United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF THE ARMY,
DIRECTORATE OF PUBLIC WORKS,
Fort Buchanan, Puerto Rico, Employer
__________________________________________

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

Docket No. 12-1206
Issued: October 25, 2012

Case Submitted on the Record

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

JURISDICTION
On May 9, 2012 appellant filed a timely appeal from the March 30, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying appellant’s emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On January 21, 2011 appellant, then a 42-year-old electrician, filed an occupational
disease claim alleging that he sustained an emotional condition due to various incidents and
1

5 U.S.C. §§ 8101-8193.

conditions at work. In a February 4, 2011 statement, he claimed that in April 2009 photographs
were taken of his work vehicle in a location where he was not actually present and he asserted
that he was wrongly suspended from work for 30 days in connection with this matter. Appellant
alleged that on September 27, 2010 Juan Carlos Garcia, a supervisor, saw him in front of
Building 504 and made a call on his cell phone. He received a call from Felix Colon, a
supervisor, who asked him what he was doing in front of that building and told him to “stop
looking for trouble.”
In a January 25, 2011 report, Dr. William Julio, an attending Board-certified psychiatrist,
indicated that he had treated appellant since October 2010 for psychosis and mood disorder.
In a February 8, 2011 letter, OWCP requested that appellant submit additional factual and
medical information in support of his claim.
In a February 9, 2011 statement, Mr. Colon indicated that he was aware that appellant
was upset about the matter in April 2009 regarding the possible use of his vehicle for nonwork
purposes, but stated that he was not involved in this matter in a supervisory capacity. He noted
that appellant was placed on absent without leave status because he did not have sick leave and
he failed to submit medical documentation justifying his absence.
In an undated statement, appellant asserted that management treated him in a negligent,
irresponsible and hostile manner, discriminated against him because he was Dominican and
failed to complete the appropriate forms for his OWCP claims. In a March 8, 2011 statement, he
again charged that management did not have sufficient reason in April 2009 to claim that he used
his work vehicle for personal purposes when it presented pictures of his alleged work vehicle at a
bowling alley on base. Appellant submitted additional medical evidence, including reports of
Dr. Julio.
The record contains an October 4, 2010 letter in which the employing establishment
advised appellant that he was barred from the premises for 30 days for making life-threatening
remarks to the employing establishment personnel.
In a July 27, 2011 decision, OWCP denied appellant’s claim on the grounds that he did
not establish any compensable work factors. It found that appellant did not show error or abuse
with respect to administrative matters and that he did not establish harassment or discrimination.
Appellant submitted an August 18, 2011 witness statement from Teodoro Quiñones, a
former coworker, which indicated that appellant was injured in 2007 and sustained a laceration.
Mr. Quiñones noted that when appellant told Manuel Ayala about the injury he stated that the
injury was “nothing” and that he should continue to work. Mr. Ayala filled out paperwork for
the injury, but he did so in an incomplete manner. Mr. Quiñones asserted that the paperwork still
had not been completed.2

2

In an undated statement, appellant claimed that he sustained a work injury on June 8, 2007 for which
management failed to complete the proper paperwork.

2

In an August 18, 2011 statement, Jose Gabino, a coworker, asserted that Mr. Garcia
advised him to not hang around with appellant because he had legal problems with a coworker
and that, on several occasions, Mr. Garcia questioned why he was talking to appellant at work.
He indicated that he did not believe accusations made by Mr. Garcia and Maria Lopez, the
Division Chief, that appellant misused his work vehicle and asserted that the actions of
Mr. Garcia and Ms. Lopez “were racist and discriminating towards [appellant].”3
Appellant requested a telephonic hearing before with an OWCP hearing representative.
He asked that Mr. Gabino and Mr. Quiñones be subpoenaed to appear at the hearing and testify.
In a November 10, 2011 letter, OWCP indicated that subpoenas were not necessary as testimony
could be obtained through other means.
At the hearing held on January 10, 2012, appellant testified that in 2007 he injured
himself at work when a lamp fell on his head, but management did not fill out the correct forms
and he had to use his own personal and sick time because his supervisor did not want him to take
time off. He alleged that management discriminated against him because he was Dominican and
black and asserted that management falsely accused him of not working when it presented
alleged pictures of his work vehicle at a bowling alley. Appellant testified that six people were
given cash awards after there was a hurricane in Puerto Rico, but that he discovered that the
other people received $100.00 or $200.00 more than him. When he questioned a superior about
this matter, he was told he was insubordinate.
Appellant stated that, every time he went into the office, Mr. Garcia would look at him in
a “wrong way” because he was not blond and blue-eyed. He claimed that he was told not to
come to the office because Mr. Garcia did not like his presence. Appellant indicated that he had
not been able to return to work since the September 27, 2010 incident and noted that his
psychiatrist advised him not to return because he had been discriminated against and mistreated.
He stated that “there might even be a massacre” if he returned to work. Appellant further
discussed the September 27, 2010 incident, noting that he met with Mr. Garcia and experienced
anxiety and a lot of anger due to having been persecuted by management on numerous prior
occasions.
After the hearing, a December 18, 2011 statement was submitted in which Mr. Gabino
asserted that appellant’s supervisors, including Mr. Ayala, discriminated against him.4
In a March 30, 2012 decision, the hearing representative affirmed OWCP’s July 27, 2011
decision. She indicated that the submitted statements lacked probative value and did not show
error or abuse in administrative matters or the commission of harassment or discrimination.

3

In a December 9, 2010 statement, Mr. Gabino asserted that in 2005 Mr. Garcia told him that he should be
careful about associating with appellant because he had filed a grievance. He claimed that in 2007 Ms. Lopez told
him that appellant should not visit him at his desk during lunchtime because appellant was a contractor. Mr. Gabino
felt that Ms. Lopez “was racial and bias” [sic] against appellant.
4

On January 31, 2012 the employing establishment advised appellant that it proposed to terminate him for
staying off work without justification and for making life-threatening remarks about personnel at Fort Buchanan in
October 2010 and January 2012.

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LEGAL PRECEDENT
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 the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.5 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a
reduction-in-force or his frustration from not being permitted to work in a particular environment
or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.7 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.8
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.9
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of his regular duties, these could constitute employment factors.10
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.11
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.12 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
5

Lillian Cutler, 28 ECAB 125 (1976).

6

Gregorio E. Conde, 52 ECAB 410 (2001).

7

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
8

William H. Fortner, 49 ECAB 324 (1998).

9

Ruth S. Johnson, 46 ECAB 237 (1994).

10

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

11

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

12

Pamela R. Rice, 38 ECAB 838, 841 (1987).

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affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.13
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.14 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.15 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical opinion evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on whether there is a causal relationship between the claimant’s diagnosed
condition and the compensable employment factors.16
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions at work. OWCP denied his emotional condition claim on
the grounds that he did not establish any compensable employment factors. The Board must,
thus, initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of FECA. The Board notes that appellant’s allegations do
not pertain to his regular or specially assigned duties under Cutler.17 Rather, appellant has
alleged error and abuse in administrative matters and harassment and discrimination on the part
of his supervisors and managers.
Appellant claimed that management committed wrongdoing with respect to various
administrative matters, including improperly disciplining him, unfairly handling leave matters
and inequitably distributing bonus awards. He did not submit any evidence to show that
management committed error or abuse when handling leave matters or distributing bonus
awards. Appellant submitted a witness statement in which a coworker asserted that Mr. Ayala, a
supervisor, minimized the severity of appellant’s 2007 work injury and did not file complete
paperwork for it, but this witness did not clearly identify the basis for these assertions and the
record contains no probative evidence, such a grievance finding, showing that appellant’s claim
was mishandled. He claimed that in 2009 he was unfairly accused of misusing a work vehicle as
13

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

14

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

15

Id.

16

Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

17

See Cutler, supra note 5.

