokoloff reported normal findings regarding appellant’s heart, lungs and
abdomen. He stated that she jerked her extremities on motor testing which provided a very

2

inconsistent examination. Straight leg testing while seated or lying down was negative if
appellant was distracted, but when she was lying down and aware of the testing, her right leg
showed symptoms at 20 degrees and her left leg showed low back and hip symptoms at 30
degrees. Appellant strongly resisted straight leg testing unless she was distracted which resulted
in no resistance or pain. On motor testing of the extensor hallucis longus on the right, she
experienced pain radiating up her leg. Appellant had deceased sensation to light touch from her
left mid-foot to her toes that was not in an anatomic distribution. While proprioception was
intact on the right, she denied any proprioceptive ability on her left foot, ankle and toes.
Dr. Sokoloff pressed on her shoulders which caused back pain and her to jerk away. Pressing on
appellant’s head caused pain in her entire spine. She had diffuse tenderness from approximately
level six of the thoracic spine to the sacrum. Appellant also experienced tenderness laterally at
the pelvis and abdominal regions. Light touch of a goniometer used to measure range of motion
caused tingling and inconsistent severe pain in her back on the right side. Forward flexion was
self-limited to 45 degrees. Extension was self-limited to five degrees. Lateral bend was variable
between 20 and 30 degrees. Appellant had eight out of eight positive Wadel signs with
superficial nonanatomic tenderness, pain on axial loading and simulated rotation, distracted
straight leg raise and regional sensory change, weakness and overreaction.
Dr. Sokoloff advised that appellant had subjective back pain. Appellant showed multiple
signs of symptom magnification with eight out of eight positive Wadel signs. Dr. Sokoloff
stated that her mechanism of injury did not account for her complaints. Appellant’s subjective
complaints were inconsistent with any objective MRI scan and electromyogram (EMG) findings
he reviewed. Her subjective complaints were inconsistent with known anatomic distributions or
symptoms related to the accepted employment-related lumbar strain. Dr. Sokoloff stated that
appellant appeared to have drug-seeking behavior based on the extensive narcotic medications
she took throughout the course of medical treatment and her request for them on multiple
occasions during his examination. He opined that the accepted employment injury temporarily
aggravated her preexisting lumbar arthritis within the first six to eight weeks of her injury. The
aggravation had resolved at the time of his examination and she had returned to her baseline
status. Dr. Sokoloff advised that appellant was physically able to return to her tax examiner
position. She did not have any residuals or permanent impairments and no further treatment or
diagnostic evaluation was necessary.
The Office received a July 21, 2008 prescription from Dr. Taylor for physical therapy to
treat appellant’s low back sprain.
On January 9, 2009 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits based on Dr. Sokoloff’s December 18, 2008
medical opinion. Appellant was afforded 30 days to respond to this notice.
A May 5, 2008 treatment note from Kamari Greene, a physical therapist, stated that
appellant had lumbago. In a partial copy of a June 3, 2008 report, Dr. Taylor noted appellant’s
complaint of back pain and numbness in her left foot.
In letters dated January 15 and February 5, 2009, appellant disagreed with the Office’s
proposed action. She denied requesting narcotic medication from any attending physician or
demonstrating drug seeking behavior. Appellant requested medication from Dr. Sokoloff

3

because his examination increased her pain. Her ongoing pain had worsened due to her refusal
to take pain medication because it caused her acid reflux condition to flare up. Appellant denied
having preexisting lumbar arthritis. She contended that both Dr. Taylor and Dr. Sokoloff made
false accusations in their reports.
By decision dated February 17, 2009, the Office terminated appellant’s wage-loss
compensation and medical benefits effective that date.
It found that Dr. Sokoloff’s
December 18, 2008 report constituted the weight of the medical opinion evidence.
By letter dated February 23, 2009, appellant, through her attorney, requested a telephonic
oral hearing with an Office hearing representative. In a July 28, 2009 report, Dr. Martin D.
Fritzhand, a Board-certified urologist, provided an impairment evaluation. He advised that
appellant had 17 percent impairment of the right lower extremity and 6 percent impairment of
the left lower extremity based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2008). Dr. Fritzhand noted that she had been unable to perform
her routine work activities as a tax technician and household chores.1
By decision dated September 29, 2009, an Office hearing representative affirmed the
February 17, 2009 termination decision. The medical evidence was found insufficient to
establish that appellant had any continuing residuals or disability causally related to her accepted
employment-related injury.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.2
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.3 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that requires further medical treatment.4
ANALYSIS
On appeal appellant contends that the Office’s decision is contrary to fact and law. The
Board finds, however, that the Office met its burden of proof to terminate appellant’s wage-loss
1

