United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
DeSoto, MO, Employer
__________________________________________

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

Docket No. 21-0680
Issued: February 23, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 22, 2021 appellant filed a timely appeal from a February 16, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,299.34, for which she was without fault, for the
period October 1, 2019 through January 2, 2021, because she concurrently received FECA wage1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the February 16, 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.

loss compensation and Social Security Administration (SSA) age-related retirement benefits,
without an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$107.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
This case has previously been before the Board regarding different issues.3 The facts and
circumstances as presented in the Board’s prior decisions are incorporated herein by reference.
The relevant facts are as follows.
On November 17, 1995 appellant, then a 42-year-old part-time rural carrier associate, filed
a traumatic injury claim (Form CA-1) alleging that she was injured in a November 15, 1995 motor
vehicle accident while in the performance of duty. She stopped work on the date of injury and did
not return. OWCP accepted the claim for closed sacrum/coccyx fracture, closed pubis fracture,
closed spleen hematoma, closed four rib fractures, closed lumbar vertebra fracture, post
hemorrhage anemia, forehead open wound, and foot/toe abrasion.
OWCP paid appellant wage-loss compensation for total disability as of
December 31, 1995. By decision dated June 9, 2008, it reduced her compensation, effective
June 10, 2008, as the selected position of cashier/checker (retail trade) represented her wageearning capacity. OWCP determined that appellant retained a 73 percent wage-earning capacity.
On December 11, 2020 OWCP forwarded to SSA a FERS/SSA dual benefits form to obtain
information regarding appellant’s receipt of SSA dual benefits.
On December 16, 2020 SSA completed the form and indicated that appellant had received
SSA disability benefits from May 1996 until September 2019, and that she had received agerelated retirement benefits effective October 2019. The FERS/SSA dual benefits form indicated
that beginning October 2019 the SSA benefit rates with a FERS offset was $955.40 and without a
FERS offset was $806.00; beginning December 2019 the SSA benefit rates with a FERS offset
was $970.60 and without a FERS offset was $818.80; and beginning December 2020 the SSA
benefit rates with a FERS offset was $983.20 and without a FERS offset was $829.40.
In a January 5, 2021 letter, OWCP notified appellant that her FECA wage-loss
compensation had been adjusted based on the information provided by SSA regarding the amount
of her age-related retirement benefits attributable to federal service. It advised that her new net
FECA wage-loss compensation payments would be $286.03, beginning with her payment
covering the period January 3 through 30, 2021.
OWCP completed a FERS offset overpayment calculation worksheet on January 5, 2021.
It calculated the overpayment amount by determining the daily FERS offset amount and
multiplying that amount by the number of days for the period October 1, 2019 through January 2,
2021, for a total overpayment of $2,299.34. The form indicated : from October 1 through
3

Docket No. 05-1315 (issued January 24, 2006); Docket No. 10-99 (issued July 21, 2010); Docket No. 11-1603
(issued March 6, 2012); Docket No. 15-1188 (issued November 6, 2015).

2

November 30, 2019, appellant received an overpayment of $300.45; from December 1, 2019
through November 30, 2020, appellant received an overpayment of $1,831.57; and from
December 1, 2020 through January 2, 2021, appellant received an overpayment of $167.32.
On January 5, 2021 OWCP issued a preliminary overpayment determination finding that
an overpayment of compensation in the amount of $2,299.34 had been created. It explained that
the overpayment occurred because appellant’s SSA age-related retirement benefits that she
received from October 1, 2019 through January 2, 2021 were partially based on credits earned
while working for the Federal Government, and that this portion of her SSA benefit constituted a
prohibited dual benefit. OWCP found appellant without fault in the creation of the overpayment
and forwarded an overpayment action request form and an overpayment recovery questionnaire
(Form OWCP-20). It requested that she provide supporting financial documentation, including
income tax returns, bank account statements, bills, and cancelled checks, pay slips, and any other
records to support her reported income and expenses. OWCP afforded appellant 30 days to
respond.
On February 8, 2021 OWCP received appellant’s overpayment action request form, signed
on February 3, 2021. Appellant related that she was requesting waiver of recovery of the
overpayment as she was found to be without fault in its creation. She also related that she was
drawing SSA benefits and that repayment would be a severe financial hardship. A completed
Form OWCP-20 and financial documentation were not received.
By decision dated February 16, 2021, OWCP finalized its preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$2,299.34, for the period October 1, 2019 through January 2, 2021, because it had failed to offset
her compensation payments by the portion of her SSA age-related retirement benefits that were
attributable to federal service. It further found that she was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment because the evidence of record
was insufficient to establish that recovery of an overpayment would defeat the p urpose of FECA
or would be against equity and good conscience. OWCP required recovery of the overpayment by
deducting $107.00 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 4 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States. 5 When an overpayment of compensation has
been made to an individual because of an error of fact or law, adjustment shall be made under

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

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regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled. 6
Section 10.421(d) of FECA’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-based benefits that are attributable to federal
service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,299.34, for the period October 1, 2019 through January 2,
2021, as she concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits without an appropriate offset.
As noted, a claimant cannot concurrently receive FECA wage-loss compensation and SSA
age-related retirement benefits attributable to federal service without an appropriate offset.9 The
information provided by SSA established that appellant had received SSA age -related retirement
benefits that were attributable to her federal service from October 1, 2019 through January 2, 2021.
Consequently, the fact of the overpayment has been established.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amount of SSA age -related retirement
benefits that were attributable to federal service. SSA provided appellant’s age-related retirement
benefit rates with FERS and without FERS during the specific period October 1, 2019 through
January 2, 2021. OWCP provided its calculation for each relevant period based on SSA’s
worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period October 1, 2019 through January 2, 2021 and finds that an overpayment of compensation
in the amount of $2,299.34 has been established.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (February 3, 1997); see M.S., Docket No. 20-0068 (issued May 14, 2021).

9

Id.; See D.W., Docket No. 20-1533 (issued May 27, 2021); M.R., Docket No. 20-0427 (issued October 30, 2020);
N.B., Docket No. 18-0795 (issued January 4, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 10
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. 11
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficia ry’s assets do
not exceed a specified amount as determined by OWCP. 12 Additionally, 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 in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 13
OWCP’s 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 of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 14 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.

10

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see M.C., Docket No. 19-0699 (issued
February 12, 2020).
11

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

12

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Pa rt 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2020).
13

Id. at § 10.437(a)(b).

14

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

15

Id. at § 10.438(b).

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As OWCP found appellant without fault in the creation of the overpayment, wa iver 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. 16
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she has not provided the necessary supporting financial
information. In its preliminary overpayment determination dated January 5, 2021, OWCP
explained the importance of providing the completed overpayment questionnaire and supporting
financial documentation, including copies of income tax returns, bank account statements, bills,
pay slips, and any other records to support income, expenses, and assets. Appellant, however, did
not complete the Form OWCP-20 or provide any supporting documentation regarding her income,
expenses, or assets. As appellant did not submit the information required under section 10.438 of
OWCP’s regulations, which was necessary to determine her eligibility for waiver, OWCP properly
denied waiver of recovery of the overpayment.17
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 18
Section 10.441(a) of OWCP s regulations 19 provides in pertinent part:
“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 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.”20
ANALYSIS -- ISSUE 3
The Board finds that OWCP improperly required recovery of the overpayment by
deducting $107.00 from appellant’s continuing compensation payments every 28 days.
While appellant requested waiver of recovery of the overpayment, she did not complete
the Form OWCP-20 or otherwise provide financial information. OWCP’s regulations provide that

16

20 C.F.R. § 10.436.

17

D.C., Docket No. 19-0118 (issued January 15, 2020); see S.B., Docket No. 16-1795 (issued March 2, 2017).

