United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denham Springs, LA, Employer
__________________________________________

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

Docket No. 09-841
Issued: November 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 9, 2009 appellant filed a timely appeal of a nonmerit decision of the Office
of Workers’ Compensation Programs dated March 18, 2008. Because more than one year has
elapsed between the most recent merit decision of the Office dated June 4, 2007 and the filing of
this appeal on February 9, 2009, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether the Office properly declined to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 18, 2007 appellant, then a 51-year-old distribution window clerk, filed an
occupational disease claim alleging that on August 22, 2000 she first realized she had lower
back, neck and shoulder pain. She stated that it was not until September 22, 2006 that she

realized her condition was employment related when she heard something in her lower back pop
while lifting a package off the counter.
On May 3, 2007 the Office notified appellant that the evidence submitted was insufficient
to establish her claim. It advised her to identify the specific employment duties she believed
caused or contributed to her condition and provide a medical narrative from her treating
physician, which contained a diagnosis and a rationalized opinion as to the cause of her
condition.
Subsequent to the May 3, 2007 letter the Office received factual and medical information
including a January 4, 2007 operative report for L4 through S1 anterior lumbar interbody fusion
with interbody cages, L4 through S1 posterolateral fusion with L4 through S1 segmental
instrumentation and bilateral L5 to S1 formaninotomies and an April 18, 2007 statement by
Larry J. Darsam, Jr., postmaster.
In a June 4, 2007 decision, the Office denied appellant’s claim for compensation benefits
finding that the medical evidence did not establish that the claimed back condition was causally
related to her employment.
On January 28, 2008 appellant requested reconsideration.
By decision dated March 18, 2008, the Office denied appellant’s request for
reconsideration of the merits on the grounds that she failed to raise a substantive legal question
or present relevant evidence.1
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.3 The employee shall exercise this right through a request to the district Office. The
request, along with the supporting statements and evidence, is called the application for
reconsideration.4
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
1

The Board notes that appellant submitted additional evidence subsequent to the March 18, 2008 decision and
with her appeal. However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); J.T., 59
ECAB ___ (Docket No. 07-1898, issued January 7, 2008); G.G., 58 ECAB ___ (Docket No. 06-1564, issued
February 27, 2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
2

5 U.S.C. § 8101 et seq.

3

Id. at § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

4

20 C.F.R. § 10.605.

2

considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.5
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.6 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.7
ANALYSIS
Appellant’s January 28, 2008 request for reconsideration neither alleged, nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, she did not advance a relevant legal argument not previously considered by the
Office. Appellant also did not submit any pertinent new and relevant evidence, not previously
considered by the Office, with her request for reconsideration. Consequently, she is not entitled
to a review of the merits of her claim based on the above-noted requirements under section
10.606(b)(2).
The Board finds that the Office properly determined that appellant was not entitled to
further consideration of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(2), and thus the Office properly denied her January 28, 2008 request for
reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

5

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

6

20 C.F.R. § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

7

20 C.F.R. §10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 18, 2008 is affirmed.
Issued: November 3, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
U.S. POSTAL SERVICE, TOMS RIVER POST
OFFICE, Toms River, NJ, Employer
__________________________________________

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

Docket No. 12-209
Issued: June 18, 2012

Case Submitted on the Record

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

JURISDICTION
On November 8, 2011 appellant, through her attorney, filed a timely appeal from an
August 29, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating her compensation and authorization for medical benefits. 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 met its burden of proof to terminate appellant’s
compensation benefits effective May 9, 2009 on the grounds that she had no further disability
causally related to her January 23, 2007 employment injury; and (2) whether OWCP properly
terminated appellant’s authorization for medical benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated May 3, 2011, the
Board set aside a February 9, 2010 decision denying appellant’s request for reconsideration
under 5 U.S.C. § 8128.2 The Board noted that her attorney asserted that the opinion of Dr. Ian B.
Fries, a Board-certified orthopedic surgeon and impartial medical examiner, was inconsistent and
therefore insufficient to support the termination of compensation. The Board determined that
this argument was relevant, pertinent and not previously considered and sufficient to warrant
reopening the case for further merit review. The Board remanded the case for OWCP to conduct
a merit review of the claim. The facts and circumstances as set forth in the prior decision are
hereby incorporated by reference.
On remand, OWCP considered the September 19, 2008 report from Dr. Fries, who found
that appellant’s neck sprain and left knee contusion had resolved. Dr. Fries diagnosed cervical
degenerative disc disease, right trapezius myalgia, right rotator cuff and bicipital tendinitis, a
degenerative partial tear of the rotator cuff, acromioclavicular and glenohumeral arthritis and
incidental left shoulder surgery. He provided objective findings of decreased motion of the right
shoulder with subjective complaints. Dr. Fried noted that appellant had no subjective complaints
or objective findings of a left knee contusion and no objective findings of neck strain. He found
that her loss of neck motion was most likely due to degeneration as a result of aging. Dr. Fried
asserted:
“Any relationship of these findings to her January 23, 2007 accident is based upon
[appellant’s] claim, but is not well supported by clinical records.
“[Appellant] had no shoulder complaints acutely nor are any shoulder complaints
mentioned during initial care subsequent to the accident. Right shoulder
symptoms were not investigated until three months after the accident. Imaging
evidences preexisting right shoulder degeneration.
“Current shoulder complaints are consistent with advancing degeneration of
[appellant’s] glenohumeral and acromioclavicular joints as well as continued
degeneration of her rotator cuff.
“In summary, [appellant’s] subjective and objective right shoulder findings are
consistent with degenerative pathology and a relationship to her January 23, 2007
accident is unlikely.”
Dr. Fries found that appellant required no further medical treatment for her January 23,
2007 work injury. He opined that she was unable to perform her regular employment due to
2

Docket No. 10-1701 (issued May 3, 2011). OWCP accepted that on January 23, 2007 appellant, then a 59-yearold rural carrier, sustained neck sprain, a contusion of the left knee, rotator cuff syndrome of the right shoulder and
right bicipital tenosynovitis in a motor vehicle accident. She stopped work on April 19, 2007. OWCP determined
that a conflict existed between Dr. Saquib Rehman, an attending Board-certified orthopedic surgeon, and
Dr. Irvin D. Strouse, a Board-certified orthopedic surgeon, who provided a second opinion examination, regarding
the extent of appellant’s disability. It thus referred appellant for an impartial medical examination.