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a result of photographs being taken of his alleged work vehicle at the bowling alley on base.
However, there is no evidence that appellant was issued a reprimand or suspension or that any
disciplinary action was taken as a result of any matter relating to the use of his work vehicle.
Rather, the employing establishment’s October 4, 2010 letter clearly stated that he was barred
from the work premises for 30 days due to threats he made against personnel working at Fort
Buchanan. Appellant has not shown that the employing establishment acted improperly with
respect to any investigation into the use of his work vehicle. For these reasons, he has not
established any compensable work factors with respect to administrative or personnel matters.
Appellant alleged that he was subjected to harassment and discrimination by supervisors
and managers on the basis of race and national origin. In the present case, the employing
establishment denied that he was subjected to harassment or discrimination and he has not
submitted sufficient evidence to establish that he was harassed or discriminated against by his
supervisors or managers.18 Appellant provided no corroborating evidence, such as witness
statements or the results of grievances, to establish that he was subjected to harassment or
discrimination.19 His claims of harassment and discrimination were brief and vague in nature.
Appellant submitted statements in which coworkers asserted that he was treated in a
discriminatory manner, but these statements did not describe specific instances of harassment or
discrimination committed against appellant. A witness indicated that, two managers, Mr. Garcia
and Ms. Lopez, suggested that he not associate with appellant, but this statement does not
establish any direct harassment or discrimination committed against appellant.20 Therefore,
appellant has not established a compensable employment factor under FECA with respect to the
claimed harassment and discrimination.21
For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.22 As appellant has not established
any compensable employment factors, the Board need not consider the medical evidence of
record.
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.
18

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
19

See William P. George, 43 ECAB 1159, 1167 (1992). Appellant claimed that on September 27, 2010
Mr. Colon, a supervisor, asked him what he was doing at Building 504 and told him “to stop looking for trouble.”
He did not submit any evidence to support this assertion. Appellant also suggested that Mr. Garcia harassed him on
this date, but he did not show that Mr. Garcia’s interaction with him constituted harassment.
20

Moreover, even if these alleged statements were established as being made by Mr. Garcia or Ms. Lopez, the
witness did not establish an improper intent in making them.
21

On appeal, appellant claimed that OWCP made errors regarding the names of some of his supervisors and
coworkers. He did not explain how any such errors related to his failure to establish compensable work factors.
22

See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2012
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
V.S., Appellant
and
U.S. HOUSE OF REPRESENTATIVES,
Washington, DC, Employer
__________________________________________

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

Docket No. 19-1370
Issued: November 30, 2020

Case Submitted on the Record

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

JURISDICTION
On June 10, 2019 appellant filed a timely appeal from December 18, 2018 and April 19,
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 this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 19, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include additional conditions as causally related to her accepted
December 1, 2005 employment injury.
FACTUAL HISTORY
On December 9, 2005 appellant, then a 48-year-old photographer, filed a traumatic injury
claim (Form CA-1) alleging that she sustained an injury on December 1, 2005 when moving boxes
while cleaning out storage rooms in the performance of duty. By decision dated March 15, 2006,
OWCP accepted the claim for the conditions of cervical spondylosis with myelopathy and
traumatic spondylopathy. It paid appellant wage-loss compensation on the periodic rolls effective
May 14, 2006.3
In a series of reports dated April 16, 2008 through November 9, 2018, Dr. Zinon M.
Pappas, a Board certified physiatrist, diagnosed lumbar radiculopathy, causing left leg weakness,
foot drop, knee instability, and lumber disc herniation.4 In a report dated July 20, 2009, he
reiterated that appellant had bilateral lumbar radiculopathy with severe weakness in the left leg
and a complete foot drop in the left leg requiring an ankle foot orthosis. Dr. Pappas subsequently
diagnosed the additional conditions of lumbar disc prolapse with radiculopathy, degeneration of
lumbar or lumbosacral intervertebral disc, cervicalgia, cervical radiculopathy, lumbar spondylosis,
displacement of lumbar intervertebral disc without myelopathy, thoracic or lumbosacral neuritis
or radiculitis, brachial neuritis or radiculitis, osteoarthritis of knee, localized and primary
osteoarthrosis in the lower leg, obesity, and persistent insomnia.
In reports dated August 15, 2014 and July 5, 2016, Dr. Pappas noted his treatment of
appellant since February 2006.5 He reiterated that she was injured at work in December 2005 after
lifting heavy boxes, which resulted in immediate pain in her neck and the pain radiated down the
left upper extremity. Dr. Pappas indicated that appellant subsequently developed persistent
numbness and tingling in the left arm, increasingly severe lower back pain, pain radiating to both
legs, and “drop foot” bilaterally. He indicated that this weakness had persisted and she needed to
wear an ankle/foot orthosis to prevent her from having frequent falls because of her drop foot.
Appellant also developed two meniscal tears in her right knee and required arthroscopic surgery
in the summer of 2010 for her right knee. Dr. Pappas noted that, in the spring of 2013, her lumbar
3

On February 1, 2007 Dr. Willie E. Thompson, a Board certified orthopedic surgeon serving as a district medical
adviser (DMA), opined that there was no pathology at the C4-5 level that would require the need for any type of
surgical procedure. Appellant subsequently underwent an unauthorized anterior cervical spine fusion on
March 13, 2007.
4

A magnetic resonance imaging (MRI) scan of the lumbar spine dated July 17, 2008 demonstrated a mild disc
bulge at L2-3, L3-4, and L4-5. At L4-5, it favored the left side with a slight impression on the left side of the thecal
sac.
5

A cervical spine MRI scan dated April 23, 2014 showed a slight interval progression of a concentric disc bulge
with mild-to-moderate narrowing of the right neural foramen and mild narrowing of the left neural foramen. A lumbar
spine MRI scan dated August 25, 2014 revealed bilateral L4-5 facet arthropathy and a broad-based protrusion posterior
on the left contributing to the left greater than the right L4-5 foraminal stenosis.

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radicular pain was getting quite severe and debilitating and she underwent a series of three lumbar
epidural corticosteroid injections noting mild improvement. He opined that appellant was totally
disabled for work.
In a September 30, 2014 report, Dr. Jocelyn Idema, a Board certified orthopedic surgeon,
diagnosed degeneration of the intervertebral disc, lumbar spondylosis, lumbar radiculopathy, and
displacement of lumbar intervertebral disc without myelopathy.
On September 10, 2018 OWCP referred appellant to Dr. Robert F. Draper, a Board
certified orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of
her employment-related conditions. In his October 18, 2018 report, Dr. Draper noted his review
of the medical history and the SOAF and reported examination findings which included her
emotional presentation and crying. He noted that appellant exhibited exaggerated loss of range of
motion in her lower extremities, but with circumferential sensory deficits in both lower extremities
from the knees to toes. Appellant was noted to have left the examination with orthotic devices on
her lower extremities and left upper extremity, and she ambulated with assistance of a walker.
Dr. Draper diagnosed cervical spondylosis and low back pain syndrome. He determined that
appellant’s bilateral foot drop condition was not fully clinically explained by the MRI scan
findings of record. Dr. Draper opined that the accepted cervical spine injury would not have
caused her to have low back pain, a foot drop condition, and neurological deficits to the extent that
she claimed in the lower extremities. He explained that, although appellant’s cervical conditions
were related to the accepted employment injury, her lumbar spine issues could not be related to
the December 1, 2005 work injury because the records showed that she had injured her neck and
not her back initially and her lower back complaints did not start until 2008. Dr. Draper
determined that appellant had reached maximum medical improvement (MMI) and opined that she
was totally disabled for work solely due to her accepted cervical spine conditions due to the
December 1, 2005 employment injury.
By decision dated December 18, 2018, OWCP denied appellant’s claim finding that
Dr. Draper’s October 18, 2018 second opinion report was well rationalized and supported a finding
that the claim should not be expanded to include additional conditions.
On January 24, 2019 appellant requested reconsideration.
In support of her request, she submitted a February 8, 2019 report from Dr. Pappas who
reiterated his diagnoses and indicated that she continued to have severe back pain radiating down
both legs, as well as pain in her neck radiating to the left upper extremity. Appellant also submitted
a March 27, 2019 report from Dr. Surmeet Chhina, a Board certified anesthesiologist, who
diagnosed lumbar radiculitis, chronic pain syndrome, and cervical post laminectomy syndrome.
Dr. Chhina indicated that appellant’s chief complaint was chronic pain, involving the L4-5 disc,
which had resulted from an injury at work on December 1, 2005 and noted that this was a
degenerative condition that had been present for years.
By decision dated April 19, 2019, OWCP denied modification of the December 18, 2018
decision.

