United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, RANSON POST
OFFICE, Ranson, WV, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1155
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On June 4, 2021 appellant, through counsel, filed a timely appeal from a May 21, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the May 21, 2021 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 her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
FACTUAL HISTORY
On May 8, 2018 appellant then a 41-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 30, 2018 she sustained a strained left hip/buttock when she
was startled by a snake and fell backwards when delivering mail while in the performance of duty.
She stopped work on the filing date of her claim. On June 8, 2018 OWCP initially accepted the
claim for strain of the muscle, fascia, and tendon of the left hip, and unspecified strain of the left
hip. It later expanded acceptance of the claim to include trochanteric tendinitis/bursitis of the left
hip and strain of the gluteus medius. OWCP paid appellant wage-loss compensation on the
supplemental rolls as of June 23, 2018 and on the periodic rolls commencing January 6, 2019. It
again paid her intermittent wage-loss compensation on the supplemental rolls as of September 15,
2019, following her return to part-time limited-duty work on September 23, 2019.
Appellant filed several claims for compensation (Form CA-7) for disability from work for
the period February 27 through April 9, 2021. On March 29, and April 2 and 13, 2021 she filed
an accompanying time analysis form (Form CA-7a) wherein she claimed that she used leave
without pay (LWOP) as follows: eight hours each on February 27, March 13, 16, 20, 23, and 30,
and April 2, and 3, 2021 due to her days off work; two hours on March 1, 2021; 1.34 hours on
March 3, 2021; 4.20 hours on March 4, 2021; eight hours each on March 5 and 6, 2021 to receive
an injection in her physician’s office; 3.48 hours on March 8, 2021; 2.35 hours on March 9, 2021;
eight hours on March 11, 2021 due to being placed off work by her physician; eight hours each on
March 12, 15, 19, 22, 29 and April 8 and 9, 2021 due to hip pain; 1.46 hours on March 24, 2021;
3.08 hours on March 25, 2021; 2.02 hours on March 31, 2021; 2.85 hours on April, 1, 2021; 2.59
hours on April 6, 2021; and 4.45 hours on April 7, 2021.
In support of her claim, appellant submitted medical reports dated March 4 and 24, 2021
from Juris Eyler, a physician assistant. Mr. Eyler diagnosed pain, unilateral primary osteoarthritis,
other articular cartilage disorders of the left hip; sacroiliitis, not elsewhere classified; difﬁculty in
walking, not elsewhere classiﬁed, and trochanteric bursitis of the left hip. He advised that appellant
could continue to perform sedentary work with restrictions and indicated that her absences from
work for a partial day on March 4, 2021 and a full day on March 5, 2021 should be excused due
to a hip injection she received on March 4, 2021. On March 24, 2021 Mr. Eyler restricted her to
work four-to-six hours per day, three- to four-hour days per week, due to flare-ups of pain and
other symptoms effective March 3, 2021.
OWCP, in a development letter dated March 29, 2021, informed appellant that the evidence
submitted was insufficient to establish her claim for wage-loss compensation. It advised her of
the type of medical evidence necessary to establish her disability claim and afforded her 30 days
to submit the requested evidence.

2

In a separate letter dated March 29, 2021, OWCP requested that the employing
establishment indicate whether work was available for appellant on February 27 and March 5, 6,
11, and 12, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the period February 13 through 26 and March 8 and 9, 2021.
OWCP received an April 3, 2020 left hip arthrogram report by Dr. Taik-Kun Kim, a Boardcertified diagnostic radiologist. Dr. Kim noted that the arthrogram was performed prior to a
magnetic resonance imaging (MRI) scan. He provided an impression that the arthrogram was
successful and uncomplicated.
On April 6, 2021 the employing establishment responded to OWCP’s March 29, 2021
letter, noting that no work was available on February 27, 2021 and eight hours of work was
available on March 5, 6, 11, and 12, 2021.
In an April 16, 2021 letter, OWCP requested that the employing establishment provide
whether limited-duty work was available for appellant on intermittent dates during the period
March 13 through April 9, 2021.
In an initial response dated April 22, 2021, the employing establishment indicated that up
to six hours of limited-duty work per day was available on March 13, 15, 16, 19, 20, 22, 23, 29,
30, 31 and April 2, 3, 8, and 9, 2021. It indicated that medical evidence dated March 24, 2020
provided that appellant could work four-to-six hours per day, three-to-four days per week as
tolerated.
On April 28, 2021 the employing establishment further responded that appellant had days
off from work and was off work based on her physician’s order during the period March 13 through
April 9, 2021. It noted that her days off from work were March 13, 16, 20, 23, and 30 and
April 2, 2021. The employing establishment also noted that appellant was off from work on
March 15, 19, 22, and 29 and April 6 and 9, 2021 based on her physician’s order. Appellant
worked 5.98 hours on March 31, 2021.
OWCP subsequently paid appellant wage-loss compensation on the supplemental rolls for
intermittent disability from work for the periods March 13 through 26, 2021 and March 31 through
April 7, 2021.
OWCP continued to receive medical evidence. In an April 3, 2021 left hip MRI arthrogram
report, Dr. John M. Filigenzi, a Board-certified diagnostic radiologist, provided an impression of
mild left hip chondromalacia. Dr. Filigenzi related that appellant had a complex tear of the
acetabular labrum extending from the anterior-superior labrum through the posterior-superior
labrum, more severe anteriorly as detailed in his report. He also provided impressions of mild
degenerative changes of the sacroiliac joints and pubic symphysis, based on review of an April 1,
2020 pelvis MRI scan.
Dr. S. Shar Hashemi, a Board-certified surgeon, noted in reports dated May 10 and 14,
2021 that appellant’s history of a 2018 employment-related left hip injury. He discussed:
examination findings and diagnosed injury of cutaneous sensory nerve at hip and thigh level, left
3

leg, initial encounter; injury of other nerves at hip and thigh level, left leg, initial encounter; and
causalgia of the left lower limb. Dr. Hashemi placed appellant off work for one month
commencing April 29 and May 14, 2021, respectively.
A May 6, 2021 report by Dr. Raj Parekh, an anesthesiologist, noted appellant’s history of
injury, discussed examination findings, and provided impressions of high risk medication
monitoring narcotics, left hip chronic pain syndrome, unspecified and uncomplicated opioid use,
generalized anxiety disorder, and left hip labral tear. Dr. Parekh related that there was no doubt
that appellant’s left hip pain was causing significant disability and pain. He noted that she reported
that prior to her accepted employment injury, she was quite active, but now she was limited by her
pain and could not adequately perform her work duties.
In a May 21, 2021 decision, OWCP authorized payment of wage-loss compensation for
eight hours on February 27, 2021 and two hours each on March 13, 15, 16, 19, 20, 22, 23, 29, 30,
and 31 and April 2, 3, 8, and 9, 2021. It also noted that appellant had previously received
intermittent wage-loss compensation for March 1, 3, 4, 8, 9, 17, 24, 25, 31, and April 1, 6, and
9, 2021. The claim remained denied, however, as appellant had not provided medical evidence
establishing that she was disabled from work as a result of her accepted work -related medical
conditions for the remainder of the claimed period.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

