United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 19-0131
Issued: June 19, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 23, 2018 appellant, through counsel, filed a timely appeal from an August 30,
2018 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 counsel did not appeal from the October 11, 2018 decision which denied appellant’s claim
for a schedule award. Therefore, the Board has not exercised jurisdiction over that decision. See 20 C.F.R.
§ 501.3(c)(4).

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of total disability, commencing March 1, 2016, causally related to her accepted August 19, 2015
employment injury; and (2) whether appellant has met her burden of proof to establish that the
acceptance of her claim should be expanded to include the additional conditions of reflex
sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS).
FACTUAL HISTORY
On August 21, 2015 appellant, then a 31-year-old carrier, filed a traumatic injury claim
(Form CA-1) alleging that on August 19, 2015 she injured her left calf when a dog bit her while
she was in the performance of duty. She stopped work on August 19, 2015 and returned to work
on August 20, 2015. OWCP accepted the claim for a puncture wound to the left lower leg. It paid
appellant wage-loss compensation for intermittent time lost from work in October 2015.4
Dr. Matthew M. Richlen, Board-certified in family medicine, found in a November 16,
2015 report that appellant could resume work on November 17, 2015 with no restrictions.
On March 11, 2016 appellant filed a notice of recurrence (Form CA-2a) claiming disability
commencing March 1, 2016 causally related to her August 19, 2015 employment injury. She
related that following her injury she initially had performed modified employment prior to
resuming her regular work duties.
Dr. Richlen on March 3, 2016 indicated that he had evaluated appellant for “a flare up of
[appellant’s] left lower leg pain that started after a work injury in August 2015.” He found that
she could perform sedentary employment from March 2 through 16, 2016.
In a progress report dated March 16, 2016, Dr. Jennifer N. Klopfstein, a Board-certified
physiatrist, evaluated appellant for pain and swelling in her left leg that had begun on August 19,
2015 after a dog bite to the anterior proximal tibial area of the left leg. She noted that appellant
had gradually returned to her usual employment, but currently had limitations. Dr. Klopfstein
diagnosed left leg pain. In a work status report dated March 16, 2016, she indicated that appellant
could perform sedentary employment.
By development letter dated April 7, 2016, OWCP advised appellant of the definition of a
recurrence of disability and the type of evidence necessary to establish that she had employmentrelated disability beginning March 1, 2016. It afforded her 30 days to submit additional evidence.
OWCP subsequently received a March 4, 2016 report from Dr. Richlen. Dr. Richlen noted
that appellant had experienced periodic aggravations of left knee pain after an August 2015 dog
bite. He found that she had “significant swelling on the medial aspect of the proximal left lower
leg near the pes anserine” that was tender to the touch, but not “hot or red.” Dr. Richlen diagnosed
4

By decision dated April 8, 2016, OWCP denied appellant’s claim for wage-loss compensation from October 28
to 30, 2015. It found that the medical evidence was insufficient to support disability from work during the claimed
period.

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left lower leg pain and bursitis/tendinitis of the left pes anserinus. He referred appellant for an
ultrasound to rule out an infection due to the extent of swelling and related, “Given [appellant’s]
significant debility with her current symptoms, I will put her on seated-only work until then.”
In a progress report dated April 6, 2016, Dr. Klopfstein discussed appellant’s history of an
August 19, 2015 employment injury and diagnosed left leg pain. In an April 6, 2016 work status
report, she opined that appellant could work in a seated position.
On April 13, 2016 Dr. Richlen advised that appellant had “left lower leg swelling and pain
due to a work[-]related dog bite injury from August 19, 2015.”
By decision dated June 7, 2016, OWCP denied appellant’s claim for a recurrence of
disability. It found that the medical evidence submitted failed to establish that her accepted
August 19, 2015 employment injury had worsened to the extent that she was disabled from work
beginning March 1, 2016.
In a report dated June 27, 2016, Dr. Richlen reviewed appellant’s history of a dog bite on
the left lower leg close to her knee on August 19, 2015 with intermittent pain and swelling
subsequent to the injury. She underwent an ultrasound due to “significant pain and swelling,” but
appellant’s symptoms had abated prior to the ultrasound. Dr. Richlen related:
“Within a reasonable degree of medical certainty, [appellant’s] symptoms dating
from February to the present are directly related to her original dog bite injury
sustained on August 19, 2015. No other intervening cause can be identified.
Causes such as internal knee derangement, nerve injury, bursitis, and infection have
been ruled out. In my opinion [appellant] has developed reflex sympathetic
dystrophy of the left lower extremity due to her dog bite injury on August 19, 2015.
Due to this she cannot stand or walk for long periods of time as this activity
produces significant swelling, tenderness, difficulty ambulating, and pain.”
On July 2, 2016 appellant requested a review of the written record before an OWCP
hearing representative.
By decision dated November 22, 2016, OWCP’s hearing representative affirmed the
June 7, 2016 decision. He found that Dr. Richlen had failed to provide rationale explaining how
appellant sustained RSD or a recurrence of disability due to her accepted employment injury.
On December 27, 2016 appellant requested reconsideration.5
On January 23, 2017 Dr. Richlen indicated that he was treating appellant for CRPS/RSD
of the lower left leg.6 He advised that she had work restrictions and recommended a functional
capacity evaluation.

5

Appellant submitted reports from a physician assistant dated December 9, 2016 and January 6, 2017 regarding
her treatment after a left ankle injury.
6

Dr. Richlen provided similar findings in a report dated February 21, 2017.

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In a report dated February 9, 2017, Dr. Sean C. Tracy, a Board-certified orthopedic
surgeon, indicated that appellant had returned to her usual employment and had no further pain or
partial disability.
By decision dated March 24, 2017, OWCP denied modification of its November 22, 2016
decision.7
OWCP subsequently received a March 21, 2017 report from Dr. Richlen, who again
diagnosed RSD/CRPS and found work restrictions.
In a report dated June 12, 2017, Dr. Richlen related that appellant had sustained
RSD/CRPS as a result of the dog bite to her left lower leg on August 19, 2015, with “most of
[appellant’s] pain centered on the region of the dog bite just below the knee on the inside of the
leg.” He advised that he had diagnosed CRPS using the “Budapest criteria,” noting that she had
disproportionate pain, hyperesthesia and allodynia, swelling, and “intermittent palpable warmth
and edema.” Dr. Richlen indicated that diagnostic studies had yielded unremarkable findings and
that “no other diagnosis better explains [appellant’s] signs and symptoms.”8
On June 29, 2017 appellant requested reconsideration.
By decision dated September 27, 2017, OWCP denied modification of its March 24, 2017
decision. It found that Dr. Richlen had failed to support his diagnoses of RSD with objective
findings. OWCP further determined that the evidence was insufficient to demonstrate that
appellant had sustained an employment-related recurrence of disability.
Thereafter, OWCP received a June 26, 2017 report from Dr. Richlen. Dr. Richlen
reviewed appellant’s symptoms of increased pain and swelling in her left lower leg after carrying
mail. He diagnosed a suspected exacerbation of RSD/CRPS and found that she could not work.
In a report dated July 13, 2017, Dr. Richlen indicated that appellant’s leg symptoms had
improved because she was off work and not walking. He advised that she could resume work
walking no more than two hours. Dr. Richlen diagnosed left lower leg CRPS following an
August 19, 2015 dog bite.
In a report dated March 19, 2018, Dr. Richlen asserted that he had been treating appellant
for RSD/CRPS of the left lower extremity due to a “work[-]related dog bite sustained on
August 19, 2015.” He related:
“The vast majority of chronic regional pain syndrome occurs after an inciting event.
On the date of [appellant’s] injury she was bit by a dog on the inside of her lower
leg just below her left knee. In people who develop chronic regional pain syndrome
such as [appellant] this injury results in excessive inflammation and/or central
7