18

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

19

Id. at § 10.441(a).

20

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

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the overpaid individual is responsible for providing information about income, expenses, and
assets as specified by OWCP. 21
When an individual fails to provide requested financial information, OWCP should follow
minimum collection guidelines designed to collect the debt promptly and in full. 22 The Federal
(FECA) Procedure Manual provides that, in these instances, OWCP should set the rate of recovery
at 25 percent of the 28-day net compensation amount until the balance of the overpayment is paid
in full.23
The record reflects that on January 5, 2021, OWCP notified appellant that her FECA wageloss compensation had been adjusted based on the information provided by SSA regarding the
amount of her age-related retirement benefits attributable to her federal service. It advised that
appellant’s new net FECA wage-loss compensation payments would be $286.03, beginning with
her payment covering the period January 3 through 30, 2021. The Board notes that 25 percent of
$286.03 is $71.51. The Board therefore finds that OWCP improperly required recovery of the
overpayment by deducting $107.00 from appellant’s continuing compensation payments.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,299.34, for which she was without fault, for the period
October 1, 2019 through January 2, 2021, as she concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits, without an appropriate offset. The Board
further finds that OWCP properly denied waiver of recovery of the overpayment. However, the
Board finds that OWCP improperly required recovery of the overpayment by deducting $107.00
from her continuing compensation payments every 28 days.

21

Supra note 14 at § 10.438. See also A.F., Docket No. 19-0054 (issued June 12, 2019).

22

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).

23

Supra note 12 at Chapter 6.500.8(c)(1) (September 2018); M.S., supra note 14; D.H., Docket No. 20-1064 (issued
December 14, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the February 16, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed in part, and reversed in part.
Issued: February 23, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate 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
__________________________________________
H.K., Appellant
and
U.S. POSTAL SERVICE, LOS ANGELES
NETWORK DISTRIBUTION CENTER,
Bell Gardens, CA, Employer
__________________________________________

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

Docket No. 19-0429
Issued: September 18, 2019

Case Submitted on the Record

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

JURISDICTION
On December 18, 2018 appellant filed a timely appeal from a November 14, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the November 14, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish diagnosed medical
conditions causally related to the accepted September 2, 2018 employment incident.
FACTUAL HISTORY
On September 17, 2018 appellant, then a 69-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on September 2, 2018 he injured his neck and back lifting boxes
into big containers while in the performance of duty. He stopped work that day and received
continuation of pay.
In a September 21, 2018 statement, J.C., appellant’s supervisor, noted that on September 2,
2018 appellant worked until lunch. When J.C. directed appellant to perform tray sorter duties,
appellant indicated that his neck hurt and he was going home. J.C. reported that appellant called
in sick from September 6 to 17, 2018 and sought chiropractic treatment.
On September 16, 2018 Dr. Dan Diep, a chiropractor, released appellant to limited work
with a five-pound lifting restriction.
In a September 18, 2018 note, Yong S. Kim, Ph.D., an acupuncture specialist, indicated
that he provided acupuncture treatments on September 4, 6, 10, 12, and 17, 2018 for appellant’s
shoulder, neck, and low back symptoms.
OWCP also received work status reports from a physician assistant dated September 20,
24, and 30, and October 1, 2018, noting diagnoses of myofascial and lumbar strain.
In a development letter dated October 11, 2018, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of medical
evidence necessary to establish his claim and afforded him 30 days to submit the necessary
evidence.
OWCP received a copy of a September 16, 2018 disability release form from Dr. Diep and
a copy of a September 18, 2018 treatment report from Dr. Kim.
In a duty status report (Form CA-17) dated October 1, 2018, a physician assistant noted an
injury date of September 2, 2018, and clinical findings of back pain and limited range of motion.
He indicated that appellant was able to work with restrictions. OWCP also received progress
reports dated September 1 and 24, and October 1, 8, and 24, 2018, from a physician assistant.
In a September 20, 2018 form report, Dr. Kaochoy Saechao, an occupational medicine
specialist, related that on September 2, 2018 appellant was working in his unit, but after his 1:00
a.m. break, he experienced neck and back pain. She indicated that there “are no known preexisting
conditions” and also noted, “[t]here was no specific event of an injury or illness. There are known
prior acute trauma or cumulative trauma to the affected body part, pain in his upper and lower back
from repetitive motion, lifting, carrying of packages as a postal worker.” Dr. Saechao diagnosed
thoracic myofascial and lumbar strain.

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In an October 24, 2018 report, Dr. Zainab Mahmoud, a family medicine specialist,
diagnosed intervertebral disc degeneration, lumbar region, strain of muscle, fascia and tendon of
the lower back, and strain of muscle and tendon of wall of thorax. She repeated from Dr. Saechao’s
report that “there was no specific event of an injury or illness” and again indicated that there was
no prior acute trauma or cumulative trauma to the affected body part, pain in his upper and lower
back from repetitive motion, lifting, carrying of packages as a postal worker. Dr. Mahmoud also
noted that appellant had not been receiving ongoing treatment for prior trauma and indicated that
he could return to work with restrictions on that date, with an expected maximum medical
improvement of October 26, 2018. OWCP continued to receive progress and work status reports
from Dr. Mahmoud.
An October 31, 2018 physical therapy report, countersigned by Dr. Minh Nguyen, an
osteopathic physician specializing in occupational medicine, diagnosed intervertebral disc
degeneration, lumbar region; strain of muscle, fascia, and tendon of the lower back; and strain of
muscle and tendon of back wall of thorax. OWCP also received September 20 and October 29,
2018 physical therapy notes.
By decision dated November 14, 2018, OWCP denied appellant’s claim. It accepted that
the September 2, 2018 incident occurred as alleged, and that medical conditions had been
diagnosed. However, it found that appellant failed to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical 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
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first

3

See C.W., Docket No. 19-0231 (issued July 15, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 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 employee.9
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 causal relationship.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish diagnosed
medical conditions causally related to the accepted September 2, 2018 employment incident.
Appellant submitted reports from Dr. Saechao and Dr. Mahmoud diagnosing medical
conditions. However, these reports failed to explain with medical rationale the nature of the
relationship between the diagnosed conditions and the specific employment incident on
September 2, 2018. Dr. Saechao related that there was no specific event of an injury or illness.”
and no prior acute trauma or cumulative trauma to the affected body part, pain in his upper and
lower back from repetitive motion, lifting, carrying of packages as a postal worker. Dr. Mahmoud
merely repeated the same language in his report. While these reports suggested in vague terms
that repetitive employment duties caused appellant upper and lower back pain, no explanation was
provided as to how lifting boxes into big containers on September 2, 2018 caused his diagnosed
conditions. A medical opinion should reflect a correct history and offer a medically sound
explanation by the physician of how the specific employment incident physiologically caused or
aggravated the diagnosed conditions.11 As neither of these physicians addressed how the accepted
employment incident of lifting boxes on September 2, 2018 physiologically caused appellant’s
diagnosed conditions, the Board finds that these reports are insufficient to establish appellant’s
claim.
In an October 31, 2018 report, Dr. Nguyen diagnosed intervertebral disc degeneration,
fascia and low back tendon strain, and muscle and tendon thorax strain. However, she did not
opine as to the cause of appellant’s conditions. The Board has held that medical evidence that
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

8

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

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

10

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

K.J., Docket No. 18-1520 (issued June 13, 2019).