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medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
For a routine medical appointment, a maximum of four hours of compensation for time lost
to obtain medical treatment is usually allowed.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury. Appellant filed a series of CA-7 forms
for intermittent disability from work commencing February 27, 2021. The record reflects that
OWCP has paid intermittent wage-loss compensation commencing February 27, 2021 for the dates
on which eight hours of work was not made available by the employing establishment and for the
dates on which appellant received authorized medical treatment.
OWCP received reports from medical providers regarding appellant’s disability status
during the relevant period. Several reports were submitted by Mr. Eyler, a physician assistant. In
a report dated March 4, 2021, Mr. Eyler advised that appellant’s absences from work for a partial
day on March 4, 2021 and a full day on March 5, 2021 should be excused due to a hip injection
she received on March 4, 2021. OWCP paid appellant wage-loss compensation for the time she
lost from work to receive the hip injection on March 4, 2021; however, it denied her claim for
wage-loss compensation commencing March 5, 2021 as Mr. Eyler’s opinion regarding appellant’s
disability status was of no probative value. 13 On March 24, 2021 Mr. Eyler restricted her to work
four to six hours per day, three to four hour days per week, due to flare -ups of pain and other
symptoms effective March 3, 2021. The Board has held that the reports of a physician assistant
are of no probative value as a physician assistant is not considered a physician as defined under
FECA and, therefore, is not competent to provide a medical opinion. The reports from Mr. Eyler

9

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

10

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(c)
(February 2013); see also K.A., Docket No. 19-0679 (issued April 6, 2020).
13

D.B., Docket No. 20-0192 (issued November 2, 2020); S.K., Docket No. 19-0272 (issued July 21, 2020).

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are, therefore, insufficient to establish appellant’s claim, except to establish that appellant received
treatment on the dates he provided authorized medical treatment.14
OWCP also received reports from Dr. Hashemi. In a report dated May 10, 2021,
Dr. Hashemi placed appellant off work for one month commencing April 29, 2021. He noted her
history of injury and diagnosed injury of cutaneous sensory nerve at the hip and thigh level of left
leg and causalgia of the left lower limb. However, Dr. Hashemi did not explain, with rationale,
how or why appellant was unable to perform her regular work on the claimed dates of disability
due to the effects of her accepted conditions. His other May 14, 2021 report also did not address
the relevant period of claimed disability. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/period of disability has an employment-related cause.15 For these reasons, the
Board finds that Dr. Hashemi’s reports are insufficient to establish appellant’s disability claim.
Appellant also submitted a May 6, 2021 report from Dr. Parekh. Dr. Parekh noted a history
of the April 30, 2018 employment injury. He diagnosed, inter alia, left hip chronic pain syndrome
and left hip labral tear. Dr. Parekh opined that appellant’s hip pain caused her disability from
work. However, he did not offer an opinion as to whether her disability on the claimed dates were
causally related to the accepted condition. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship. 16 Therefore, this evidence is insufficient to establish
appellant’s disability claim.
Likewise, Dr. Kim’s April 3, 2020 procedure note is insufficient to establish appellant’s
disability claim. In his April 3, 2020 note, he advised that a left hip arthrogram was successful
and uncomplicated. However, Dr. Kim did not provide an opinion addressing whether appellant
had disability on the claimed dates causally related to an accepted condition and, as such, his note
is of no probative value.17
Appellant submitted left hip MRI arthrogram reports from Dr. Kim and Dr. Filigenzi. The
Board has held, however, that diagnostic studies, standing alone, lack probative value on the issue

14

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013); M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006); see also D.B., id.; E.T., Docket No. 17-0265 (issued May 25, 2018)
(physician assistants are not considered physicians under FECA).
15

See T.S., Docket No. 20-1229 (issued August 6, 2021); S.K., Docket No. 19-0272 (issued July 21, 2020);
T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).
16

See T.S., id.; J.M., Docket No. 19-1169 (issued February 7, 2020); A.L., 19-0285 (issued September 24, 2019);
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
17

Id.

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of causal relationship as they do not address whether the accepted employment injuries resulted in
appellant’s period of disability on specific dates. 18
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury. 19 Because appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the claimed period due to her accepted
conditions, the Board finds that she has not met her burden of proof to establish h er claim.
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 has not met her burden of proof to establish her remaining
claims for intermittent disability from work for the period March 5 through April 9, 2021, causally
related to her accepted April 30, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

See T.S., id.; D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued
October 8, 2020); R.J., Docket No. 19-0179 (issued May 26, 2020).
19

Supra note 6.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Pekin, IL, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 09-981 &
09-1009
Issued: December 10, 2009

Case Submitted on the Record

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

JURISDICTION
On March 6 and 10, 2009 appellant timely appealed the January 5, 2009 merit decisions
of the Office of Workers’ Compensation Programs, which denied an increased schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant has greater than one percent impairment of the left lower
extremity.
FACTUAL HISTORY
Appellant, a 40-year-old correctional officer, sustained multiple injuries in the
performance of duty dating back to July 26, 1996 when he fell to the floor from a height of
approximately 16 feet. The Office accepted the 1996 injury (File No. xxxxxx657) for acute
lumbar strain and right thumb abrasion. On January 18, 1997 appellant reinjured his back in a
lifting incident. The Office accepted his 1997 injury (File No. xxxxxx339) for lumbar strain,

lumbar myositis and lumbar vertebral fracture. Appellant later sustained employment-related
injuries to his left lower extremity. On March 30, 2000 he tore the gastrocnemius muscle in his
left calf while descending stairs (File No. xxxxxx818). On September 12, 2000 appellant injured
his left foot/ankle while exiting a motor vehicle. The Office accepted this latest claim (File No.
xxxxxx374) for left acute retro-calcaneal bursitis and left heel spur excision, which he underwent
on April 18, 2001.1
Appellant underwent a second left foot surgical procedure on
December 3, 2003.
In November 2007, appellant filed schedule awards for both his back and left lower
extremity injuries.2 In a report dated July 12, 2007, Dr. Nicholas Diamond, a pain management
specialist, found 30 percent impairment of the left lower extremity due to muscle weakness and
pain.3 The overall rating included separate components for Grade 4 motor strength deficits
involving the left gastrocnemius (17 percent) and left ankle (12 percent). Dr. Diamond also
found an additional three percent impairment for pain. He attributed appellant’s impairment to a
combination of back and lower extremity injuries he sustained between July 1996 and
September 2000.
With respect to appellant’s back injury (File No. xxxxxx339), the district medical adviser
(DMA), Dr. David H. Garelick, reviewed the record, including Dr. Diamond’s July 12, 2007
report and found zero impairment of both the left and right lower extremities.4 In his
December 10, 2007 report, Dr. Garelick explained that there was no objective evidence
implicating appellant’s lumbar spine condition as the cause for his residual lower extremity
weakness. He further explained that the residual weakness was probably secondary to pain
associated with appellant’s left foot and ankle condition rather than overt muscle weakness.
Dr. Garelick was unaware that appellant’s left foot condition had been accepted as employment
related.
Another DMA, Dr. Robert W. Wysocki, reviewed the case file with respect to appellant’s
claim for a schedule award for his accepted left lower extremity injury (File No. xxxxxx818).
He too authored a report dated December 10, 2007. Dr. Wysocki found one percent impairment
of the left lower extremity due to sensory deficit involving the sural nerve. According to him,
there was zero left lower extremity impairment for decreased range of motion in the ankle.
Dr. Wysocki further explained that it was inappropriate to rate muscle weakness in the presence
of pain.
In a decision dated December 18, 2007, the Office denied a schedule award with respect
to appellant’s January 18, 1997 back injury (File No. xxxxxx339). But in a separate decision
dated January 2, 2008, it granted him a schedule award for one percent impairment of the left
1

The four above-noted claims have been combined under master file number xxxxxx374.

2

The two schedule award claims were separately adjudicated because the respective case records had yet to be
combined.
3

The original copy of the report did not include a signature page so the author was incorrectly identified as
Dr. David Weiss; one of several physicians whose name appeared on the report’s first-page letterhead.
4

Dr. Garelick is a Board-certified orthopedic surgeon.