On August 28, 2009 an Office medical adviser reviewed Dr. Fritzhand’s July 28, 2009 findings. He found that
appellant had no permanent impairment each of the right and left lower extremity as Dr. Fritzhand’s impairment
ratings were inconsistent with the accepted employment-related condition and the findings of previous examiners.
2

Jason C. Armstrong, 40 ECAB 907 (1989).

3

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

4

and medical benefits as of February 17, 2009. It accepted that she sustained a lumbar strain
while in the performance of duty on April 16, 2008. The Office subsequently referred appellant
to Dr. Sokoloff for a second opinion evaluation.
Dr. Sokoloff’s December 18, 2008 report reviewed a history of appellant’s April 16, 2008
employment-related injury and medical treatment. He found that there were no clinical findings
of any residuals or disability causally related to the accepted employment injury. Dr. Sokoloff
advised that appellant had subjective back pain that was inconsistent with known anatomic
distributions, the mechanism of the accepted employment injury and MRI scan and EMG
findings. His physical examination revealed multiple signs of symptom magnification and
inconsistent responses to testing. Dr. Sokoloff provided grave detail and examples to justify his
conclusions in this regard. He also advised that appellant had drug-seeking behavior based on
her use of narcotic medications throughout the course of her employment-related condition and
her multiple requests for them during his examination. Dr. Sokoloff opined that the
employment-related injury temporarily aggravated appellant’s preexisting lumbar arthritis which
ceased within six to eight weeks of the injury and she returned to her baseline symptoms. He
further opined that she was physically able to return to her tax examiner position as she had no
employment-related residuals or impairment. Dr. Sokoloff concluded that appellant did not
require any further medical treatment or diagnostic testing.
The Board finds that Dr. Sokoloff’s report represents the weight of the medical evidence
and that the Office properly relied on his report in terminating appellant’s compensation benefits
on February 17, 2009. Dr. Sokoloff’s opinion is based on proper factual and medical history as
he reviewed a statement of accepted facts and appellant’s prior medical treatment and test
results. He also related his comprehensive examination findings in support of his opinion that
the accepted work-related condition had resolved.
None of the medical evidence from Dr. Brody, Dr. Linville, Dr. Schnapp and Dr. Taylor
provides any opinion addressing the causal relationship between the April 16, 2008 employmentrelated injury and appellant’s current back condition and disability for work. Although
Dr. Fritzhand stated that she had been unable to perform her work duties as a tax technician, he
did not address whether her disability was causally related to the accepted employment-related
injury. The Board finds that the reports of Dr. Brody, Dr. Linville, Dr. Schnapp, Dr. Taylor and
Dr. Fritzhand are of limited probative value.5
The May 5, 2008 treatment from Ms. Greene, a physical therapist, is of no probative
value in establishing appellant’s claim. A physical therapist is not considered to be a “physician”
as defined under the Federal Employees’ Compensation Act.6 The Board finds, therefore, that
Ms. Greene’s report does not constitute competent medical evidence to support appellant’s
claim. There is no other medical evidence contemporaneous with the termination of her benefits
which supports that she has any continuing employment-related residuals or disability.