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does not offer an opinion regarding the cause of an employee’s condition is of no probative value
regarding the issue of causal relationship.12 Dr. Nguyen’s report, therefore, is insufficient to
establish appellant’s claim.
The record contains a September 16, 2018 note from Dr. Diep, a chiropractor. Under
FECA the term physician includes chiropractors only to the extent that their reimbursable services
are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist. OWCP’s regulations at 20 C.F.R. § 10.5(bb) have defined
subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae which must be demonstrable on an x-ray film to an individual trained in
the reading of x-rays. If the diagnosis of a subluxation as demonstrated by x-ray is not established,
the chiropractor is not a physician as defined under FECA and his or her report is of no probative
value to the medical issue presented.13 As Dr. Diep did not diagnose spinal subluxations
demonstrated by x-ray evidence, he is not considered a physician under FECA and his opinion is
of no probative medical value.14
The record also contains reports from a physician assistant, a physical therapist, and an
acupuncture specialist. These reports do not constitute competent medical evidence because these
individuals are not considered “physicians” as defined under FECA.15 Consequently, their medical
findings and opinions are insufficient to establish entitlement to compensation benefits.
As appellant has not submitted rationalized medical evidence to establish that his
diagnosed medical conditions were causally related to the accepted employment incident of
September 2, 2018, the Board finds that he has not met his burden of proof.16
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.

12

C.G., Docket No. 19-0480 (issued July 18, 2019).

13

R.P., Docket No. 19-0271 (issued July 24, 2019).

14

Section 8101(3) of FECA, which defines services and supplies, limits reimbursable chiropractic services to
treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist
and subject to regulation by the Secretary. 5 U.S.C. § 8101(3). See Thomas W. Stevens, 50 ECAB 288 (1999);
George E. Williams, 44 ECAB 530 (1993).
15

Section 8101(2) of FECA provides that medical opinion, in general, 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. K.W., 59 ECAB 271, 279
(2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified nurse
practitioner will be considered medical evidence if countersigned by a qualified physician. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
16

Supra note 10.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish diagnosed
medical conditions causally related to the accepted September 2, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 18, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, BUSTLETON
STATION, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 14-1275
Issued: January 12, 2015

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 May 12, 2014 appellant, through her attorney, filed a timely appeal from the
January 29, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 29, 2013.
On appeal, counsel contends that the medical evidence from an attending physician
establishes that appellant cannot return to her regular letter carrier duties. He further contends
that OWCP improperly terminated her compensation based on the report of the impartial medical
examiner, who was not properly selected from the physicians directory system (PDS). Counsel
also contends that there is a new conflict in medical evidence between the impartial medical
examiner and an OWCP referral physician regarding the existence of a lumbar condition that
restricts appellant’s ability to return to work her regular work duties. He asserts that the
1

5 U.S.C. § 8101 et seq.

impartial medical examiner’s report was not well reasoned as the physician believed that
appellant’s only accepted condition was a left ankle sprain and he found that she had residual
disability related to the left ankle. In addition, counsel asserts that the statement of accepted
facts was incomplete as it included references to an investigation conducted by the employing
establishment’s Office of the Inspector General (OIG), but failed to include an arbitrator’s
finding that the investigation was unwarranted and mishandled. Finally, he asserts that the
medical evidence establishes that acceptance of appellant’s claim should be expanded to include
a right knee injury.
FACTUAL HISTORY
OWCP accepted that on January 8, 2009 appellant, then a 50-year-old letter carrier,
sustained a strain and subluxation of the left ankle peroneal tendon while in the performance of
duty. It authorized left ankle surgery which was performed on April 1, 2009. On October 26,
2009 appellant returned to light-duty work, two hours a day, three days a week. In a
November 21, 2011 medical report, Dr. Jamal Ahmad, a Board-certified orthopedic surgeon,
released her to return to full-time full-duty work.
By decision dated February 9, 2012, OWCP accepted that appellant sustained a
recurrence of disability on November 21, 2011 and paid wage-loss compensation benefits. It
also expanded the acceptance of her claim to include a sprain, other joint derangement, plantar
fibromatosis, other enthesopathy, and tarsus of the left ankle.
On September 6, 2012 Dr. Norman B. Stempler, an attending orthopedic surgeon,
advised that appellant could return to full-time full-duty work with no restrictions. On
September 18, 2012, however, he stated that two weeks prior he had reviewed a surveillance
video prepared by the employing establishment’s OIG which showed appellant functioning in a
normal manner at that time. Dr. Stempler had signed papers presented to him without carefully
reading them. Upon further review of appellant’s job description, Dr. Stempler advised that,
although appellant was not totally disabled, she could not return to full-duty work.
On January 7, 2013 appellant returned to part-time limited-duty work.
By letter dated December 17, 2012, OWCP referred appellant, together with a statement
of accepted facts and the medical record, to Dr. Robert F. Draper, Jr., a Board-certified
orthopedic surgeon, for a second opinion to determine whether she could return to full-duty
work. In a January 17, 2013 report, Dr. Draper reviewed a history of the January 8, 2009
employment injuries and appellant’s medical treatment, social, and family background. He also
reviewed the medical record and listed findings on physical examination. Dr. Draper diagnosed
left ankle sprain, plantar fibromatosis, enthesopathy of the left side, and sinus tares syndrome or
enthesopathy of the left ankle and tarsus. He stated that appellant was status post her April 1,
2009 left ankle surgery. Dr. Draper advised that she had not and would not reach preinjury
status, but she was not totally disabled at that time. He concluded that appellant was capable of
performing her regular-duty work and noted that the surveillance video obviously showed her
walking with no problems.
On February 7, 2013 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits based on Dr. Draper’s medical opinion. Appellant was
2