2

lower extremity as a result of his September 12, 2000 left foot injury (File No. xxxxxx374).5
Appellant requested a review of the written record with respect to both schedule award decisions.
By decision dated May 23, 2008, the hearing representative set aside the Office’s
December 18, 2007 decision and remanded the case for further development. The hearing
representative noted, among other things, that the DMA, Dr. Garelick, was unaware that
appellant had an accepted left lower extremity condition. The case was remanded to the Office
with instructions to combine appellant’s various back and lower extremity claim files. The
hearing representative also instructed the Office to prepare a comprehensive statement of
accepted facts and refer appellant together with his combined case record to an appropriate
medical specialist for a second opinion examination.6 In a separate decision dated July 7, 2008,
the Branch of Hearings & Review applied a similar rationale in setting aside the Office’s
January 2, 2008 schedule award.
On remand, the Office twice scheduled appellant for a second opinion examination.
Appellant, however, missed both appointments.
On September 11, 2008 the Office issued two separate decisions (File Nos. xxxxxx339
and xxxxxx374) denying a schedule award in excess of the prior award of one percent
impairment of the left lower extremity.
On September 29, 2008 appellant’s counsel requested reconsideration of the
September 11, 2008 decisions. He explained that appellant was unable to attend a second
opinion examination because he had recently undergone a heart transplant. Counsel also
submitted a supplemental report from Dr. Diamond dated August 8, 2008, who explained that,
due to left lumbar radicular symptoms and left foot and ankle pain, appellant developed an
altered gait, which lead to weakness in the muscles of the left lower extremity as previously
identified in his July 12, 2007 report.
The Office referred Dr. Diamond’s latest report to its medical adviser, Dr. Amon Ferry.
In a report dated December 10, 2008, Dr. Ferry concurred with Dr. Wysocki’s December 10,
2007 rating of one percent impairment of the left lower extremity. He explained that the
decreased strength Dr. Diamond identified was related to painful ankle motion. Dr. Ferry further
explained that, under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (5th ed. 2001), decreased strength cannot be rated in the presence
of decreased motion, painful conditions, deformities or absence of parts that prevent effective
application of maximal force in the region being evaluated.
In two separate decisions, both dated January 5, 2009, the Office found that appellant was
not entitled to an increased schedule award for either his back or left lower extremity
employment injuries. It based its decisions on Dr. Ferry’s December 10, 2008 report.

5

The January 2, 2008 schedule award covered 2.88 weeks.

6

The hearing representative was aware that appellant had received an award for one percent impairment of the
left lower extremity under claim file number xxxxxx374.

3

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.7 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.8 Effective February 1, 2001,
schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).9
ANALYSIS
Appellant’s counsel argues that the Board should award 30 percent impairment of the left
lower extremity based on Dr. Diamond’s reports. The Office awarded one percent impairment
based on a Grade 3 pain and sensory deficit in the distribution of the left sural nerve.10 The
Board finds that appellant failed to establish greater than one percent impairment of the left
lower extremity.
Dr. Diamond’s July 12, 2007 and August 8, 2008 reports are insufficient to establish 30
percent impairment of the left lower extremity. Dr. Ferry, like Dr. Wysocki before him,
correctly explained that Dr. Diamond’s impairment rating due to muscle weakness was
inappropriate because of reported pain in appellant’s left ankle. According to the A.M.A.,
Guides, “[d]ecreased strength cannot be rated in the presence of decreased motion, painful
conditions, deformities or absence of parts ... that prevent effective application of maximal force
in the region being evaluated.”11 Dr. Diamond’s July 12, 2007 examination results revealed
essentially normal range of motion in the left ankle, but he noted that “[a]ll ranges of motion
[were] carried through with pain at the extremes.” He also noted that appellant admitted to left
heel and foot pain and stiffness on a daily basis that waxed and waned. Because of the presence
of pain, Dr. Diamond’s impairment rating for muscle weakness involving left ankle plantar
flexion and dorsiflexion was clearly inappropriate.12 Furthermore, he failed to justify his

7

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2)
(2006).
8

20 C.F.R. § 10.404.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

10

See Table 16-10, A.M.A., Guides 482 and Table 17-37, A.M.A., Guides 552. The one percent impairment was
derived by multiplying the Grade 3 sensory deficit (43 percent) by the maximum lower extremity sensory deficit
involving the sural nerve (2 percent).
11

Section 16.8a, A.M.A., Guides 508.

12

Id.

4

additional three percent rating for pain.13 Accordingly, the Office properly declined to grant an
increased schedule award based on Dr. Diamond’s opinion.
CONCLUSION
Appellant has not established that he has greater than one percent impairment of the left
lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2009 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: December 10, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

13

The A.M.A., Guides limit the circumstances under which a pain-related impairment may be assessed under
Chapter 18. If an impairment can be adequately rated on the basis of the body and organ impairment systems given
in other chapters of the A.M.A., Guides, such as Chapters 13, 16 and 17, then pain-related impairments should not
be assessed using Chapter 18. See section 18.3b, A.M.A., Guides 571. The A.M.A., Guides provide for an
incremental adjustment of up to three percent for pain when the conventional rating system does not adequately
encompass the burden of the individuals condition. Where the pain-related impairment appears to increase the
burden of the individual’s condition “slightly,” the physician can increase the percentage found under the
conventional rating system by up to three percent. See id. at 573; Figure 18-1, A.M.A., Guides 574.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Big Beaver, MI,
Employer
__________________________________________

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

Docket No. 09-1976
Issued: April 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 28, 2009 appellant filed a timely appeal from a July 6, 2009 nonmerit decision of
the Office of Workers’ Compensation Programs denying reconsideration of an August 2, 2007
merit decision. As over a year has passed since the date of the last merit decision in this case,
dated August 2, 2007, and the filing of this appeal, dated July 28, 2009, the Board lacks
jurisdiction over the merits of this case.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the nonmerits of this case.
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
This is the third time this case has been before the Board. The Board previously affirmed
the Office’s January 20 and April 24, 2006 decisions denying appellant’s back condition and
request for surgery as causally related to the accepted injury2 as well as dismissal of appellant’s
application for failure to properly authorize his representative to act on his behalf.3 On May 24,
2002 appellant, a 47-year-old small parcel bundle sorter, filed a traumatic injury claim (Form
CA-1) for a pulled left inner thigh and a “large lump” on his thigh that occurred while pushing a
bulk mail cart. The Office accepted his claim for inguinal groin strain. By decisions dated
May 24, 2004, August 23, 2005, January 20 and April 24, 2006 and August 2, 2007, the Office
denied appellant’s claim that he had a back condition causally related to the accepted injury.
Following the Office’s August 2, 2007 merit decision, on October 28, 2008 appellant,
through his attorney, requested reconsideration.
Appellant submitted an October 3, 2008 report in which Dr. Fernando G. Diaz, a Boardcertified neurological surgeon, reported findings on examination, reviewed appellant’s medical
history and diagnosed radiculopathy “involving the left lower extremity in the S1 distribution,
which includes the inguinal region.” Dr. Diaz opined that appellant’s condition was work related
and that he has “classic S1 radiculopathy in the classic anatomical distribution of the S1 nerve
root … all associated with disc herniation at the L5-S1 level.” He further opined that appellant’s
complaints had not changed since 2002 and that appellant had no evidence of a hernia or a
hernia-related condition. Dr. Diaz also opined that the medical evaluations of appellant, which
were obtained at the request of the employing establishment and paid for by the employing
establishment were not truly independent and may not have been a true reflection of appellant’s
problem.
By decision dated July 6, 2009, the Office denied the request, finding that appellant’s
request was untimely and did not establish clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Secretary of Labor may
review an award for or against payment of compensation at any time on his own motion or on
application.4 The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 8128(a). To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant must file her application for review within one year
of the date of that decision.5 The Board has found that the imposition of the one-year limitation

2

M.L., (Docket No. 06-1561, issued December 27, 2006).