OWCP initially issued a decision dated March 2, 2017 which was returned to sender as it had the wrong address.
It reissued the decision on March 24, 2017.
8
On July 13 and August 17, 2017 Dr. Richlen provided work restrictions due to CRPS/RSD resulting from
appellant’s August 19, 2015 employment injury.

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neurologic sensitization. This results in long[-]term pain that is out of proportion
to the inciting event. Consequently, there is a direct causal relationship between
the dog bite and her development of chronic regional pain syndrome in the same
area.”
Dr. Richlen noted that examinations had revealed the presence of “swelling, warm or cool
skin, allodynia, hyperalgesia, focal sweating, and/or limited range of motion” which constituted
objective evidence supporting the diagnosis. He noted that objective studies were normal which
“strongly supports the diagnosis of chronic regional pain syndrome. In other words, these tests
are expected to be negative in chronic regional pain syndrome.”
In a report dated May 16, 2018, Dr. Richlen discussed appellant’s history of a dog bite on
August 19, 2015 and described in detail her subsequent medical treatment. He noted that he
initially had treated her on August 21, 2015 for swelling and a skin abrasion and prescribed
antibiotics. Appellant had continued to experience swelling and a September 14, 2015 magnetic
resonance imaging scan study showed “nonspecific soft-tissue edema.” Dr. Richlen related that
she had resumed work with restrictions, but continued to have leg pain and swelling. He referred
appellant for an ultrasound on March 3, 2016 as the “area remained swollen and there was
suspicion for bursitis and possible infection.” Dr. Richlen advised that he had continued to treat
her for pain, swelling, and tenderness and found work restrictions.
On June 5, 2018 appellant, through counsel, requested reconsideration.
By decision dated August 30, 2018, OWCP denied modification of its September 27, 2017
decision.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.9 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.10
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a

9

20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

10

Id.

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condition that results from a new injury, even if it involves the same part of the body previously
injured.11
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.12 Where no such rationale is present,
the medical evidence is of diminished probative value.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability, commencing March 1, 2016, causally related to her accepted August 19, 2015
employment injury.
On March 3, 2016 Dr. Richlen noted that appellant had increased pain in her left lower leg
that had begun after an August 2015 employment injury. He opined that she could perform
sedentary employment. However, the Board has held that pain is a symptom rather than a medical
diagnosis, and thus this report is of limited probative value in establishing a recurrence of disability
causally related to the August 19, 2015 employment injury.14
In a report dated March 4, 2016, Dr. Richlen noted that appellant had pain and swelling of
the left leg after walking. He discussed her history of an August 2015 dog bite and diagnosed pain
in the left lower leg and bursitis/tendinitis of the left pes anserinus. Dr. Richlen found that
appellant could perform sedentary employment. He did not, however, directly address the cause
of the bursitis/tendinitis. Medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship.15
In a March 16, 2016 report, Dr. Klopfstein obtained a history of appellant experiencing left
leg pain and swelling after an August 19, 2015 dog bite. She diagnosed left leg pain and found
that appellant could work with restrictions. Dr. Klopfstein provided similar findings in a report
dated April 6, 2016. As discussed, a diagnosis of left leg pain is a description of a symptom rather

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018).
12

J.D., Docket No. 18-0616 (issued January 11, 2019).

13

G.G., Docket No. 18-1788 (issued March 26, 2019).

14

F.D., Docket No. 18-0199 (issued March 20, 2019).

15

M.C., Docket No. 18-0919 (issued October 18, 2018).

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than a clear diagnosis of a medical condition, and thus insufficient to satisfy appellant’s burden of
proof with respect to causal relationship.16
The remaining medical evidence is insufficient to establish that appellant sustained a
recurrence of disability due to the accepted condition of a puncture wound to the left leg. In reports
dated June 27, 2016 through May 16, 2018, Dr. Richlen found that she had work restrictions due
to RSD/CRPS rather than a spontaneous worsening of the accepted condition.17 As he did not
relate appellant’s disability to the accepted condition of a left leg puncture wound, his reports are
insufficient to meet her burden of proof to establish an employment-related recurrence of
disability.18
The Board finds that the medical evidence submitted is insufficient to establish disability
from work commencing March 1, 2016 causally related to residuals of the accepted employment
injury. Thus, the Board finds that appellant has not established by the weight of the reliable,
probative, and substantial evidence, a change in the nature and extent of the injury-related
condition resulting in her inability to perform her employment duties.19
Appellant may submit new evidence with a written request for reconsideration to OWCP
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA20 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.21
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.22 To establish causal relationship between the
condition, as well as any attendant disability claimed and the employment event or incident, the
employee must submit rationalized medical opinion evidence based on a complete factual and
16

J.M., Docket No. 17-1688 (issued December 13, 2018).

17

See S.H., Docket No. 18-1398 (issued March 12, 2019).

18

Supra note 12.

19

Id.

20

Supra note 3.

21

See C.W., Docket No. 17-1636 (issued April 25, 2018).

22

See T.F., Docket No. 17-0645 (issued August 15, 2018).

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medical background, supporting such a causal relationship.23 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.24 The weight of medical evidence is determined by its reliability, its probative value,
its convincing quality, the care of analysis manifested, and the medical rationale expressed in
support of the physician’s opinion.25
While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence and to see that justice is done.26
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision regarding whether appellant has
met her burden of proof to establish that the acceptance of her claim should be expanded to include
RSD/CRPS.
Dr. Richlen treated appellant following her employment injury for exacerbations of her left
leg pain with swelling. On June 27, 2016 he diagnosed RSD of the left lower extremity causally
related to her dog bite at work on August 19, 2015. Dr. Richlen advised that appellant had
undergone an ultrasound due to her significant left leg swelling, but that the exacerbation of her
condition had resolved prior to testing.
On June 12, 2017 Dr. Richlen diagnosed RSD/CRPS due to appellant’s dog bit on her
lower left leg at work on August 19, 2015. He related that he had based his diagnosis on her pain,
hyperesthesia, swelling, and intermittent edema and warmth to palpation of the extremity.
Dr. Richlen indicated that diagnostic studies were unremarkable and that it was the diagnosis that
best explained appellant’s symptoms. In a report dated March 19, 2019, he advised that CRPS
frequently occurred after “an inciting event.” Dr. Richlen reviewed the history of appellant’s
August 19, 2015 dog bite to the left lower leg, noting that CRPS caused pain in excess of what
was normal given the injury due to inflammation and sensitization. He concluded that objective
findings on physical examinations, which included swelling, changes in skin temperature,
hyperalgesia, sweating, and reduced motion, supported the diagnosis of CRPS.
The Board finds that Dr. Richlen’s opinion is sufficient, given the absence of any opposing
medical evidence, to require further development of the record.27 The Board notes that his reports
are not contradicted by any substantial medical or factual evidence of record. While Dr. Richlen’s
reports are insufficiently rationalized to meet appellant’s burden of proof to establish her claim,
23

See S.A., Docket No. 18-0399 (issued October 16, 2018).

