United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Basking Ridge, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-1722
Issued: February 27, 2013

Case Submitted on the Record

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

On August 15, 2012 appellant, through her attorney, filed a timely appeal of March 20
and July 30, 2012 Office of Workers’ Compensation Programs’ (OWCP) merit decisions
denying her claims for compensation. The Board docketed the appeal as No. 12-1722.
Appellant filed a notice of occupational disease on February 2, 2011 alleging that on
June 20, 2010 she first became aware of her bilateral carpal and cubital tunnel syndromes.
OWCP accepted her claim on May 13, 2011. Appellant filed claims requesting wage-loss
compensation from October 8, 2010 through January 17, 2011. By decision dated August 24,
2011, OWCP denied appellant’s claim for compensation on the basis that the medical evidence
in the record did not support total disability during this period.
Counsel requested an oral hearing of the August 24, 2011 decision which was held on
January 4, 2012. At the hearing, counsel referenced a claim appellant had previously filed on
June 20, 2010 for her right wrist. Although that claim had been denied as a traumatic injury
claim, counsel believed the medical evidence would be helpful to determine the occupational
disease claim and requested that the prior claim, number xxxxxx118, be combined with the
current occupational disease claim of number xxxxxx217.

By decision dated March 20, 2012, the hearing representative affirmed the denial of
appellant’s claim for compensation finding the medical evidence insufficient to meet appellant’s
burden of proof.
Appellant had also filed claims for compensation for the period September 10 through
October 7, 2010. These claims were denied by OWCP by decision of February 24, 2012.
Counsel requested an oral hearing of that decision and at the June 6, 2012 hearing he continued
to reference medical evidence in appellant’s claim number xxxxxx118. The transcript reflected
that the hearing representative stated, “I do not have that other file. So I’ll get that and take a
look at that documentation. It’s not in this one.”
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claim before the Board, number xxxxxx217, involves appellant’s occupational
disease claim for carpal tunnel syndrome. In both the March 20 and July 30, 2012 decisions, the
hearing representatives noted appellant’s separate claim for traumatic injury to her right hand on
June 20, 2010 and suggested their intention to review that record prior to issuing the decisions
before the Board.
Pursuant to its procedures, OWCP has determined that cases should be combined where
correct adjudication depends on cross-referencing between files. In the instant appeal, the
hearing representative noted reviewing both files. Any evidence that the hearing representative
considered must be made part of the record before the Board.1 For a full and fair adjudication,
OWCP claims with evidence germane to appellant’s hand conditions should be combined
pursuant to OWCP procedures.2 This will allow OWCP to consider all relevant claims and
medical reports in developing appellant’s wage-loss claim.
The case will be remanded to OWCP to combine relevant case files. Following this and
such other development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s claim.

1

L.B., Docket No. 11-1501 (issued February 27, 2012).

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000). D.R., Docket No. 12-696 (issued July 25, 2012).

2

IT IS HEREBY ORDERED THAT the July 30 and March 20, 2012 decisions of the
Office of Workers’ Compensation Programs are set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: February 27, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WARNER ROBINS AIR LOGISTICS CENTER,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 07-1457
Issued: January 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 31, 2007 appellant filed a timely appeal from the March 9, 2007 overpayment
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d)(2), the Board has jurisdiction to review the overpayment issue in this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $11,572.00; (2) whether the Office properly found that she was at fault in creation of
the overpayment; and (3) whether the Office properly determined that the overpayment should
be repaid at the rate of $321.44 every month.
FACTUAL HISTORY
On May 28, 2003 appellant, then an air conditioning sheet metal mechanic, filed an
occupational disease claim alleging that she injured her shoulder and arm while drilling glass and
changing a corner fitting. By letter dated June 20, 2003, the Office accepted appellant’s claim

for right shoulder rotator cuff syndrome. Appropriate compensation and medical benefits were
paid.
By letter dated July 11, 2005, the employing establishment notified the Office that
appellant had returned to work eight hours a day effective July 11, 2005.
On July 12, 2006 the Office made a preliminary determination that appellant was
overpaid in the amount of $11,572.00 because she received compensation for temporary total
disability following her return to work full time on July 11, 2005. The Office noted that
appellant was overpaid $9,398.01 for the period July 10 through October 29, 2005 and $2,173.99
for the period October 30 through November 26, 2005 for a total of $11,572.00. The Office also
made a preliminary determination that appellant was at fault in the creation of the overpayment.
On July 27, 2006 appellant completed the overpayment recovery questionnaire. She
completed the financial portions of the form. Appellant contended that she did not believe that
the overpayment was her fault as she did not know she was overpaid until she received the
notice. She also noted that she received payment by direct deposit and that, when she became
aware of the overpayment, she had already used the money to pay her bills.
By decision dated May 9, 2007, the Office finalized its determination that appellant was
overpaid in the amount of $11,572.00 and that she was at fault in the creation of the overpayment
and therefore not entitled to waiver The Office ordered appellant to pay back the overpayment
by making monthly payments in the amount of $321.44.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of the Federal Employees’ Compensation Act provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”1
Section 8116 of the Act defines the limitations on the right to receive compensation
benefits. This section of the Act provides that, while an employee is receiving compensation, he
may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.2 20 C.F.R. § 10.500 provides that “compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.”

1

5 U.S.C. § 8129.

2

5 U.S.C. § 8116(a).

2

ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that an overpayment was created and
properly calculated the amount of the overpayment. The overpayment was paid for the period
July 11 to October 29, 2005 in the amount of $9,398.01. The Office properly noted that for this
period appellant received checks in the net amount of $9,482.68 (four checks at $2,370.67 each).
The Office determined that during that time period appellant should have only been paid for
July 10, 2005 for $84.67. Subtracting what appellant should have been paid for this period,
$84.67, from what appellant was paid, $9,482.68, equals an overpayment of $9,398.01 for the
period July 11 through October, 29, 2005. With regard to the second period, October 30 to
November 26, 2005, the Office noted that appellant was entitled to 12 hours of intermittent
compensation for a total of $196.68. However, appellant received a check for this period in the
net amount of $2,370.67. The difference between these two amounts is the amount of the
overpayment for this period, $2,173.99. Adding the overpayment for the two periods together,
the Office properly determined that appellant received an overpayment of $11,572.00.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulations, an overpayment must
be recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.3 Section 10.433 of the implementing regulations provide that the Office may
consider waiving an overpayment if the individual to whom it was made was not at fault in
accepted or creating the overpayment.4 The regulations further provide that each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure that payments
he or she receives from the Office are proper.5 Whether the Office determines that an individual
was at fault with respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment.6
Appellant is at fault in the creation of an overpayment that occurs when he or she
receives compensation checks through direct deposit which involve a series of payments over
several months with clear knowledge that the payments were incorrect.7
ANALYSIS -- ISSUE 2
In finding appellant at fault in the creation of the $11,572.00 overpayment, the Office
stated that she should have known the payments she received for the period July 11 to
November 26, 2005 were not proper because she had returned to work. Even though the Office
3

5 U.S.C. § 8129(b); 20 C.F.R. § 10.433(a).

4

20 C.F.R. § 10.433(a).

5

Id.