3

M.L., (Docket No. 08-290, issued May 29, 2008).

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(a).

2

does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.6
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.7 Office regulations and procedure provide that the Office will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of the Office.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.9 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.13 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.14
ANALYSIS
The Office properly determined appellant’s application for review was untimely. The
last merit decision in this case was August 2, 2007. Appellant requested reconsideration on
6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides, the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the Office made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

See Leona N. Travis, 43 ECAB 227, 240 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

Pete F. Dorso, 52 ECAB 424 (2001).

3

October 28, 2008 and thus the request is untimely as it was filed outside the one-year time
limit.15 Because he filed his request more than one year after the Office’s August 2, 2007 merit
decision, he must demonstrate clear evidence of error on the part of the Office in denying his
claim.
In accordance with internal guidelines and Board precedent, the Office properly
performed a limited review to determine whether appellant’s application for review showed clear
evidence of error which would warrant reopening the case for further merit review under section
8128(a). It reviewed the evidence submitted by appellant in support of his application for
review, but found that it did not clearly establish that the Office’s prior decision was in error.
The Board has carefully reviewed the record. As noted earlier, the evidence submitted
must be relevant to the issue which was decided by the Office, i.e., whether appellant established
that his back condition was causally related to the employment injury and that surgery was
medically warranted.
With his reconsideration request, appellant submitted Dr. Diaz’s October 3, 2008 report.
While this report provides a diagnosis of appellant’s back condition and an opinion in support of
causal relationship, Dr. Diaz’s opinion does not on its face establish manifest error in the denial
of appellant’s claim. Although he supports the claim specifically stating that appellant suffered
an injury to the back causally related to the accepted incident, this opinion, six years after the
injury, is not sufficient to establish that the Office’s denial of compensation for a back condition
in 2002 was clearly erroneous. Dr. Diaz’s opinion is repetitive of that expressed in his earlier
reports. To establish clear evidence of error, the evidence must be more than simply to suggest a
contrary conclusion. It must manifest on its face that the Office’s decision is clearly wrong.
Dr. Diaz also opined that the medical evaluations procured by the Office were “not truly
independent and may have been not a true reflection of [appellant’s] problem,” but this
disagreement provides no explanation as to how the Office’s reliance on medical examinations
procured pursuant to the Office’s regulations was misplaced or improper. Therefore, this
argument does not raise a substantial question as to the correctness of the Office’s prior decision
and, therefore, does not establish clear evidence of error such that it abused its discretion in
denying merit review.
The Board finds that the Office did not abuse its discretion in denying further merit
review.
CONCLUSION
The Board finds that appellant has not submitted sufficient evidence establishing clear
evidence of error on the part of the Office in his reconsideration request dated October 28, 2008
and therefore the Office properly denied further review on July 6, 2009.

15

20 C.F.R. § 10.607.

4

ORDER
IT IS HEREBY ORDERED THAT the July 6, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 12, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 09-2020
Issued: July 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 5, 2009 appellant filed a timely appeal of the November 14, 2008 and July 24,
2009 decisions of the Office of Workers’ Compensation Programs denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.1
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
On June 21, 2005 appellant, then a 57-year-old tractor-trailer operator, filed an
occupational disease claim alleging that he injured his back, knees, arm and hands from poor
suspension in his truck. He first realized that his condition was caused or aggravated by his
employment activities on July 10, 2004. Appellant stopped work on July 7, 2006 when he
retired on disability. The employing establishment indicated that his truck had been properly
maintained.
On June 29, 2005 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit such evidence.
Appellant submitted an undated statement noting that he had driven a truck for the
employer since June 10, 1995. The truck had an extremely small cabin with no leg room,
horrible suspension, no armrests and poor seating. Appellant stated that from 1995 to 2003 he
drove for 10 hours a day and six days a week. He noted hitting his head on the truck’s ceiling
whenever hitting a bump in the road and that he had to outstretch his hands to hold the steering
wheel since there were no armrests. Appellant experienced numbness of his hands and elbows
that started two years prior and progressively became worse. He also complained of back
problems for the past five years. Appellant had no prior knee, back or hand conditions or
injuries.
In an August 9, 2005 decision, the Office denied appellant’s claim finding that, although
the factual evidence supported that the claimed work exposure occurred, there was no medical
evidence to establish that he sustained a medical condition causally related to his employment
activities.
Appellant requested reconsideration and submitted a September 28, 2005 physician’s
assistant report stating that his back, hand and knee injuries were more likely than not related to
many years of truck driving for the employing establishment. In an August 12, 2005 report,
Dr. Susy Alias, a Board-certified physiatrist, indicated that he was informed at his annual
physical examination on July 14, 2005 that he could not return to work due to knee, upper
extremity and back pain. She noted appellant’s complaint of neck, knee and low back pain from
truck driving and lifting boxes of mail. Dr. Alias opined that due to limitation in his functional
activity from back pain and knee pain from arthritis and upper extremity impairment due to
neuropathy, he was unable to return to work as a truck driver. She diagnosed chronic back pain,
bilateral carpal tunnel syndrome, polyneuropathy, degenerative joint disease involving the knees,
hypertension and heart murmur.
In a January 11, 2006 merit decision, the Office denied appellant’s claim finding that the
additional medical evidence did not establish that he sustained conditions causally related to his
work duties.
In a January 24, 2006 report, Dr. Francis Jana, a Board-certified internist, reviewed
appellant’s medical records diagnosing low back pain, bilateral carpal tunnel syndrome and
bilateral knee arthritis. He opined that appellant’s conditions were probably more likely than not
related to his many years as a truck driver for the employing establishment.

2

On June 15, 2006 appellant requested reconsideration and indicated that he would
provide a medical report through his primary care physician.
In a September 15, 2006 decision, the Office denied modification of its prior decisions.
On August 6, 2007 appellant requested reconsideration. In a June 8, 2007 report,
Dr. Gary Miller, a Board-certified orthopedic surgeon, noted that appellant had multiple
orthopedic issues and diagnoses. He advised that appellant was working at the employing
establishment and because of the responsibilities of his job he had job-related conditions.
Dr. Miller noted that appellant had lower back pain which showed disc spaces reduced at L5-S1
consistent with degenerative discs. He also noted that spurs were seen from the anterior and
lateral articular margins of the lumbar vertebral bodies at all levels consistent with degenerative
changes. Dr. Miller indicated that gout contributed to appellant’s knee and elbow pain due to
gouty crystals depositing in the joints, which was worsened by appellant’s job activities.
Appellant also had carpal tunnel syndrome from repeated activities at his job. Dr. Miller opined
that all of appellant’s conditions were becoming more symptomatic because of his work
responsibilities and that job modification was not an option as he had multiple joint indolent.
In an October 9, 2007 decision, the Office denied modification of its prior decisions.
On August 18, 2008 appellant requested reconsideration. In an August 15, 2008 report,
Dr. Miller noted that the orthopedic service at his facility had evaluated appellant’s
musculoskeletal condition. The orthopedic service was treating appellant for left upper
extremity and bilateral knee conditions. Dr. Miller noted that appellant had undergone left carpal
tunnel and cubital tunnel releases. He opined that appellant’s conditions were caused by
repetitive motion from driving a tractor trailer. Dr. Miller listed appellant’s assertion that
repetitive opening and closing of a heavy truck door aggravated his condition and Dr. Miller
indicated that this was possible. He also reported appellant’s belief that poor suspension in the
tractor trailer and constant bumping aggravated his left upper extremity, knees and back
condition. Dr. Miller stated that x-rays showed “mild progressive degenerative disease of the
knee joints. Which could have been aggravated by [appellant’s] job responsibilities?”
In a November 14, 2008 decision, the Office denied modification of its prior decisions.
Appellant requested reconsideration on February 12, 2009. In a March 17, 2008 report,
Dr. Miller opined that there was a correlation between appellant’s musculoskeletal conditions
and his job as a tractor-trailer operator. He reiterated that appellant was being seen by the
orthopedic department for his left upper extremity and both knees. Appellant underwent left
carpal tunnel and cubital tunnel release on February 13, 2006 and both conditions were caused
by repetitive motion that he stated was from driving a mail truck and the repetitive opening and
closing the back of the truck. According to appellant, poor suspension on the tractor trailer and
constant bumping in the truck aggravated his left upper extremity, knees and back conditions.
Dr. Miller noted that x-rays showed mild progressive degenerative joint disease which was
aggravated by activity,2 but was not the entire etiology of the problem.
2