24

See P.M., Docket No. 18-0287 (issued October 11, 2018).

25

See F.H., Docket No .18-1238 (issued January 18, 2019).

26

T.E., Docket No. 18-1595 (issued March 13, 2019).

27

D.C., Docket No. 18-1664 (issued April 1, 2019).

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they raise an uncontroverted inference between her diagnosis of RSD/CRPS and the accepted
employment injury and, therefore, are sufficient to require OWCP to further develop the medical
evidence and the case record.28
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence.29 OWCP has
an obligation to see that justice is done.30
The Board will, therefore, remand the case for further development of the medical
evidence. On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
evidence of record to an appropriate Board-certified specialist for an examination, diagnosis, and
a rationalized opinion as to whether she sustained RSD/CRPS causally related to her accepted dog
bite employment injury on August 19, 2015. After this and other such further development
deemed necessary, OWCP shall issue a de novo decision.31
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability, commencing March 1, 2016, causally related to her accepted August 19, 2015
employment injury. The Board further finds that the case is not in posture for decision regarding
whether she has met her burden of proof to establish that the acceptance of her claim should be
expanded to include the additional conditions of RSD/CRPS.

28

Id.

29

D.W., Docket No. 17-1884 (issued November 8, 2018).

30

X.V., Docket No. 18-1360 (issued April 12, 2019).

31

See supra note 27.

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ORDER
IT IS HEREBY ORDERED THAT the August 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this opinion of the Board.
Issued: June 19, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Mena, AR, Employer
__________________________________________

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

Docket No. 12-947
Issued: March 11, 2013

Case Submitted on the Record

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

JURISDICTION
On March 21, 2012 appellant filed a timely appeal of a January 26, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right knee injury on September 13, 2011 while in the performance of duty.
FACTUAL HISTORY
On September 16, 2011 appellant, then a 42-year-old law enforcement officer, filed a
traumatic injury claim alleging that at 2:30 p.m. on September 13, 2011 he pulled or tore a
ligament in his right knee. He was performing cardiovascular exercise on an “EFX” machine at
the Quachita Wellness Sports Center in Mena, Arkansas. Appellant noticed pain on the inside of
1

5 U.S.C. § 8101 et seq.

his right knee. The employing establishment noted that his tour of duty was from 8:00 a.m. to
4:00 p.m., Wednesday through Sunday. Appellant stopped work on September 13, 2011 and
then returned later that day. Timothy Fincham, appellant’s supervisor, reported that no time was
lost from work but medical expenses were incurred.
A September 26, 2011 medical form requested a magnetic resonance imaging (MRI) scan
to evaluate appellant’s right knee pain. In a September 26, 2011 medical report, Dr. Jonathan C.
Welsh, a Board-certified radiologist, advised that an MRI scan of the right knee revealed a tear
of the posterior horn of the medial meniscus and evidence of a prior tear of the anterior horn of
the lateral meniscus with meniscal cyst formation. He stated that the meniscal cyst measured
roughly 2 x 2 x .6 centimeters. Dr. Welsh advised that the right knee also had small joint
effusion.
In a November 3, 2011 report, Dr. Christopher M. Young, a Board-certified orthopedic
surgeon, advised that appellant was seen for treatment of a right knee medial meniscus tear. In a
November 14, 2011 note, he listed a history that appellant injured his right knee when he stepped
off an “EFX” machine while performing wellness training for work. On November 29, 2011
Dr. Young requested that OWCP authorize right knee arthroscopic surgery to repair the medial
meniscus tear.
In a December 23, 2011 letter, OWCP noted that, when appellant’s claim was received, it
appeared to be a minor injury that resulted in minimal or no lost time from work. Because the
employing establishment did not controvert the merits of the case, payment of medical expenses
was administratively approved. OWCP had not formally considered the merits of appellant’s
claim and noted that it had been reopened because he requested authorization for surgery.
Further, it did not appear that appellant was injured while in the performance of duty and the
evidence of record was insufficient to establish his claim. OWCP requested additional factual
and medical evidence be submitted within 30 days. It also requested that the employing
establishment answer questions regarding the September 13, 2011 incident.
On January 6, 2012 Mr. Fincham forwarded materials pertaining to the Forest Service
Law Enforcement Health and Fitness Program. He noted that while appellant was not required
to participate in the exercise activity; the Forest Service strongly encouraged law enforcement
personnel to participate in the program in accordance with written guidelines. Mr. Fincham
submitted a copy of appellant’s January 8, 2009 request for approval for participation in the
exercise program. Appellant noted that he was allowed five hours a week of official time to
participate in physical fitness activities and be required to take an annual fitness assessment and
complete a mandatory health screening. He described his exercise program as consisting of a
total body workout utilizing free weights and cardiovascular activities and that his time and
attendance would be recorded in conformance to the agency manual. The time spent for
exercising would be between 8:00 a.m. and 4:00 p.m. and conducted during official base work
hours. Appellant noted that he was a member of a local fitness center, where he would conduct
his program. The employing establishment approved his request for participation on
January 12, 2009.
Mr. Fincham forwarded excerpts of the agency’s manual pertaining to law enforcement
health and fitness program guidelines. Law enforcement personnel were strongly encouraged to
participate in a voluntary exercise program; be granted up to five hours of official time per week
2