6

Id. at § 10.433(b).

7

See Karen K. Dixon, 56 ECAB ___ (Docket No. 03-2265, issued November 9, 2004).

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may have been negligent in making incorrect payments, this does not excuse a claimant from
accepting payments she should have known to be incorrect.8 In this case, appellant returned to
work on July 11, 2005. She had no reasonable basis to believe that she was entitled to
continuing compensation payments from the Office at the same time that she was working full
time. When the payments were directly deposited into her account, she should have known they
were incorrect.9 Appellant contends that she did not know of the overpayment until she received
notice of the overpayment. However, this is contradicted by the fact that appellant received four
separate checks over a period of more than three months that resulted in an overpayment of
$11,572.00. Certainly she should have noticed this amount in her account at some point during
the period she received these checks.
The Board finds that, under section 10.433(3), appellant accepted payments she knew or
should have known to be incorrect. Therefore, she is not without fault under 5 U.S.C. § 8129(b)
in creating the overpayment and not entitled to waiver.
LEGAL PRECEDENT -- ISSUE 3
With respect to the recovery of the overpayment, the Board notes that its jurisdiction is
limited to review of those cases where the Office seeks recovery from continuing compensation
benefits under the Act.10 However, where no further compensation benefits are due an
individual, the Board does not have jurisdiction and the recovery of an overpayment remains
with the discretion of the Office. The Board’s jurisdiction over recovery is limited to review of
those cases where the Office seeks recovery from continuing compensation under the Act.11
ANALYSIS -- ISSUE 3
With respect to recovery of the overpayment, the Board notes that its jurisdiction is
limited to review of those cases where the Office seeks recovery from continuing compensation
benefits under the Act.12 Appellant was not in receipt of continuing compensation at the time the
final decision was entered in this matter. Therefore, the Board lacks jurisdiction to review
recovery of the overpayment.
CONCLUSION
The Office properly determined that appellant received an overpayment in the amount of
$11,572.00 and properly denied waiver of the overpayment.

8

William E. McCarty, 54 ECAB 525 (2003).

9

Karen K. Dixon, supra note 7.

10

5 U.S.C. § 8129(a).

11

See Terry A. Keister, 56 ECAB __ (Docket No. 04-1136; issued May 23, 2005); see also Albert Pineiro,
51 ECAB 310 (2000).
12

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 9, 2007 is affirmed.
Issued: January 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Fresno, CA, Employer
__________________________________________

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

Docket No. 16-0033
Issued: March 3, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 8, 2015 appellant filed a timely appeal from an August 27, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of April 1, 2015 and the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant alleged that he made new legal arguments with his reconsideration
request and cited new case law. He also argued that his case could be considered under his prior
case number.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 5, 2012 appellant, then a 57-year-old social worker, filed an occupational
disease claim (Form CA-2) alleging that he suffered from depression and stress as a result of
retaliation that he experienced with the employing establishment. Briefly, he alleged that he was
a victim of sexual assault in November 2009, that he filed a formal complaint about this assault
with the Equal Employment Opportunity Commission (EEOC), and that since that time he has
experienced numerous instances of retaliation by the employing establishment. Appellant noted
the reclassification of his position was withdrawn, he was stripped of his ability to perform his
job, he was assigned to report to his administrative assistant who had no knowledge of social
work, he was subject to people searching his office, he was not allowed proper union
representation, he was humiliated in front of staff he was supposed to be supervising, and he was
reassigned to a position for which he had no training with only one day notice.
By decision dated September 23, 2013, OWCP denied appellant’s claim for an emotional
condition as he failed to establish that it “arose during the course of employment and within the
scope of compensable work factors as defined by FECA.” Appellant requested a telephone
hearing, which was held before an OWCP hearing representative on April 14, 2014.
By decision dated July 2, 2014, an OWCP hearing representative denied appellant’s
claim for an emotional condition. It noted that although appellant had established that some of
the alleged incidents occurred, appellant had not established a compensable factor of federal
employment. Appellant requested reconsideration and in a decision dated April 1, 2015, OWCP
conducted a merit review of appellant’s claim, but denied modification of its prior decision.
On May 28, 2015 appellant filed another request for reconsideration. He alleged that he
was requesting reconsideration based upon additional legal arguments and citation to Board
decisions. Appellant argued that he had not been given the opportunity to supply missing
information, that he had provided evidence that the employing establishment acted with error or
abuse in handling the situations that OWCP classified as administrative actions, and that the
medical evidence should have been considered. He also argued that his claim in a different
compensation case should not have been closed, and that his claim was compensable under File
No. xxxxxx672. Appellant also submitted letters he previously wrote concerning the factors of
his claim.
By decision dated August 27, 2015, OWCP denied reconsideration without reviewing the
merits of appellant’s claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
2

Supra note 1. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).

2

pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS
OWCP denied appellant’s claim for an emotional condition as it found that he had not
established a compensable factor of federal employment. It noted that although appellant did
establish that certain events did occur, that these events were considered administrative actions
and that he had not established error or abuse in the handling of these matters by the employing
establishment.
When appellant requested reconsideration, he argued that he established a compensable
factor of employment, that he had not been given the opportunity to supply missing information,
that he had provided evidence that the employing establishment acted with error or abuse in
administrative actions, and that medical evidence should have been considered. He set forth his
argument with citations to Board decisions. Appellant also argued that his case should be
considered under his prior OWCP case number.
Appellant alleged that he provided new legal argument not previously considered by
OWCP. However, OWCP had previously considered whether he had established a compensable
factor of employment and had already considered the appropriate law with regard to
administrative actions by the employing establishment. It also properly noted that in the absence
of a compensable factor of employment in an emotional condition case, the Board does not
require OWCP to analyze the medial evidence of record.6 The fact that appellant set forth new
Board case citations does not amount to new legal argument regarding these previously
considered issues.
Appellant’s argument that OWCP did not properly develop the case, in that it failed to
provide him an opportunity to present missing evidence, is also without merit as OWCP sent
appellant a letter on May 13, 2013 requesting additional information. He was presented with
another opportunity to correct deficiencies when he requested review of the written record.
Furthermore, appellant did not submit any pertinent new and relevant evidence with regard to his
claim. The Board has held that evidence that is repetitive and duplicative of evidence previously
of record is insufficient to warrant further merit review.7 Appellant’s evidence merely consisted
of resubmitted prior statements and arguments he made with regard to his claim.
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

M.M., Docket No. 15-1221 (issued September 14, 2015).

7

D.K., 59 ECAB 141 (2007); see also L.K., Docket No. 14-1722 (issued September 29, 2015).