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LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
To establish causal relationship between the condition as well as any additional conditions
claimed and the employment injury, an employee must submit rationalized medical evidence.7
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
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional conditions as causally related to
her accepted December 1, 2005 employment injury.
In support of her claim, appellant submitted a series of reports by Dr. Pappas who indicated
that he had been treating her since February 2006. Dr. Pappas diagnosed several lumbar spine
conditions. Although he opined that appellant’s conditions were a direct result of the December 1,
2005 employment injury, his reports do not contain rationale explaining how or why additional
lumbar conditions had developed approximately three years after the workplace injury. The Board
has held that a medical opinion must provide an explanation as to how the accepted employment
injury had physiologically caused or aggravated the additional diagnosed medical conditions.9
While the opinion supporting causal relationship does not have to reduce the cause or etiology of
a disease or a condition to an absolute certainty, the opinion must be one of reasonable medical
certainty and not speculative or equivocal in character.10 As Dr. Pappas’s opinions regarding
causal relationship between the accepted injury and the additional claimed conditions were
conclusory and unrationalized, the Board finds that they are insufficient to meet appellant’s burden
of proof to establish that the additional conditions should be accepted in her claim.11
Appellant was also examined by Dr. Idema who diagnosed degeneration of the
intervertebral disc, lumbar spondylosis, lumbar radiculopathy, and displacement of lumbar
intervertebral disc without myelopathy on September 30, 2014. However, Dr. Idema did not
6

M.M., Docket No. 19-0951 (issued October 24, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

7

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
8

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

9

A.H., Docket No. 19-0270 (issued June 25, 2019); M.W., Docket No. 18-1624 (issued April 3, 2019).

10

C.H., Docket No 19-0409 (issued August 5, 2019).

11

P.A., Docket No. 18-0559 (issued January 29, 2020).

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provide an opinion on the issue of causal relationship between the accepted December 1, 2005
employment injury and the diagnosed lumbar conditions. Likewise, the February 1, 2007 report
of Dr. Thompson also does not provide an opinion on the issue of causal relationship or discuss
lumbar spine conditions. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.12 These reports, therefore, are insufficient to establish appellant’s request to expand
the acceptance of her claim.
Appellant also submitted MRI scans and accompanying reports dated from July 17, 2008
to August 25, 2014. The Board has long held that diagnostic studies, standing alone, are of limited
probative value on the issue of causal relationship as they do not address whether the employment
injury caused any of the diagnosed conditions.13 These reports are, therefore, insufficient to
establish appellant’s request to expand the acceptance of her claim.
OWCP properly referred appellant to Dr. Draper for a second opinion evaluation to
determine the nature and extent of her employment-related conditions, including whether the
acceptance of her claim should be expanded to include additional conditions as work related. In
his October 18, 2018 report, Dr. Draper found that her bilateral foot drop was not clinically
explained by the MRI scan findings of record. He opined that the accepted cervical spine injury
would not have caused appellant to have low back pain, foot drop conditions, and neurological
deficits in the lower extremities to the extent that she claimed. Dr. Draper explained that, although
appellant’s cervical conditions were related to the accepted employment injury, her lumbar spine
issues could not be related to the December 1, 2005 work injury because the records showed that
she had injured only her neck and that her lower back complaints had not developed until 2008.
The Board finds that Dr. Draper’s second opinion report is well rationalized and provides a
supportive explanation in support of his finding that appellant’s claim should not be expanded to
include additional conditions. Therefore, OWCP properly afforded him the weight of the
evidence. Appellant has not submitted sufficient rationalized medical evidence to meet her burden
of proof to establish causal relationship between her December 1, 2005 employment injury and
her diagnosed medical conditions or to overcome the opinion of Dr. Draper. Thus, the Board finds
that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional conditions as causally related to
her accepted December 1, 2005 employment injury.

12

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

13

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the April 19, 2019 and December 18, 2018 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Eureka, CA, Employer
__________________________________________

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

Docket No. 11-2085
Issued: May 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 23, 2011 appellant filed a timely appeal from a July 12, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment of $63,711.81
was created from July 1, 2000 to June 5, 2010 due to an incorrect pay rate for compensation
purposes; (2) whether OWCP properly found that appellant was at fault in creating the
overpayment and, therefore, not entitled to waiver; and (3) whether OWCP properly found that
the overpayment should be recovered by deducting $401.00 from appellant’s continuing
compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 25, 2000 appellant, then a 53-year-old recruiting assistant, filed an occupational
claim (Form CA-2) alleging that she sustained neck and shoulder injuries as a result of her
federal employment. She stopped working on June 30, 2000. The accepted conditions in the
case are left shoulder strain, neck strain and temporary aggravation of degenerative cervical
intervertebral disc.
Appellant began receiving compensation for wage loss as of July 1, 2000. On a claim for
compensation (Form CA-7) dated August 17, 2000, the employing establishment indicated that
her pay rate as of June 29, 2000 was $10.50 per hour. The employing establishment checked a
box “no” with respect to whether appellant worked a fixed 40-hour week, whether she had
worked for 11 months prior to injury and whether the position would have afforded employment
for 11 months but for the injury. The employing establishment stated that appellant was
“terminated for lack of work.”
An OWCP memorandum dated November 28, 2000, noted that appellant’s pay rate
should be $242.31 per week, based on multiplying her average daily wage ($84.00) by 150.
OWCP issued a compensation payment for the period July 1 to December 8, 2000 using a pay
rate for compensation purposes of $242.31 per week.
By letter dated December 19, 2000, the employing establishment asserted appellant’s pay
rate for compensation purposes should be $196.88 per week. It stated that census workers
averaged 6.5 hours per day. OWCP issued compensation payments for December 9, 2000 to
March 1, 2001 using a pay rate of $196.88 per week.
On May 24, 2001 appellant submitted a letter advising that she had worked for the
employing establishment from October 21, 1999. She earned $9.50 per hour from October 21 to
December 31, 1999 and then $10.50 per hour as of January 1, 2000. According to appellant,
from June 1 to October 10, 1999, she worked as a case manager for a private corporation at
$18.75 per hour. On July 15, 2001 she submitted a Form W-2 (wage and tax statement) for
1999, with earnings of $30,300.00 reported.
In a memorandum dated July 17, 2001, OWCP found that appellant’s pay rate was
$582.69 per week, based on annual earnings of $30,300.00. Appellant began receiving
compensation based on a pay rate for compensation purposes of $582.69 per week.
By letter dated April 8, 2001, appellant stated that she was concerned that she was being
overpaid, as her base pay as a census worker was $10.50 an hour or $420.00 per week. She
stated that some information on the W-2 form was incorrect. Appellant noted that she had
worked for Trinity Occupational Training through August 12, 1999 and had earnings from a
hotel in August through October 1999. In a letter dated May 29, 2002, she referenced her
April 8, 2001 letter and indicated that she had not received a response.
On December 12, 2002 OWCP advised appellant that her pay rate was correct. It stated
that she had been sent a retroactive payment based on the recalculated pay rate. By letter dated
February 20, 2003, appellant stated that she had not been reimbursed for travel to physicians nor