advised that she had 30 days to submit additional evidence in response to the proposed
termination.
In a February 26, 2013 report, Dr. Stempler noted appellant’s ongoing left foot complaint
especially with prolonged weight bearing. He reviewed Dr. Draper’s report and opined that
appellant suffered a serious and permanent injury as a result of the January 8, 2009 employment
incident and remained partially permanently disabled.
On February 22, 2013 OWCP found a conflict in medical opinion between Dr. Stempler
and Dr. Draper regarding appellant’s capacity to perform full-time regular-duty work. By letter
dated April 4, 2013, it referred appellant, along with a statement of accepted facts and the
medical record, to Dr. William H. Simon, a Board-certified orthopedic surgeon, for an impartial
medical examination. With regard to Dr. Simon’s selection, the record contains an April 4, 2013
iFECS Report: MEO23 Appointment Schedule Notification referring appellant to Dr. Simon for
an impartial medical examination. Additionally, a screenshot of the bypass history certified that
the medical management application (MMA) was used to schedule appellant’s appointment with
Dr. Simon and noted under “Total Bypass: No Bypassess are available.”
In a May 9, 2013 report, Dr. Simon examined appellant and reviewed a history of the
January 8, 2009 employment injuries and her medical treatment, social, and family background.
He also reviewed the statement of accepted facts. Dr. Simon noted appellant’s left ankle and
foot complaints. He diagnosed status postsurgery on the peroneal muscles of the left foot after a
left ankle sprain. Dr. Simon stated that appellant had subjective findings that were compatible
with lumbar radiculopathy in the L4-5 and possibly in the L5-S1 distribution on the left side. He
advised that she only had one objective residuum as a result of the January 8, 2009 employment
injury, a scar on the lateral aspect of her foot from her April 1, 2009 surgery. Dr. Simon noted
that a sprain would have normally healed in a matter of a few weeks to several months. This
sprain could not provide appellant’s current symptoms, weakness of the peroneal, and posterior
tibial muscles or extensor hallucis longus on the left lower extremity. Also, this sprain could not
provide the findings of a positive straight leg raise on the left side. Dr. Simon opined that
appellant was completely relieved from the residuum of the accepted left ankle sprain.
Appellant’s present symptoms were compatible with lumbar discogenic syndrome involving
lumbar nerve roots on the left side at L4-5 and S1. Dr. Simon advised that the accepted left
ankle sprain had completely healed. However, he stated that based on physical examination
findings, appellant was limited to light-duty work.
Dr. Simon explained that the
symptomatology was compatible with a lumbar discogenic problem with lumbar radiculitis, and
not because of the accepted January 8, 2009 employment-related left ankle sprain. He agreed
with Dr. Draper’s opinion that appellant could return to full-time regular-duty work due to her
healed employment-related injury, but that she had not and would not reach preinjury status.
Dr. Simon stated that his opinion was supported by his finding of lumbar discogenic syndrome
with left-sided lumbar radiculopathy which was not accepted as causally related to the January 8,
2009 employment injury. He noted Dr. Stempler’s finding that appellant had permanent
restrictions preventing her from returning to full-time regular-duty work and concluded that these
restrictions were not residuals of the accepted injury.
In a July 29, 2013 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits effective that date. It found that the weight of the medical evidence rested with
Dr. Simon, the impartial medical specialist.
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By letter November 12, 2013, appellant, through her attorney, requested a review of the
written record by an OWCP hearing representative.
An unsigned report dated October 21, 2013 contained the printed name of Dr. Joseph A.
Jelen, Jr., a Board-certified orthopedic surgeon. The report noted appellant’s right knee
complaints, and authorized left ankle surgery. The report also provided a history of her medical,
social, and family background, and findings on examination. Appellant was diagnosed as having
a tear of the anterior lateral meniscus with a displaced fragment of the right knee.
In a December 17, 2013 right knee x-ray report, Dr. Bruce J. Lehrman, a Board-certified
radiologist, found no fracture, dislocation, or joint effusion. He found mild degenerative joint
disease.
By decision dated January 29, 2014, the hearing representative affirmed the July 29, 2013
decision. He found that Dr. Simon’s impartial medical opinion represented the special weight of
the medical evidence. The hearing representative also found no error in the selection of
Dr. Simon as the impartial medical examiner. He noted that counsel’s questioning of the use of
the surveillance video was not relevant as the medical determinations made were based on
examination of the medical evidence of record and of appellant.
LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.2 It may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.3 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.5 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.6
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.7 This is called a referee examination and OWCP will select a
2

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
4

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

5

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
6

A.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

7

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).

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physician who is qualified in the appropriate specialty and who has no prior connection with the
case.8 When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.9
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialist
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialist will be selected on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.10
The MMA, which replaced the PDS, allows users to access a database of Board-certified
specialist physician, and is used to schedule referee examinations. The application contains an
automatic, and strict rotational scheduling feature to provide for consistent rotation among
physicians, and to record the information needed to document the selection of the physician.11
The claims examiner is not able to determine which physician serves as the impartial
medical specialist. A medical scheduler inputs the claim number into the application, from
which the claimant’s home zip code is loaded. The scheduler chooses the type of examination to
be performed (second opinion or impartial referee) and the applicable medical specialty. The
next physician in the roster appears on the screen and remains until an appointment is scheduled
or the physician is bypassed. If the physician agrees to the appointment, the date and time are
entered into the application. Upon entry of the appointment information, the application prompts
the medical scheduler to prepare an ME023 appointment notification report for imaging into the
case file. Once an appointment with a medical referee is scheduled, the claimant and any
authorized representative are to be notified.12
If an appointment cannot be scheduled in a timely manner or cannot be scheduled for
some other reason such as a conflict or the physician is of the wrong specialty, the scheduler will
update the application with an appropriate bypass code. Upon the entering of a bypass code, the
MMA will select the next physician in the rotation.13

8

20 C.F.R. § 10.321.

9

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

10

Raymond J. Brown, 52 ECAB 192 (2001).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.5
(May 2013); see also R.C., Docket No. 12.468 (issued October 25, 2012).
12

B.N., Docket No. 12-1394 (issued August 5, 2013).

13

See supra note 11.

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ANALYSIS
OWCP accepted that on January 8, 2009 appellant sustained a strain and subluxation of
the peroneal tendon, sprain, other joint derangement, plantar fibromatosis, other enthesopathy,
and tarsus of the left ankle in the performance of duty, and authorized left ankle surgery
performed on April 1, 2009. On October 26, 2009 appellant returned to light-duty work, two
hours a day, three days a week. On February 9, 2012 OWCP accepted that she sustained a
recurrence of disability on November 21, 2011 and paid wage-loss compensation benefits.
Appellant returned to part-time limited-duty work on January 7, 2013. In a decision dated
January 29, 2014, the hearing representative affirmed the termination of appellant’s wage-loss
compensation and medical benefits effective July 29, 2013 based on the impartial medical report
of Dr. Simon.
OWCP referred appellant to Dr. Simon to resolve a conflict in medical opinion between
Dr. Stempler and Dr. Draper. Dr. Stempler, an attending physician, opined that appellant
remained permanently partially disabled as a result of the January 8, 2009 employment injury.
Dr. Draper, an OWCP referral physician, opined that appellant had no residuals of the accepted
left ankle injury and that she could perform her regular-duty work on a full-time basis. The
Board finds that there was a conflict in medical opinion between Dr. Stempler and Dr. Draper on
the issues of medical residuals and disability. OWCP properly referred appellant to Dr. Simon to
resolve the conflict in the medical opinion evidence, pursuant to 5 U.S.C. § 8123(a).
On appeal, counsel continues to challenge the selection of Dr. Simon as the impartial
medical specialist. The record contains an April 4, 2013 ME023 iFECS report documenting the
selection of Dr. Simon under the MMA. Additionally, as required, the record contains a bypass
history report certifying that the MMA was used to schedule appellant’s appointment with
Dr. Simon and that no physicians were in fact bypassed. On the “Bypass History report for the
Scheduled Appointment,” the comment input next to “Total Bypass:” was “No Bypasses are
available.” This is evidence within the MMA system that there were no other physicians
bypassed to select an appropriate impartial medical examiner. This indicates that at the time it
was input to the system at 9:24 a.m. on April 4, 2013 the first physician selected, Dr. Simon, was
available to perform the examination. As such, there would be no reason for the existence of
bypasses for other physicians. Additionally, OWCP sent out the appointment letter to Dr. Simon
and appellant on April 4, 2013. The Board finds that OWCP provided documentation and
properly utilized its MMA system in selecting Dr. Simon as the impartial medical examiner. By
doing so, OWCP has met its affirmative obligation to establish that it properly followed its
selection procedures, the Board finds counsel’s argument without merit.
The Board finds, however, that OWCP improperly terminated appellant’s compensation
based on Dr. Simon’s report. In a May 9, 2013 report, Dr. Simon found that appellant’s left
ankle sprain had resolved and that she could return to light-duty work with restrictions related to
her nonwork-related lumbar discogenic syndrome with lumbar radiculitis. He did not address,
however, whether all of her accepted work-related conditions had resolved. As noted, it has been
accepted that appellant sustained work-related strain and subluxation of the peroneal tendon,
other joint derangement, plantar fibromatosis, other enthesopathy, and tarsus of the left ankle.
Dr. Simon did not provide a clear opinion stating that all of appellant’s left ankle conditions had
resolved. Further, he did not clearly address whether she no longer had disability or the need for
medical care due to the work-related left ankle conditions. Given these circumstances, he did not
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provide a rationalized medical report showing that appellant ceased to have work-related
residuals causing wage loss or the need for medical care. Accordingly, the Board finds that
OWCP did not meet its burden to terminate wage-loss compensation and medical benefits for
appellant’s accepted left ankle conditions.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective July 29, 2013 on the grounds that she no longer had any
residuals or disability causally related to her accepted January 8, 2009 employment-related
injuries.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 12, 2015
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Fitchburg, MA, Employer
__________________________________________