The Board notes this typographical error and that, based on the context of the sentence, Dr. Miller intended to
use the word “activity.”

3

In a July 24, 2009 decision, the Office denied modification of its prior decisions finding
that the evidence submitted did not establish causal relationship between appellant’s diagnosed
conditions and accepted his work activities.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act 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 the Act, 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 conditions for which
compensation is claimed are causally related to the employment injury. 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.4
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 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 employee.5
ANALYSIS
The record reflects that appellant was a tractor-trailer operator who alleged injuries to his
back, knees, arms and hands due to poor suspension while driving a tractor trailer in the
performance of duty. The record supports that he drove a truck daily as part of his duties;
however, the medical evidence is not sufficient to establish these activities caused or aggravated
his diagnosed medical conditions.
In reports dated March 17 and August 15, 2008, Dr. Miller provided an opinion based on
appellant’s belief of causal relation. He indicated that appellant’s left carpal and cubital tunnel
3

J.E., 59 ECAB ___ (Docket No. 07-814, issued October 2, 2007); Elaine Pendleton, 40 ECAB 1143 (1989).

4

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

5

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

4

syndromes were caused by repetitive motion that appellant reported was from driving and
opening and closing the truck door. Dr. Miller also reported appellant’s belief that poor
suspension aggravated his diagnosed conditions. His reliance on appellant’s belief of causal
relationship to form his own opinion on causal relationship is insufficient to establish appellant’s
claim. Dr. Miller failed to provide an independent and rationalized opinion explaining how
appellant’s activities as a truck driver caused or contributed to the diagnosed conditions.6 On
March 17, 2008 he provided a vague opinion by stating that appellant’s degenerative joint
disease was aggravated by activity but that this was not the entire etiology of the problem.
Dr. Miller failed to identify the specific activities that aggravated appellant’s joint condition or
whether such activity was work related. Moreover, he did not elaborate on what other factors
contributed to the etiology of the problem or discuss whether such etiology derived from
appellant’s employment activities. The Board has held that the opinion of a physician of
reasonable medical certainty and supported by medical rationale explaining causal relationship.7
Similarly, Dr. Miller’s June 8, 2007 report broadly opined that appellant had job-related
conditions because of his job responsibilities. He generally addressed how appellant’s job
activities worsened his gout condition and that his carpal tunnel syndrome was from repeated job
activities. Again, Dr. Miller did not identify any specific job activity or explain how appellant’s
work as a tractor-trailer operator caused or contributed to any diagnosed conditions. He
indicated that appellant was working at the employing establishment, when in fact, he had retired
on disability on July 7, 2006. Dr. Miller’s failure to demonstrate an accurate history of
appellant’s employment or a specific understanding of his job duties renders his opinion of
reduced probative value.8
In an August 12, 2005 report, Dr. Alias opined that appellant could not work due to
functional limitations caused by his back and knee arthritic pain and upper extremity neuropathy.
She did not specify, however, the cause of his back, knee and upper extremity conditions or
explain whether his employment activities caused or aggravated these conditions. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.9 Although Dr. Alias
noted that appellant attributed his neck, knee and low back pain to truck driving and lifting boxes
at work, she did not discuss whether these work activities were the cause of his condition.
On January 24, 2006 Dr. Jana noted that appellant’s medical records diagnosed low back
pain, bilateral carpal tunnel syndrome and bilateral knee arthritis. He opined that appellant’s
condition “probably more likely than not” related to his many years as a truck driver. To the
extent Dr. Jana’s report supports causal relationship, it is of diminished probative value as his
6

See William Nimitz, 30 ECAB 567 (1979) (where the Board has held that an award for compensation may not be
predicated upon appellant’s belief of causal relation as such a relationship must be shown by rationalized medical
evidence of causal relation based upon a specific and accurate history of employment incidents or conditions which
are alleged to have caused or exacerbated a disability).
7

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

8

See supra note 5.

9

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).

5

opinion is couched in speculative terms.10 He also did not base his opinion on his own
evaluation of appellant’s condition in which he explained the reasons particular aspects of
driving a truck would cause or aggravate a diagnosed condition.
The record also contains a report from a physician’s assistant. A physician’s assistant is
not a physician as defined under the statute and therefore any report from such individual does
not constitute competent medical opinion which, in general, can only be provided by a qualified
physician.11
On appeal, appellant asserts that working for the employing establishment for 12 years
driving a truck and loading heavy equipment caused his bilateral carpal tunnel, knee and back
conditions. As noted, his burden of proof required that he submit rationalized medical evidence
establishing that his diagnosed conditions were caused by his employment activities. The
medical evidence of record does not provide a rationalized physician’s opinion explaining the
reasons why truck driving or heavy lifting at work caused or aggravated appellant’s hand, knee
or back conditions. Therefore, appellant did not meet his burden of proof.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an occupational disease in the performance of duty.

10

Kathy Kelley, 55 ECAB 206 (2004) (the Board has held that opinions such as, the implant “may have ruptured”
and that the condition is “probably” related, “most likely” related or “could be” related are speculative and diminish
the probative value of the medical opinion).
11

See George H. Clark, 56 ECAB 162 (2004); see also 5 U.S.C. § 8101(2) (defining the term “physician”).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated July 24, 2009 and November 14, 2008 are affirmed.
Issued: July 23, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
TENNESEE VALLEY AUTHORITY,
GALLATIN FOSSIL PLANT, Gallatin, TN,
Employer
__________________________________________

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

Docket No. 09-350
Issued: August 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from an October 22, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his claim. 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 established that he sustained hearing loss in the
performance of duty.
FACTUAL HISTORY
On April 25, 2008 appellant, a 69-year-old yard operations lead technician, filed an
occupational disease claim (Form CA-2) for hearing loss.1 He attributed his hearing loss to
exposure to loud noises produced by heavy equipment. Appellant first recognized his hearing
1

The record reflects that appellant retired on August 24, 2008.