5

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

6

See 5 U.S.C. § 8101(2); A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

5

CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
February 17, 2009 on the grounds that she no longer had any residuals or disability causally
related to her accepted employment-related lumbar strain.
ORDER
IT IS HEREBY ORDERED THAT the September 29, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 5, 2010
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, Oklahoma City, OK,
)
Employer
)
__________________________________________ )
M.H., Appellant

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

Docket No. 19-0941
Issued: April 29, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On March 28, 2019 appellant filed a timely appeal from December 3, 2018 and January 23,
2019 merit decisions 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 the case. 2
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to rescind its acceptance of
the claim; (2) whether OWCP properly determined that appellant received an overpayment of
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 23, 2019 decision, OWCP received additional evidence. Appellant
also 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.

compensation in the amount of $5,498.11 because she received schedule award compensation to
which she was not entitled; and (3) whether OWCP properly denied waiver of recovery of the
overpayment.
FACTUAL HISTORY
On June 27, 2011 appellant, then a 64-year-old electronic technician, filed an occupational
disease claim (Form CA-2) alleging that on October 31, 1995 factors of her federal employment
caused a vision condition. She indicated that she had accidentally sprayed her face with electrocontact cleaner that got into her eyes. Appellant noted that she first realized that the condition was
causally related to her federal employment on July 12, 2008. She had voluntarily retired on
January 1, 2011. In an attached statement, appellant indicated that her work duties from 1988 to
2010 included soldering and inspecting solder joints, which also caused visual problems.
In a development letter dated July 8, 2011, OWCP informed appellant that additional
evidence was needed to establish her claim. It asked her to complete a questionnaire by describing
employment-related exposure which she believed contributed to her condition. OWCP indicated
that to establish her claim she should submit medical evidence that established a diagnosed
condition causally related to the alleged factors of employment. In a letter of even date, it also
asked the employing establishment to comment on the claim and provide evidence regarding
exposure. OWCP afforded 30 days for the submission of this additional evidence.
In statements dated June 27 and August 8, 2011, appellant maintained that soldering at
work caused her bad eyesight. She did not submit the requested questionnaire. OWCP received
medical evidence which included an employing establishment health record showing that on
June 21, 1994, June 19, 1995, and June 26, 1996 appellant was certified for the soldering position
by a medical instrument technician. Dr. Selina R. McGee, an optometrist, provided eyeglass
prescriptions on July 8, 2009 and August 9, 2010.
The employing establishment responded that appellant performed soldering for many years
in the avionics section and she had completed yearly certification for soldering. Appellant’s
position description was also submitted to the record.
In September 2011, OWCP referred appellant to Dr. Russell D. Crain, a Board-certified
ophthalmologist, for a second opinion evaluation. Dr. Crain was asked to make diagnoses for her
claimed condition, comment on whether an “incident” of July 12, 2008 had caused her eye
condition, and perform an evaluation of permanent impairment. In an October 7, 2011 report, he
noted that since appellant had not described a July 12, 2008 incident, he could not answer as to
how this incident could be related to her present eye condition. Dr. Crain noted his eye
examination findings and diagnosed refractive error, bilateral cataracts, diabetes with no sign of
retinopathy, dry eyes, and severe constriction of visual fields. He noted that glasses were necessary
due to the refractive error. Dr. Crain also provided an impairment evaluation.
On October 26, 2011 OWCP asked its district medical adviser (DMA) to review
Dr. Crain’s report and provide an impairment rating. By report dated October 27, 2011,
Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a DMA, reported that
cataract, not otherwise specified (NOS), had been accepted as caused by a July 12, 2008