3

Finally, appellant asks the Board to reopen a different OWCP case that is not currently
before the Board. The only issue over which the Board may properly exercise jurisdiction is
whether OWCP properly declined to reopen his case for further merit review under OWCP File
No. xxxxxx399.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by it, and has not submitted relevant and pertinent new evidence not previously
considered by OWCP. Accordingly, the Board finds that he did not meet any of the necessary
requirements and is not entitled to further merit review.8
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 27, 2015 is affirmed.
Issued: March 3, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

See L.H., 59 ECAB 253 (2007).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

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Appearances:
Stephen Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2478
Issued: July 8, 2009

Case Submitted on the Record

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

JURISDICTION
On September 17, 2008 appellant, through her representative, filed a timely appeal of a
June 27, 2008 decision of an Office of Workers’ Compensation Programs’ hearing
representative, who affirmed the denial of appellant’s claim for disability compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was entitled
to wage-loss compensation from December 9, 2006 to September 28, 2007, causally related to
her accepted employment injury.
FACTUAL HISTORY
On January 11, 2007 appellant, then a 40-year-old rural letter carrier, filed an
occupational disease claim alleging that she developed pain and numbness in her shoulders, arms
and hands while casing mail, pushing heavy carts, pulling mail from her case and trays and

lifting heavy trays and packages in the performance of duty. She realized that her condition was
caused or aggravated by her employment on November 18, 2006. Appellant stopped work on
December 12, 2006. In a statement dated February 2, 2007, the employing establishment
controverted the claim.
By report dated January 17, 2007, Dr. Kenneth Accousti, a Board-certified orthopedic
surgeon, noted that appellant had diffuse tenderness to light touch. He stated that appellant’s
“primary problem is probably related to either her cervical spine or something like
fibromyalgia.” Dr. Accousti indicated that it was unlikely that appellant had a rotator cuff tear.
The Office received several diagnostic reports, including January 26, 2007 cervical spine x-rays
read by a physician’s assistant. A January 30, 2007 cervical spine magnetic resonance imaging
(MRI) scan read by Dr. David Glasser, a Board-certified diagnostic radiologist, was normal with
the exception of a slight disc bulge at C5-6, with no focal herniation or spinal stenosis.
In a report dated February 14, 2007, Dr. Kenneth Zaslav, a Board-certified orthopedic
surgeon, noted that appellant “had pain and numbness in the left arm and some numbness in the
right hand after an episode of having to lift much more increased mail than usual during the
Christmas rush.” He examined appellant and found a full range of motion of the left shoulder
and full range of motion of the cervical spine. Dr. Zaslav diagnosed mild cervical radiculopathy
at C5-6 and secondary overuse lateral epicondylitis. He placed appellant off work and advised
that it would be “for three weeks most likely.”
In a February 28, 2007 report, Dr. Rosalia M. Lomeo, Board-certified in internal
medicine and rheumatology, agreed that appellant had mild cervical radiculopathy at C5-6 and
secondary overuse lateral epicondylitis caused from her repetitive work as a postal worker. In an
August 14, 2007 attending physician’s report, she noted that appellant’s left arm was painful and
her right arm was numb. Dr. Lomeo advised that appellant was unable to grip with both hands as
it was “very painful.” She checked the box “yes” in response to whether she believed the
condition was caused of aggravated by an employment activity. Dr. Lomeo also advised that
appellant was totally disabled since December 9, 2006.
On August 23, 2007 the Office accepted appellant’s claim for mild cervical radiculopathy
at C5-6 and bilateral/lateral epicondylitis.1
On August 23, 2007 appellant filed a Form CA-7 claim for wage-loss compensation for
the period December 9, 2006 to August 17, 2007 and on September 7, 2007 filed a claim for the
period August 18 to 31, 2007. The employing establishment controverted the claim.
By letter dated September 24, 2007, the Office requested additional medical evidence
from appellant. It advised her that the medical evidence should address her disability for work
from December 9, 2006 to August 31, 2007. The Office explained that a physician’s opinion
was crucial to her claim and allotted 30 days within which to submit the requested information.
1

The Office initially denied appellant’s claim on April 19, 2007. However, on August 1, 2007 an Office hearing
representative reversed the Office’s April 19, 2007 decision, finding that appellant established that she sustained a
work-related injury. He noted that appellant could file a Form CA-7 to claim compensation for time lost from work,
if any, due to the injury.

2

On September 24, 2007 appellant further claimed disability for the period September 1
to 14, 2007.
In an August 31, 2007 duty status report, Dr. Lomeo diagnosed mild cervical
radiculopathy and lateral epicondylitis. Dr. Lomeo indicated that appellant could not perform
any duties.
On October 7, 2007 appellant submitted a further Form CA-7 claims for wage-loss
compensation for total disability compensation commencing September 15 to 28, 2007.
In an October 2, 2007 report, Dr. Lomeo noted that appellant’s overuse lateral
epicondylitis C5-6 cervical radiculopathy, left shoulder and arm pain were caused by repetitive
motions of her arm and neck due to her duties as a postal worker. She indicated that appellant
was permanently disabled and unable to work since December 9, 2006. In an October 4, 2007
duty status report, Dr. Lomeo diagnosed cervical radiculopathy and lateral epicondylitis and
reiterated that appellant was unable to work.
By decision dated October 23, 2007, the Office denied wage-loss compensation from
December 9, 2006 to September 28, 2007. It found that the medical evidence did not establish
that the accepted medical conditions caused or contributed to her disability for work for the
claimed period.
Appellant submitted additional CA-7 claim forms requesting compensation for total
disability. She also submitted numerous physical therapy reports and prescriptions from Drs.
Zaslav and Lomeo for continuing physical therapy.
On November 15, 2007 appellant’s representative requested a hearing, which was held on
February 26, 2008. At the hearing, appellant’s representative contended that her claim for
disability should be compensable as the Office of Personnel management (OPM) found appellant
to be disabled.
By decision dated June 27, 2008, an Office hearing representative affirmed the
October 23, 2007 decision.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of her claim by the weight of the evidence,3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4

2

5 U.S.C. §§ 8101-8193.

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

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

3

As used in the Act, the term “disability” means incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of injury.5 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in her employment, she is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.6
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.7 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.8 The Board will not require the Office 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.9
ANALYSIS
The Office accepted appellant’s claim for mild cervical radiculopathy at C5-6 and
bilateral lateral epicondylitis. In support of her claim for disability from December 9, 2006 to
September 28, 2007, appellant submitted several medical reports.
On January 17, 2007 Dr. Accousti opined that appellant’s “primary problem is probably
related to either her cervical spine or something like fibromyalgia.” The Board notes that
Dr. Accousti did not express any opinion on whether appellant was disabled for work as of
December 9, 2006.
In a report dated February 14, 2007, Dr. Zaslav diagnosed mild cervical radiculopathy at
C5-6 and secondary overuse lateral epicondylitis. He placed appellant off work for three weeks,
but did not provide any medical rationale explaining why appellant was totally disabled and
unable to work due to her accepted conditions.10 Dr. Zaslav did not explain the reasons why
appellant’s accepted mild cervical radiculopathy at C5-6 or bilateral/lateral epicondylitis
rendered her totally disabled for work and he did not note any particular findings on examination
that supported total disability.
5

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB
38 (1948); 20 C.F.R. § 10.5(f).
6

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

7

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

8

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).