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

Docket No. 07-1371
Issued: November 9, 2007

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 April 25, 2007 appellant filed a timely appeal of a February 9, 2007 merit decision of
the Office of Workers’ Compensation Programs which denied modification of a February 5,
2005 decision denying her recurrence of disability 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 sustained a recurrence of disability during the period
May 30 through October 21, 2003 causally related to her accepted employment-related injuries.
FACTUAL HISTORY
This case has previously been before the Board. In an October 4, 2006 decision, the
Board affirmed the Office’s February 5, 2005 decision which denied appellant’s claim for a
recurrence of disability.1 It found that she failed to submit rationalized medical evidence
1

Docket No. 06-681 (issued October 4, 2006).

establishing that her total disability during the period May 30 through October 21, 2003 was
causally related to her accepted employment-related thoracic outlet syndrome and bilateral carpal
tunnel syndrome. The Board also affirmed the Office’s May 19, 2005 decision which denied
appellant’s request for further review of the merits of her claim under 5 U.S.C. § 8128(a). It
found that the medical reports of Dr. Osama A. Al-Masri, a Board-certified orthopedic surgeon,
covering the period April 4, 2003 through December 14, 2004 appellant submitted in connection
with her reconsideration request had previously been considered by the Office. The Board also
found that Dr. Al-Masri’s July 7, 2003 and May 17, 2004 notes were not relevant to the main
issue in the present case because he did not address whether appellant was totally disabled during
the period in question due to her accepted employment-related injuries. The facts and the
circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference.2 The facts and the history relevant to the present issue are hereafter set forth.
By letter dated November 13, 2006, appellant requested reconsideration before the
Office. She submitted Dr. Al-Masri’s October 23, 2006 report which stated that she was being
seen again for the same symptoms of residual carpal tunnel and thoracic outlet syndromes.
Dr. Al-Masri related that appellant had recurring numbness and pain when she used a computer
or her hands repetitively. He stated that she was placed off work between May 30 and
October 21, 2003 because appellant was doing physical therapy and repetitive use increased her
symptoms. Dr. Al-Masri decided “to do this to avoid a recurrence.” He opined that appellant
was totally disabled due to a recurrence of her symptoms when she returned to work.
Dr. Al-Masri indicated that she had to type and repetitively use her hands. He determined that
appellant’s carpal tunnel and thoracic outlet syndromes developed by clinical diagnosis and
stated that it could also occur following repetitive use. Dr. Al-Masri summarized that placing
appellant off work completely and deeming her disabled during the period May 30 through
October 21, 2003 would be helpful in relieving her symptoms and treating her thoracic outlet and
carpal tunnel syndromes with physical therapy. He opined that appellant was totally disabled at
that time. Appellant was directed to return to work gradually, 20 hours per week and then
gradually increase her hours as she felt better. Dr. Al-Masri concluded that her condition
continued to be the same and that she was unable to perform work that required repetitive use of
her upper extremity at that time.
By decision dated February 9, 2007, the Office denied modification of its prior decision.
It found that Dr. Al-Masri’s October 23, 2006 report was insufficient to establish that appellant
sustained a recurrence of disability during the period May 30 through October 21, 2003 due to
her accepted employment injuries.
LEGAL PRECEDENT
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 had resulted from a
2

On June 12, 1995 appellant, then a 42-year-old data transcriber, filed a claim for an occupational disease. She
alleged that on March 8, 1994 she first became aware of her carpal tunnel syndrome and tendinitis of both hands.
Appellant further alleged that on March 25, 1994 she first realized that these conditions were caused by her federal
employment. She stopped work on April 6, 1994. The Office accepted appellant’s claim for thoracic outlet
syndrome and bilateral carpal tunnel syndrome and authorized right carpal tunnel release.

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previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which she claims
compensation is causally related to the accepted employment injury.4 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between her recurrence of disability and her employment injury.5 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.6 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.7
ANALYSIS
In a report dated October 23, 2006, Dr. Al-Masri stated that appellant experienced
continuing symptoms of her employment-related carpal tunnel and thoracic outlet syndromes as
she had recurring numbness and pain when she used a computer or her hands repetitively. He
placed her off work from May 30 to October 21, 2003 because appellant was receiving physical
therapy for her employment-related injuries and repetitive use increased her symptoms.
Dr. Al-Masri stated that he did so “to avoid a recurrence.” He opined that appellant was totally
disabled due to a recurrence of her symptoms when she returned to work, noting that she was
required to type and repetitively use her hands. Dr. Al-Masri concluded that her condition
continued to be the same and that she was unable to perform work that required repetitive use of
her upper extremity at that time. Regarding his decision to place appellant off work from
May 30 through October 21, 2003 to avoid a recurrence of disability, the Board has held that fear
of future injury or fear of a recurrence of disability if the employee returns to work, is not
compensable; there must be medical evidence showing that a claimant is currently disabled for
work due to an employment-related condition.8 Dr. Al-Masri did not provide any medical
rationale explaining how or why appellant sustained a recurrence of disability from May 30
through October 21, 2003 due to her employment-related carpal tunnel and thoracic outlet
syndromes and why the medical services rendered were for the effects of an employment-related
condition. Thus, the Board finds that his October 23, 2006 report is insufficient to establish
appellant’s burden of proof.

3

20 C.F.R. § 10.5(x).

4

Kenneth R. Love, 50 ECAB 193, 199 (1998).

5

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

6

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

7

Alfredo Rodriquez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

8

See Virginia Dorsett, 50 ECAB 478 (1999); William A. Kandel, 43 ECAB 1011 (1992); Mary A. Geary, 43
ECAB 300 (1991).

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CONCLUSION
The Board finds that appellant has failed to establish that she sustained a recurrence of
disability from May 30 through October 21, 2003 causally related to her accepted employmentrelated injuries.
ORDER
IT IS HEREBY ORDERED THAT the February 9, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Coppell, TX,
Employer
__________________________________________