2

employment “incident.” He advised that Dr. Crain’s impairment evaluation was insufficient and
recommended an additional second opinion evaluation.
On November 3, 2011 OWCP accepted the condition of cataract, NOS, bilateral, as work
related.
OWCP referred appellant to Dr. Jeffrey T. Shaver, a Board-certified ophthalmologist, on
March 8, 2012 for a second opinion examination. It forwarded a statement of accepted facts
(SOAF) dated August 26, 2011 to him which identified her accepted claim as an occupational
disease. The questions provided to Dr. Shaver, however, requested that he provide an opinion
explaining how appellant’s present condition was causally related to a July 12, 2008 employment
incident. In a March 27, 2012 report, Dr. Shaver diagnosed cataracts. He opined that there seemed
to be no relationship between appellant’s current medical condition and the July 2008 employment
incident. Dr. Shaver indicated that, by present knowledge, cataracts are caused by “inheritance
and environmental factors” which were multifactorial without a known specific environment al
cause. He advised that there was no evidence in the medical record to indicate that appellant’s
type of work with soldering had placed her at an increased risk for the development of cataracts,
noting that her age and inheritance were enough to explain their development. Dr. Shaver
indicated that maximum medical improvement (MMI) would be reached after she had cataract
surgery. He concluded that, as there was no evidence of an employment injury to appellant’s eyes,
he would not recommend an impairment rating.
On September 25, 2012 appellant filed a claim for a schedule award (Form CA-7).
OWCP forwarded Dr. Shaver’s report to the DMA on October 9, 2012 for review. In an
October 15, 2012 report, the DMA, noted that Dr. Shaver had not provided a rating of impairment
due to his other findings. He confirmed that there was no permanent impairment and advised that,
given the core issue of causation raised by Dr. Shaver, referral for an impartial evaluation could
be necessary.
OWCP unsuccessfully attempted to schedule medical appointments from January 2013
through March 2016. On July 19, 2016 it referred appellant to Dr. John Belardo, Board-certified
in ophthalmology. Dr. Belardo was asked to comment on whether she was at MMI and to describe
all other pertinent findings including an impairment rating in accordance with the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).3
In an August 3, 2016 report, Dr. Belardo noted that appellant provided a history that she
had gotten solder in her left eye in 2008 and that both eyes had been very irritated, itchy, and
watery on a daily basis since that time with blurred distance and near vision. He reported that she
had cataract surgery in 2012. Dr. Belardo described his examination findings, diagnosed chronic
mild dry eye, and recommended hydration.

3

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

3

On September 1, 2016 OWCP requested that Dr. Belardo provide an impairment
evaluation in accordance with the sixth edition of the A.M.A., Guides. In a November 1, 2016
report, Dr. Belardo calculated appellant’s functional acuity score, finding a final acuity score of 93.
A copy of Dr. Belardo’s reports were provided to a DMA, who was asked to opine as to
the date of MMI and to prepare a rating of permanent impairment. In a March 22, 2017 report,
Dr. Kevin Yuhan, a Board-certified ophthalmologist serving as a DMA, noted appellant’s history
of bilateral cataracts, including her claim that she got solder in her left eye in 2008, following
which her eyes had been very irritated, itchy, and watery, and that both her near and distance vision
was blurred. He utilized Dr. Belardo’s eye examination findings and calculated her visual acuity
in accordance with the A.M.A., Guides. The DMA concluded that appellant had four percent
visual impairment and advised that she reached MMI after her cataract surgery in 2012. On
March 23, 2017 appellant reported that she had cataract surgery on the right eye on August 23,
2012 and on the left eye on September 6, 2012.
By decision dated March 27, 2017, OWCP granted appellant a schedule award for four
percent visual impairment. It found that she was at MMI on August 23, 2012 and awarded 6.4
weeks and a fraction of a day compensation.
The award ran from October 6 to
November 19, 2012.
On April 23, 2017 appellant requested a hearing before an OWCP hearing representative.
She submitted an eyeglass prescription dated May 25, 2016 by Dr. Tom Blue, an optometrist.
At the telephonic hearing on September 12, 2017, appellant testified that she got solder in
her eye at work while being certified as an electronic technician. She indicated that she filed her
claim after she retired, and had cataract surgery, but that she still needed to wear glasses. The
hearing representative advised appellant to have Dr. Blue perform a permanent impairment rating.
The record was held open for 30 days.
Appellant subsequently submitted a May 25, 2017 report from Dr. Blue in which he
diagnosed Type 2 diabetes without complications, bilateral dry eye syndrome, and bilateral
punctate keratitis.
By decision dated November 15, 2017, OWCP’s hearing representative found that OWCP
must further consider appellant’s entitlement to compensation. She concluded that the factual
evidence of record demonstrated only that appellant was first aware of a problem in July 2008, but
had not indicated that appellant had sustained a specific injury other than mentioning getting
cleaner in her eye on October 31, 1996. The hearing representative further found that the case
record was devoid of medical evidence establishing causal relationship between appellant’s
employment and her eye conditions. She indicated that neither Dr. Crain nor Dr. Belardo offered
an opinion on causal relationship, and that Dr. Shaver unequivocally negated causal relationship.
Therefore, the medical evidence of record failed to relate appellant’s eye conditions to her
employment and the hearing representative remanded the case to OWCP to begin rescission
procedures.