2

degeneration of the right shoulder and provided physical limitations on an accompanying work
restriction evaluation (OWCP-5c). Dr. Fries concluded:
“[OWCP] has accepted the conditions of a neck sprain, left knee contusion [fully
resolved], right rotator cuff syndrome and right bicipital tendinitis. I disagree
[that] these right shoulder pathologies are causally related to the January 23, 2007
accident. However, if [OWCP’s] determination stands, then limitations I
provided on the attached OWCP-5c should be considered due to the accident.”
By decision dated August 29, 2011, OWCP denied modification of its May 8, 2009
decision terminating appellant’s compensation and authorization for medical benefits. It found
that Dr. Fries opined that her shoulder condition was unrelated to her work injury and that he
determined that she had no residuals of her January 23, 2007 work injury.
On appeal, appellant’s attorney argues that Dr. Fries’ report is contradictory and that he
found that appellant was unable to work due to her right shoulder condition. He maintains that
Dr. Fries’ opinion is insufficient to meet OWCP’s burden of proof to terminate compensation.
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.3 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
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.5
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.6 The implementing regulations states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician 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.7 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.8
3

Elaine Sneed, 56 ECAB 373 (2005).

4

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

5

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

6

5 U.S.C. § 8123(a).

7

20 C.F.R. § 10.321.

8

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

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OWCP’s procedure manual provides as follows:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF [statement of accepted
facts] which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained neck strain, a left knee contusion, rotator cuff
syndrome of the right shoulder and right bicipital tenosynovitis due to a January 23, 2007 motor
vehicle accident. It paid compensation for total disability beginning April 19, 2007. Based on
the finding of Dr. Fries, an impartial medical examiner, it terminated her compensation and
authorization for medical benefits effective May 9, 2009. The Board previously found that the
contention of appellant’s attorney that Dr. Fries’ opinion was inconsistent was sufficient to
warrant reopening the case for further merit review. On remand, OWCP determined that
Dr. Fries’ report established that appellant had no further residuals of her accepted work injury.
When the record contains a conflict in medical opinion 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.10 On September 19, 2008 Dr. Fries diagnosed cervical degenerative disc
disease, right trapezius myalgia, right rotator cuff and bicipital tendinitis, a degenerative partial
tear of the rotator cuff, acromioclavicular and glenohumeral arthritis and incidental left shoulder
surgery. He opined that appellant’s left knee contusion and neck strain had resolved. Dr. Fries
advised that she had no objective findings or subjective complaints regarding her left knee and
no objective findings of neck sprain. He explained that appellant’s loss of neck motion was
consistent with age-related degeneration. The Board finds that, regarding the accepted condition
of a left knee contusion and neck sprain, Dr. Fries’ opinion is well rationalized and supported by
probative medical rationale. His opinion is entitled to the special weight accorded an impartial
medical examiner and is sufficient to meet OWCP’s burden of proof to establish that appellant
had no further disability due to her accepted left knee contusion and neck sprain.11
The Board finds, however, that Dr. Fries’ opinion is insufficient to establish that
appellant had no employment-related disability as of May 9, 2009 due to her accepted right
shoulder rotator cuff syndrome and bicipital tendinitis. OWCP provided the physician with a
statement of accepted facts indicating that it had accepted rotator cuff syndrome of the right
shoulder and right bicipital tenosynovitis as employment related. Dr. Fries attributed appellant’s
right shoulder condition to degenerative changes rather than the work injury, noting that she did
9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600(3) (October 1990).
10

See supra note 8.

11

See JaJa K. Aaramo, 55 ECAB 200 (2004).

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not complain of shoulder pain until three months after the accident and that diagnostic studies
revealed preexisting changes. He found that she could not return to her usual employment due to
her shoulder condition and listed work restrictions. Dr. Fries asserted that the restrictions were
unrelated to the January 23, 2007 motor vehicle accident unless OWCP continued to accept that
appellant’s right rotator cuff syndrome and right bicipital tendinitis were employment related, in
which case he advised that the restrictions “should be considered due to the accident.”
Consequently, he did not determine that she had no further disability due to her right rotator cuff
syndrome and right bicipital tendinitis but instead found that she did not experience an
employment injury to her shoulder on January 23, 2007. To the extent that Dr. Fries’ opinion is
outside the framework of the statement of accepted facts, it is based on an inaccurate factual
history and insufficient to meet OWCP’s burden of proof.12 Further, he found that appellant’s
work restrictions were causally related to the January 23, 2007 motor vehicle accident provided
that OWCP found her right shoulder condition work related. OWCP did not address whether it
was attempting to rescind acceptance of her right rotator cuff syndrome and right bicipital
tendinitis based on Dr. Fries’ report; it did not inform her that it was contemplating rescission or
actually rescind acceptance of her right shoulder conditions in its termination decision. It must
inform a claimant correctly and accurately of the grounds on which a rejection rests so as to
afford the claimant an opportunity to meet, if possible, any defect appearing therein.13 OWCP
may not find that residuals of an employment injury have ceased by a particular date when the
evidence upon which the decision rests tends to support that, in fact, the injury never occurred.14
Accordingly, the Board finds that OWCP did not meet its burden of proof to terminate
appellant’s compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.15 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.16
ANALYSIS -- ISSUE 2
OWCP met its burden of proof to terminate authorization for medical benefits for the
accepted conditions of a neck strain and left knee contusion through the opinion of Dr. Fries, the
impartial medical examiner, who found that appellant had no residuals of these conditions.
Dr. Fries explained that she had no objective findings of a neck strain and left knee contusion.
12

See Douglas M. McQuaid, 52 ECAB 382 (2001) (medical reports must be based on a complete and accurate
factual and medical background and medical opinions based on an incomplete or inaccurate history are of little
probative value); see also supra note 9.
13

John M. Pittman, 7 ECAB 514 (1955).

14

See John L. Hofmann, Docket No. 04-1802 (issued November 22, 2004).

15

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

16

Id.