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Appearances:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-801
Issued: January 4, 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 February 23, 2012 appellant, through his attorney, filed a timely appeal from a
September 20, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for disability compensation and a December 19, 2011 merit decision
terminating his compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective July 3, 2011 on the grounds that he had no residuals of his accepted employment injury;
(2) whether it properly terminated authorization for medical benefits; and (3) whether appellant
has established that he was disabled from July 18 through November 21, 2009 due to his
accepted work injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 20, 2008 appellant, then a 48-year-old mail processor, filed an occupational
disease claim alleging problems with his feet due to factors of his federal employment. OWCP
accepted his claim for bilateral plantar fibromatosis. By decision dated June 1, 2009, it
terminated appellant’s entitlement to monetary compensation effective July 5, 2009 on the
grounds that he refused an offer of suitable work under section 8106(c). Appellant returned to
work on June 5, 2009. In a decision dated July 1, 2009, OWCP granted him schedule awards for
a one percent impairment to each lower extremity.
An electromyogram (EMG) and nerve conduction study (NCS) performed on July 9,
2009 revealed bilateral posterior tarsal tunnel syndrome.
In disability certificates dated July 9 and September 3, 2009, Dr. Ellis advised that
appellant was temporarily totally disabled from employment.
On August 28, 2009 OWCP noted that appellant had returned to work on June 5, 2009
but stopped work on June 25, 2009. It noted that it had issued a termination letter on June 1,
2009 due to his refusal of suitable work. OWCP stated:
“On June 19, 2009 [the employing establishment] reported via e-mail that you had
actually returned to work on June 5, 2009. This return to work information
superseded the above referenced June 1, 2009 [tele]phone call from your agency
verifying you had not accepted the job offer and rendered the June 1, 2009 [f]inal
[t]ermination [d]ecison [l]etter invalid.”
OWCP notified appellant that it found the position that he abandoned suitable and that he
had 30 days to report to work or have his compensation terminated.
In a decision dated November 4, 2009, OWCP terminated appellant’s compensation
effective November 22, 2009 on the grounds that he abandoned suitable work.
On November 11, 2009 appellant requested a telephone hearing. In a decision dated
April 28, 2010, OWCP’s hearing representative reversed the November 4, 2009 termination.
She found that appellant had attempted to return to work on October 27, 2009 but was sent home
by the employing establishment. The hearing representative instructed OWCP to reinstate
compensation retroactive to November 22, 2009.
On August 12, 2010 OWCP referred appellant to Dr. Donald M. Mauldin, a
Board-certified orthopedic surgeon, for a second opinion examination. In a report dated
August 31, 2010, Dr. Mauldin found no objective evidence of plantar fasciitis and only
subjective complaints limiting activities. In an attached addendum, he opined that based on his
review of a September 9, 2010 functional capacity evaluation, appellant could return to his usual
employment.
On October 7, 2010 appellant filed a claim for compensation from July 19 to
November 21, 2009.

2

By letter dated October 25, 2010, OWCP advised appellant that it proposed to terminate
his compensation as the medical evidence established that he was no longer disabled due to his
work injury.
In response, appellant submitted a March 16, 2010 report from Dr. Ellis, who diagnosed
employment-related bilateral plantar fasciitis and posterior tarsal tunnel syndrome. Dr. Ellis
found that appellant was totally disabled from June 25, 2009 onward due to his employment
injury. In a work capacity evaluation dated January 4, 2010, he advised that appellant was
totally disabled.2
By decision dated January 5, 2011, OWCP denied appellant’s claim for compensation
from July 19 to November 21, 2009 as the medical evidence was insufficient to establish that he
was disabled from employment during this period. On February 1, 2011 appellant requested a
telephone hearing.
On March 21, 2011 OWCP referred appellant to Dr. Bernie McCaskill, a Board-certified
orthopedic surgeon, for an impartial medical examination. It found a conflict in medical opinion
between Dr. Ellis and Dr. Mauldin regarding whether appellant had continued residuals of his
work injury.
On March 28, 2011 appellant’s attorney objected to the selection of Dr. McCaskill due to
bias. In another letter dated March 28, 2011, counsel requested that OWCP provide the bypass
pages showing the physicians who were not selected.3
Following a preliminary review of the record, OWCP’s hearing representative set aside
the January 5, 2011 decision denying compensation from July 18 through November 21, 2009.
She noted that OWCP had previously terminated appellant’s compensation for refusing suitable
work in a June 1, 2009 decision and, consequently, he was not entitled to further wage-loss
compensation. The hearing representative further found, however, that OWCP had scheduled an
impartial medical examination to resolve the issue of appellant’s disability. She instructed
OWCP to have the impartial medical examiner address the question of disability from July to
November 2009 even though there was no conflict on the issue to “avoid piecemeal adjudication
and the possibility of inconsistent results.” The hearing representative further determined that
OWCP should “immediately cease any monetary payments to [appellant] as long as the June 1,
2009 decision stands.”
In an e-mail message dated April 12, 2011, counsel asserted that on August 28, 2009
OWCP rescinded the June 1, 2009 decision terminating compensation under section 8106(c). He
requested that the hearing representative issue an amended decision.

2

In a report dated January 27, 2011, Dr. Ellis advised that the effects of appellant’s work injury continued and
that he required further treatment.
3

In a letter dated April 4, 2011, OWCP responded to the March 28, 2011 letter requesting documentation of the
selection of the impartial medical examiner. Subsequently, counsel no longer alleged that the selection was not in
accordance with OWCP’s procedures.

3

In a report dated April 19, 2011, Dr. McCaskill discussed the history of injury and
appellant’s current complaints of diffuse foot pain that has increased overtime. On examination,
he found that appellant was “diffusely tender over the plantar aspect of each foot over the medial
and lateral aspect of each heel and over the medial aspect of each ankle including the
subcutaneous surface of the medial malleolus.” Dr. McCaskill measured full range of motion
and pedal pulses with no callosities and a “slow but normal gait.” He found no neurological
abnormalities or loss of strength in the bilateral lower extremities. Dr. McCaskill reviewed the
objective studies and noted that magnetic resonance imaging (MRI) scan studies from 2008 did
not show clear abnormalities and that a July 2008 EMG revealed evidence of bilateral tarsal
tunnel syndrome.4 He diagnosed chronic bilateral foot pain of undetermined etiology.
Dr. McCaskill stated, “[Appellant] has no objective abnormal physical findings and his
complaints are not consistent with any specific clinical diagnosis including tarsal tunnel
syndrome.” He found that appellant could return to his usual employment.
On May 25, 2011 OWCP advised appellant of the proposed termination of his
compensation and medical benefits as the weight of the medical evidence established that he was
no longer totally disabled.
In a report dated March 1, 2011, Dr. Ellis diagnosed bilateral calcaneal spurs, plantar
fasciitis, tarsal tunnel syndrome and morton’s neuromas, traumatic osteoarthritis of the feet and
tendinitis of the medial malleolus bilaterally. He found that appellant was unable to work
beginning June 25, 2009 due to his injury and was permanently disabled from his usual
employment.5 In an April 26, 2011 work restriction evaluation, Dr. Ellis advised that appellant
was totally disabled.
By decision dated June 27, 2011, OWCP terminated appellant’s compensation and
authorization for medical benefits effective July 3, 2011. It found that Dr. McCaskill’s opinion
represented the weight of the medical evidence and established that appellant had no further
employment-related disability or need for further medical treatment.
In a letter dated June 28, 2011, OWCP requested that Dr. McCaskill address whether
appellant was able to perform his modified employment from July to November 2009.
On July 5, 2011 appellant requested a telephone hearing.
In a supplemental report dated July 12, 2011, Dr. McCaskill reviewed the medical reports
and diagnostic studies from June to November 2009. He opined that there was no “clinical
change in [appellant’s] complaints or condition from July to November 2009 and when seen by
me for a required medical evaluation on April 19, 2011.” Dr. McCaskill advised that appellant
could perform his limited duty during the period in question.

4

A July 7, 2008 MRI scan of the right foot showed degenerative changes and “[p]rominent sharp spurring at the
inferior aspect of the os calcis.” A July 7, 2008 MRI scan study of the left foot showed degenerative changes and
spurring at the os calcis inferior aspect.
5

Dr. Ellis submitted a similar report dated June 22, 2011.