4

On October 22, 2018 OWCP advised appellant that it proposed to rescind its acceptance of
her claim for bilateral cataracts. 4 It found the opinion of Dr. Shaver constituted the weight of the
medical evidence, noting that the record contained no contrary evidence and concluded that the
record contained sufficient evidence to negate any causal relationship between her eye condition
and employment. Copies of reports from all OWCP referral physicians and DMA’s were attached.
Appellant was afforded 30 days to challenge the rescission of her claim.
In correspondence dated November 18, 2018, appellant maintained that her job duties
caused eye problems as well as neck and shoulder pain. She submitted a November 1, 1996
traumatic injury claim (Form CA-1) in which she alleged that she accidentally sprayed cleaner into
both eyes on October 31, 1996.5 Appellant submitted employing establishment clinic notes
including an October 31, 1996 treatment note in which Dr. David D. Bissell, a pediatric specialist,
noted that he flushed her eyes.
By decision dated December 3, 2018, OWCP rescinded acceptance of appellant’s claim for
bilateral cataracts. It found that upon review of all available evidence, acceptance of her claim
should be rescinded because the weight of the medical evidence established that the claimed eye
condition was not work related.
On December 21, 2018 OWCP issued a preliminary finding that an overpayment of
compensation in the amount of $5,498.11 had been created. It explained that the overpayment
occurred because appellant was awarded four percent schedule award compensation for a visual
condition that had been rescinded. OWCP found her not at fault in the creation of the overpayment
and provided an overpayment action request form and an overpayment recovery questionnaire
(OWCP-20). It informed appellant that, in order for it to consider the question of waiver of
recovery of the overpayment or to determine a reasonable method for collection, she must provide
a completed OWCP-20, and attach supporting financial documentation, including copies of
income tax returns, bank statements, bills, canceled checks, pay slips, and any other record to
support claimed income and expenses. OWCP notified her that failure to submit the requested
information within 30 days would result in the denial of waiver. An overpayment worksheet and
computer payment printout confirmed that appellant was paid $5,498.11 in schedule award
compensation.
In response appellant submitted an overpayment action request form in which she
requested waiver and an overpayment questionnaire in which she noted monthly income of
$4,086.94 and monthly expenses of $6,687.00.
By decision dated January 23, 2019, OWCP finalized the December 21, 2018 preliminary
overpayment determination. It found that, as acceptance of appellant claim had been rescinded,
4

OWCP had previously attempted to rescind acceptance of appellant’s claim. By decision dated May 4, 2018,
OWCP rescinded acceptance of appellant’s claim, finding that the medical evidence of record was insufficient to
establish that the accepted eye condition was causally related to her employment. However, no preliminary notice of
intent to rescind her claim had been issued. Appellant requested reconsideration on June 4, 2018. By decision dated
September 4, 2018, OWCP denied her reconsideration request.
5
The record before the Board contains no evidence regarding this claim. It is not found in OWCP’s electronic data
base, the Integrated Federal Employees’ Compensation System.

5

she improperly received schedule award compensation. OWCP further found her not at fault in
the creation of the overpayment, but noted that she had not responded to the preliminary
determination and, as such, had not established waiver of recovery of the overpayment. It
requested repayment in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 6 The Board
has upheld OWCP’s authority under this section to reopen a claim at any time on its own motion
and, where supported by the evidence, set aside or modify a prior decision and issue a new
decision.7 The Board has noted, however, that the power to annul an award is not arbitrary and
that an award for compensation can only be set aside in the manner provided by the compensation
statute.8
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory provision,
where there is good cause for so doing, such as mistake or fraud. Once OWCP accepts a claim, it
has the burden of proof to justify termination or modification of compensation benefits. This also
holds true where OWCP later decides that it erroneously accepted a claim. 9
OWCP bears the burden of proof to justify rescission of acceptance on the basis of new
evidence, legal argument and/or rationale. 10 Probative and substantial positive evidence or
sufficient legal argument must establish that the original determination was erroneous. OWCP
must also provide a clear explanation of the rationale for rescission. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to rescind acceptance of
appellant’s claim.
The Board finds the second opinion evaluation of Dr. Shaver, which formed the basis of
the rescission was not based on the SOAF, which identified appellant’s injury as an occupational
disease. The Board has previously explained that OWCP procedures dictate that when an OWCP
medical adviser, second opinion specialist, or referee physician renders a medical opinion, but
does not use the SOAF as the framework in forming his or her opinion, the probative value of the