2

had some physicians been reimbursed by OWCP. She also asked that she be compensated for
the period July 27, 2001 to May 29, 2002 at the weekly rate established.
In a letter dated June 7, 2010, an employing establishment compensation specialist stated
that he reviewed documents regarding appellant’s pay rate. He noted that earnings from private
employment were not considered unless the employment was the same or similar to federal
employment. According to the compensation specialist, the private company where appellant
worked as a case manager was no longer in business, but there was no evidence the job was
similar to census work. The employing establishment stated that she had earned $16,705.00 in
33 weeks from October 21, 1999 to June 30, 2000 or $506.21 per week. A June 8, 2010
memorandum of telephone call clarified that appellant had actually worked 36.14 weeks and,
therefore, her actual earnings were $462.23 per week.
In a memorandum dated June 8, 2010, OWCP found that appellant had not worked
substantially a whole in the date-of-injury position nor would the position be expected to last
substantially the whole year. It stated that since the evidence had shown “that the injured worker
worked full-time employment for substantially the whole year prior to the date of injury at other
jobs,” the pay rate should be calculated in accord with 5 U.S.C. § 8114(d)(2). According to
OWCP a regular employee working in the same type of job as appellant earned $10.50 per hour
at 40 hours per week or $421.21 per week.2
The record contains a worksheet documenting that for the period July 1, 2000 to June 5,
2010 appellant was paid $241,643.36 in compensation for wage loss. OWCP calculated that,
using a pay rate for compensation purposes of $42.21 per week, she should have been paid
$177,931.55, creating an overpayment of $63,711.81.
By letter dated September 2, 2010, OWCP issued a preliminary determination that an
overpayment of $63,711.81 had been created. It made a preliminary determination that appellant
was at fault in creating the overpayment, as she accepted payments she knew were incorrect.
OWCP stated that she had submitted letters complaining about an error in the pay rate.
On September 29, 2010 OWCP received a request for a telephone conference. Appellant
noted that she had not received an OWCP-20 and requested an “extension of time” as she had a
hearing scheduled for October 12, 2010.3 By letter dated October 1, 2010, OWCP enclosed an
OWCP-20 and noted that a conference would be scheduled when she returned the form. The
record indicates a telephone conference was held on July 11, 2011.
By decision dated July 12, 2011, OWCP finalized the overpayment determinations. It
found an overpayment of $63,711.81 was created, appellant was at fault in creating the
overpayment and $401.00 would be deducted from continuing compensation every 28 days to
recover the overpayment.

2

OWCP stated that $10.50 was multiplied by 2087 and divided by 52.

3

Appellant had requested a hearing of a May 4, 2010 OWCP decision denying a schedule award for a bilateral
carpal tunnel syndrome condition.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8114(d) of FECA provides:
“Average annual earnings are determined as follows:
(1) If the employee worked in the employment in which he was employed
at the time of his injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an
annual rate of pay -(A) was fixed, the average annual earnings are the annual rate of
pay; or
(B) was not fixed, the average annual earnings are the product
obtained by multiplying his daily wage for particular employment,
or the average thereof if the daily wage has fluctuated, by 300 if he
was employed on the basis of a 6-day workweek, 280 if employed
on the basis of a 5 1/2-day week and 260 if employed on the basis
of a 5-day week.
(2) If the employee did not work in employment in which he was
employed at the time of his injury during substantially the whole year
immediately preceding the injury, but the position was one which would
have afforded employment for substantially a whole year, the average
annual earnings are a sum equal to the average annual earnings of an
employee of the same class working substantially the whole immediately
preceding year in the same or similar employment by the United States in
the same or neighboring place, as determined under paragraph (1) of this
subsection.
(3) If either of the foregoing methods of determining the average annual
earnings cannot be applied reasonably and fairly, the average annual
earnings are a sum that reasonably represents the annual earning capacity
of the injured employee in the employment in which he was working at
the time of the injury having regard to the previous earnings of the
employee in [f]ederal employment and of other employees of the United
States in the same or most similar employment in the same or neighboring
location, other previous employment of the employee or other relevant
factors. However, the average annual earnings may not be less than 150
times the average daily wage the employee earned in the employment
during the days employed within [one] year immediately preceding his
injury.”

4

ANALYSIS -- ISSUE 1
OWCP determined that an overpayment of $63,711.81 was created from July 1, 2000 to
June 5, 2010 based on an incorrect pay rate for compensation purposes. As to the period of the
overpayment, the Board notes that the record requires clarification. The initial compensation
payment from July 1 to December 8, 2000 was based on a pay rate of $242.31 per week.
Although OWCP later issued a retroactive payment, the payment history of record noted that this
payment covered the period December 9, 2000 to March 1, 2001, which had been initially based
on a pay rate of $196.88 per week. It is not clear, therefore, that the overpayment period
included July 1 to December 8, 2000. If appellant received compensation for this period based
on a pay rate of $242.31, there may be a separate issue of an underpayment of compensation for
this period. An underpayment of compensation cannot be used as an offset of an overpayment
amount.4
From December 9, 2000 to June 5, 2010, the record notes that OWCP used a pay rate for
compensation purposes of $582.69. The pay rate was based on a W-2 form for the year 1999,
which report annual earnings of $30,300.00 or $582.69 per week. It is clear that the pay rate of
$582.69 was incorrect. The time period for determining pay rate would be from June 30, 1999 to
June 30, 2000, since disability began July 1, 2000.5 The W-2 form covered earnings from
January 1 to December 31, 1999.
The pay rate for compensation purposes must be properly determined under 5 U.S.C.
§ 8114. OWCP found that 5 U.S.C. § 8114(d)(2) was applicable in this case. But the evidence
of record does not support OWCP’s finding in this regard. As noted, 5 U.S.C. § 8114(d)(2) is
applicable only if the employee did not work in the date-of-injury position for substantially the
whole year preceding the injury and also the position was one which would have afforded
employment for substantially a whole year.6 OWCP apparently interpreted this language to
mean that if the employee had worked in any full-time employment for substantially a whole
year prior to injury, then 8114(d)(2) would apply if the employee had not worked in the date-ofinjury position for substantially a year prior to injury. 5 U.S.C. § 8114(d)(2) clearly states that
“the position” (i.e. the date-of-injury position) must be one that would have afforded
employment for substantially a whole year. The evidence of record from the employing
establishment stated that the census position would not have afforded employment for
substantially a whole year. Appellant had worked in the position for a little over eight months,
she was terminated for lack of work and the employing establishment indicated on the CA-7
form that the position would not have afforded employment for 11 months but for the injury.

4

Although such an offset appears administratively straightforward, the Board has held that it may circumvent
established legal procedures and protections if the claimant is entitled to consideration of waiver. Such an offset
could allow OWCP an unrestricted recovery of the offset portion of the overpayment without regard to the
claimant’s due process rights. T.W. Docket No. 09-2039 (issued April 6, 2010); Robert L. Curry, 54 ECAB
675 (2003).
5

See Ricardo Hall, 49 ECAB 390 (1998).

6

OWCP’s procedures indicate that substantially the whole year means 11 months. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4(a) (September 2011).

5

The Board finds from the evidence of record that 5 U.S.C. § 8114(d)(3) is the applicable
statute. The methods provided under 8114(d)(1) and (2) are not applicable and the statute
provides that 8114(d)(3) will be used if the foregoing methods are not applicable. In this regard
the Board notes that OWCP may consider employees of the United States working in the same or
similar employment. Therefore, the pay rate of $421.21 may be correct under 5 U.S.C.
§ 8114(d)(3). But 8114(d)(3) also includes “other previous employment of the employee” as a
relevant factor. With respect to appellant’s nonfederal employment, OWCP may consider
earnings from employment that, is the same as or similar to, the work the employee was doing
when injury.7 It made no finding as to whether any earnings from appellant’s private section
employment from July 1, 1999 should be included in the pay rate determination. For this reason,
the fact and the amount of overpayment are not established. On remand, OWCP should secure a
detailed statement of appellant’s work duties in private section employment during the relevant
period. It should then make a proper determination on the overpayment issues regarding fact,
amount and period of an overpayment of compensation.
CONCLUSION
The Board finds that the case is not in posture for decision with respect to fact and
amount of overpayment based on an incorrect pay rate for compensation purposes.