9

G.T., id.; Fereidoon Kharabi, supra note 7.

10

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

4

Dr. Lomeo diagnosed mild cervical radiculopathy and lateral epicondylitis. In an
August 14, 2007 report, Dr. Lomeo merely stated that appellant was totally disabled
commencing December 9, 2006. However, she did not explain the reasons why appellant’s
accepted conditions caused total disability. Dr. Lomeo’s reports are insufficient to establish that
appellant was disabled beginning December 9, 2006 as a result of her employment-related
conditions.
Dr. Lomeo repeated her diagnoses on August 31, October 2 and 4, 2007 and opined that
appellant could not perform any duties. However, she did not explain how any cervical
radiculopathy symptoms or epicondylitis impacted appellant’s ability to perform her job duties or
any modified duties. Dr. Lomeo did not provide any reasoning to support her conclusion that
appellant was permanently disabled and unable to work since December 9, 2006 as a result of
her accepted conditions. Medical conclusions unsupported by rationale are of diminished
probative value.11
Appellant submitted diagnostic reports dated January 26 and 30, 2007, which are
insufficient to establish her claim as they do not address the issue of disability or offer an opinion
as to whether the claimed disability was causally related to appellant’s accepted conditions. The
Office also received several physical therapy reports, but lay individuals, such as physical
therapists, are not competent to render a medical opinion under the Act.12
Appellant’s attorney contends that appellant was found to be disabled by OPM and that
such finding is sufficient to create a medical conflict under the Act necessitating a referee
opinion. The Board has held that the determination of an employee’s rights or remedies under
other statutory authority does not establish entitlement to benefits under the Act. Under the Act,
to establish disability, an employee’s injury must be shown to be causally related to an accepted
injury or accepted factors of his or her federal employment. For this reason, the determinations
of other administrative agencies or courts, while instructive, are not determinative with regard to
disability arising under the Act.13 The decision by OPM regarding appellant’s disability status is
not determinative of appellant’s claim for disability compensation under the Act or sufficient to
create a conflict in medical opinion.14

11

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008); see Mary E. Marshall, 56 ECAB 420 (2005)
(medical reports that do not contain rationale on causal relationship have little probative value).
12

David P. Sawchuk, 57 ECAB 316 (2006). See 5 U.S.C. § 8101(2).

13

J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008). See Beverly R. Jones, 55 ECAB 411
n.14 (2004); Daniel Deparini, 44 ECAB 657 (1993); George A. Johnson, 43 ECAB 712 (1992).
14

Appellant’s attorney cites to Anneliese Ross, 42 ECAB 371 (1991), to support that an OPM determination is
sufficient to create a conflict in the medical evidence. However, Ross addresses, in part, the affect of a federal
court’s holding regarding whether an injury was sustained in the performance of duty. The Board held that
decisions of the federal courts, while instructive, were not binding on the Office or Board. Ross does not support
that a determination of an administrative body such as OPM may create a medical conflict pursuant to 5 U.S.C.
§ 8123(a). For there to be a medical conflict under section 8123(a), there must be a disagreement between the
physician making the examination for the Office and the physician of the employee. See also 20 C.F.R. § 10.321.

5

Appellant alleged that she was disabled beginning December 9, 2006 as a result of her
accepted employment injury. The medical evidence of record, however, does not establish that
her claimed disability was related to her accepted employment injuries. The Board finds that
appellant has not submitted sufficient medical evidence to establish her disability commencing
December 9, 2006 through September 28, 2007.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to wage-loss compensation for the period December 9, 2006 to September 28, 2007.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2008 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: July 8, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Lyons, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-728
Issued: February 13, 2012

Case Submitted on the Record

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

JURISDICTION
On January 31, 2001 appellant, through her attorney, filed a timely appeal from a
November 10, 2010 decision of the Office of Workers’ Compensation Programs (OWCP)
concerning a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 20 percent permanent impairment of the
left lower extremity, for which she received a schedule award.
On appeal, appellant’s counsel contends that further development of the medical evidence
is required and that OWCP erred in relying upon the opinion of an OWCP medical adviser in
reaching the schedule award determination. At a minimum, counsel contends there is a conflict

1

5 U.S.C. § 8101 et seq.

in the medical opinion evidence between appellant’s attending physician and the medical
adviser.
FACTUAL HISTORY
On November 9, 2000 appellant, then a 52-year-old nursing assistant, filed a traumatic
injury claim alleging that on October 16, 2000 she tore cartilage in her left knee when she stood
up and her left knee was hyperextended. OWCP accepted the claim for left knee medial
meniscus tear, which was expanded to include the condition of aggravation of preexisting left
knee osteoarthritis. On February 14, 2004 appellant filed a claim for a schedule award.
Appellant submitted a November 19, 2003 report from Dr. David Weiss, an osteopath,
who provided an impairment rating under the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 Dr. Weiss concluded
that she had a total 30 percent left lower extremity impairment using Table 17-8, page 532 and
Figure 18-1, page 574. He indicated that appellant reached maximum medical improvement on
November 19, 2003.
In a February 6, 2009 report, Dr. James W. Dyer, a Board-certified orthopedic surgeon
and an OWCP medical adviser, concluded that appellant had a two percent impairment of her left
lower extremity using the fifth edition of the A.M.A., Guides. Using Table 17-33, page 546, he
concluded that appellant had a two percent left lower extremity impairment due to her partial
meniscectomy.
By decision dated April 30, 2009, OWCP granted appellant a schedule award for a two
percent permanent impairment of the left lower extremity.
In a letter dated May 13, 2009, appellant’s counsel requested an oral hearing before an
OWCP hearing representative.
By decision dated August 14, 2009, an OWCP hearing representative vacated the
April 30, 2009 decision and remanded the case for OWCP to obtain x-ray interpretations as
appellant’s claim included the condition of arthritis.
In a March 9, 2010 report, Dr. Stephen C. Allen, a second opinion Board-certified
orthopedic surgeon, reviewed the medical evidence, a March 8, 2010 x-ray interpretation and
statement of accepted facts and provided physical findings. Diagnoses included left knee
post-traumatic arthrosis secondary to cartilage trauma and removal, left knee patellofemoral
arthrosis, pes planus, right shoulder impingement and ulnar nerve palsy. A review of a March 9,
2010 x-ray interpretation of the left knee revealed a 50 percent loss of lateral facet patellofemoral
joint space and medial joint space or 1.5 millimeter joint space loss. Using Table 16-3, page
511, Dr. Allen found a 25 percent left lower extremity impairment due to appellant’s primary
knee arthritis based on a class 2 to 3 and grade E to A. Next, he found a 13 percent left knee
impairment for patellofemoral arthritis based on a class 1 to 2 and grade E to A. Dr. Allen then

2

A.M.A., Guides (5th ed.).