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As his opinion regarding these conditions 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 her neck strain and left knee contusion.
The Board finds, however, that OWCP failed to meet its burden of proof to terminate
medical benefits for the accepted conditions of right shoulder rotator cuff syndrome and right
bicipital tenosynovitis as Dr. Fries’ opinion is insufficient to show that appellant had no residuals
of these conditions.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation and
authorization for medical benefits for the accepted condition of a left knee contusion and neck
sprain. The Board further finds, however, that OWCP failed to meet its burden of proof to
terminate her compensation benefits and authorization for medical treatment effective May 9,
2009 on the grounds that she had no further disability causally related to her right rotator cuff
syndrome and bicipital tenosynovitis.
ORDER
IT IS HEREBY ORDERED THAT the August 29, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part.
Issued: June 18, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marti, UT, Employer
__________________________________________

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

Docket No. 13-946
Issued: July 11, 2013

Case Submitted on the Record

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

JURISDICTION
On March 12, 2013 appellant filed a timely appeal of a February 12, 2013 merit decision
of the Office of Workers’ Compensation Programs’ (OWCP) denying her traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
injury on December 3, 2011, as alleged.
FACTUAL HISTORY
On December 24, 2011 appellant, then a 47-year-old city carrier, filed a traumatic injury
claim alleging that on December 3, 2011 she fell hitting her coccyx and twisting her knee while
performing her federal job duties.
1

5 U.S.C. § 8101 et seq.

Dr. Darrel Olsen, a Board-certified family medicine specialist, examined appellant on
December 14, 2011. He obtained a history of falling and landing on her tailbone. Dr. Olsen
stated that appellant developed knee pain and swelling two days after her fall. He found no
discoloration or swelling of the knee, good range of motion and some tenderness over the lateral
ligaments. Dr. Olsen diagnosed a knee injury, question of meniscal tear. Appellant submitted a
knee x-ray which was read as normal. On December 21, 2011 she underwent a left knee
magnetic resonance imaging (MRI) scan which was suggestive of mild-to-moderate
chondromalacia patella involving the lateral articular surface of the patella.
In a letter dated January 7, 2013, OWCP requested additional medical evidence from
appellant. Specifically, for a physician’s opinion as to how her injury resulted in a diagnosed
condition. OWCP allowed 30 days for a response. The requested evidence was not submitted
within the allotted time.
By decision dated February 12, 2013, OWCP denied appellant’s claim finding that she
did not establish that she twisted her knee or sustain a coccyx fracture on December 3, 2011. It
found that she did not submit sufficient medical evidence to meet her burden of proof.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”6 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. The employee must also
submit sufficient evidence to establish that he or she actually experienced the employment
2

Following OWCP’s February 12, 2013 decision, appellant submitted new evidence. As OWCP did not consider
this evidence in reaching a final decision, the Board may not consider the evidence for the first time on appeal.
20 C.F.R. § 501.2(c)(1).
3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

20 C.F.R. § 10.5(ee).

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incident at the time, place and in the manner alleged.7 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.8
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.9 Medical rationale includes a physician’s detailed opinion on
the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, 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 specific employment activity or factors identified by the
claimant.10
ANALYSIS
Appellant alleged that on December 3, 2011 she fell in the performance of duty injuring
her coccyx and left knee. OWCP has accepted that the fall occurred in the performance of
appellant’s job duties. The Board finds that she has not submitted sufficient medical evidence to
establish that she sustained an injury as a result of her employment incident. Appellant must
submit probative medical evidence on the issue of causal relationship between a diagnosed
condition and the employment incident. She must submit rationalized medical evidence in
support of her claim.11
Appellant submitted two diagnostic tests, an MRI scan and x-rays. She also submitted a
note from Dr. Olsen which included the diagnosis of a questionable meniscal tear. Dr. Olsen did
not review the MRI scan and did not provide a clear opinion that appellant’s accepted fall
resulted a firm medical diagnosis, such as a meniscal tear of the left knee. Without a clear
medical opinion that appellant’s employment incident resulted in a diagnosed medical condition,
the evidence is not sufficient to meet her burden of proof to establish a traumatic injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

7

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

8

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

9

T.F., 58 ECAB 128 (2006).

10

A.D., 58 ECAB 149 (2006).

11

G.G., 58 ECAB 389 (2007).

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CONCLUSION
The Board finds that appellant did not submit the necessary medical opinion evidence to
meet her burden of proof in establishing a traumatic injury claim for knee strain or coccyx
fracture.
ORDER
IT IS HEREBY ORDERED THAT the February 12, 2013 Office of Workers’
Compensation Programs’ decision is affirmed.
Issued: July 11, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 10-2104
Issued: June 6, 2011

Case Submitted on the Record

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

JURISDICTION
On August 17, 2010 appellant, through her representative, filed a timely appeal from the
July 7, 2010 merit decision of the Office of Workers’ Compensation Programs, which affirmed
the denial of her recurrence claim. Pursuant to the Federal Employees’ Compensation Act1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of partial disability beginning
November 2, 2009 as a result of her August 17, 1998 employment injury.
FACTUAL HISTORY
On August 17, 1998 appellant, a 49-year-old part-time flexible clerk, sustained an injury
in the performance of duty when, as she maneuvered a bulk mail container down a short ramp, it
pushed her into a wall. She did not stop work immediately but began working limited duty. The
1

5 U.S.C. § 8101 et seq.

Office accepted appellant’s claim for left elbow abrasion, cervical strain, left arm strain, thoracic
strain and lumbar strains.
On December 1, 2009 the officer-in-charge announced that hour reductions were put into
place because of declining mail volumes and revenues for the office: “Plan hours have been
reduced and therefore the hours of my [p]art[-]time flexible clerks have been reduced across the
board. The reductions have been equal and justified.” The officer-in-charge added that any
reduction in hours had nothing to do with the duty status of any employee, limited duty or
otherwise. The employer confirmed to the Office that appellant’s hours were not cut because of
her work restrictions but rather as part of an across-the-board reduction for all part-time flexible
employees.2
Appellant filed a claim for partial disability beginning November 2, 2009 due to the
reduction of her hours.
The Office denied appellant’s claim for wage-loss compensation on the grounds that she
failed to provide evidence establishing that the employer reduced her hours because of her
August 17, 1998 work injury.
In a decision dated July 7, 2010, an Office hearing representative affirmed on the grounds
that appellant’s reduced hours were unrelated to her August 17, 1998 work injury. She found no
evidence to support appellant’s belief that the reduction occurred in retaliation for her Equal
Employment Opportunity complaint. The hearing representative found no evidence that
appellant was singled out for a reduction of hours and there were currently no formal
administrative findings of agency error.
LEGAL PRECEDENT
The Act pays compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.4
A “recurrence of disability” means an inability to work, after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness. This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to her
work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force) or when the physical

2

The union president’s handwritten table comparing appellant’s hours to the hours of some other clerk did not
establish otherwise.
3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f).