7

See supra note 6 at Chapter 2.900.4(c)(3).

6

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: May 10, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________

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Docket No. 15-1236
Issued: February 18, 2016

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

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 12, 2015 appellant filed a timely appeal from an April 24, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
October 19, 2014 under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he
continued to participate in vocational rehabilitation efforts.

1
2

5 U.S.C. § 8101 et seq.

Appellant requested oral argument before the Board. In a November 13, 2015 order, the Board exercised its
discretion and denied appellant’s request, noting that his arguments on appeal could be adequately addressed in a
Board decision based on a review of the case record as submitted.

LEGAL PRECEDENT
On June 13, 1989 appellant, then a 42-year-old ship fitter, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a back injury on that date due to pushing heavy
equipment at work. He stopped work on June 13, 1989 and OWCP accepted that he sustained a
cervical strain.3
In a report dated October 18, 201, Dr. Robert Draper, a Board-certified orthopedic
surgeon serving as an OWCP referral physician, determined that appellant was partially disabled
due to his June 13, 1989 employment injury. He found that appellant could work on a full-time
basis with various work restrictions, including lifting no more than 50 pounds occasionally and
no more than 25 pounds frequently. Appellant could stand and walk for six hours out of an
eight-hour workday and sit for six hours out of an eight-hour workday. Dr. Draper
recommended that appellant avoid bending, stooping, and crawling.
In late-October 2013, appellant was referred for participation in an OWCP-administered
vocational rehabilitation program. Appellant’s vocational rehabilitation counselor reported that a
vocational rehabilitation plan had been developed based upon appellant’s experience, education,
and medical restrictions. Vocational rehabilitation efforts were placed in services interrupted
status on February 6, 2014 for 60 days.4 At the conclusion of the 60 days, vocational
rehabilitation was scheduled to resume. On May 14, 2014 appellant’s vocational rehabilitation
counselor reported that appellant failed to participate in or obstructed the approved vocational
rehabilitation program. On May 1, 2014 appellant had been contacted by the rehabilitation
counselor to notify him that rehabilitation efforts were set to resume. At that time, he advised his
rehabilitation counselor via telephone that he would not participate in the vocational
rehabilitation program. The rehabilitation counselor reported that vocational counseling was
attempted, but appellant abruptly ended the telephone call. She concluded that appellant had
obstructed the vocational rehabilitation efforts.
By letter dated June 25, 2014, OWCP advised appellant of its determination that he had
failed to participate in vocational rehabilitation efforts. It informed appellant that an individual
who refuses or impedes a vocational rehabilitation effort without good cause after testing has
been accomplished will have his or her compensation reduced based on what would have been
his or her wage-earning capacity had the training been successfully completed. OWCP directed
appellant to make a good faith effort to participate in the rehabilitation effort within 30 days or, if
he believed he had good cause for not participating in the effort, to provide reasons and
supporting evidence of such good cause within 30 days. It indicated that if these instructions
were not followed within 30 days action would be taken to reduce his compensation.

3

Appellant received disability compensation on the periodic rolls beginning June 16, 2002.

4

Although appellant participated in the early stages of the vocational rehabilitation process, his case was placed
in services interrupted status by his rehabilitation counselor due to appellant’s own decision to suspend participation
in the program.

2

Appellant submitted a July 3, 2014 medical report indicating that on that date he
underwent a left S1 disc transforaminal epidural steroid injection and a left L5-S1 transforaminal
epidural steroid injection.
Appellant’s vocational rehabilitation counselor determined that, had he continued to
participate in rehabilitation efforts, appellant would have been able to work as a contract
specialist.5 The position, classified as light in nature, involved negotiating with suppliers to draw
up procurement contracts and required occasional lifting of up to 20 pounds and engaging in
occasional reaching, handling, and fingering.
In an October 2, 2014 decision, OWCP reduced appellant’s compensation under 5 U.S.C.
§ 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts. It determined that appellant had failed, without good cause, to
undergo vocational rehabilitation as directed. With respect to his wage-earning capacity, OWCP
further found that, if appellant had participated in good faith in vocational rehabilitation, he
would have been able to perform the position of contract specialist.
Appellant requested reconsideration. He submitted several medical reports, including
May 13, June 4, and July 8, 2014 reports in which attending physicians indicated that he
complained of chronic low back pain and left-sided S1 radiculopathy symptoms. The findings of
a May 19, 2014 magnetic resonance imaging (MRI) scan showed mild degenerative disc disease
of the low back.
By decision dated April 24, 2015, OWCP affirmed its October 2, 2014 decision adjusting
appellant’s compensation effective October 19, 2014 for failure to participate in vocational
rehabilitation efforts.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened before it may terminate or modify compensation benefits.6 Section 8113(b) of FECA
provides that if an individual, without good cause, fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of FECA, OWCP, “after finding that in the
absence of the failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of the individual in
accordance with what would probably have been his [or her] wage-earning capacity in the absence
of the failure,” until the individual in good faith complies with the direction of OWCP.7
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions OWCP
will take when an employee without good cause fails or refuses to apply for, undergo, participate
5

The position is described in the Department of Labor’s Dictionary of Occupational Titles (DOT) and bears the
DOT number 162.117-018. A state labor market survey from August 2014 revealed that the entry pay level for the
position was $493.23 per week and that the position was reasonably available in appellant’s commuting area.
6

Betty F. Wade, 37 ECAB 556, 565 (1986).

7

5 U.S.C. § 8113(b).

3

in, or continue to participate in a vocational rehabilitation effort when so directed. Section
10.519(a) provides, in pertinent part:
“Where a suitable job has been identified, OWCP will reduce the employee’s
future monetary compensation based on the amount which would likely have been
his or her wage-earning capacity had he or she undergone vocational
rehabilitation. OWCP will determine this amount in accordance with the job
identified through the vocational rehabilitation planning process, which includes
meetings with the OWCP nurse and the employer. The reduction will remain in
effect until such time as the employee acts in good faith to comply with the
direction of OWCP.”8
ANALYSIS
OWCP accepted that on June 13, 1989 appellant sustained a back injury due to pushing
heavy equipment at work. In late-October 2013, appellant was referred for participation in an
OWCP-sponsored vocational rehabilitation program. In an October 2, 2014 decision, OWCP
reduced appellant’s compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning
capacity had he continued to participate in vocational rehabilitation efforts. It determined that
appellant had failed, without good cause, to undergo vocational rehabilitation as directed. With
respect to his wage-earning capacity, it further found that, if appellant had participated in good
faith in vocational rehabilitation, he would have been able to perform the position of contract
specialist. In an April 24, 2015 decision, OWCP affirmed its October 2, 2014 decision adjusting
appellant’s compensation effective October 19, 2014.
The Board finds that OWCP properly reduced appellant’s compensation effective
October 19, 2014 under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he
continued to participate in vocational rehabilitation efforts.
On May 1, 2014 appellant had been contacted by his vocational rehabilitation counselor
to notify him that rehabilitation efforts were set to resume after period of interruption. At that
time, appellant advised his rehabilitation counselor via telephone that he would not participate in
the OWCP-administered vocational rehabilitation program. The rehabilitation counselor
reported that vocational counseling was attempted, but that appellant abruptly ended the
telephone call. In a report dated May 14, 2014, she concluded that appellant failed to participate
in or obstructed the approved vocational rehabilitation program. The Board finds that these facts
establish appellant’s failure to participate in vocational rehabilitation efforts.
Prior to the adjustment of his compensation, OWCP sent appellant a June 25, 2014 letter
in which it advised him of the consequences of continuing his failure to participate in vocational
rehabilitation efforts. Appellant was provided 30 days to begin participating in vocational
rehabilitation efforts or to submit evidence establishing good cause for not doing so. He did not,
however, participate in vocational rehabilitation efforts or provide good cause for not doing so
within 30 days of OWCP’s June 25, 2014 letter. Appellant submitted medical documentation in
response to the June 25, 2014 letter, but this evidence does not show that he was physically
8