2

combined the impairment ratings for appellant’s left knee primary arthritis and patellofemoral
arthritis to find a total 35 percent left lower extremity impairment.
In a March 19, 2010 report, Dr. Dyer, an OWCP medical adviser reviewed Dr. Allen’s
report and concluded that appellant only had a 20 percent left lower extremity impairment. He
related that Dr. Allen incorrectly combined impairment ratings for her primary knee arthritis and
her patellofemoral arthritis. Dr. Dyer noted that page 499 of the A.M.A., Guides provides that, if
more than one diagnosis in a region can be used, the one that provides the most clinically
accurate and causally-related impairment rating should be used. He opined that impairment
under the arthritis section yielded greater impairment and was appropriate. Dr. Dyer noted that,
using the section for arthritis in Table 16-3, page 511 of the A.M.A., Guides, the diagnosis of
primary left knee joint arthritis was a class 2 rating with a default score of 20 percent lower
extremity impairment based on a grade C for diagnosis of 2 millimeter cartilage interval and
modifiers of 2 for functional history, 2 for physical examination and 2 for clinical studies.
By decision dated March 25, 2010, OWCP granted appellant a schedule award for a 20
percent permanent impairment of the left lower extremity.
On April 22, 2010 appellant’s counsel requested an oral hearing, which was held before
an OWCP hearing representative on August 24, 2010
On September 17, 2010 OWCP received Dr. Weiss’ updated September 3, 2010 schedule
award report using the sixth edition of the A.M.A., Guides. Dr. Weiss found a 26 percent left
lower extremity impairment for appellant’s left knee joint arthritis using Table 16-3, page 511.
In reaching this determination, he determined that she had class 3 or 30 percent impairment.3
Dr. Weiss found a modifier of 1 for family history, a modifier of 2 for physical examination and
a modifier of 0 for clinical studies, which resulted in a net adjust of -2 and reduced the left lower
extremity impairment to 26 percent. Next, he concluded that there was a 20 percent left lower
extremity impairment due to a class 2 patellofemoral arthritis with a default value of 20 percent.
Dr. Weiss found a grade modifier of 2 for family history and a grade modifier of 2 for physical
examination resulting in a net adjustment of 0. He combined the impairment ratings of 26
percent for her left knee joint arthritis and 20 percent patellofemoral arthritis resulting in a total
41 percent left lower extremity impairment.
By decision dated November 10, 2010, an OWCP hearing representative affirmed the
March 25, 2010 schedule award decision. The hearing representative found Dr. Weiss’
impairment rating to be of diminished probative value as he combined impairment ratings for
appellant’s left knee arthritis condition which was contrary to the instructions found in the
A.M.A., Guides at 497.

3

The Board notes that, although Dr. Weiss indicated a class E for 30 percent impairment, it is clear he meant
class 3.

3

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.7
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the knee, the relevant portion of the leg for the present
case, reference is made to Table 16-3 (knee regional grid) beginning on page 509.8 After the
class of diagnosis (CDX) is determined from the knee regional grid (including identification of a
default grade value), the net adjustment formula is applied using the grade modifier for
Functional History (GMFH), grade modifier for Physical Examination (GMPE) and grade
modifier for Clinical Studies (GMCS). The net adjustment formula is GMFH - CDX + GMPE CDX + GMCS - CDX.9 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical
adviser providing rationale for the percentage of impairment specified.11

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. See C.M., Docket No. 09-1268 (issued January 22, 2010); Billy B. Scoles, 57 ECAB 258 (2005).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claim,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

See A.M.A., Guides 509-11 (6th ed. 2009).

9

Id. at 515-22.

10

Id. at 523-28.

11

See Federal (FECA) Procedure Manual, supra note 7, Chapter 2.808.6(d) (January 2010). See Frantz Ghassan,
57 ECAB 349 (2006); C.K., Docket No. 09-2371 (issued August 18, 2010).

4

ANALYSIS
The sixth edition of the A.M.A., Guides provides that lower extremity impairments be
classified by diagnosis which is then adjusted by grade modifiers according to the formula noted
above.12 Appellant’s accepted diagnosed conditions were left knee medial meniscus tear and
preexisting left knee osteoarthritis. The Board finds that this case is not in posture for decision.
The evidence relevant to the impairment rating for appellant’s left lower extremity
include reports from Drs. Allen, Weiss and Dyer, an OWCP medical adviser. Dr. Weiss,
appellant’s attending physician, combined the impairment ratings for left knee primary joint
arthritis impairment and left patellofemoral arthritis and concluded that appellant had a 41
percent left lower extremity impairment using Table 16-3, page 511. The A.M.A., Guides state
arthritis in two separate compartments of the same knee is not to be combined in an impairment
rating.13 The report by Dr. Weiss is of diminished probative value regarding the impairment
rating as the physician did not make it in conformance with the A.M.A., Guides as he combined
arthritis impairments for two parts of the knee whereas section 16.2a and 16.3f of the A.M.A.,
Guides precludes such use.14
Similarly, Dr. Allen, the second opinion physician, inappropriately combined the same
arthritis impairments. He concluded that appellant had a 35 percent left lower extremity
impairment using Table 16-3, page 511 to determine the impairment for her left knee primary
joint arthritis impairment and left patellofemoral arthritis and the combining of these
impairments. As in the case of Dr. Weiss, Dr. Allen’s report is also of diminished probative
value as his impairment rating resulted from combining arthritis impairments for the same two
parts of the knee precluded by sections 16.2a and 16.3f of the A.M.A., Guides.15 As OWCP
selected Dr. Allen to provide a second opinion regarding the extent and degree of any permanent
impairment, it was obliged to further develop the medical evidence. Proceedings under FECA
are not adversarial in nature and OWCP is not a disinterested arbiter.16 While appellant has the
burden to establish entitlement to compensation, OWCP shares responsibility in the development
of the evidence to see that justice is done.17 Accordingly, once OWCP undertakes to develop the
medical evidence further, it has the responsibility to do so in the proper manner.18 As it

12

Supra notes 9 and 10.

13

A.M.A., Guides 499.

14

Id. at 499, 529. See I.F., Docket No. 08-2321 (issued May 21, 2009) (an opinion which is not based upon the
standards adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of
diminished probative value in determining the extent of permanent impairment).
15

Supra note 13.