to participate, but not to exceed one hour per day. Health and fitness time could not be carried
over past any given work week. Authorized physical fitness activities included “stretching, brisk
walking, jogging, running, bicycling, aerobic dancing, aerobic fitness exercises, calisthenics,
swimming and strength training.” Competitive sports such as, tennis, golf, basketball, football,
softball, handball, racquetball or any other activity not stated were not permitted. Mr. Fincham
noted that, at the time of injury, appellant was performing cardiovascular exercise on an “EFX”
elliptical machine. An accompanying exercise log indicated that appellant exercised on 15 days
for one hour periods during his work shift from September 1 through 30, 2011. The employing
establishment stated that it derived a benefit from his participation in the exercise activity under
section 5375.02. This section stated that the objectives of the law enforcement health and fitness
program were:
“1. To develop and maintain optimal effectiveness and job performance of law
enforcement personnel under FSM 5305.
“2. To reduce time lost from illness and disability.
“3. To increase the ability to absorb emotional and physical stress, increase
mental alertness and reduce tension and fatigue.
“4. To promote the morale and personal well-being of law enforcement personnel.
“5. To provide a workforce capable of responding to the rapidly changing and
increasing physical demands of law enforcement.”
The employing establishment stated that, under section 5375.03, law enforcement employees
were strongly encouraged to maintain a level of health and fitness commensurate with the
physical and mental demands of their law enforcement responsibilities. Appellant’s participation
in the activity did not violate any of its rules or regulations. His injury did not occur on its
premises but at his gym, Quachita Wellness and Sports Center. The employing establishment
stated that it provided leadership to employees regarding its fitness program under section
5375.04a-f, which addressed the responsibilities of management officials and national and
regional fitness coordinators.
On January 13, 2012 appellant stated that he completed weight training after
experiencing right knee pain while on the “EFX” machine. There was no witness to the claimed
incident. Larry Wood, owner of the sports center, was nearby when appellant was on the
machine. Appellant first sought medical treatment on September 15, 2011. He did not sustain
any other injury between September 13, 2009, the date of the incident and September 14, 2009,
when he first reported his injury to his supervisor. Appellant experienced right knee pain and
performed no treatment at home. He experienced prior knee pain in June 2011 during
cardiovascular training that went away and he was not treated or evaluated by a physician.
Appellant was not required to participate in the claimed recreational activity. He was influenced
to participate in the employing establishment’s wellness program to obtain overall health and to
safely conduct his job. Appellant contended that the employing establishment benefited from his
improved physical fitness, which was needed to perform his law enforcement duties and to

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participate in a yearly Physical Efficiency Battery (PEB) test.2 He stated that all employees
could enroll in a law enforcement supported exercise program. Appellant’s participation in the
exercise activity did not violate any of the employing establishment’s rules and regulations. The
employing establishment did not provide equipment or facilities to appellant for the activity.
In a January 19, 2012 report, Dr. Young advised that appellant had reached maximum
medical improvement and discharged him from his care following a right knee arthroscopic
procedure.
In a January 26, 2012 decision, OWCP denied appellant’s claim, finding that his
September 13, 2011 injury did not arise within the performance of duty. It found that he was
conducting an authorized physical fitness activity at the time of injury; however, the claimed
injury did not occur on the employing establishment premises during regular work hours. In
addition, the employing establishment did not provide leadership, equipment or facilities for the
authorized activity. Further, the medical evidence was not sufficient to establish that appellant
sustained a diagnosed condition causally related to a work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 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.4
Section 8102(a) of FECA provides for payment of compensation for disability or death of
an employee resulting from personal injury sustained while in the performance of duty.5 This
phrase is regarded as the equivalent of the coverage formula commonly found in workers’
compensation laws; namely, arising out of and in the course of employment.6 Whereas arising
out of the employment addresses the causal connection between the employment and the injury,
arising in the course of employment pertains to work connection as to time, place and activity.7
For the purposes of determining entitlement to compensation under FECA, arising in the course

2

The Board notes that section 5375.05 of the employing establishment’s health and fitness program guidelines
required that law enforcement personnel undergo a mandatory annual PEB test. A 25th percentile score for each
component of the PEB was the minimum fitness goal.
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

5 U.S.C. § 8102(a).

6

See Bernard E. Blum, 1 ECAB 1 (1947).

7

See Robert J. Eglinton, 40 ECAB 195 (1988).

4

of employment, i.e., performance of duty must be established before arising out of the
employment, i.e., causal relation, can be addressed.8
With regard to recreational or social activities, the Board has held that such activities
arise in the course of employment when: (1) they occur on the premises during a lunch or
recreational period as a regular incident of the employment; (2) the employing establishment, by
expressly or impliedly requiring participation or by making the activity part of the service of the
employee, brings the activity within the orbit of employment; or (3) the employing establishment
derives substantial direct benefit from the activity beyond the intangible value of improvement in
employee health and morale that is common to all kinds of recreation and social life.9
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.10
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.11 The second component is whether the employment incident caused a personal injury
and generally can be established only by medical evidence.12
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.13 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.14
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.15 The opinion of the
8

Kenneth B. Wright, 44 ECAB 176, 181 (1992).

9

S.B., Docket No. 11-1637 (issued April 12, 2012); R.P., Docket No. 10-1173 (issued January 19, 2011);
Ricky A. Paylor, 57 ECAB 568 (2006); Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); Kenneth B. Wright, supra
note 8. See also A. Larson, The Law of Workers’ Compensation § 22.00 (2012).
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

11

Linda S. Jackson, 49 ECAB 486 (1998).

12

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
13

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

14

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215 (1997).

15

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D. Wayne Avila, 57 ECAB
642 (2006).

5

physician must be based on a complete factual and medical background of the employee, must be
one of reasonable 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.16
ANALYSIS
Appellant sustained a torn ligament in his right knee on September 13, 2011 while
exercising on an “EFX” elliptical machine at a private health facility. It was sustained at a time
when he was on official time during his work shift and at a facility approved by his employing
establishment. The question is whether appellant was in the performance of duty at the time of
the injury. Professor Larson notes that with respect to whether an injury sustained while
participating in recreational activities is employment related turns on a “different mix” of factors,
including: whether it was sustained on or off the premises of the employing establishment, in or
out of the employee’s work hours, the extent of the employing establishment’s initiative for
participating and the type of benefit derived by the employing establishment.17
The Board has addressed the compensability of injuries sustained by federal employees
while exercising. In William D. Zerrillo,18 the employee sustained injury to his left Achilles
tendon while exercising at a private health club. The injury was sustained at 6:15 p.m., while his
work shift was 8:30 a.m. to 5:00 p.m. The claim was controverted by his employer, noting that
there was no written requirement in the United States Marshall’s Service manual establishing the
need for physical fitness outside of normal duty hours and at an off-premises location. The
Board affirmed the denial of the employee’s claim. The Board found that the injury did not
occur on the premises of the employer during a lunch or recreational period but took place after
his work shift at an off premise location for which no funds were paid by the employer.
Therefore, appellant was not in the performance of duty when injured.
In Wesley Crow,19 the employee sustained injury while running on asphalt in a public
park at a location off premises of his employer and after his work shift. The Board found that he
did not sustain his injury while in the performance of duty. The record established that his
employer required him to meet a set PEB and he was granted three hours a week of “on duty”
time for physical conditioning at a contracted fitness facility. As to the time and location of
injury, the Board found that it occurred after his work shift, off the employer’s premises and not
at the contracted fitness facility. There was no evidence of record to establish that the employer
required him to run in a public park after his work hours.
In the present case, the Board notes that the employing establishment stated that all law
enforcement personnel were “strongly encouraged” to participate in the voluntary exercise
program and were “granted up to five hours of official time per week” for participation, not to
16

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

17

Larson, The Law of Workers’ Compensation, Chapter 22. Larson notes that the course of employment does not
embrace every spontaneous or unprecedented frolic.
18

39 ECAB 525 (1988).

19

Docket No. 93-1323 (issued August 1, 1994).