4

By decision dated September 20, 2011, OWCP denied appellant’s claim for disability
compensation from July 18 to November 21, 2009.
At the telephonic hearing, held on October 13, 2011 appellant related that Dr. McCaskill
performed a cursory examination and left the room multiple times to receive telephone calls.
Counsel argued that Dr. Mauldin’s report was insufficient to create a conflict in opinion and that
Dr. McCaskill was biased.
By letter dated October 24, 2011, counsel maintained that Dr. Mauldin’s report was
insufficient to create a conflict in medical opinion as it lacked medical rationale and did not
address the positive objective studies. He also argued that Dr. McCaskill did not consider all the
medical evidence of record, including the results of a positive 2009 EMG and NCS. Counsel
submitted a deposition obtained from Dr. McCaskill as a witness for a defendant and an
evaluation of his performance as a resident in 1980. He noted that in the deposition
Dr. McCaskill asserted that he primarily represented corporations defending claims and that he
had accepted repremands by the state Board in 1992 and 2009 in complex malpractice cases.
In a decision dated December 19, 2011, OWCP’s hearing representative affirmed the
June 27, 2011 decision. She found that Dr. McCaskill’s opinion represented the weight of the
evidence and established that appellant had no further disability or condition due to his work
injury. The hearing representative found insufficient evidence to establish bias.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.6 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.7
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.9 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.10
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.11 The implementing regulations
6

Elaine Sneed, 56 ECAB 373 (2005).

7

Fred Reese, 56 ECAB 568 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

8

Gewin C. Hawkins, 52 ECAB 242 (2001).

9

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

10

Id.

11

5 U.S.C. § 8123(a).

5

states that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.12 In situations where there exist opposing medical reports of virtually
equal weight and rationale and the case is referred to an impartial medical specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.13
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral plantar fibromatosis causally related to
factors of his federal employment. In a decision dated June 1, 2009, it terminated his
compensation under section 8106(c) effective July 5, 2009 for refusing suitable work. On
August 28, 2009, however, OWCP noted that appellant had returned to work on June 5, 2009. It
found that the June 1, 2009 decision was thus not valid. Section 8128 of FECA provides that the
Secretary of Labor may review an award for or against payment of compensation at anytime on
her own motion or on application.14 OWCP reopened appellant’s case and found that its June 1,
2009 decision was invalid and effectively set aside the suitable work termination.
OWCP properly found that a conflict arose between Dr. Maudlin, a second opinion
physician, and Dr. Ellis, appellant’s attending physician, regarding whether he had any further
employment-related condition or disability. It referred appellant to Dr. McCaskill for an
impartial medical examination to resolve the conflict in opinion.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.15 The Board finds that the opinion of Dr. McCaskill,
a Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is well
rationalized and based on a proper factual and medical history. Dr. McCaskill accurately
summarized the relevant medical evidence, provided detailed findings on examination and
reached conclusions about appellant’s condition which comported with his findings.16 In a report
dated April 19, 2011, he reviewed the medical evidence of record, including the results of
diagnostic studies. On examination, Dr. McCaskill found diffuse tenderness of both feet over the
media and lateral heel and the medial aspect of each ankle. He measured full range of motion
and found normal pedal pulses and no neurological abnormalities or loss of strength.
Dr. McCaskill diagnosed bilateral foot pain of unknown etiology. He concluded that appellant
12

20 C.F.R. § 10.321.

13

R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

14

5 U.S.C. § 8128.

15

J.M., 58 ECAB 478 (2007); Darlene R. Kennedy, 57 ECAB 414 (2006).

16

Manuel Gill, 52 ECAB 282 (2001).

6

could return to his usual employment. Dr. McCaskill provided rationale for his opinion by
noting that the findings on examination were not consistent with any diagnosis.17 As his report is
detailed, well rationalized and based on a proper factual background, his opinion is entitled to the
special weight accorded an impartial medical examiner.18 OWCP thus met its proof to terminate
appellant’s compensation benefits for the accepted condition of bilateral plantar fibromatosis.
After OWCP advised appellant of its proposed termination, he submitted a March 1, 2011
report from Dr. Ellis, who diagnosed plantar fasciitis, tarsal tunnel syndrome, osteoarthritis of
the feet and bilatealr medial tendinitis. Dr. Ellis reiterated that appellant was totally disabled
from employment due to his accepted injury. A medical report from a physician on one side of a
conflict resolved by an impartial medical examiner, however, is generally insufficient to
overcome the weight accorded the report of an impartial medical examiner or create a new
conflict.19
Counsel alleged that Dr. McCaskill was biased.
OWCP referred appellant to
Dr. McCaskill on March 21, 2011. By letter dated March 28, 2011, counsel objected to the
selection of Dr. McCaskill and contended bias. He did not, however, provide adequate
documentation to support his allegation. Under the procedure manual, a claimant may request to
participate in the selection of the referee physician or may object to the physician selected under
the medical management application. Counsel must, however, provide a valid reason, including
documented bias or unprofessional conduct by the selected physician.20 He asserted only a
general allegation of bias at the time he objected to Dr. McCaskill’s selection and thus has not
shown that he was unqualified to render an impartial medical opinion at the time he examined
appellant.21
Subsequent to Dr. McCaskill’s evaluation, counsel submitted a deposition from
Dr. McCaskill, who testified that he primarily represented corporate defendants and described
disciplinary actions taken against him by the state medical board and lawsuits by patients. There
was no decision, however, finding bias by Dr. McCaskill or other evidence to establish bias or
unprofessional conduct.22

17

While, as argued by counsel at the hearing, 2008 and 2009 EMG studies revealed evidence of tarsal tunnel
syndrome, the accepted condition is bilateral plantar fibromatosis.
18

See J.M., supra note 15; Katheryn E. Demarsh, 56 ECAB 677 (2005).

19

Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

20

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(f) (July 2011).

21

See A.H., Docket No. 11-2080 (issued July 26, 2012).

22

See J.S., Docket No. 10-2198 (issued July 26, 2011) (finding that a state workers’ compensation decision
supported a finding of bias by an impartial medical examiner).

7

LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.23 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.24
ANALYSIS -- ISSUE 2
OWCP met its burden of proof to terminate authorization for medical benefits through
the opinion of Dr. McCaskill, the impartial medical examiner, who found that appellant had no
residuals of his accepted condition. Dr. McCaskill explained that based on his physical
examination he did not show any evidence of a foot condition. As his opinion is detailed and
well rationalized, it is entitled to the special weight accorded an impartial medical examiner and
establishes that appellant has no further residuals of his accepted employment injury.
LEGAL PRECEDENT -- ISSUE 3
The term disability as used in FECA25 means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.26 Whether a
particular injury caused an employee disability for employment is a medical issue which must be
resolved by competent medical evidence.27 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 the employment held when injured, the employee is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.28 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.29
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.30
23

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

24

Id.

25

Supra note 1; 20 C.F.R. § 10.5(f).

26

Paul E. Thams, 56 ECAB 503 (2005).

27

Id.

28

Id.