2

requirements of such an assignment are altered so that they exceed her established physical
limitations.5
An individual who claims a recurrence of disability resulting from an accepted employment
injury has the burden of establishing that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and who supports that conclusion with sound medical reasoning.6
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to limited duty or the medical evidence of record
establishes that she can perform limited duty, the employee has the burden of establishing by the
weight of the reliable, probative and substantial evidence a recurrence of total disability and
show that she cannot perform such limited duty. As part of her burden, the employee must show
a change in the nature and extent of her injury-related condition or a change in the nature and
extent of her limited-duty job requirements.7 However, when a claimant stops work for reasons
unrelated to the accepted employment injury, there is no disability within the meaning of the
Act.8
ANALYSIS
Appellant claims compensation for partial disability beginning November 2, 2009 due to
a reduction in her limited-duty hours. She submitted no evidence to show that this reduction
arose from her accepted employment injury. Instead, the evidence indicates that hour reductions
were put in place across the board for all part-time flexible employees, regardless of duty status,
because of declining mail volumes and revenues.
That makes appellant’s case very similar to the case of A.M.9 In A.M., the claimant, a
part-time distribution/window clerk, sustained a left shoulder and neck injury in the performance
of duty. After she returned to limited duty, the employer reduced her hours because of a
declining work flow and budget. The employer reduced the hours of all part-time flexible
employees. Appellant alleged a recurrence of partial disability. Affirming the denial of that
claim, the Board noted that she was not alleging that she could not perform her limited duties.
5

Id. at § 10.5(x).

6

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956).

7

Terry R. Hedman, 38 ECAB 222 (1986).

8

Hubert Jones, 57 ECAB 467 (2006) (claimant did not sustain a compensable recurrence when he was removed
from his job because of a reduction-in-force); John I. Echols, 53 ECAB 481 (2002) (record did not show that the
employer withdrew the claimant’s light-duty assignment and forced him to retire, nor did the record clearly establish
that the claimant’s retirement was involuntary or precipitated by his employment-related left knee condition);
John W. Normand, 39 ECAB 1378 (1988) (the claimant was terminated from his position because of menacing
behavior toward a supervisor and unofficial use of government property, not because of any physical inability to
perform his assigned duties).
9

Docket No. 09-1895 (issued April 23, 2010).

3

Rather, appellant was alleging that the reduction in her hours was due to the employer’s
reduction of hours for part-time flexible employees. The Board held that, as the reduction was
unrelated to her employment injury, the Office properly determined that she failed to meet the
definition of disability and was not entitled to wage-loss compensation for the period claimed.
Appellant has established no incapacity because of her employment injury to earn the
wages she was receiving at the time of injury. She has not established a spontaneous change in
her accepted medical conditions. Appellant has not established that the physical requirements of
her assignment were altered such that they exceeded her established physical limitations. As in
the case of A.M., the record shows only that the reduction of the claimant’s hours was part of an
across-the-board reduction for all part-time flexible employees due to declining mail volumes
and revenues. Like a true reduction-in-force, this was an independent cause unrelated to any
injury. Because the reduction of appellant’s hours was unrelated to the elbow abrasion and
various strains she sustained on August 17, 1999, there is no disability within the meaning of the
Act (incapacity because of employment injury). The Board will therefore affirm the Office’s
July 7, 2010 decision affirming the denial of her claim for wage-loss compensation.
CONCLUSION
The Board finds that appellant did not sustain a recurrence of partial disability beginning
November 2, 2009 as a result of her August 17, 1998 employment injury.

4

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richlands, VA, Employer
__________________________________________

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

Docket No. 19-1852
Issued: October 22, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On September 5, 2019 appellant filed a timely appeal from an August 15, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $186,927.89 for the period June 22, 1997 through September 25, 2010 because she
received total disability benefits after she had returned to modified employment position; and
(2) whether OWCP properly determined that appellant was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On October 13, 1994 appellant, then a 47-year-old part-time flexible distribution clerk filed
a traumatic injury claim (Form CA-1) alleging that on October 1, 1994 she injured her low back
while picking up a tray of mail while in the performance of duty. OWCP accepted the claim for
lumbar sprain and degenerative lumbar disc disease. It authorized an L3-4 and L5 microdiscetomy
and an L3-4 decompressive hemilaminectomy with associated formaminotomy, which were
performed on July 27, 1995. Appellant received wage-loss benefits on the periodic rolls
commencing June 23, 1995.3
By decision dated November 23, 1998, OWCP retroactively reduced appellant’s wage-loss
compensation based on her actual earnings in the position of distribution/window clerk in which
she had been reemployed since September 20, 1996.
On October 13, 2010 OWCP issued a formal retroactive loss of wage-earning capacity
(LWEC) determination based upon appellant’s actual earnings working four hours per day in the
position of distribution clerk. It noted that on the date of injury appellant worked 33.3 hours per
week and that effective April 14, 1997 she had a 60 percent wage-earning capacity based upon her
current earnings of $368.60 per week.
On October 27, 2010 OWCP issued a preliminary notice of overpayment finding that
appellant had been overpaid $245,017.69 because she received compensation for total disability
for the period “April 14 to June 21, 1997” while reemployed in a modified-duty position and
because an LWEC had been retroactively issued. It found her at fault in the creation of the
overpayment as she should have been aware that the compensation payments she received were
incorrect.
In a November 12, 2010 letter, appellant disagreed with OWCP’s finding that she was at
fault in the creation of the overpayment. She questioned the calculation and amount of the
overpayment. Appellant informed OWCP that she was reserving her right to request a telephone
conference.
On November 18, 2010 OWCP issued an amendment to the preliminary notice of
overpayment finding that appellant had been overpaid $226,151.36 for the period June 22, 1997
to September 25, 2010 because she had been working 33.3 hours per week and a loss of wageearning capacity decision should have been issued effective June 22, 1997. It found that she was
at fault in the creation of the overpayment noting she had been advised in correspondence dated
“June 23, 1955” that she was to notify OWCP when she returned to work.

2

Docket No. 13-1337 (issued November 1, 2013).

3
Appellant elected to receive retirement benefits from the Office of Personnel Management (OPM) in lieu of FECA
benefits effective January 2, 2014.