6

exceed one hour a day. The program guidelines noted that, to participate, law enforcement
personnel were required to prepare a written request for approval by the immediate supervisor
and to include the time frame and location for participation. The activities authorized for
physical fitness were to be described and not include competitive sports. In locations at which it
was not feasible for the employing establishment or government to provide an exercise facility, a
private fitness center could be utilized with reimbursement of up to $30.00 per month.
The record establishes that, on January 8, 2009, appellant completed the necessary
paperwork for his supervisor requesting approval for his participation in the employing
establishment’s fitness program. He noted that he could use up to five hours a week of official
time and would be required to take an annual fitness assessment and complete a mandatory
health screening. Appellant stated that his participation would include a total body workout,
utilizing free weights and cardiovascular exercises. His participation would be during his work
shift and conducted during official work hours. Appellant identified the private fitness center at
which location he would conduct the program. His supervisor approved the request on
January 12, 2009.
In contrast to Zerrillo and Crow, appellant’s injury on September 13, 2011 was sustained
during his official work shift at the local health fitness facility authorized by his employing
establishment. The record indicates that the employing establishment did not provide a health or
fitness facility at the premises where appellant worked. Appellant’s participation in the program
was “strongly encouraged” by his employing establishment and conformed to the written
guidelines of its exercise program. His request for participation was reviewed and approved by
his employing establishment in January 2009 and, when injured, appellant was performing a
physical fitness activity that conformed to those described and allowed by his employing
establishment, a cardiovascular exercise on a piece of equipment and not during a competitive
sport or activity. The Board finds that this particular mix of factors warrants the finding that
appellant was in the performance of duty on September 13, 2011 when he sustained injury. The
incident giving rise occurred at the off-premises sports center authorized by his employing
establishment and arose in the course of appellant’s official-duty shift.
The Board further finds, however, that the medical evidence currently of record is
insufficient to establish that appellant’s right knee injury was caused or contributed by the
accepted September 13, 2011 employment incident. Dr. Young’s reports provided a history of
the accepted employment incident and diagnosed a right knee medial meniscus tear. He advised
that appellant reached maximum medical improvement as of January 19, 2012 and discharged
him from care following right knee arthroscopic surgery. Dr. Young, however, did not provide
any medical opinion addressing the issue of causal relation. Medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of diminished probative
value on the issue of causal relationship.20 The Board finds, therefore, that Dr. Young’s reports
are insufficient to establish appellant’s claim.
The September 26, 2011 diagnostic study did not provide any medical opinion addressing
the issue of causal relationship.21 A September 26, 2011 medical form lacks probative value
20

A.D., supra note 15; Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

21

Id.

7

because the physician’s signature is illegible. The Board has held that medical reports lacking
proper identification do not constitute probative medical evidence.22
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that the September 13, 2011 employment incident arose in the
performance of duty; however, the medical evidence is insufficient to establish causal relation.
ORDER
IT IS HEREBY ORDERED THAT the January 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: March 11, 2013
Washington, DC

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

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

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

22

R.M., 59 ECAB 690, 693 (2008).

8


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0799
Issued: December 3, 2018

Case Submitted on the Record

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

JURISDICTION
On March 6, 2018 appellant, through counsel, filed a timely appeal from a February 15,
2018 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation, effective October 18, 2017, pursuant to 5 U.S.C. § 8106(c)(2), due
to his refusal of an offer of suitable work.
FACTUAL HISTORY
On April 4, 2009 appellant, then a 44-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that, commencing March 1, 2009, he experienced increasing bilateral
elbow and forearm pain while performing repetitive lifting tasks. He stopped work on April 4,
2009 and returned to work on April 22, 2009.
On May 12, 2009 OWCP accepted the claim for bilateral/lateral epicondylitis. It later
expanded acceptance of the claim to include a left elbow lateral collateral ligament (LCL) sprain.
On February 15, 2010 appellant underwent an authorized right elbow fasciotomy, with partial
osteotomy and tendon debridement and repair. He did not return to work.
OWCP accepted that appellant sustained a recurrence of disability, commencing
February 15, 2010. After initially paying appellant compensation on the daily rolls, it placed
appellant on the periodic rolls, effective March 14, 2010.
On May 18, 2010 appellant underwent an authorized fasciotomy of the left elbow with
partial otectomy and extensor tendon debridement and repair. On February 18, 2011 he underwent
an authorized LCL repair of the left elbow to address a left lateral elbow extensor tendon rupture.
On May 29, 2012 appellant underwent a left elbow lateral epicondylectomy with extensor tendon
debridement and repair, LCL reconstruction, and posterior interosseous nerve decompression. He
remained under medical treatment. On April 9, 2014 OWCP obtained a second opinion report
from Dr. Robert M. Ungerer, a Board-certified orthopedic surgeon, who opined that appellant had
not yet attained maximum medical improvement and required additional treatment. Dr. Ungerer
noted that appellant could perform full-time limited-duty work with little to no use of the left upper
extremity.
In a report dated August 22, 2016, Dr. Robert Milch, an attending Board-certified
anesthesiologist, related appellant’s account of chronic bilateral elbow pain, greater on the left.
Appellant self-limited the “usage of his arm at or above shoulder level and does not lift anything
greater than five pounds.” Dr. Milch prescribed opioid medication for chronic left elbow pain and
myalgia. He found appellant totally disabled from work due to the accepted bilateral upper
extremity conditions.
In a report dated August 24, 2016, the employing establishment’s Office of Inspector
General (OIG) summarized surveillance videos obtained from March 8 through April 28, 2016,
which allegedly showed appellant driving and performing repetitive lifting tasks with both upper
extremities. Pursuant to the investigation, appellant had acknowledged in a June 3, 2016 interview
that he had lifted a 35-pound sack of dog food and a pack of water bottles while grocery shopping.
He also participated in a bowling league for two consecutive seasons.

2

In a report dated October 6, 2016, Dr. James M. Hitt, an attending Board-certified
anesthesiologist and associate of Dr. Milch, acknowledged the employing establishment’s
August 24, 2016 report and its description of appellant’s activities. He noted that appellant was
independent in performing activities of daily living, but avoided strenuous tasks that would
exacerbate his condition. Dr. Hitt opined that he was physically capable of performing the
activities described in the surveillance report on occasion. He requested that OWCP authorize a
functional capacity evaluation (FCE) to determine appellant’s current limitations. Dr. Hitt
reiterated his request for an FCE in a report dated December 1, 2016.
On December 28, 2016 appellant underwent an authorized FCE which demonstrated his
capacity to perform full-time work at the light physical demand level.
On January 6, 2017 OWCP obtained a second opinion report from Dr. Kevin Scott, a
Board-certified orthopedic surgeon. Dr. Scott reviewed the medical record, a statement of
accepted facts, and the surveillance video obtained by the OIG. On examination, he noted
restricted flexion of the left elbow and no positive findings in the right elbow. Dr. Scott opined
that appellant did not require further medical treatment related to the accepted upper extremity
conditions. He found that based on the December 28, 2016 FCE appellant could perform fulltime, light-duty work with lifting limited to 10 pounds, pushing and pulling limited to 15 pounds,
15-minute breaks each hour, and no twisting, squatting, kneeling, or climbing.
In a report dated January 16, 2017, Dr. Hitt noted moderate discomfort in the left elbow.
He found that appellant was “75 percent disabled,” and totally disabled from work. Dr. Hitt
prescribed opioid analgesic medication.3
In a report dated February 16, 2017, Dr. Hitt reviewed Dr. Scott’s January 6, 2017 report.
He opined that appellant remained totally disabled from work due to moderate left elbow
discomfort. Dr. Hitt noted in a report dated April 27, 2017 that appellant’s left elbow pain caused
“difficulty with repetitive pushing, pulling and lifting. [Appellant] avoids lifting anything over
five pounds since this increases his pain.” Dr. Hitt reiterated these findings in a report dated
June 22, 2017.
On July 18, 2017 the employing establishment offered appellant a full-time modified
position as a mail handler. The duties were categorized as sedentary, with all tasks performed
while seated. The position involved sorting “flats” for up to eight hours and removing mail from
flat tubs and placing them into a cart. Appellant would work in the damaged mail unit if the flats
unit was closed, placing damaged mail from a tray or tub onto a table, then taping or bagging the
damaged items. He would be given a 15-minute break each hour. Appellant did not respond to
the job offer.