29

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

30

5 U.S.C. § 8123(a).

8

ANALYSIS -- ISSUE 3
On October 7, 2010 appellant filed a claim requesting compensation for total disability
from July 19 to November 21, 2009. On July 9, 2009 Dr. Ellis found that appellant was disabled
from employment. In reports dated March 16, 2010 and March 1, 2011, he opined that appellant
was totally disabled beginning June 25, 2009 due to his accepted employment injury. In
contrast, Dr. McCaskill, in a report dated July 12, 2011, found that there was no change in
appellant’s condition from June to November 2009 such that he was unable to perform his
modified work duties.31 The Board, therefore, finds a conflict in medical opinion.
Section 8123 of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, OWCP shall
appoint a third physician who shall make an examination.32 The case will be remanded for an
impartial medical examiner to resolve the conflict in medical opinion. On remand, OWCP
should refer appellant and a statement of accepted facts to an appropriate physician to examine
him and evaluate the evidence pursuant to section 8123(a) of FECA. Following this and such
further development as OWCP deems necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation and
authorization for medical benefits effective July 3, 2011 on the grounds that he had no further
disability or condition due to his accepted employment injury. The Board further finds that the
case is not in posture for decision regarding whether he sustained employment-related disability
from July 18 to November 21, 2009.

31

Dr. McCaskill was not an impartial medical examiner on the issue of disability from July 18 to November 21,
2009 as the record contained no conflict on this issue at the time of his examination.
32

5 U.S.C. § 8123; see also Charles S. Hamilton, 52 ECAB 110 (2000).

9

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed and the September 20, 2011 decision is set aside
and the case is remanded for further proceedings consistent with this opinion of the Board.
Issued: January 4, 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

10


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

)
)
)
)
)
)
)
)

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

Docket No. 07-2014
Issued: January 24, 2008

Case Submitted on the Record

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

JURISDICTION
On August 8, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 29, 2007 with respect to her 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition causally related to compensable work factors of her federal employment.
FACTUAL HISTORY
On August 4, 2005 appellant, then a 30-year-old letter carrier, filed an occupational
disease claim (Form CA2) alleging that she sustained an emotional condition as a result of her
federal employment. In narrative statement, she stated that she became uncomfortable and
nervous when a supervisor asked how much time she needed to complete her route. After
responding, the supervisor would say “Oh come on, you don’t need that much time, I need you to

take some mail off another route.” Appellant stated that, after she called in to use sick leave, her
supervisor would treat her differently and not say “good morning.” According to her, her first
anxiety attack occurred on October 6, 2004 when she requested one hour of leave for the next
day. Appellant alleged that her supervisor became upset and spoke in a loud voice, calling her
“underhanded” and refusing to do “more favors” for her, such as letting her begin work at 7:15
a.m. instead of 7:30 a.m. She began experiencing anxiety attacks. Thereafter, a new supervisor
called appellant a “milkmaid,” suggesting that she was milking her time and taking too long to
complete her route. She stated that the supervisor stopped after she asked her to stop, but found
other ways to belittle her. Appellant alleged that on March 23, 2005 she had an anxiety attack
after the supervisor questioned the time needed for her route and in April 2005 the supervisor
pointed out to another carrier that appellant was casing mail the wrong way.
In an undated statement, Mike Miller, appellant’s first supervisor, stated that it was part
of his job to determine the time needed to deliver a mail route. He asserted that he did not treat
employees differently if they had used sick leave and said good morning to employees unless he
was running behind in schedule. On October 6, 2004 Mr. Miller was not upset and did not yell at
appellant. He denied ever calling her underhanded, but said that putting in one hour of leave
prior to a holiday was an underhanded trick. Mr. Miller indicated that an employee was not
allowed to request less than eight hours of leave prior to a scheduled day off. After appellant
became upset he allowed her leave for the day.
Another supervisor, Carla Meyer, indicated in an August 8, 2005 statement that she did
not recall calling appellant a milkmaid. However, if she did, it was used as a joke rather than an
attempt to belittle appellant. Ms. Meyer stated that she would ask other carriers how much time
“are you going to milk me for today?” referring to the amount of overtime needed. Mr. Miller
stated that appellant’s responsibilities included observing carriers work and in April 2005
another carrier was used to illustrate the proper technique for casing mail.
Appellant submitted a statement from Marshall Richardson, a coworker, indicating that
he heard Ms. Meyer call appellant a milkmaid. Ronald Carter, a union steward, reported that in
October 2004 appellant became upset after a conversation with her supervisor in which she was
called an underhanded person and a person that could not be trusted. In an undated statement,
received by the Office on September 28, 2005, appellant reiterated her allegations. She stated
“constant harassment by my supervisors Mr. Miller and Ms. Meyer along with the excessive
amount of overtime finally mentally and physically exhausted me.” Appellant submitted
additional medical evidence, including a September 20, 2005 report from Dr. Heather Ellwod,
diagnosing panic disorder with panic attacks.
By decision dated January 24, 2006, the Office denied the claim for compensation. The
Office found that appellant had not established any compensable work factors.
Appellant requested an oral hearing before an Office hearing representative, which was
held on February 20, 2007. She submitted a statement from Kathy Wieand, a coworker, who
discussed her interactions with Mr. Miller.
By decision dated May 29, 2007, the Office hearing representative affirmed the
January 24, 2006 decision.

2

LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.1 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.4
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.5 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.6 With respect to a claim based on harassment or
discrimination, a claimant must establish a factual basis for the claim by supporting the
allegations with probative and reliable evidence.7
ANALYSIS
Appellant has alleged an emotional condition as a result of actions of her supervisors.
She became nervous when questioned about her route time, but this is clearly an administrative
matter involving a supervisory responsibility. The evidence of record does not establish any
1

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

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

3

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

6

Margreate Lublin, 44 ECAB 945, 956 (1993).

7

Gregory N. Waite, 46 ECAB 662 (1995); Barbara J. Nicholson, 45 ECAB 803 (1994).

3

error or abuse in this regard. With respect to such actions as being instructed on casing mail
techniques before another carrier, there is no probative evidence the supervisor was abusive or
attempting to belittle appellant.
There are specific allegations of verbal abuse by supervisors, such as the allegation that
Mr. Miller called appellant “underhanded” or that Ms. Meyer called her a “milkmaid.” The
evidence of record does not establish that these incidents rose to the level of verbal abuse or
otherwise constitute a compensable work factor. While the Board has recognized the
compensability of verbal abuse in certain circumstances, this does not imply that every statement
uttered in the workplace will give rise to a compensable work factor.8 Mr. Miller denied raising
his voice or yelling at appellant, and stated that the term “underhanded” was in reference to a
leave request of less than eight hours made immediately prior to a scheduled day off. He
indicated that appellant had asked for one hour of leave on a day prior to a scheduled day off,
and although such a leave request was improper she ultimately was allowed to take the day off.
Ms. Meyer indicated the term “milkmaid” was intended as a joke and similar comments were
made to other carriers. Appellant indicated that Ms. Meyer stopped using the term as soon as she
asked her to stop. The Board finds that the comments made by the supervisors do not constitute
verbal abuse.
Appellant also characterized the actions of her supervisor as harassment, but as noted
above, there must be probative and reliable evidence to support a claim of harassment. The
evidence of record does not establish harassment, administrative error or verbal abuse. The
Board notes that, while appellant briefly referred to working excessive amounts of overtime, she
did not provide further detail. As noted by the hearing representative, appellant indicated at the
oral hearing that she was not claiming that the overtime contributed to an emotional condition.
The Board finds that the allegations raised by her and the evidence submitted do not substantiate
a compensable work factor in this case Since appellant has not established a compensable work
factor, the Board will not address the medical evidence.9
CONCLUSION
The evidence of record does not substantiate a compensable work factor and, therefore,
appellant did not meet her burden of proof to establish an emotional condition causally related to
compensable work factors.

8

Judy L. Kahn, 53 ECAB 321, 326 (2002).

9

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

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 29, 2007 is affirmed.
Issued: January 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5