2

In correspondence dated November 23, 2010, appellant disagreed with OWCP’s
preliminary overpayment findings. She also requested a prerecoupment hearing a telephone
conference, and review of the written record by an OWCP hearing representative.
By decision dated July 16, 2012, OWCP finalized its preliminary determination that an
overpayment in the amount of $226,151.36 had been created due to appellant receiving
compensation for total disability when she returned to her date-of-injury position working 33.3
hours per week effective June 22, 1997. It found that she was at fault in the creation of the
overpayment and that waiver of the recovery of the overpayment was therefore precluded.
On August 14, 2012 appellant requested reconsideration. She asserted that OWCP erred
in issuing a final overpayment decision prior to providing her with either a hearing or telephone
conference as requested. Appellant also asserted that OWCP erred in basing the overpayment on
her working 33.3 hours per week when she only worked a 20 hour work week. She submitted
evidence supporting her contention that she had worked 20 hours per week instead of the 33.3
hours per week found by OWCP.
By decision dated November 9, 2012, OWCP denied reconsideration.
On May 7, 2013 appellant appealed to the Board. By decision dated November 1, 2013,
the Board set aside the November 9, 2012 nonmerit decision. The Board found that OWCP had
improperly denied merit review as appellant had submitted new evidence showing that she had not
worked more than 20 hours upon her return to work and had requested a telephone conference or
a prerecoupment hearing. The Board remanded the case for OWCP to provide either a telephone
conference or prerecoupment hearing.
In a letter dated October 6, 2016, OWCP noted the Board’s findings in its November 1,
2013 decision and requested that appellant advise whether she wished to pursue a telephone
conference or a prerecoupment hearing. In a letter dated October 18, 2016, appellant’s counsel
responded that she requested a prerecoupment hearing.
By decision dated January 3, 2018, the Branch of Hearings and Review determined that
the case was not in posture for a hearing. It found that it was unable to determine whether the
overpayment amount and period identified by OWCP was correct. On remand, OWCP was
instructed to clarify the date appellant returned to modified duty and accurately establish and
document the overpayment compensation. It was instructed to make specific findings regarding
the amount of FECA wage-loss compensation appellant received and the amount of compensation
she should have received during the relevant period pursuant to the LWEC determination, utilizing
the Shadrick formula.4 It was further ordered that OWCP address all legal arguments set forth by
appellant in any subsequent overpayment action.
In letters dated January 31, March 13, and November 1, 2018, OWCP requested
clarification from the employing establishment as to exactly when appellant returned to modified
duty and how many hours she worked. It noted that it had previously requested detailed
information from the employing establishment in the form of a day-to-day leave analysis. OWCP
4

Albert C. Shadrick, 5 ECAB 376 (1953).

3

noted that it needed this information as the information then of record was previously determined
to be insufficient to establish the amount of overpayment.
On July 3, 2019 the employing establishment submitted documentation of appellant’s work
hours beginning pay period 13 in the year 1997 to pay period 26 in year 2009. It submitted another
document which set forth her work hours and earnings for the period January 1 to
September 25, 2010. The employing establishment noted, however, for the period June 22, 1997
to January 1, 2010 that it could not provide the requested data on a day-by-day basis to include
total earnings.
In a July 11, 2019 preliminary determination, OWCP advised appellant that she had
received an overpayment of compensation in the amount of $186,927.89 for the period June 22,
1997 through September 25, 2010, while reemployed in a modified-duty position. It noted that
she received varying amounts from $1,818.00 to $2,493.00 every 28 days during the period
June 22, 1997 through September 25, 2010, following her return to work on June 22, 1997. During
this period, OWCP noted that appellant worked from 16 to 24 hours per week, for a total of
14,007.73 hours. It determined that she had been paid $367,291.14 when she was only entitled to
receive $180,363.25 in wage-loss compensation, resulting in an overpayment of $189,927.89.
OWCP also made a preliminary determination that appellant was at fault in the creation of the
overpayment because she had accepted payments that she knew, or reasonably should have known,
to be incorrect, as she knew or should have known that she was not entitled to wage-loss
compensation for total disability after she resumed part-time employment. It requested that she
complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documents. Additionally, OWCP notified appellant that, within 30 days of
the date of the letter, she could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. No response or additional evidence concerning her
preliminary overpayment determination was received.
By decision dated August 15, 2019, OWCP found that appellant had received an
overpayment of compensation in the amount of $186,927.89 for the period June 22, 1997 through
September 25, 2010 and that she was at fault in the creation of the overpayment. It indicated that
she had failed to respond to its preliminary overpayment determination.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 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
duty.5
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
not receive salary, pay, or remuneration of any type from the United States, except in limited
circumstances.6 Section 10.500 of OWCP’s regulations provides that compensation for wage loss
5

Supra note 1 at § 8102.

6

Id. at § 8116(a).

4

due to disability is available only for any periods during which an employee’s work-related
medical condition prevents him or her from earning the wages earned before the work-related
injury.7
Section 8129(a) of FECA provides that when an overpayment of compensation has been
made to an individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.8
If the claimant is entitled to compensation for partial wage loss after return to work, the
claims examiner should compute entitlement using the Shadrick formula and authorize
compensation on a 28-day payment cycle.9
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
OWCP found that appellant received an overpayment of compensation because she
received wage-loss compensation for total disability from June 22, 1997 through September 25,
2010 after she returned to part-time, limited duty. The record reflects that OWCP issued a
retroactive LWEC determination effective April 14, 1997 and that appellant did in fact receive
wage-loss compensation to which she was not entitled following her return to work. Therefore,
the Board affirms OWCP’s finding of fact of overpayment.
However, by decision dated January 3, 2018, an OWCP hearing representative remanded
the case for further development as to the amount of overpayment, instructing that prior to further
overpayment action that all factual discrepancies in the record must be clarified and resolved. It
was ordered that the dates worked and supporting earnings data should be obtained from the
employing establishment and thereafter all legal arguments of appellant must be addressed in new
preliminary overpayment determination with a detailed explanation to support how the figure was
calculated. The Board finds, however, that the development as ordered in the January 3, 2019
remand did not occur and that the final overpayment decision is insufficient to set forth a basis for
appellant to understand how and why she received an overpayment in compensation in the amount
of $186,927.89. Due to the lack of financial information and adequate explanation as to how the
overpayment was calculated on the record as presented, the Board is unable to adequately review
this aspect of the case.
5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and
make an award for or against payment of compensation.” Also, 20 C.F.R. § 10.126 provides in
7

20 C.F.R. § 10.500(a).

8

5 U.S.C. § 8129(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.3(b) (June 2013). See Albert C. Shadrick, supra note 4; P.B., Docket No. 19-0329 (issued
December 31, 2019); C.Y., Docket No. 18-0263 (issued September 14, 2018).