3

On February 10, 2017 the employing establishment offered appellant a full-time position as a modified mail
handler. Appellant declined the position on February 24, 2017, contending that the assigned duties exceeded his
medical restrictions. In a letter dated July 13, 2017, OWCP notified the employing establishment that the February 10,
2017 job offer was incomplete as it did not include an accurate work schedule, required breaks, and required physical
activities in excess of appellant’s restrictions.

3

In a letter dated August 10, 2017, OWCP advised appellant of its determination that the
position of modified mail handler offered by the employing establishment was suitable. It
discussed the medical evidence of record, noting that Dr. Scott’s report showed that appellant
could work as a modified mail handler. OWCP informed appellant that his entitlement to wageloss and schedule award compensation would be terminated if he did not accept the position or
provide good cause for not doing so within 30 days of the date of the letter.
On August 22, 2017 OWCP telephoned appellant, who contended that he had not yet
received the July 18, 2017 job offer. Appellant asserted that he was unable to work as he took
prescribed narcotic medication four times a day. He alleged that Dr. Scott did not perform a
thorough examination.
In a letter dated September 25, 2017, OWCP advised appellant that his reasons for not
accepting the position of modified mail handler offered by the employing establishment were
unjustified.4 It advised him that his entitlement to wage-loss and schedule award compensation
would be terminated if he did not accept the position within 15 days of the date of the letter.
In response, appellant submitted an August 24, 2017 report from Dr. Hitt, noting that the
“job recommendations from the [employing establishment] will be analyzed after a[n] FCE will
be initiated and ordered at today’s office visit.” Dr. Hitt reiterated his finding of pain with left
elbow range of motion. He found that appellant was “75 percent disabled,” and totally disabled
from work.
Appellant also provided a September 21, 2017 CA-20 form report from Elizabeth Hyla, a
nurse practitioner indicating that appellant was being referred for a functional capacity
examination.
On September 29, 2017 appellant telephoned OWCP and asserted that he had not refused
the offered position. He contended that he was waiting for an updated FCE so that Dr. Hitt could
render an opinion on his work capacity.
In a letter dated October 3, 2017, appellant stated that he would not accept or refuse the
offered position until the updated FCE and medical evaluation were completed.
On October 11, 2017 the employing establishment again confirmed that the earlier offered
modified mail handler position remained open and available to appellant.
By decision dated October 18, 2017, OWCP terminated appellant’s entitlement to wageloss and schedule award compensation, effective October 18, 2017, because he had refused an
offer of suitable work. It found that the evidence of record showed that he was medically and
vocationally capable of performing the position of modified mail handler and that he had not
shown good cause for refusing the position. OWCP found that the weight of the medical opinion
evidence regarding appellant’s ability to work as a modified mail handler rested with the well-

4
On September 25, 2017 the employing establishment notified OWCP that the offered modified mail handler
position remained open and available.

4

rationalized opinion of Dr. Scott, OWCP’s referral physician, and determined that he did not
submit rationalized medical evidence showing that he could not perform the position.
On November 1, 2017 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
In support of his request, appellant submitted an October 19, 2017 report from Dr. Hitt,
who opined that appellant remained totally disabled from work, “most recently documented on
November 1, 2016.” Dr. Hitt noted that there were no changes in appellant’s presentation. He
again requested that OWCP authorize an updated FCE “to determine guidelines for [appellant] to
return to work safely.” Dr. Hitt repeated these findings and opinions in a report dated
December 8, 2017.
Appellant also provided an October 24, 2017 report from Ms. Hyla, a nurse practitioner.
He also submitted urine drug testing forms dated March 14, 2017 and January 23, 2018.
By decision dated February 15, 2018, OWCP’s hearing representative affirmed the
October 18, 2017 decision which terminated appellant’s entitlement to wage-loss and schedule
award compensation, effective October 18, 2017, due to his refusal of suitable work. He found
that appellant was medically and vocationally capable of performing the position of modified mail
handler offered by the employing establishment. The hearing representative determined that the
weight of the medical opinion evidence regarding appellant’s ability to work as a modified mail
handler continued to rest with the opinion of Dr. Scott, and noted that the reports of appellant’s
attending physicians were not sufficiently well-rationalized to establish that he could not work as
a modified mail handler.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s compensation benefits.5 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by, or secured for the employee is not entitled to compensation.6 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable.7 Section 8106(c) will be narrowly construed as
it serves as a penalty provision, which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment.8

5

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

6

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

7

See Ronald M. Jones, 52 ECAB 190 (2000).

8

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

5

Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured, has the burden of proof
to establish that such refusal or failure to work was reasonable or justified.9 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.10
Before compensation can be terminated, however, OWCP has the burden of proof to
demonstrate that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, and establishing that a position has been offered within the employee’s
work restrictions and setting forth the specific job requirements of the position.11 The
determination of whether an employee is physically capable of performing a modified assignment
is a medical question that must be resolved by medical evidence.12 OWCP procedures provide
that acceptable reasons for refusing an offered position include withdrawal of the offer or medical
evidence of inability to do the work or travel to the job.13
In a suitable work determination, OWCP must consider preexisting and subsequently
acquired medical conditions in evaluating an employee’s work capacity.14
ANALYSIS
The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation, effective October 18, 2017, pursuant to 5 U.S.C. § 8106(c)(2), due
to his refusal of an offer of suitable work.
The Board finds that the evidence of record establishes that appellant was capable of
performing the position of modified mail handler offered by the employing establishment on
July 18, 2017 and determined to be suitable by OWCP on August 10, 2017. The position involved
sorting flats, removing flats from tubs and placing them into a cart, placing damaged mail from a
tray or tub onto a table, and taping or bagging the damaged mail. Appellant would be given a 15minute break each hour. The physical requirements of the position included sitting in an office
chair. The evidence of record does not reveal that the position of modified mail handler was
temporary in nature.15

9

20 C.F.R. § 10.517(a).

10

Id. at § 10.516.