loss and its relation to his employment on August 1, 1976. He noted that, because his hearing
loss occurred gradually, he was unaware of it until the Tennessee Valley Authority (TVA)
performed a hearing test and that, since that date, TVA medical personnel have been tracking his
hearing condition through the hearing conservation program.
Appellant submitted no evidence in support of his claim, and by letter dated May 2, 2008,
the Office notified him that the evidence of record was insufficient to support his claim and
requested that he submit additional evidence. The Office provided examples of the type of
evidence required.
Responding to the Office’s letter, appellant submitted evidence documenting his
employment history and noise exposure at each employment experience. He also submitted
audiograms conducted at periodic intervals from 1969 through 2008.
Appellant’s employment history included private construction companies and the current
employing establishment, TVA. He was exposed to noise produced by bulldozers, draglines and
dump trucks, etc., for many hours per day from 1962 to 1966 while employed by private
construction companies. No hearing protection was provided. Appellant was employed by TVA
from 1966 to 1970, where he was exposed to noise produced by bulldozers, graders, trucks and
other heavy equipment for 6 to 10 hours per day. No hearing protection was provided. From
1970 to 2008, while employed by TVA, he was exposed to noise produced by bulldozers,
scrapers, graders, diesel pumps, cranes, locomotives, loaders and powerhouse noise for several
hours per day and earplugs were provided for portions of this employment experience.
Appellant noted that he has no hobbies involving exposure to loud noise and that his
employment-related noise exposure continued up until his retirement on April 24, 2008.
The Office referred appellant, together with a statement of accepted facts to Dr. Jeffery
Paffrath, a Board-certified otolaryngologist, for a second opinion evaluation. By report dated
August 27, 2008, Dr. Paffrath reported that appellant’s earliest audiogram was August 7, 1969.
He opined that, “I do not feel that, despite his significant noise exposure, that it will be possible
to say that the sensorineural hearing loss is due to noise exposure encountered in this claimant’s
federal civilian employment.” Subsequent to that report, appellant underwent a magnetic
resonance imaging (MRI) scan of the brain and Dr. Paffrath submitted a supplemental report,
dated September 2, 2008. In that report, he reiterates that “I would like to emphasize that he
does not have a significant shift in his hearing after presbycusis factor based on his federal
employment. I would not be able, in my opinion, to say that the sensorineural hearing loss is due
to the claimant’s federal civilian employment.
By decision dated October 22, 2008, the Office denied appellant’s claim because the
evidence of record did not establish his hearing loss was causally related to his federal
employment.
LEGAL PRECEDENT
When an employee claims that he sustained an injury in the performance of duty he must
submit sufficient evidence to establish that he experienced a specific event, incident or exposure

2

occurring at the time, place and in the manner alleged. He must also establish that such event,
incident or exposure caused an injury.2 Once an employee establishes that he sustained an injury
in the performance of duty, he has the burden of proof to establish that any subsequent medical
condition or disability for work for which he claims compensation is causally related to the
accepted injury.3
ANALYSIS
The Board finds that appellant has not established that he sustained a hearing loss
causally related to his federal employment. While the record establishes that he was surrounded
by noise producing equipment throughout his employment, the medical evidence of record is
insufficient to support his claim because it lacks a rationalized medical opinion establishing the
requisite causal relationship between appellant’s hearing loss and factors of his employment.
Appellant submitted results from audiograms conducted over a 39-year period
commencing on August 7, 1969, but none of these were certified by a physician as either
accurate or causally related to his employment. The Board has held that, if an audiogram is
prepared by an audiologist it must be certified by a physician as being accurate before it can be
used to determine the percentage of hearing loss. These reports may not be considered probative
medical evidence unless it can be established that the person completing the report is a physician
as defined in 5 U.S.C. § 8101(2).4 The Board finds these audiograms of no probative medical
value and thus insufficient to meet appellant’s burden of proof, because there is no indication
that they were completed by a physician.
The only probative medical evidence of record was that furnished by the Office’s second
opinion physician, Dr. Paffrath, who, following examination and evaluation of an audiogram,
opined that appellant’s hearing loss was not causally related to appellant’s federal employment.
Dr. Praffrath asserted, based upon his analysis and examination, that appellant did not show a
standard threshold shift of significance beyond presbycusis. The Board finds that as appellant
has submitted no competent and probative rationalized medical evidence in support of his claim,
he has failed to discharge his burden of proof and, therefore, has not established that he sustained
hearing loss in the performance of duty.
CONCLUSION
The Board finds that appellant has not established that he sustained hearing loss in the
performance of duty.

2

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (“injury” defined); 20 C.F.R.
§ 10.5(a)(15) and (16) (“traumatic injury” and “occupational disease or illness” defined).
3

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

4

5 U.S.C. § 8101(2) defines physicians as surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State law. See Merton J.
Sills, 39 ECAB 572 (1988).

3

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pinellas Park, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1770
Issued: February 1, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 14, 2012 appellant, through her attorney, filed a timely appeal from a May 24,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) that denied her 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 established that she had any employment-related disability
beginning December 5, 2005 causally related to the conditions accepted by OWCP on
November 12, 2009 of cervical sprain, lumbar sprain or bilateral carpal tunnel syndrome.
On appeal, appellant’s attorney asserts that appellant is entitled to disability
compensation for the period claimed, based on the opinions of her attending physician and that
of an OWCP referral physician.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a November 13, 2008 decision, the
Board found that appellant failed to meet her burden of proof to establish that she sustained a
recurrence of disability on December 5, 2005 causally related to an October 1, 2004 employment
injury.2 In a March 13, 2012 decision, the Board found that the case was not in posture for
decision regarding whether she established that she was totally disabled beginning on
December 5, 2005 due to her accepted conditions and remanded the case to OWCP. On remand
OWCP was to ask Dr. William Dinenberg, a Board-certified orthopedic surgeon and OWCP
referral physician, to furnish a supplementary report regarding whether the restrictions that he
provided in both the body of his October 16, 2009 report and on an attached work capacity
evaluation were due to the conditions of cervical and lumbar sprains and/or bilateral carpal
tunnel syndrome accepted as employment related on November 12, 2009 or whether the
restrictions were due to conditions that had not been accepted by OWCP, such as diagnosed left
shoulder impingement. Dr. Dinenberg was to further provide an opinion as to whether appellant
was totally disabled beginning on December 1, 2005 solely due to the accepted conditions. After
this and such further development deemed necessary, OWCP was to issue an appropriate
decision.3 The law and facts of the previous Board decisions are incorporated herein by
reference.
Dr. Harish J. Patel, an attending neurologist, furnished a number of treatment notes dated
July 2, 2010 to April 13, 2012 in which he reported his physical examination findings and
diagnosed headaches, cervical and lumbosacral radiculopathy with pain and depression. A
September 21, 2011 nerve conduction study of the lower extremities demonstrated abnormal
activity indicative of tibial and peroneal neuropathies and lumbosacral radiculopathies.4
In April 2012 OWCP referred appellant to Dr. Dinenberg for a second-opinion
evaluation. Dr. Dinenberg was asked to clarify whether the restrictions he provided in his
October 16, 2009 report were due to the employment injury and whether appellant was disabled

2

Docket No. 08-1393 (issued November 13, 2008). The October 1, 2004 injury, adjudicated by OWCP under file
number xxxxxx718, occurred when appellant tripped on an uneven pavement. The claim was accepted for an open
wound and contusion to the right knee and strains to the left ankle, left knee and left wrist. Appellant filed the
instant occupational disease claim, adjudicated by OWCP under file number xxxxxx416, on December 15, 2008.
On November 12, 2009 OWCP accepted that appellant sustained a work-related cervical sprain, lumbar sprain and
bilateral carpal tunnel syndrome and on November 20, 2009 she filed a claim for compensation beginning
December 1, 2005. By decision dated May 2, 2011, appellant was granted a schedule award for a five percent
impairment of the right upper extremity and a five percent impairment of the left upper extremity. In an October 5,
2011 decision, OWCP denied her claim for a schedule award for the lower extremities.
3

Docket No. 11-490 (issued March 13, 2012).