5

pertinent part that the final decision of OWCP shall contain findings of fact and a statement of
reasons. It has a responsibility to set forth findings of fact and a clear statement of reasons
explaining the disposition so that the claimant can understand the basis for the decision, as well as
the precise defect and the evidence needed to overcome the denial of his traumatic injury claim.10
A claimant is entitled to an overpayment decision that clearly explains how the amount
was calculated.11 The Board finds that the overpayment decision in this case does not provide
such an explanation. Therefore, the amount of overpayment has not been established. On remand
OWCP shall confirm from the employing establishment the exact date that appellant returned to
part-time work and document from her employment records the actual earnings per pay period
from her work during the period of the overpayment. Once it obtains this necessary information,
it shall then prepare detailed calculations setting forth the exact amounts per pay period which
appellant earned and the amount of wage-loss compensation to which she had been entitled.
Following those calculations it should subtract from the amount of wage-loss compensation that
she was paid during the applicable period the amount to which she was actually entitled to receive.
For periods which the employing establishment cannot document actual earnings from her
employment, no amount of overpayment shall be found. Only following these actions should
OWCP issue a new preliminary overpayment determination incorporating its factual basis for
finding an overpayment with the detailed calculations as to the amount of overpayment.12
CONCLUSION
The Board finds that this case is not in posture for decision.

10
See O.M., Docket No. 19-0342 (issued November 15, 2019); S.B., Docket No. 19-0634 (issued
September 19, 2019).
11

See A.J., Docket No. 18-1152 (issued April 1, 2019); J.W., Docket No. 15-1163 (issued January 13, 2016); see
also O.R., 59 ECAB 432 (2008) with respect to overpayment decisions, OWCP must provide clear reasoning showing
how the overpayment was calculated); see Jenny M. Drost, 56 ECAB 587 (2005) (to comply with OWCP’s
overpayment procedures, an overpayment decision must contain a clearly written explanation indicating how the
overpayment was calculated).
12
Due to the outcome as to issue 1, the issue of fault is rendered moot. See S.F., Docket No. 18-0003 (issued
April 19, 2018); see also R.L., Docket No. 11-1251 (issued January 27, 2012).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 15, 2019 is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: October 22, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1542
Issued: August 25, 2017

Case Submitted on the Record

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

JURISDICTION
On July 26, 2016 appellant, through counsel, filed a timely appeal from a May 6, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability beginning September 2, 2011, causally related to her February 5, 1999 employment
injury.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.3 On February 8, 1999 appellant, then a 33year-old modified letter carrier,4 filed a traumatic injury claim (Form CA-1) alleging that she
injured her back on February 5, 1999 while lifting a tray of mail and then turning to resume
racking. OWCP accepted her claim for back (lumbar) strain. On March 23, 1999 appellant
returned to full-time, limited-duty answering telephones. Effective May 22, 1999 she resumed
her previous modified letter carrier duties. OWCP subsequently accepted a recurrence for
medical treatment beginning November 24, 2009.5
On September 15, 2011 appellant filed a claim (Form CA-2a) for recurrence of disability
beginning September 2, 2011.6 OWCP initially denied the recurrence claim by decision dated
November 4, 2011. When the case was last on appeal, the Board affirmed OWCP’s latest merit
decision, dated June 10, 2014, finding that appellant had not established a recurrence of
disability beginning September 2, 2011, causally related to her February 5, 1999 employmentrelated back (lumbar) strain. Although recent medical evidence indicated that appellant was
disabled due to lumbar radiculopathy, the evidence failed to establish that her then-current
lumbar condition was causally related to the February 5, 1999 employment injury. There was
also diagnostic evidence of disc bulges at L2-3 and L5-S1, but the medical evidence of record
failed to establish causal relationship between appellant’s multi-level lumbar disc disease and her
accepted employment injury. Accordingly, the Board found that appellant failed to establish a
recurrence of disability on or after September 2, 2011, causally related to her February 5, 1999
employment injury. The facts as presented in the Board’s February 13, 2015 decision are
incorporated herein by reference.
On February 9, 2016 counsel requested reconsideration.
magnetic resonance imaging (MRI) scan report was received.

A January 3, 2016 lumbar

Medical reports from Dr. Howard I. Baum, a Board-certified orthopedic surgeon, were
also received. In medical reports dated January 20, February 23, April 14, May 28, August 13,
December 14 and 28, 2015 and January 11 and 18, and March 3, 2016, he provided a diagnosis
of lumbar derangement/internal derangement of the lumbar spine and indicated that appellant
had increased lumbar pain. Dr. Baum recommended chiropractic treatment and prescribed
medication. In his December 14, 2015 medical report, he indicated that appellant complained of
an increased low back pain. Dr. Baum noted that she had an injury in 1999 and had flare-ups off
and on for quite some time. He reported that appellant was working full eight-hour days with
restrictions. Dr. Baum reported that appellant was neurologically intact. In his January 11, 2016
report, he indicated that appellant’s January 4, 2015 lumbar MRI scan revealed disc protrusion at
3

Docket No. 14-1844 (issued February 13, 2015).

4

Appellant had previously fractured her left ankle in the performance of duty on May 27, 1993 (File No.
xxxxxx863). Her physical limitations included no walking or standing in excess of two hours per day.
5

Appellant did not stop work at the time.

6

OWCP also treated the claim as a new traumatic injury and assigned File No. xxxxxx169. However, it later
determined that the case was properly considered a recurrence under OWCP File No. xxxxxx035. The two case
records were subsequently combined under Master File No. xx-xxxx035.