16

R.B., Docket No. 08-1662 (issued December 18, 2008); A.A., 59 ECAB 726 (2008); Donald R. Gervasi, 57
ECAB 281 (2005); Vanessa Young, 55 ECAB 575 (2004)
17

D.N., 59 ECAB 576 (2008); Richard E. Simpson, 55 ECAB 490 (2004).

18

See A.A., supra note 16; Melvin James, 55 ECAB 406 (2004).

5

undertook development of the medical evidence by referring appellant to Dr. Allen, it had an
obligation to secure a report adequately addressing the relevant issue.19
With respect to the impairment determination for primary joint arthritis, Dr. Dyer utilized
the findings provided by Dr. Allen. He noted that x-rays of the left knee revealed a
1.5 millimeter cartilage interval for primary joint arthritis. Dr. Dyer referred to Table 16-3, page
511 and advised that appellant would fall into a class 2 for a 1.5 millimeter full thickness
cartilage defect and applied a grade C, the default value for 20 percent impairment. However,
the Board finds that it is unclear how Dr. Dyer arrived at this determination. The Board notes
that Table 16-3, page 511 of the A.M.A., Guides provides that primary knee arthritis with a
two millimeter cartilage interval is a class 2 and that a one millimeter cartilage interval is a
class 3. Dr. Dyer did not explain why he chose a class 2 when x-ray interpretation revealed a
cartilage value between class 2 and class 3. His report is therefore of limited probative value.
The Board finds that there is no rating of record currently in conformance with the
A.M.A., Guides. The case shall be remanded to OWCP for a supplemental opinion from
Dr. Allen, instructing him that the A.M.A., Guides state that arthritis in two separate
compartments of the same knee is not to be combined in an impairment rating. If Dr. Allen is
unwilling or unable to clarify and elaborate on his opinion, the case should be referred to another
appropriate specialist. After such further development as OWCP deems necessary, it shall issue
a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

19

Id.; see also Peter C. Belkind, 56 ECAB 580 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT decision of the Office of Workers’ Compensation
Programs dated November 10, 2010 is set aside and the case remanded for further proceedings
consistent with the above opinion.
Issued: February 13, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hollywood, FL, Employer
__________________________________________

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Appearances:
Stanley M. Rosenberg, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1427
Issued: April 9, 2009

Case Submitted on the Record

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

JURISDICTION
On April 15, 2008 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decisions dated April 27 and September 11, 2007 and
nonmerit decisions dated December 27, 2007 and March 28, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective May 8, 2006; and (2) whether appellant had any continuing
disability on or after May 8, 2006 causally related to her accepted employment injury; and
(3) whether the Office properly refused to reopen appellant’s case for further consideration of the
merits pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On September 11, 2004 appellant, then a 43-year-old letter carrier, filed a traumatic
injury claim alleging that she was injured in a motor vehicle accident on that date. The Office
accepted her claim for neck strain and right shoulder strain.
Appellant’s attending physician, Dr. Neil A. Beinhaker, a Board-certified orthopedic
surgeon, supported her partial disability for work due to restriction of cervical motion. The
Office referred appellant for a second opinion evaluation with Dr. David B. Lotman, a Boardcertified orthopedic surgeon, on July 15, 2005. In a report dated August 3, 2005, Dr. Lotman
reviewed the statement of accepted facts, the medical history and performed a physical
examination. He found that appellant had normal cervical lordosis with normal strength and
sensation. Dr. Lotman diagnosed cervical strain resolved and right shoulder strain resolved. He
noted that appellant had no objective findings on examination and no objective evidence of
residuals.
In a note dated July 26, 2005, Dr. Beinhaker stated that appellant’s examination still
revealed spasm and restriction of motion.
The Office found a conflict of medical opinion evidence and referred appellant, a
statement of accepted facts and a list of questions, to Dr. Alan S. Routman, a Board-certified
orthopedic surgeon, for an impartial medical evaluation. In a report dated October 10, 2005,
Dr. Routman described appellant’s employment injury and medical treatment. On physical
examination, he found no spasm in the paracervical musculature, inconsistent effort in range of
motion testing and normal shoulder range of motion with no impingement syndrome or rotator
cuff tendinitis. Dr. Routman stated that appellant had no objective findings to establish an
ongoing injury. He noted that appellant’s behavior during the examination was inconsistent with
her objective clinical findings and raised the possibility of symptom magnification. Dr. Routman
stated that appellant had no work-related disability and was capable of performing the duties of
her date-of-injury position.
Dr. Beinhaker supported appellant’s continued medical residuals and disability for work
due to spasm with limitation of cervical motion through a series of notes.
The Office proposed to terminate appellant’s compensation benefits in a letter dated
March 28, 2006, finding that Dr. Routman’s report was entitled to the weight of the medical
evidence. Appellant submitted additional treatment notes from Dr. Beinhaker dated February
through April 2006 stating that she experienced neck pain and stiffness with restriction of range
of motion.
By decision dated May 11, 2006, the Office terminated appellant’s claim for medical and
wage-loss benefits effective May 8, 2006.
Appellant requested an oral hearing on May 16, 2006. She submitted additional notes
from Dr. Beinhaker. In a note dated March 15, 2007, Dr. Lisa I. Banchik, a neurologist, noted
that appellant reported neck and right shoulder pain since her employment injury. She diagnosed
cervical radiculitis, bilateral carpal tunnel syndrome and internal derangement of the right

2

shoulder. Dr. Banchik stated that appellant had a markedly abnormal magnetic resonance
imaging (MRI) scan of the right shoulder with evidence supraspinitis tendon tendinitis as well as
bilateral carpal tunnel syndrome due to her employment.
By decision dated April 27, 2007, the hearing representative affirmed the May 11, 2006
termination decision.
Appellant requested reconsideration on June 13, 2007. On May 21, 2007 Dr. Banchik
stated that appellant’s work-related motor vehicle accident caused her right shoulder injury. She
reviewed appellant’s February 28, 2007 right shoulder MRI scan and advised that her findings
were indicative of a chronic injury to her right shoulder. Appellant’s March 2, 2007
electromyogram (EMG) scan also revealed evidence of chronic denervation in her right abductor
pollicis brevis muscle indicative of right C5-6 radiculpathy. Dr. Banchik opined that appellant’s
injuries were a direct result of her employment injury.
By decision dated September 11, 2007, the Office denied modification of the May 11,
2006 termination decision. It found that Dr. Bankchik’s report was not based on an accurate
history of injury.
In a report dated August 19, 2007, Dr. Banchik stated that appellant’s previous testing did
not include a shoulder MRI scan and that she believed that her current shoulder conditions were
due to her employment injury. She reviewed the medical records and again stated that her
diagnostic testing was consistent with an old neck injury and indicative of a chronic right
shoulder injury resulting from the September 11, 2004 employment injury. Dr. Banchik stated,
“I feel these injuries are a direct result of [appellant’s] work-related motor vehicle accident ….”
Appellant requested reconsideration on September 25, 2007.
By decision dated December 27, 2007, the Office declined to reopen appellant’s claim for
reconsideration of the merits. It found that Dr. Banchik’s report was repetitious.
Appellant requested reconsideration on March 10, 2008 by checking a box on an appeals
right form. By decision dated March 28, 2008, the Office declined to reopen appellant’s claim
for consideration of the merits.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.2
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.3 The
1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