11

See Linda Hilton, 52 ECAB 476 (2001).

12

Gayle Harris, 52 ECAB 319 (2001).

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); E.B., Docket No. 13-0319 (issued May 14, 2013).
14

See G.R., Docket No. 16-0455 (issued December 13, 2016); Richard P. Cortes, 56 ECAB 200 (2004).

15

If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a
permanent job at the time of injury, the penalty language of section 8106(c) cannot be applied. See Federal (FECA)
Procedure Manual, supra note 13 at Chapter 2.814.4c(5), 9 (June 2013).

6

The Board finds that, with respect to appellant’s physical ability to work, OWCP properly
relied on the opinion of Dr. Scott when it made its determination that the modified position of mail
handler offered by the employing establishment was suitable. The weight of the medical evidence
regarding his ability to work is represented by the thorough, well-rationalized opinion of Dr. Scott.
Dr. Scott’s January 6, 2017 report shows that appellant is capable of working in the position of
modified mail handler.
In his report dated January 6, 2017, Dr. Scott detailed the findings of the physical
examination he conducted on November 11, 2016, noting that appellant had restricted motion of
the left elbow and no positive findings in the right elbow. He explained that, based on a
December 28, 2016 FCE, appellant could perform full-time, light-duty work with lifting up to 10
pounds and a 15-minute break each hour.
The Board finds that the opinion of Dr. Scott has reliability, probative value, and
convincing quality with respect to its conclusions. Dr. Scott provided a thorough factual and
medical history and accurately summarized the relevant medical evidence.16 He provided medical
rationale for his opinion by explaining that, although appellant’s medical condition prevented him
from performing his regular work as a mail handler, the objective findings of record showed that
he could perform a full-time limited-duty position such as the position of modified mail handler
offered by the employing establishment.17
The Board therefore finds that OWCP has established that the position of modified mail
handler offered by the employing establishment is suitable. As noted above, once OWCP has
established that a particular position is suitable, an employee who refuses or neglects to work after
suitable work has been offered has the burden of proof to establish that such refusal to work was
justified.18
The Board has reviewed the evidence and argument submitted by appellant in support of
his refusal of the position of modified mail handler and finds that it is insufficient to justify his
refusal of the position.
In support of his claim, appellant submitted reports dated from October 6, 2016 onward
from Dr. Hitt. Dr. Hitt prescribed opioid analgesic medication for moderate discomfort in the left
elbow. He explained that the discomfort caused difficulty with repetitive upper extremity activities
or lifting more than five pounds, rendering appellant “75 percent disabled,” and totally disabled
from work. Although appellant underwent an FCE on December 28, 2016, Dr. Hitt opined in his
reports from August 24 to December 8, 2017 that an updated FCE was necessary to determine if
appellant could perform the offered modified mail handler position. He noted, however, that there
had been no change in appellant’s condition.

16

M.H., Docket No. 17-0210 (issued July 3, 2018); see Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi
Lilly, 10 ECAB 560, 573 (1957).
17

The Board notes that the specific work restrictions recommended by Dr. Scott would allow appellant to work in
the modified mail handler position.
18

20 C.F.R. § 10.517(a).

7

The Board finds that the submission of this evidence does not show that appellant was
unable to work as a modified mail handler because Dr. Hitt’s opinion about his inability to work
is of limited probative value due to its lack of medical rationale. Dr. Hitt did not provide an
explanation of why he found appellant totally disabled from work based solely on left elbow
discomfort. Also, he did not explain why the December 28, 2016 FCE was insufficient to
document appellant’s ability to perform full-time light duty, or why an updated FCE was necessary
although appellant’s condition had remained unchanged. The Board has held that a medical report
is of limited probative value on a given medical issue if it contains a medical opinion which is
unsupported by medical rationale.19
Appellant also provided reports from Ms. Hyla, a nurse practitioner. These opinions are
not competent medical evidence as nurse practitioners are not considered physicians under
FECA.20
Appellant contended that he was disabled from work due to prescription narcotic
medication. He submitted drug screen testing forms dated March 14, 2017 and January 23, 2018.
As these forms do not contain medical rationale regarding appellant’s ability to perform the offered
modified mail handler position, they lack relevance to the claim.21
The Board finds that OWCP complied with its procedural requirements prior to terminating
appellant’s compensation, including providing him with an opportunity to accept the position of
modified mail handler offered by the employing establishment after informing him that his reasons
for initially refusing the position were not valid.22
For these reasons, the Board finds that OWCP properly terminated appellant’s entitlement
to wage-loss and schedule award compensation, effective October 18, 2017, because he refused
the August 10, 2017 offer of suitable work.23
On appeal counsel contends that OWCP’s February 15, 2018 decision is contrary to fact
and law. As stated above, the medical and factual evidence of record established that the offered
modified mail handler position was suitable work and that appellant presented no valid reason for
refusing the job.

19

C.M., Docket No. 14-0088 (issued April 18, 2014).

20

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
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). S.J., Docket No. 17-0783, n.2
(issued April 9, 2018) (nurse practitioners are not considered physicians under FECA).
21

M.H., supra note 16; Gayle Harris, supra note 12.

22

See generally Maggie L. Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992).

23

M.H., supra note 16.

8

CONCLUSION
The Board finds that OWCP properly terminated appellant’s entitlement to wage-loss and
schedule award compensation, effective October 2, 2015, pursuant to 5 U.S.C. § 8106(c)(2), due
to his refusal of an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated February 15, 2018 is affirmed.
Issued: December 3, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.N., Appellant
and
DEFENSE AGENCIES DLA, DISTRIBUTION
REGION WEST INJURY COMPENSATION
CENTER, Fort Belvoir, VA, Employer
__________________________________________