4

Counsel requested that OWCP additionally accept lumbar radiculopathy. OWCP continues to develop this
issue.

2

on December 1, 2005 due to the accepted conditions.5 In a May 7, 2012 report, he noted his
review of the statement of accepted facts and medical record. Dr. Dinenberg noted tenderness on
examination of the cervical and lumbar spine and positive Phalen’s test, Tinel’s sign and carpal
compression tests bilaterally. He diagnosed cervical and lumbar sprain and strain and bilateral
carpal tunnel syndrome. A May 8, 2012 study of the upper and lower extremities was normal,
with no electrical evidence of carpal tunnel syndrome or cervical or lumbar radiculopathies. In
an addendum report dated May 10, 2012, Dr. Dinenberg advised that the only restriction he
provided in October 2009 for a nonwork-related condition was that of reaching above the left
shoulder. He stated that all other restrictions were for the accepted conditions. Dr. Dinenberg
further opined that he did not feel that appellant was totally disabled on December 1, 2005 but
did have restrictions secondary to the accepted conditions beginning on that date.
By decision dated May 24, 2012, OWCP denied appellant’s claim for disability
compensation beginning on December 1, 2005 and continuing on the grounds that the medical
record did not support disability.
LEGAL PRECEDENT
Under FECA the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.6 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA.7 When the medical evidence
establishes that the residuals of an employment injury are such that, from a medical standpoint,
they prevent the employee from continuing in his or her employment, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from the employment injury.8
Whether a particular injury causes an employee to be disabled for employment and the duration

5

In his October 16, 2009 report, Dr. Dinenberg provided examination findings and diagnosed work-related
cervical sprain/strain, lumbar sprain/strain and bilateral carpal tunnel syndrome and nonemployment-related left
shoulder impingement, minimal disc herniation at L5-S1 and minimal disc herniation at C2 through C6. He noted
that appellant’s subjective complaints outweighed her objective findings but that she had work-related residuals of
the cervical and lumbar spine, including loss of range of motion and tenderness and that the hands had decreased
sensation. Dr. Dinenberg advised that appellant was at maximum medical improvement for the cervical and lumbar
sprains but not at maximum medical improvement for bilateral carpal tunnel syndrome and recommended carpal
tunnel release. He provided temporary restrictions of no overhead work with the left shoulder and no lifting greater
than 20 pounds and advised that appellant could not perform the duties of a letter carrier and would need a primarily
sedentary position. Dr. Dinenberg provided permanent restrictions of no reaching above the shoulder and no
bending, stooping, squatting, kneeling or climbing. He indicated that appellant could repetitively move her wrists
for one hour daily and could push, pull and lift 20 pounds for two hours daily.
6

See Prince E. Wallace, 52 ECAB 357 (2001).

7

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

8

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

3

of that disability are medical issues which must be proved by a preponderance of the reliable,
probative and substantial medical evidence.9
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.10 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized medical opinion of whether there is a
causal relationship between the claimant’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 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.11
ANALYSIS
The Board finds that this case is not in posture for decision. In reports dated October 16,
2009 and May 7 and 12, 2012, Dr. Dinenberg advised that appellant continued to have residuals
of the accepted cervical and lumbar strains and carpal tunnel syndrome. In his October 16, 2009
report, he advised that she could not perform her regular job duties as a letter carrier and would
need a primarily sedentary position with permanent restrictions, which he described.12 In his
May 10, 2012 report, Dr. Dinenberg indicated that the restrictions of no bending, stooping,
squatting, kneeling or climbing with additional restrictions that she could repetitively move her
wrists for one hour daily and could push, pull and lift 20 pounds for two hours daily were based
on the employment injuries.
The record indicates that appellant was working full duty at the time she stopped work in
December 2005. The record also indicates that the physical requirements of the carrier position
include carrying mail in shoulder satchels weighing as much as 35 pounds and loading and
unloading sacks of mail weighing up to 70 pounds. The restrictions provided by Dr. Dinenberg
clearly indicate that appellant could not meet those physical requirements. Appellant therefore
established that she was disabled from performing the duties of the letter carrier position when
she stopped work.
The record, however, is unclear regarding the period of disability due to the employment
injuries. In his May 10, 2012 report, Dr. Dinenberg stated: “I do not feel that the claimant was
totally disabled on December 1, 2005, but did have restrictions secondary to the accepted
conditions beginning on that date.” As noted above, when the medical evidence establishes that
the residuals of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in his or her employment, the employee is entitled to compensation
for any loss of wage-earning capacity resulting from the employment injury.13 The case will
9

Tammy L. Medley, 55 ECAB 182 (2003).

10

Jennifer Atkerson, 55 ECAB 317 (2004).

11

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

12

Supra note 5.

13

Supra note 8.

4

therefore be remanded to OWCP to determine the period in which appellant would be entitled to
disability compensation.14
CONCLUSION
The Board finds this case is not in posture for decision regarding the period of disability
in which appellant would be entitled to monetary compensation.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: February 1, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

14

The Board notes that at a July 27, 2009 hearing, appellant testified that, since she stopped worked at the
employing establishment, she had been tutoring at home.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, CINCINNATI BULK
MAIL CENTER, Cincinnati, OH, Employer
__________________________________________

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

Docket No. 13-514
Issued: June 12, 2013

Case Submitted on the Record

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

JURISDICTION
On December 21, 2012 appellant filed a timely appeal from a November 28, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $836.82; and (2) whether OWCP properly denied waiver of the overpayment.
On appeal appellant generally asserts that the overpayment should be waived.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 16, 2011 appellant, then a 53-year-old part-time flexible mail handler, filed a
traumatic injury claim, alleging that on May 6, 2011 she injured her right shoulder and arm when
she fell at work. She stopped work on May 12, 2011. The claim was accepted for right shoulder
sprain, right impingement syndrome and partial right rotator cuff tear. Appellant received
continuation of pay and compensation and was placed on the periodic compensation rolls. On
January 4, 2012 she had arthroscopic repair of the right shoulder.
Appellant returned to modified duty for approximately 40 hours a week effective
June 18, 2012. The record indicates that appellant continued to receive wage-loss compensation
for the period June 18 through 30, 2012.
By letter dated October 15, 2012, OWCP issued a preliminary determination that
appellant received an overpayment in compensation in the amount of $836.82 because she
continued to receive disability compensation after her return to work. It explained the
calculation of the overpayment and found her at fault in its creation. Appellant was provided an
overpayment action request form and an overpayment questionnaire. An overpayment
worksheet indicated that she received net compensation of $1,043.83 for this period when she
should have received $56.93. Appellant received credits for health benefits and basic and
optional life insurance, which yielded an overpayment of compensation of $836.82.
Appellant did not agree that she was at fault and requested a decision based on the written
record. She also submitted an overpayment questionnaire listing income of $4,000.00 and
expenses totaling $3,282.00.
On November 28, 2012 OWCP finalized the overpayment decision. It found that
appellant was not at fault in the creation of the overpayment but that she did not meet the criteria
necessary to waive the overpayment as her residual income was $718.00. OWCP ordered
repayment at the rate of $75.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.3 Section 10.500 of OWCP’s regulations provide that “compensation for
wage loss due to disability is available only for any periods during which an employee’s work-

2

5 U.S.C. § 8102(a).

3

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

2

related medical condition prevents him or her from earning the wages earned before the workrelated injury.”4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $836.82. The record supports that she returned to the employing establishment effective
June 18, 2012, but received wage-loss compensation payment for the period June 18 to 30, 2012.
As noted, both FECA and implementing regulations of OWCP provide that a claimant may not
receive wage-loss compensation concurrently with a federal salary or other remuneration.5 An
overpayment worksheet properly indicated that, as a result, appellant received an overpayment of
compensation of $836.82 the period in question.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”6 Section 10.438 of OWCP regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
on an overpayment would defeat the purpose of FECA or be against equity and good
conscience.7 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.8
OWCP procedures provide that an individual is deemed to need substantially all of his or
her current income to meet current ordinary and necessary living expenses if monthly income
does not exceed monthly expenses by more than $50.00.9

4

20 C.F.R. § 10.500.

5

5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

6

5 U.S.C. § 8129.

7

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. Id. at § 10.437.
8

20 C.F.R. § 10.438.

9

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Chapter 6.200.6(b) (June 2009).