20 C.F.R. § 10.519(a).

4

unable to participate in vocational rehabilitation efforts or otherwise establish that he had good
cause not to do so. He submitted several medical reports from mid-2014 showing that he was
being treated for mild degenerative disc disease of the low back. However, none of these reports
showed that he was unable to work or that he was unable to participate in vocational
rehabilitation efforts.9
On appeal appellant argued that his willingness to participate in a functional capacity
evaluation showed his participation in vocational rehabilitation efforts.10 However, regardless of
whether appellant was willing to participate in a functional capacity evaluation, he engaged in
actions constituting a failure to participate in vocational rehabilitation efforts, including the
above-described interactions with his vocational rehabilitation counselor.
A review of the record indicates that appellant was offered an opportunity to complete the
agreed upon vocational rehabilitation plan. There is no evidence that appellant’s failure to fully
participate in the rehabilitation program, particularly his clear failure to exercise a reasonable
standard of cooperation, was based on good cause.11 For these reasons, OWCP properly reduced
appellant’s compensation under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity
had he continued to participate in vocational rehabilitation efforts. The record also reflects that
OWCP properly determined that, if appellant had continued to participate in vocational
rehabilitation efforts, he would have been able to earn wages as a contract specialist.12
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation effective
October 19, 2014 under 5 U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he
continued to participate in vocational rehabilitation efforts.

9

In an October 18, 2013 report, Dr. Draper, a Board-certified orthopedic surgeon serving as an OWCP referral
physician, determined that appellant was partially disabled due to his June 13, 1989 employment injury. Dr. Draper
found that appellant could work on a full-time basis with various work restrictions, including lifting no more than 50
pounds occasionally and no more than 25 pounds frequently. The Board notes that this report provides the best
assessment of appellant’s work restrictions around the time he stopped participating in vocational rehabilitation
efforts in mid-2014.
10

Appellant indicated that a functional capacity evaluation was not in fact carried out.

11

See Michael D. Snay, 45 ECAB 403, 410-12 (1994).

12

The Board notes that the physical requirements of the contract specialist position were within appellant’s work
restrictions and that appellant’s rehabilitation counselor provided an opinion that he would have been vocationally
capable of performing the position if he had continued participating in vocational rehabilitation efforts.

5

ORDER
IT IS HEREBY ORDERED THAT the April 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 09-620
Issued: September 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 2, 2009 appellant filed a timely appeal from May 21 and November 18, 2008
decisions of the Office of Workers’ Compensation Programs, denying her claim for a traumatic
injury on December 20, 2007. 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 sustained a back injury on December 20, 2007 while in the
performance of duty.
FACTUAL HISTORY
On February 19, 2008 appellant, then a 37-year-old transportation clerk, filed a traumatic
injury claim alleging that on December 20, 2007 she injured her back due to constant turning and
reaching across her desk and leaning forward. An employing establishment accident report dated
February 19, 2008 indicated that she alleged a back injury on December 20, 2007. Appellant

alleged that on January 9, 2008 she injured her back again when she turned the wrong way to
answer the telephone and felt a sharp pain in her back. The record shows that she was a
probationary employee who began her job at the employing establishment in May 2007.
In a March 13, 2008 memorandum, Joseph Rio, appellant’s supervisor, stated that she
used sick leave on December 5, 13, 27 and 28, 2007. Appellant never informed management
that she sustained a work-related injury on December 20, 2007 and did not take leave on that
day. Mr. Rio noted that, on February 8, 2008, shortly before appellant filed her claim for a back
injury on December 20, 2007, she was given a written and verbal warning regarding excessive
use of sick leave. He noted that appellant had a military service-related disability rating of
10 percent for chronic low back problems.
On March 14, 2008 Dr. Chandra S. Mouli, a radiologist, stated that a magnetic resonance
imaging (MRI) scan of appellant’s lower back was normal.
By letter dated April 10, 2008, the Office asked appellant to submit additional factual
evidence establishing that the claimed incident on December 20, 2007 occurred as alleged. It
also requested medical evidence establishing causal relationship between the work incident and a
diagnosed medical condition.
An April 4, 2008 functional capacity evaluation report from a physical therapist provided
a history that appellant injured her back in December 2007 when she turned in her chair to
answer the telephone, then turned back and felt a pop in her back.
In an April 7, 2008 form report, Dr. David Weiss, a physiatrist, stated that appellant had a
history of intermittent low back pain since 1990. In December 2007, appellant turned while at
work and felt a pop in her back. Since that time her pain had increased. Dr. Weiss provided
findings on physical examination and diagnosed low back pain that he believed was muscular in
origin.
On April 17, 2008 appellant explained that she did not submit her claim form within
30 days of the December 20, 2007 work incident because she was not told by the employing
establishment to submit a claim form. She contended that her supervisor was supposed to
“initiate” the claim.
By decision dated May 21, 2008, the Office denied appellant’s claim on the grounds that
the evidence did not establish that the December 20, 2007 work incident occurred as alleged and
the medical evidence did not establish a work-related medical condition.1
Appellant requested a telephonic hearing that was held on September 11, 2008. She
failed to participate in the hearing. The hearing representative advised her attorney that the
record would be held open for 30 days for the submission of additional evidence.

1

The December 20, 2007 work incident occurred as alleged in its May 21, 2008 decision.

2

By decision dated November 18, 2008, an Office hearing representative affirmed the
May 21, 2008 decision on the grounds that the medical evidence failed to establish that appellant
sustained a work-related back injury on December 20, 2007.
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.2 Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.3 An
employee may establish that the employment incident occurred as alleged but fail to show that
his or her disability or condition relates to the employment incident.
To establish a causal relationship between an employee’s condition and any disability
claimed and the employment event or incident, he or she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the employee’s
diagnosed condition and the compensable employment factors. The opinion of the physician
must be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.4
ANALYSIS
The Board finds that the evidence is insufficient to establish that appellant sustained a
back injury on December 20, 2007 while in the performance of duty.
Appellant alleged that on December 20, 2007 she injured her back due to constant turning
and reaching across her desk and leaning forward. She alleged that she again injured her back on
January 9, 2008 when she turned to answer the telephone. A March 14, 2008 MRI scan was
reported as normal.
An April 4, 2008 functional capacity evaluation report from a physical therapist provided
a history that appellant injured her back in December 2007 when she turned in her chair to
answer the telephone. A physical therapist does not qualify as a physician under the Federal

2

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

3

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354,
356-57 (1989).
4

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

3

Employees’ Compensation Act.5 Registered nurses, licensed practical nurses, physician’s
assistants and physical therapists are not physicians as defined under the Act and their opinions
are of no probative value.6 Consequently, the physical therapist’s report is not sufficient to
establish that appellant sustained a work-related back injury on December 20, 2007.
In an April 7, 2008 form report, Dr. Weiss provided a history that in December 2007
appellant turned while at work and felt a pop in her back. Since that time appellant’s pain had
increased. Dr. Weiss noted that appellant had a history of intermittent low back pain since 1990.
He provided findings on physical examination and diagnosed low back pain that he believed was
muscular in origin. However, back pain is not a diagnosis. Dr. Weiss opined that the back
condition was muscular in origin but did not provide a specific diagnosis. He did not provide
medical rationale explaining how appellant’s low back problem was causally related to the
December 20, 2007 work incident. Dr. Weiss did not provide a medical history addressing any
preexisting condition or prior treatment of her low back. Thorough medical rationale is
necessary in light of the fact that appellant had a long-standing history of low back pain. Such
rationale is also important because Dr. Weiss did not examine her until several months after the
December 20, 2007 work incident. For these reasons, the report of Dr. Weiss is not sufficient to
establish that appellant sustained a work-related back injury on December 20, 2007.
There is no medical evidence of record containing a complete and accurate factual and
medical background, physical findings on examination and medical rationale explaining how
appellant’s back condition was causally related to the December 20, 2007 incident at work.
Therefore, the Office properly denied her claim.
On appeal, appellant contends that the May 21 and November 18, 2008 decisions are
contrary to fact and law. However, she failed to identify any specific errors in the Office’s
decisions. Appellant’s assertion is without merit.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury on
December 20, 2007 while in the performance of duty.