6

5 U.S.C. § 8128.

7

See W.H., Docket No. 17-1390 (issued April 23, 2018); 20 C.F.R. § 10.610.

8

D.W., Docket No. 17-1535 (issued February 12, 2018).

9

V.R., Docket No. 18-1179 (issued June 11, 2019).

10

See L.G., Docket No. 17-0124 (issued May 1, 2018).

11

W.H., supra note 7.

6

opinion is seriously diminished or negated altogether. 12 OWCP erroneously requested that
Dr. Shaver provide an opinion explaining how appellant’s present eye condition was causally
related to a July 12, 2008 employment incident, instead of the occupational factors outlined in the
SOAF. Dr. Shaver opined that there seemed to be no relationship between her current medical
condition and a July 2008 employment incident. However, the record establishes that appellant’s
occupational disease claim alleged that job duties from 1988 to 2010 caused her eye condition and
she consistently noted the progression over time of her visual problems. OWCP procedures
provide that, in evaluating medical evidence prior to a termination, its claims examiner (CE) must
carefully review the evidence and ensure that the weight of medical evidence is fully rationalized
and fully supports the conclusion. 13 The procedures further provide that, when considering
rescission, the CE is responsible for carefully and thoroughly evaluating and developing, if
necessary, all the evidence in the context of OWCP’s burden of proof.14 As OWCP improperly
found the weight of the medical evidence rested with Dr. Shaver, the Board, therefore, concludes
that OWCP has not met its burden of proof to rescind acceptance of appellant’s claim and its
rescission of her claim must be reversed.15
LEGAL PRECEDENT -- ISSUE 2
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 duty.16 When an overpayment has been made to an individual because of an error
of fact or laws, adjustment shall be made under regulations prescribed by the Secretary of Labor
by decreasing later payments to which the individual is entitled. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly determined that appellant had received an
overpayment of compensation in the amount of $5,498.11.
The record supports that appellant received a schedule award in the amount of $5,498.11
due to her accepted condition. The overpayment of compensation found by OWCP was based on
this schedule award paid to her for the period October 6 to November 19, 2012. As noted above,
OWCP has not met its burden of proof to rescind acceptance of appellant’s claim.

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); K.V., Docket No. 15-0960 (issued March 9, 2016); see L.J., Docket No. 14-1682 (issued
December 11, 2015).
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.7 (February 2013).

14

Id. at Chapter 2.1400.19.c.

15

See supra note 10; D.V., Docket No. 16-0849 (issued March 6, 2017), V.C., 59 ECAB 137 (2007).

16

5 U.S.C. § 8102(a).

17

Id. at § 8129(a).

7

The Board thus finds that, as the rescission has been reversed, the overpayment in the
amount of $5,498.11, which was based on OWCP’s rescission of appellant’s claim, must also be
reversed.18
CONCLUSION
The Board finds that OWCP has not met its burden of proof to rescind acceptance of
appellant’s claim, and thus, the declared overpayment of compensation in the amount of $5,498.11
that represented a schedule award paid for the period October 6 to November 19, 2012 must also
be reversed.19
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2019 and December 3, 2018
decisions of the Office of Workers’ Compensation Programs are reversed.
Issued: April 29, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

18

See generally R.W., Docket No. 19-1465 (issued January 28, 2020); K.N., Docket No. 11-0540 (issued
February 2, 2012).
19

In light of the Board’s disposition of Issue 1 and Issue 2, Issue 3 is rendered moot.

8