3

ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.10
Appellant furnished OWCP an overpayment questionnaire that listed income of
$4,000.00 and expenses of $3,282.00. OWCP procedures provide that an individual is deemed
to need substantially all of his or her current income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00.11 In
this case, including the income of both appellant and her husband, the difference between current
income and household living expenses is $718.00. The Board thus finds that, as appellant’s
monthly income exceeds her documented reasonable monthly expenses by $718.00, she is not
entitled to waiver as she does not need substantially all of her income to meet current ordinary
and necessary expenses.12
The Board therefore finds that OWCP properly concluded that recovery of the
overpayment would not cause financial hardship to appellant and thus defeat the purpose of
FECA. Moreover, as appellant made no argument that she gave up a valuable right or changed
her position for the worse in reliance on the overpaid compensation, OWCP properly determined
that recovery would not be against equity and good conscience. OWCP properly denied waiver
of the overpayment.
With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA.13 As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.14
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $836.82 and that OWCP properly denied waiver of the overpayment.

10

20 C.F.R. §§ 10.436, 10.437.

11

Supra note 9.

12

See R.M., Docket No. 07-1066 (issued February 6, 2009).

13

Cheryl Thomas, 55 ECAB 610 (2004).

14

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the November 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEFENSE AGENCIES, FORT RILEY, KS,
Employer
__________________________________________

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

Docket No. 13-1469
Issued: November 5, 2013

Case Submitted on the Record

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

JURISDICTION
On June 7, 2013 appellant filed a timely appeal of a December 18, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his traumatic injury claim
and a February 5, 2013 nonmerit denial of a hearing decision. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty on September 27, 2012, as alleged; and
(2) whether the Branch of Hearings and Review properly denied appellant’s request for an oral
hearing as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 27, 2012 appellant, then a 28-year-old industrial specialist, filed a
traumatic injury claim alleging that on that date he was injured in a work-related motor vehicle
accident. He stated that he sustained neck and back pain. OWCP requested additional factual
and medical information by letter dated November 8, 2012. Appellant submitted a note from
Stephanie Metevelis, a physician’s assistant, dated September 27, 2012. He also submitted a
police report regarding the motor vehicle accident.
By decision dated December 18, 2012, OWCP denied appellant’s claim for traumatic
injury on the grounds that he failed to submit the necessary medical evidence. Appellant
requested an oral hearing in a letter received by the Branch of Hearings and Review on
January 24, 2013. He submitted medical evidence.2
In a decision dated February 5, 2013, the Branch of Hearings and Review denied
appellant’s request for an oral hearing as untimely as it was not received within 30 days of
OWCP’s December 18, 2012 decision. The Branch of Hearings and Review determined that the
issues in appellant’s case could be equally well addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
2

On appeal to the Branch of Hearings and Review and the Board appellant submitted new evidence. As OWCP
did not consider this evidence in reaching a final decision, the Board may not consider it for the first time on appeal.
20 C.F.R. § 501.2(c)(1).
3

5 U.S.C. §§ 8101-8193.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

20 C.F.R. § 10.5(ee).

2

incident at the time, place and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.8
ANALYSIS -- ISSUE 1
Appellant has submitted factual evidence in support of the traumatic incident, an
automobile accident which occurred while he was in the performance of duty. However he has
failed to submit any medical evidence diagnosing a condition as a result of this incident.
Appellant submitted reports from a physician’s assistant. The Board has held that a physician’s
assistant’s reports are not medical evidence as a physician’s assistant is not a physician under
FECA.9 As these notes were not signed by a physician the notes have no probative value in
establishing appellant’s claim.10
The Board finds that appellant has not submitted the necessary medical evidence to meet
his burden of establishing a traumatic injury claim. Therefore appellant has not met his burden
of proof.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.11 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.12 A claimant is entitled to a hearing or
review of the written record as a matter of right only if the request is filed within the requisite 30
days as determined by postmark or other carrier’s date marking and before the claimant has
requested reconsideration.13 Although there is no right to a review of the written record or an
oral hearing if not requested within the 30-day time period, OWCP may within its discretionary
powers grant or deny appellant’s request and must exercise its discretion.14 OWCP’s procedures

7

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

8

J.Z., 58 ECAB 529 (2007).

9

5 U.S.C. §§ 8101-8193, 8101(2); Thomas R. Horsefall, 48 ECAB 180 (1996).

10

Merton J. Sills, 39 ECAB 572 (1988).

11

5 U.S.C. § 8124(b)(1).

12

20 C.F.R. §§ 10.161, 10.617.

13

Id. at § 10.616(a).

14

P.E., Docket No. 13-987 (issued August 21, 2013); Eddie Franklin, 51 ECAB 223 (1999); Delmont L.
Thompson, 51 ECAB 155 (1999).

3

require that it exercise its discretion to grant or deny a hearing when the request is untimely or
made after reconsideration under section 8128(a).15
ANALYSIS -- ISSUE 2
On December 18, 2012 OWCP denied appellant’s traumatic injury claim. Appellant
requested an oral hearing on January 24, 2013. The Board notes that appellant’s request for an
oral hearing was submitted more than 30 days after the December 18, 2012 decision.16 Section
8124(b)(1) is unequivocal on the time limitation for requesting a hearing.17 The Board finds that
OWCP properly determined that appellant’s request for an oral hearing was not timely and, thus,
he was not entitled to a hearing as a matter of statutory right under section 8124(b)(1) of FECA.
Although appellant’s request for a hearing was untimely, OWCP has the discretionary
authority to grant the request and it must exercise such discretion. In its February 5, 2013
decision, it properly exercised its discretion by notifying appellant that it had considered the
matter in relation to the issue involved and indicated that additional argument and evidence could
be submitted with a request for reconsideration. The Board has held that the only limitation on
OWCP’s authority is reasonableness and an abuse of discretion is generally shown through proof
of manifest error, a clearly unreasonable exercise of judgment or actions taken which are
contrary to both logic and probable deductions from established facts.18 In this case, there is no
evidence of record that OWCP abused its discretion in denying appellant’s hearing request.
Accordingly, the Board finds that OWCP properly denied appellant’s request for an oral hearing.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on September 27, 2012. The Board also finds that
OWCP properly denied his request for an oral hearing pursuant to 5 U.S.C. § 8124(b)(1).

15

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Reviews of the Written Record, Chapter 2.1601.2(a) (October 2011).
16

The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989). The
Board notes that appellant did not submit a written request for an oral hearing by January 18, 2013, within 30
calendar days after OWCP’s December 18, 2012 decision.
17

William F. Osborne, 46 ECAB 198 (1994).

18

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

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ORDER
IT IS HEREBY ORDERED THAT the February 5, 2013 and December 18, 2012
Office of Workers’ Compensation Programs’ decisions are affirmed.
Issued: November 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5