2

L2-3 with right L2 nerve compression, foraminal stenosis, L4-5 herniation encroaching on the
L4 nerve root, L5-S1 left-sided disc herniation with left formanial stenosis, and a T11-12 disc
protrusion and a bulge. Dr. Baum opined that appellant was disabled from work.
In a December 18, 2015 Staten Island University Hospital medical report, Dr. Akash
Bhatnagar, an emergency medical physician, noted appellant’s complaint of severe back pain
which began three days prior, with intermittent back pain for about two weeks. Appellant
indicated that her last MRI scan was in 2011 and that she was diagnosed with multiple lumbar
disc herniations. Dr. Bhatnagar noted examination findings and found no signs of cord
compression. He treated appellant symptomatically for sciatica.
In a December 23, 2015 letter, Dr. Baum7 indicated that appellant was originally injured
at work on February 5, 1999 while lifting a tray of mail and, when she turned to go back to
racking mail, she felt pain in her back and shoulders. He noted that her injuries were
characterized as a back strain and that she returned to work in a limited-duty position, for eight
hours a day, on February 5, 1999. Dr. Baum indicated that appellant’s job required repetitive
bending and lifting of mail trays, which resulted in overuse of her back muscles each workday.
He further indicated that there was wear and tear on the muscles, ligaments, and joints of
appellant’s low back, which resulted in a chronic degenerative condition in the lumbar spine over
a period of years. Dr. Baum noted that on September 2, 2011 appellant awoke with back pain
upon movement, which traveled down her legs and up her back. He opined that this was a
recurrence and spontaneous worsening of the February 5, 1999 employment injury that resulted
in a chronic degenerative lumbar spine condition due to the repetitive stress of bending and
lifting of mail trays which resulted in overuse of her low back muscles, ligaments, and spine each
workday. Dr. Baum opined that appellant’s recurrence of September 2, 2011 was causally
related to the work injury of February 5, 1999. He also noted that her neurologist reported that
the August 8, 2010 electromyography (EMG) revealed left L5-S1 radiculopathy and peroneal
neuropathy and that the September 7, 2011 lumbar spine MRI scan showed multiple disc bulges
at L2-3 with degenerative changes at L2-3.
By decision dated May 6, 2016, OWCP denied modification of its prior decision denying
appellant’s claimed recurrence of disability beginning September 2, 2011. It found that the
medical evidence of record did not establish a basis for appellant’s claimed recurrence of
September 2, 2011. OWCP further found that there was no medical explanation which bridged
the gap of time with treatment and the cause and effect relationship between her original
February 5, 1999 work injury and the claimed September 2, 2011 recurrence.
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 resulted from a previous
injury or illness, without an intervening injury or new exposure to the work environment that
caused the illness.8 Recurrence of disability also means an inability to work that takes place
7

Dr. Baum indicated that this letter was an addendum to his September 13, 2012 report, where he previously
diagnosed L2-3 and L5-S1 disc bulges and left-sided L5-S1 radiculopathy.
8

20 C.F.R. § 10.5(x).

3

when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.9 Generally, a withdrawal of a light-duty assignment would constitute a recurrence of
disability where the evidence established continuing injury-related disability for regular duty.10
A recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons
of misconduct, nonperformance of job duties, or other downsizing or where a loss of wageearning capacity determination is in place.11
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light-duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.12
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he or she has the burden of proof to establish that the recurrence is causally related
to the original injury.13 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes that the condition is causally related to the employment
injury.14 The physician’s opinion must be based on a complete and accurate factual and medical
history and it must be supported by sound medical reasoning.15
ANALYSIS
The Board has reviewed the medical evidence of record and finds no reasoned opinion to
support that appellant sustained a spontaneous change in her medical condition on or about
September 2, 2011 that was causally related to her February 5, 1999 work injury.
Appellant submitted multiple medical reports from Dr. Baum dated January 2015 through
early 2016. Dr. Baum diagnosed lumbar derangement/internal derangement of the lumbar spine
and indicated that appellant had an increase in pain in her lumbar spine. He recommended
chiropractic treatment and prescribed medication. In his December 14, 2015 report, Dr. Baum
indicated that appellant had a recurrence of low back pain. He noted that she had been injured in
1999 and had subsequent flare-ups off and on. While Dr. Baum mentioned a recurrence, he did
not indicate whether the residuals were supported by objective data, whether the conditions had
worsened, and whether they prevented appellant from working on or after September 2, 2011.
He also did not provide a detailed description or medical findings of the status of her conditions
9

Id.

10

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

11

20 C.F.R. §§ 10.5(x), 10.104(c), and 10.509; see Federal (FECA) Procedure Manual, id. at Chapter 2.1500.2b.

12

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

13

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, id. at Chapter 2.1500.5 and 2.1500.6.

14

See S.S., 59 ECAB 315, 318-19 (2008).

15

Id. at 319.

4

before and after such recurrence, and failed to mention or refer to the claimed recurrence of
September 2, 2011. Thus, his December 14, 2015 medical report is insufficient to establish
appellant’s recurrence claim.16
In his December 23, 2015 letter, Dr. Baum noted appellant’s original work injury of
February 5, 1999 and explained that because her job required repetitive bending and lifting of
mail trays, an overuse injury of the back muscles occurred, which resulted in degenerative
conditions in the lumbar spine over the years. He briefly noted the September 2, 2011 event and
opined that it was a recurrence causally related to the February 5, 1999 work injury. Dr. Baum
explained that appellant had a spontaneous worsening due to repetitive bending and lifting of
mail trays, which resulted in overuse of her low back. However, he failed to bridge the gap of
time of almost 11 years from the original work injury to the claimed recurrence and provide a
well-reasoned explanation as to why and how appellant’s current lumbar conditions were solely
the result of her February 5, 1999 work injury and not any nonindustrial pathology. Dr. Baum
did not address the fact that appellant had indicated, in her September 15, 2011 Form CA-2a, that
she awoke in pain on September 2, 2011 and went to the hospital the next day as the pain
worsened. Furthermore, while Dr. Baum appears to attribute appellant’s degenerative lumbar
spine conditions to her work activities, OWCP has only accepted a back strain in this case.
Appellant has the burden of proof to establish causal relationship between any additional
conditions not accepted by OWCP and the February 5, 1999 employment injury.17 Accordingly,
the Board finds that Dr. Baum’s opinion is of diminished probative value.
Dr. Bhatnagar, in his hospital report of December 18, 2015, treated appellant for sciatica.
However he provided no opinion on the cause of her condition and also failed to address the
claimed recurrence of disability beginning September 2, 2011.18 The Board has found that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.19 Therefore, this report fails to
establish causal relationship and appellant’s recurrence claim.
In summary, the medical evidence of record is unsupported by rationalized medical
evidence which demonstrates that the claimed recurrence was caused, precipitated, accelerated or
aggravated by the accepted injury or which explains the nature of the relationship between
appellant’s current conditions and her accepted work injury.20
On appeal counsel contends that Dr. Baum’s December 23, 2015 report established the
factual and medical basis of her recurrence claim. However, for the reasons set forth above,

16

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
17

Michael S. Mina, 57 ECAB 379 (2006); Kimper Lee, 45 ECAB 565 (1994); Thomas D. Petrylak, 39 ECAB
276 (1987).
18

See Mary E. Marshall, 56 ECAB 420 (2005).