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

Docket No. 16-0360
Issued: July 5, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 21, 2015 appellant filed a timely appeal from a November 19, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received a $451.58 overpayment of compensation
for the period July 26 through August 22, 2015; (2) whether OWCP abused its discretion in
denying waiver of the overpayment; and (3) whether it properly found the overpayment should
be recovered by deducting $225.79 monthly from appellant’s continuing compensation
payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on May 17, 1984 appellant, then a 43-year-old preservation
servicer, sustained a thoracic sprain in the performance of duty. Appellant stopped work on
October 24, 1984 and began receiving compensation benefits for which she was placed on the
periodic rolls.
In a FECA periodic disability payment report, the record reflected that appellant’s health
benefit insurance premium totaled $451.58 every 28 days. Health benefits in the amount of
$451.58 were deducted from appellant’s gross compensation for the period June 28 through
July 25, 2015.
By letter dated July 31, 2015, the National Postal Mail Handlers Union (the Union)
reported that appellant was delinquent in her required membership dues and requested that her
enrollment in the Mail Handlers Health Benefit Plan be terminated.
In a FECA periodic disability payment plate, health benefit enrollment was suspended for
the compensation period July 26 through August 22, 2015.
By letter dated August 14, 2015, the Union reported that the prior information provided
had been incorrect and that appellant was current in her dues. It requested that her health
insurance benefits be reinstated.
In a FECA periodic disability payment plate, OWCP reinstated appellant’s health benefits
in the amount of $451.58 to be deducted from gross compensation for the period August 23
through September 19, 2015.
In an August 28, 2015 Fiscal Payment Worksheet, it was determined that appellant owed
$451.58 for health benefit premiums for the period July 26 through August 22, 2015.
On September 29, 2015 OWCP made preliminary findings of an overpayment of $451.58
for the period July 26 through August 22, 2015 because health insurance premiums had not been
collected. OWCP found that appellant was without fault in the creation of the overpayment.
As OWCP determined that appellant was without fault in the creation of the
overpayment, it requested that she submit financial information pursuant to an enclosed
overpayment recovery questionnaire (OWCP-20 form) within 30 days if she were requesting
waiver of the overpayment. It further informed appellant that she could submit additional
evidence in writing, or at a prerecoupment hearing, but that a prerecoupment hearing must be
requested within 30 days of the date of the written notice of overpayment.
On October 26, 2015 appellant disagreed with the fact and amount of overpayment and
requested a waiver of repayment. She argued that she should not be required to repay the
overpayment because it occurred through no fault of her own. No evidence was received with
appellant’s appeal and she had not submitted the overpayment recovery questionnaire.
By decision dated November 19, 2015, OWCP finalized the overpayment in the amount
of $451.58 for the period July 26 through August 22, 2015 because deductions had not been
2

deducted for health benefit insurance premiums. It further found that appellant was not at fault
in the creation of the overpayment; however, because appellant had not submitted the requested
financial information, the overpayment was not subject to waiver. Thus, there was no evidence
in the record that recovery of the overpayment would defeat the purpose of FECA or be against
equity and good conscience. Based on the evidence of record, OWCP found that she could repay
the overpayment by deducting $225.79 from continuing compensation payments every 28 days
beginning December 13, 2015. It noted that the overpayment would be absorbed by
approximately January 10, 2016.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.2 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”3
In each pay period for which health benefits withholding or direct premium payments are
not made, but during which the enrollment of an employee or annuitant continues, he or she
incurs an indebtedness due the United States in the amount of the proper employee withholding
required for that pay period.4 The regulations further provide that an agency that withholds less
than or none of the proper health benefits contributions from an individual’s pay, annuity, or
compensation must submit an amount equal to the sum of the uncollected deductions and any
applicable agency contributions required under 5 U.S.C. § 8906 to OPM for deposit in the
Employee’s Health Benefits Fund.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $451.58 for the period July 26 through August 22, 2015.6
Appellant’s health benefit insurance premiums were not deducted from her gross
compensation during the period July 26 through August 22, 2015. As no deduction had been
made for health insurance premiums during the 28-day calendar cycle covering the period

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

5 C.F.R. § 890.502(b)(1).

5

Id. at § 890.502(d); see John Skarbek, 53 ECAB 630, 632-33 (2002); Jennifer Burch, 48 ECAB 633 (1997).

6

S.W., Docket No. 11-895 (issued December 5, 2011).

3

July 26 through August 22, 2015, OWCP properly found that an overpayment in the amount of
$451.58 occurred.7
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.8 These statutory guidelines
are found in section 8129(b) of FECA which states: Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.9 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
Section 10.438 of the implementing federal regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP.10 This information is needed to determine whether recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. The
regulations further provide that failure to submit the requested information within 30 days of the
request shall result in the denial of waiver and no further request for waiver shall be considered
until the requested information is furnished.11
ANALYSIS -- ISSUE 2
In this case, appellant was found to be without fault in the creation of the overpayment.
Accompanying the September 29, 2015 preliminary notice of overpayment was an OWCP-20
form overpayment recovery questionnaire in which appellant was to provide information about
her income, assets, and expenses. Appellant failed to submit the completed overpayment
recovery questionnaire with supporting financial information. Further, she made no argument
that she gave up a valuable right or changed her position for the worse in reliance on the
overpaid compensation.

7

R.M., Docket No. 08-1848 (issued September 24, 2009).

8

See Robert Atchison, 41 ECAB 83, 87 (1989).

9

5 U.S.C. § 8129(b).

10

20 C.F.R. § 10.438(a).

11

Id. at § 10.438(b).

4

By failing to submit the requested information, as required by section 10.438 of its
regulations, appellant was not entitled to a waiver.12 The Board finds that OWCP properly
denied waiver of recovery of the $451.58 overpayment of compensation.13
LEGAL PRECEDENT -- ISSUE 3
The individual who received the overpayment is responsible for providing information
about income, expenses, and assets as specified by OWCP. This information will be used to
determine the repayment schedule, if necessary.14
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
error is discovered or his or her attention is called to the same. If no refund is made, OWCP
shall decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual, and any other
relevant factors, so as to minimize any hardship.15
ANALYSIS -- ISSUE 3
Appellant receives $2,377.00 in continuing gross compensation benefits every 28 days.
OWCP determined that the overpayment could be recovered by deducting $225.79 from her
continuing compensation payments every 28 days. The Board notes that a claimant is
responsible for submitting necessary information with respect to income, expenses, and assets as
required by OWCP.16 In this case, appellant failed to submit any information regarding her
financial circumstances to sufficiently document her income and expenses.
Thus, the Board finds that OWCP did not abuse its discretion and took into consideration
the factors set forth in 20 C.F.R. § 10.441 to minimize hardship.17 OWCP followed collection
guidelines by requiring installments large enough to collect the debt promptly and minimizing
any resulting hardship on appellant.18 Therefore, the Board finds OWCP properly required

12

Id.

13

B.T., Docket No. 14-1669 (issued December 28, 2015); M.S., Docket No. 11-96 (issued August 17, 2011).

14

Id.

15

20 C.F.R. § 10.441(a).

16

R.H., Docket No. 09-1981 (issued June 11, 2010).

17

W.M., Docket No. 13-291 (issued June 12, 2013).

18

OWCP found that appellant could repay the overpayment by deducting $225.79 from continuing compensation
payments every 28 days beginning December 13, 2015. It noted that the debt would be paid in full on
January 10, 2016. E.J., Docket No. 15-1734 (issued April 12, 2016).

5

repayment of the overpayment by deducting $225.79 from appellant’s continuing compensation
payments every 28 days.19
On appeal appellant argues that she paid her union dues and provided a copy of a
cancelled check in support of her claim. As appellant was found to be without fault in the
creation of the overpayment, this argument is irrelevant to her overpayment claim.
CONCLUSION
The Board finds that OWCP properly determined that appellant received a $451.58
overpayment of compensation for the period July 26 through August 22, 2015. The Board
further finds that she was not at fault for the overpayment and that OWCP properly denied
waiver of the overpayment based on the evidence of record. The Board also finds that OWCP
properly determined the overpayment should be recovered by deducting $225.79 from
continuing compensation every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the November 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 5, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

M.G., Docket No. 07-2317 (issued April 11, 2008).

6