5

See 5 U.S.C. § 8101(2) which provides: “‘physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by state law”; see also Roy L. Humphrey, 57 ECAB 238 (2005); Jennifer L. Sharp, 48 ECAB 209 (1996).
6

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 18 and May 21, 2008 are affirmed.
Issued: September 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 12-811
Issued: August 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 29, 2012 appellant filed a timely appeal from a September 27, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
disease claim. 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 sustained a back condition causally related to factors of
her federal employment.
FACTUAL HISTORY
On March 25, 2011 appellant, then a 50-year-old mail processing clerk, filed an
occupational disease claim alleging that she sustained sciatica due to factors of her federal
employment. She stopped work on March 24, 2011.
1

5 U.S.C. § 8101 et seq.

In a letter dated March 25, 2011, appellant related that she accepted a modified-duty
assignment on February 25, 2011 and returned to work after March 4, 2011. Prior to her return,
she had not worked since February 27, 2004 due to disability from a prior employment injury.
Appellant asserted that the employing establishment gave her no time to adjust to her duties and
that she experienced aches and pains. Laverne Macon, a supervisor, offered her a spray for pain
and informed appellant that her assignment to automation was not ideal given that she had not
worked since 2004.2 Appellant’s pain increased such that she had trouble walking. Her
physician found that she should remain off work beginning March 29, 2011 pending testing.
By letter dated April 7, 2011, the employing establishment noted that appellant had work
restrictions under claim File No. xxxxxx975 and had voluntarily bid on her current assignment.
Appellant’s attending physician changed her work restrictions to a lift and carry restrictions of 40
to 45 pounds so that she could perform the bid assignment.
In a disability certificate dated April l5, 2011, Dr. Karen M. Perl, an osteopath and
Board-certified physiatrist, evaluated appellant for an injury to the lumbar spine. She advised
that appellant was totally disabled from April 8 to 22, 2011.
A magnetic resonance imaging (MRI) scan study dated April 19, 2011 revealed mild
facet hypertrophic changes at L3-4, moderate bilateral facet arthropathy and a mild disc bulge at
L4-5 and moderate facet arthopathy with a mild disc bulge at L5-S1.
By decision dated May 13, 2011, OWCP denied appellant’s claim finding that she did not
establish an injury as alleged. It found that she had not established the employment factors
alleged to have caused her condition or submitted medical evidence of a diagnosed condition as a
result of her employment.
In a statement dated May 12, 2011, received by OWCP on May 16, 2011, the employing
establishment related that appellant was off work from July 1, 2010 until February 25, 2011 as
part of the National Reassessment Program (NRP). It controverted her claim based on the
medical evidence.
On May 25, 2011 appellant requested a review of the written record before an OWCP
hearing representative.
She submitted a statement describing her work duties since
February 25, 2011. Appellant also submitted medical evidence, including a report dated
March 31, 2011 from Dr. Perl, who found that appellant was injured at work on March 24, 2011.
She related:
“[Appellant] states that she started back in automation on March 4, 2011. She
reports she had soreness and pain in the lumbar spine, however, her coworkers
told her that was normal. [Appellant] states that as she continued doing her job in
automation she started having worse and worse low back pain and then radiation
into the right lower extremity. Her job requirement is 40 pounds lifting often and
45 pounds occasionally…. Last week, [appellant’s] pain became so bad that she
2

In an April 20, 2011 e-mail message, Ms. Macon related that she advised appellant to be careful as she had been
out of work since 2004. She provided her with a spray for pain relief.

2

was not able to work due to her low back pain and radiation into the right lower
extremity. She reports that the pain has gotten to such a degree that she has
difficulty bending. [Appellant] reports that her pain seems to be set off using the
machines in automation including the repetitive bending, lifting and sweeping. At
this point she is having trouble with her low back with radiation into the right
lower extremity.”
On examination, Dr. Perl found a positive right straight leg test and Patric-Fabere’s test
and a loss of sensation at the right medial and lateral thigh. She diagnosed an injury to the
lumbar spine due to appellant’s work duties on March 24, 2011 and lumbar radiculitis most
likely due to a disc herniation caused by her work in automation.
In a disability certificate dated March 31, 2011, Dr. Perl found that appellant was unable
to work from March 24 to April 8, 2011 due to lumbar spine injury. On April 15, 2011 she
found that appellant was “having ongoing problems with her lumbar spine and is incapacitated
[from] her job at the current time.” Dr. Perl diagnosed a lumbar spine injury due to appellant’s
work duties and lumbar radiculitis of the right lower extremity which was most likely a “lumbar
disc herniation related to [her] automation duties.”
In a progress report dated April 22, 2011, Dr. Perl noted that an MRI scan study showed
disc bulges at L4-5 and L5-S1 with bilateral foraminal narrowing. She diagnosed an injury to
the lumbar spine “related to [her] duties on March 24, 2011” and diffuse disc bulges at L4-5 and
L5-S1 with bilateral foraminal narrowing due to her work duties. Dr. Perl asserted that her
“injury should be accepted under lumbar disc herniation.”
By decision dated September 27, 2011, OWCP’s hearing representative affirmed the
May 13, 2011 decision as modified to find that appellant established the occurrence of the
alleged work factors.3 She found, however, that the medical evidence was insufficient to
establish causal relationship.
On appeal, appellant contends that she did not have similar problems with her back prior
to working in automation.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the

3

OWCP’s hearing representative indicated that fact of injury had been established; however, it is apparent that
she meant that appellant had established the occurrence of the identified work factors.
4

5 U.S.C. § 8101 et seq.

3

employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;8 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.9
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. 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.10 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,11 must be one of reasonable medical certainty12 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.13
ANALYSIS
Appellant attributed her low back condition and sciatica to working in automation from
March 5 to 24, 2011. OWCP accepted the occurrence of the claimed employment work
activities. The issue, therefore, is whether the medical evidence establishes a causal relationship
between the claimed conditions and the employment factors.
On March 31, 2011 Dr. Perl noted that appellant began working in automation on
March 4, 2011. She experienced pain and soreness in her back that increased such that she had
difficulty bending and had radiation into her right lower extremity. Dr. Perl provided positive
clinical findings and diagnosed a lumbar spine injury due to employment duties on March 24,
5

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Ellen L. Noble, 55 ECAB 530 (2004).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

Beverly A. Spencer, 55 ECAB 501 (2004).

10

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

11

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

12

John W. Montoya, 54 ECAB 306 (2003).

13

Judy C. Rogers, 54 ECAB 693 (2003).

4

2011 and lumbar radiculitis probably due to a disc herniation caused by her work in automation.
She found that appellant was totally disabled. Dr. Perl, however, did not provide a reasoned
opinion explaining how work duties resulted in a lumbar spine injury and lumbar radiculitis.14 A
physician must provide an opinion on whether factors of employment caused or contributed to a
claimant’s diagnosed medical condition and support that opinion with medical reasoning to
demonstrate that the conclusion reached is sound, logical and rationale.15 Further, appellant has
not identified a specific incident occurring on March 24, 2011 resulting in an injury.
In an April 15, 2011 report, Dr. Perl found that appellant remained disabled. She again
diagnosed a lumbar spine injury due to work duties on March 24, 2011 and lumbar radiculitis
most likely caused by a work-related disc herniation. Dr. Perl’s opinion that appellant’s lumbar
radiculitis was most likely due to a disc hernation resulting from employment duties is couched
in speculative terms and thus of diminished probative value.16 Further, she did not provide a
firm diagnosis of the lumbar spine injury occurring on March 24, 2011 or explain what occurred
on that date to result in the injury. Without a firm diagnosis supported by medical rationale,
Dr. Perl’s opinion is of little probative value.17
On April 22, 2011 Dr. Perl reviewed the MRI scan study and diagnosed diffuse disc
bulges at L4-5 and L5-S1 with foraminal narrowing due to appellant’s work duties and a lumbar
spine injury due to a March 24, 2011 employment injury. She did not, however, provide any
rationale for her causation finding. A mere conclusion without the necessary rationale
explaining how and why the physician believes that a claimant’s accepted exposure could result
in a diagnosed condition is not sufficient to meet a claimant’s burden of proof.18
On appeal, appellant contends that she had no back problems prior to working in
automation. An award of compensation, however, may not be based on surmise, conjecture,
speculation or upon her own belief that there is a causal relationship between her claimed
condition and her employment.19 Appellant must submit a physician’s report in which the
physician reviews those factors of employment identified by her as causing her condition and,
taking these factors into consideration as well as findings upon examination and the medical
history, explain how employment factors caused or aggravated any diagnosed condition and

14

See Jacquelyn L. Oliver, 48 ECAB 232 (1996) (medical conclusions unsupported by rationale are of diminished
probative value).
15

See supra note 12.