5 U.S.C. §§ 8101-8193, 8123.

3

implementing regulations states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician of an Office
medical adviser or consultant, it shall appoint a third physician to make an examination. This is
called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has had no prior connection with the case.4
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.5
ANALYSIS -- ISSUE 1
Appellant’s attending physician, Dr. Beinhaker, a Board-certified orthopedic surgeon,
examined appellant following her September 11, 2004 employment-related motor vehicle
accident. He supported appellant’s partial disability for work and described medical residuals
consisting of a restricted range of motion in her cervical spine and cervical spasm. The Office
referred appellant for a second opinion evaluation with Dr. Lotman, a Board-certified orthopedic
surgeon. Dr. Lotman found that appellant had no medical residuals or continuing disability due
to her employment injury. Due to this conflict of medical opinion evidence regarding the nature
and extent of appellant’s medical condition and resulting disability, the Office properly referred
her for an impartial medical examination with Dr. Routman, a Board-certified orthopedic
surgeon.
In an October 10, 2005 report, Dr. Routman found no objective findings on physical
examination as well as inconsistent effort on range of motion testing. Based on this examination,
he concluded that appellant had no work-related disability and was capable of performing the
duties of date-of-injury position. Dr. Routman’s report is based on a proper history of injury and
contains the necessary medical reasoning explaining why he believed that appellant’s conditions
had ceased with no medical residuals or disability. He explained that there were no objective
findings to support appellant’s claims for continued disability and residuals. The Board finds
that this well-reasoned report is entitled to the special weight of the medical evidence and is
sufficient to meet the Office’s burden of proof to terminate appellant’s compensation benefits.
Appellant submitted a report dated March 15, 2007 from Dr. Banchik, a neurologist,
diagnosing cervical radiculitis, bilateral carpal tunnel syndrome and internal derangement of the
right shoulder. Dr. Banchik opined that these conditions were due to appellant’s employment.
This report is not sufficient to overcome the weight of Dr. Routman’s report as Dr. Banchik did
not provide a detailed history of injury including the September 11, 2004 motor vehicle accident
and did not offer any medical reasoning in support of her opinion that appellant’s current
conditions were due to her employment.
Appellant also submitted notes from Dr. Beinhaker through March 30, 2006. These notes
contained only the limited findings of restricted cervical range of motion and intermittent
4

20 C.F.R. § 10.321.

5

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

4

cervical spasm. Dr. Beinhaker did not provide any detailed medical reports containing a history
of injury, detailed physical findings and an opinion on the causal relationship between
appellant’s continuing condition and her employment these notes are not sufficient to establish
continuing residuals or disability. Further, as he was on one side of the conflict that
Dr. Routman resolved, the additional report from Dr. Beinhaker is insufficient to overcome the
weight accorded Dr. Routman as the impartial medical examiner or to create a new conflict.6
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to appellant to establish that she had disability causally related to her accepted
employment injury.7 To establish a causal relationship between the condition, as well as any
disability claimed and the employment injury, the employee must submit rationalized medical
opinion evidence based on a complete factual background, supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.8
ANALYSIS -- ISSUE 2
Following the May 11, 2006 and April 27, 2007 decisions of the Office, appellant
submitted a May 21, 2007 report from Dr. Banchik, who noted appellant’s accepted employment
incident of September 11, 2004 and stated that the motor vehicle accident caused both her right
shoulder injury and cervical radiculopathy. Dr. Banchik reviewed electrodiagnostic studies from
2007 and stated that these studies provided evidence of chronic injury in the shoulder and
chronic C5-6 radiculopathy which were consistent with the September 11, 2004 employment
injury. While this report provides a history of injury as well as an opinion on the causal
relationship between appellant’s current condition and her employment injury, the report does
not contain sufficient medical reasoning explaining how and why appellant would have such
conditions without corresponding findings on physical examination. This report is therefore not
sufficient to meet appellant’s burden of proof and the Office properly denied her claim for
continuing disability.

6

Jaja K Asaramo, 55 ECAB 200, 205 (2004).

7

George Servetas, 43 ECAB 424, 430 (1992).

8

James Mack, 43 ECAB 321 (1991).

5

LEGAL PRECEDENT -- ISSUE 3
To require the Office to reopen a case for merit review under section 8128(a) of the Act,9
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.10 When a claimant fails to meet
one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.11
ANALYSIS -- ISSUE 3
Appellant requested reconsideration on September 25, 2007 and submitted a report from
Dr. Banchik dated August 19, 2007. Dr. Banchik again opined that appellant’s current condition
as demonstrated by electrodiagnostic studies were causally related to her accepted employment
injury. This report is repetitious of the May 21, 2007 report reviewed by the Office.
Dr. Banchik did not provide any additional medical findings, opinions or reasoning. As this
report does not constitute relevant and pertinent new evidence, the Office properly declined to
reopen appellant’s claim for consideration of the merits on December 27, 2007.
Appellant again requested reconsideration on March 10, 2008, but failed to submit any
evidence or argument in support of her request. As she did not attempt to comply with the
requirements of the Office’s regulations, it properly denied her request by decision dated
March 28, 2008.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits. The Board further finds that appellant failed to submit the necessary
rationalized medical opinion evidence to establish continuing disability on or after May 8, 2006.
Finally, the Board finds that the Office properly declined to reopen appellant’s claim for
consideration of the merits on December 27, 2007 and March 28, 2008

9

5 U.S.C. §§ 8101-8193, § 8128(a).

10

20 C.F.R. § 10.606(b)(2).

11

20 C.F.R. § 10.608(b).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 28, 2008, December 27, September 11 and April 27, 2007
are affirmed.
Issued: April 9, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rossville, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0655
Issued: May 7, 2018

Case Submitted on the Record

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

JURISDICTION
On January 31, 2017 appellant filed a timely appeal from a January 9, 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 the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish compensation for
medical treatment or that she was disabled for the period May 10 through 12, 2016 due to her
accepted employment injury.

1

5 U.S.C. § 8101 et seq.

2
The record provided the Board includes evidence received after OWCP issued its January 9, 2017 decision. The
Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board
is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 9, 2015 appellant, then a 47-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging a left shoulder condition. She indicated that she became aware
of her left shoulder condition as of June 1, 2014 and first realized that it was caused or aggravated
by her employment duties on July 30, 2015. Appellant was working in a limited-duty capacity
due to a right hand/wrist injury on January 2, 2014.3 She stopped work on February 7, 2015 and
underwent left shoulder surgery on February 9, 2015. Appellant returned to work part time on
May 4, 2015 and resumed full-time duties later on July 15, 2015. On November 25, 2015 OWCP
accepted the claim for adhesive capsulitis of left shoulder and left rotator cuff tear. In
December 2015, appellant transferred from the employing establishment in Georgia to Utah and
began work as a data conversion specialist.4
On May 16, 2016 OWCP received appellant’s Form CA-7 requesting wage-loss
compensation for May 10, 11, and 12, 2016. The accompanying time analysis form (Form CA-7a)
indicated that appellant took eight hours leave without pay on May 10, 2016 for a magnetic
resonance imaging (MRI) scan with anesthesia, on May 11, 2016 for physician appointment to
discuss MRI scan results, and eight hours of leave without pay on May 12, 2016 awaiting clearance
to return to work.
In a May 19, 2016 development letter, OWCP advised appellant that the necessary medical
documentation pertaining to the dates claimed due to lost time from work to attend a medical
appointment or therapy session had not been received. It requested that she submit a medical note
or therapy slip verifying treatment on May 10, 2016 due to the work-related injury. OWCP noted
that the medical care appellant received on May 11, 2016 was after her scheduled work hours of
7:30 a.m. to 4:00 p.m., and indicated that claims for medical appointments outside of work hours
were not compensable. It requested supporting documentation from appellant’s physician which
verified the time of her May 11, 2016 appointment. OWCP also noted that there was no medical
evidence that appellant was found incapable of working on May 12, 2016. It requested a
comprehensive narrative report from appellant’s physician which provided a well-rationalized
opinion as to how and why she was incapable of working on May 12, 2016. Appellant was
afforded 30 days for a response.
On May 23, 2016 OWCP received a progress note from Dr. Amy P. Powell, an internist
specializing in sports medicine, dated May 12, 2016. In this report Dr. Powell related that
appellant was seen on May 11, 2016 in follow up of left shoulder pain after a left shoulder MRI
scan was completed. She noted an impression of left shoulder proximal biceps tendinopathy after
a work-related injury back in 2014. Intra-articular injections into the biceps were recommended
along with physical therapy. The report was dictated at 5:55 p.m. on May 11, 2016.

3

Under OWCP File No. xxxxxx974, it accepted that the October 2, 2013 injury, resulted in closed fracture of
middle or proximal phalanx or phalanges right, and right carpal tunnel syndrome. These cases have been combined,
with the OWCP File No. xxxxxx857 serving as the master file.
4
On April 1, 2016 OWCP received a Form CA-7 requesting wage-loss compensation from February 7 through
April 17, 2015.

2

By decision also dated July 11, 2016, OWCP denied appellant’s claim for compensation
for the period May 10 through 12, 2016. It found that the medical evidence submitted did not
establish that she was disabled as a result of her accepted work-related medical conditions.
On August 15, 2016 OWCP received appellant’s August 5, 2016 request for review of the
written record by a representative of OWCP’s Branch of Hearings and Review. The request was
postmarked August 8, 2016.
By decision dated January 9, 2017, an OWCP hearing representative affirmed the July 11,
2016 OWCP decision denying disability compensation for the period May 10 through 12, 2016 as
there was no medical evidence of record establishing disability.5
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.6 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in a loss of wage-earning
capacity.7
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.8 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled from work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurt too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of disability
or a basis for payment of compensation.9 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 selfcertify their disability and entitlement to compensation.10

5
However, the hearing representative set aside the July 11, 2016 decision pertaining to wage loss due to an
arthroscopy for the period February 7 through April 17, 2015 and remanded the case to OWCP for further development
and issuance of a de novo decision of whether the February 9, 2015 surgery and resultant disability were related to the
accepted left shoulder rotator cuff tear and adhesive capsulitis. This period of disability is therefore not before the
Board as it is in an interlocutory posture. See 20 C.F.R. § 501.2(c)(2).
6

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

7

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no
loss of wage-earning capacity).
8

See Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Id.

10

Id.

3

With respect to claimed disability for medical treatment, section 8103 of FECA provides
for medical expenses, along with transportation and other expenses incidental to securing medical
care, for injuries.11 Appellant would be entitled to compensation for any time missed from work
due to medical examination or treatment for an employment-related condition.12 However,
OWCP’s obligation to pay for expenses incidental to obtaining medical care, such as loss of wages,
extends only to expenses incurred for treatment of the effects of any employment-related
condition. Appellant has the burden of proof, which includes the necessity to submit supporting
rationalized medical evidence.13 As a rule, no more than four hours of compensation or
continuation of pay should be allowed for routine medical appointments. Longer periods of time
may be allowed when required by the nature of the medical procedure and/or the need to travel a
substantial distance to obtain the medical care.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish compensation
for medical treatment or that she was disabled for the period May 10 through 12, 2016 due to her
accepted employment injury.
The record reflects that appellant saw Dr. Powell on May 11, 2016 to review the results of
a left shoulder MRI scan.15 The date of the particular MRI scan reviewed on May 11, 2016 was
not mentioned. Dr. Powell related an impression of left shoulder proximal biceps tendinopathy
and the report was dictated at 5:55 p.m. and transcribed the following day. OWCP requested
supporting documentation that the May 11, 2016 appointment was during appellant’s scheduled
work hours, however, no documentation was received. Appellant has therefore not established
that she was disabled from work on May 11, 2016 due to this medical appointment. Accordingly,
she is not entitled to compensation for the May 11, 2016 medical appointment.
Appellant also claimed eight hours of compensation on May 10, 2016 to obtain medical
treatment for MRI scan -- anesthesia and eight hours on May 12, 2016 while “awaiting clearance
to return to work.” Although it appears that she underwent the MRI scan on May 10, 2016
beginning at 12:35 p.m. and ending at 1:30 p.m., there is no opinion of record from a physician
establishing that appellant was disabled as a result of her accepted employment injuries on those
dates. Dr. Powell’s May 11, 2016 report does not address disability from work on any of the dates
in question. 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

11

5 U.S.C. § 8103(a).

12
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment,
Chapter 2.901.19a (February 2013). See also Vincent E. Washington, 40 ECAB 1242 (1989).
13

G.B., Docket No. 16-0515 (issued September 14, 2016); Dorothy J. Bell, 47 ECAB 624 (1996); Zane H. Cassell,
32 ECAB 1537 (1981).
14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
15

Id. (no more than four hours of compensation or continuation of pay is allowed for routine medical appointments).

4

is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.16
Appellant therefore has not established that she was entitled to wage-loss compensation
from May 10 to 12, 2016 due to her accepted June 1, 2014 employment injury.
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 compensation
for medical treatment or that she was disabled for the period May 10 through 12, 2016 due to her
accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated January 9, 2017 is affirmed.
Issued: May 7, 2018
Washington, DC

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

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

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

16

L.L., Docket No. 15-1489 (issued December 18, 2015); William A. Archer, 55 ECAB 674 (2004).

5