16

Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need
not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
17

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
18

See supra note 9.

19

D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

5

present medical rationale in support of his or her opinion.20 She failed to submit such evidence
and therefore failed to discharge her burden of proof.
Appellant submitted new medical evidence with her appeal. The Board has no
jurisdiction to review new evidence on appeal.21 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 and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a back condition
causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

20

D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

21

See 20 C.F.R. § 501.2(c)(1).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-912
Issued: November 8, 2011

Case Submitted on the Record

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

JURISDICTION
On March 1, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated November 1, 2010. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on July 15, 2010.
FACTUAL HISTORY
Appellant, then a 32-year-old letter carrier, experienced pain in his lower back while
turning around on November 29, 2004. He filed a claim for benefits, which OWCP accepted for
displacement of lumbar intervertebral disc without myelopathy. OWCP paid appellant

1

5 U.S.C. § 8101 et seq.

temporary total disability compensation from January 14 to March 14, 2005.
subsequently missed work for intermittent periods and was placed on light duty.

Appellant

On September 8, 2010 appellant filed a Form CA-2a, claim for benefits, alleging that he
sustained a recurrence of disability on July 15, 2010 causally related to his November 29, 2004
employment injury. He stated on the form that the recurrence was due to severe pain he
experienced after receiving epidural injections in his lumbar spine on July 15, 2010; these
injections were administered to ameliorate low back pain stemming from his November 29, 2004
employment injury.
The record indicates that appellant was authorized to receive three epidural injections
during the time period July 15 to September 15, 2010.
In an August 18, 2010 report, Dr. Don A. Koenigsberg, an osteopath, stated that he had
been treating appellant since March 13, 2006 for low back pain which radiated to his left
posterior thigh, to his knee and occasionally to his ankle and foot. He indicated that appellant’s
symptoms originated from his initial 2004 twisting incident at work, which resulted in severe
pain, numbness and tingling in his leg. Dr. Koenigsberg stated that the results of a magnetic
resonance imaging scan of his lumbar spine showed a left herniated disc at L5-S1 with
displacement of the left S1 nerve root. Appellant also had degenerative disc disease from L4
through S1.
Dr. Koenigsberg advised that appellant had periods of reduced pain where he was able to
work as a letter carrier; however, the pain would occasionally flare up, resulting in the need for
therapeutic epidural steroid injections. Following these injections appellant would always take
off work on the day of the procedure and one or two additional days thereafter. Dr. Koenigsberg
stated that appellant’s most recent set of injections was on July 15, 2010, when he administered
transformational lumbar epidural steroid injections at L4, L5 and SI on the left under
fluoroscopic guidance, as well as a left sacroiliac joint injection under fluoroscopic guidance. He
advised that those injections were for a diagnosis of a herniated disc at L5-SI and left sacroiliitis.
Dr. Koenigsberg stated that appellant experienced significant pain following that procedure,
which required him to take the next week off of work. Appellant’s pain resolved and he resumed
his normal work duties.
By decision dated November 1, 2010, OWCP denied the recurrence of disability claim.
It found that appellant failed to submit medical evidence sufficient to establish that the claimed
condition or disability as of July 15, 2010 was caused or aggravated by the accepted lumbar
condition.
LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of his claim, including
that the medical condition for which compensation is claimed is causally related to the
employment injury.2 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling. The evidence submitted must be reliable,
2

20 C.F.R. § 10.115 (e); see Tammy L. Medley, 55 ECAB 182 (2003).

2

probative and substantial.3 Benefits are available only while the effects of a work-related
condition continue. Compensation for wage loss due to disability is available for periods during
which a claimant’s work-related medical condition prevents him from earning the wages earned
before the work-related injury.4
An injured claimant may also be entitled to compensation for lost wages incurred while
obtaining authorized medical services.5 This includes the actual time spent obtaining the medical
services and a reasonable time spent traveling to and from the medical provider’s location. As a
matter of practice, OWCP generally limits the amount of compensation to four hours with
respect to routine medical appointments. However, 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.6
ANALYSIS
The Board finds that the case is not in posture for decision.
In the present case, appellant filed a claim for a recurrence of disability on July 15, 2010
causally related to his November 2004 accepted lumbar injury. OWCP proceeded to adjudicate
this claim as one for a recurrence of disability. Appellant contended in his September 8, 2010
claim for a recurrence of disability that he experienced severe pain after receiving epidural
injections in his lumbar spine on July 15, 2010. He asserted that these injections were given to
reduce low back pain stemming from his November 29, 2004 work injury. Dr. Koenigsberg
stated in an August 18, 2010 report that appellant continued to experience lumbar pain from his
November 2004 work injury which necessitated occasional epidural steroid injections at L4-5, SI
on the left and in the left sacroiliac joint, under fluoroscopic guidance. While appellant would
typically take off work the day he received these injections and for a day or two afterwards,
Dr. Koenigsberg stated that following appellant’s most recent set of injections on July 15, 2010
he experienced significant pain which required him to take off the following week from work.
The Board has held that disability resulting from surgery or treatment authorized by OWCP is
compensable.7 As OWCP had authorized the epidural injection, any disability resulting
therefrom would be compensable.
The Board finds that, while Dr. Koenigsberg’s August 18, 2010 report is not sufficient to
establish appellant’s claim for total disability arising from consequential injury, it is sufficiently
supportive to require further development of the medical evidence. Appellant would be entitled
to a period of wage loss for the day he received the epidural injection, July 15, 2010. He may
also be entitled to a period of disability causally related to the epidural injection. The medical
3

Id. at § 10.115(f).

4

Id. at § 10.500(a).

5

See 5 U.S.C. § 8103(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 2.900.8 (August 2011).

7

Carmen Dickerson, 36 ECAB 409 (1984).

3

evidence submitted provided an accurate history of the July 15, 2010 treatment.
Dr. Koenigsberg noted that appellant received an epidural injection to treat back pain stemming
from the 2004 accepted injury. It is apparent appellant sustained a period of disability
attributable to the authorized medical treatment. Although the report of Dr. Koenigsberg is
insufficiently rationalized to establish that appellant was totally disabled for an entire week, the
Board finds that it is sufficiently supportive of the claim that further development is warranted.8
Dr. Koenigsberg should be requested to further address the period of disability related to the
July 15, 2010 epidural injection. After such further development as it deems appropriate, OWCP
should issue a merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision. The case is remanded for
further development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
in accordance with this decision.
Issued: November 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
8

John J. Carlone, 41 ECAB 354 (1989); see also Cheryl A. Monnell, 40 ECAB 545 (1989); Bobby W.
Hornbuckle, 38 ECAB 626 (1987); Horace Langhorne, 29 ECAB 820 (1978) (if medical evidence establishes that
residuals of an employment-related impairment are such that they prevent an employee from continuing in the
employment, he is entitled to compensation for any loss of wage-earning capacity resulting from such incapacity).

4