19

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

20

A.M., Docket No. 09-1895 (issued April 23, 2010) (when a claimant stops work for reasons unrelated to the
accepted employment injury, there is no disability within the meaning of FECA).

5

appellant has not established either the claimed recurrence or that her current lumbar conditions
are due to her accepted work injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish a recurrence of disability on or after
September 2, 2011, causally related to her February 5, 1999 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 6, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 25, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 07-1685
Issued: April 17, 2008

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 May 30, 2007 appellant filed a timely appeal from a May 3, 2007 decision of the
Office of Workers’ Compensation Programs, which found that he received an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $1,171.76; and (2) whether the Office properly determined that he was at fault in
accepting the overpayment and was, therefore, not entitled to waiver.
FACTUAL HISTORY
On July 27, 2005 appellant, then a 47-year-old mail processor, filed a Form CA-2,
occupational disease claim, alleging that factors of his federal employment caused a left shoulder
injury. He did not stop work and on August 12, 2005, the Office accepted that he sustained a left

rotator cuff syndrome.1 On August 31, 2005 appellant signed a form, indicating that any wageloss compensation should be directly deposited to his bank. On September 9, 2005 he underwent
authorized surgical repair and stopped work that day. By letter dated September 18, 2005,
appellant was placed on the compensation roll, effective September 10, 2005. The letter stated:
“To avoid an overpayment of compensation: NOTIFY THIS OFFICE IMMEDIATELY WHEN
YOU RETURN TO WORK.” (Emphasis in the original.)
On November 15, 2005 the employing establishment informed the Office that appellant
had returned to work on November 14, 2005. A telephone memorandum in the record dated
November 22, 2005 indicates that a voicemail was left advising appellant that it was his
responsibility to return the compensation check covering the period October 30 to November 26,
2005 and by letter dated November 22, 2005, the Office informed him that, as he had returned to
work on November 14, 2005, “you will be receiving one last 28[-]day compensation check that
partially covers a period following your return to work (the period covered by the check is
printed on its face.) In order to avoid an overpayment, you should return this check....” In a
January 22, 2006 letter, appellant stated that he received compensation by direct deposit and
asked that the Office inform him of the amount he owed so that he could return the overpayment.
On February 24, 2006 appellant was granted a schedule award for a nine percent
permanent impairment of his left upper extremity. The schedule award decision explained the
period of the award, the number of weeks of compensation and the weekly pay rate. By letter
dated August 3, 2006, the Office issued a preliminary determination that appellant had received
an overpayment in compensation in the amount of $1,171.76. The Office noted that he received
compensation benefits for the period covering October 30 through November 26, 2005 yet
returned to work on November 14, 2005. The Office found appellant to be at fault in the creation
of the overpayment because he accepted a payment by direct deposit that he knew or should have
known was incorrect. An overpayment worksheet and an overpayment memorandum contained
in the record provide that, for the period October 30 through November 26, 2005, appellant
received compensation totaling $2,523.80 but should have received compensation for the period
October 30 through November 14, 2005 or $1,352.04, yielding an overpayment in compensation
in the amount of $1,171.76. On August 13, 2006 appellant requested a hearing and submitted an
overpayment questionnaire.
At the hearing, held on February 28, 2007, appellant testified that because he made
inquiries of the Office about the amount of the overpayment upon receiving the notice in
November 2005 and because the Office did not respond, he assumed that the overpayment would
be deducted from his schedule award. By decision dated May 3, 2007, an Office hearing
representative finalized the determination that an overpayment in compensation in the amount of
$1,171.76 had been created and that appellant was at fault because he was aware that he was not
entitled to receive compensation payments after his return to work. Appellant was advised that
the overpayment was payable in full.2
1

Appellant has two other accepted conditions, a right shoulder impingement syndrome, adjudicated by the Office
under file number 062065186 and an emotional condition, adjudicated under file number 062047159. The instant
case was adjudicated under file number 062146143.
2

An overpayment repayment schedule was established on June 13, 2001.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act3 defines the limitations on the
right to receive compensation benefits. This section of the Act provides that while an employee
is receiving compensation, he or she may not receive salary, pay or remuneration of any type
from the United States, except in limited circumstances.4 Section 10.500 of the Office’s
regulations provides that “compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents him or her from
earning the wages earned before the work-related injury.”5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $1,171.76. The record supports that appellant returned to work on November 14, 2005 and
that he continued to receive compensation from the date of his return to work through
November 28, 2005. For this period he received compensation in the amount of $1,171.76. As
appellant was not entitled to compensation after his return to work, the Office properly found
that an overpayment in compensation in the amount of $1,171.76 had been created.6
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”7
Section 10.433(a) of the Office’s regulations provides that the Office:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from [the Office] are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8116(a).

5

20 C.F.R. § 10.500.

6

5 U.S.C. §§ 8101-8110.

7

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

3

knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”8
In determining fault under section 10.433(a)(3), where the claimant receives
compensation through direct deposit, the payment goes directly from the U.S. Treasury to the
claimant’s account. The Office may not deposit compensation into a claimant’s account without
authorization. The claimant must first complete a form authorizing the electronic transfer of
payment to a named financial institution to be deposited to a designated account. It is only with
the claimant’s intent that these payments are deposited to his or her account which is something
more than receipt; it is acceptance. When control of the funds passes to the claimant upon
deposit, the acceptance necessary under section 10.433(a)(3) is established.9
ANALYSIS -- ISSUE 2
In finding appellant at fault in the creation of the $1,171.76 overpayment, the Office
stated that he should have known that the payment he received by direct deposit for the period
through November 28, 2005 was not proper because he had returned to work on
November 14, 2005. By letter dated November 22, 2005, the Office informed him that, as he
had returned to work on November 14, 2005, “you will be receiving one last 28-day
compensation check that partially covers a period following your return to work (the period
covered by the check is printed on its face.) In order to avoid an overpayment, you should return
this check....” In this case, however, appellant received his compensation benefits by direct
deposit.
Even though the Office may have been negligent in making incorrect payments, this does
not excuse a claimant from accepting payments he or she knew or should have known to be
incorrect.10 Appellant acknowledged that he was not entitled to receive compensation after his
return to work but that he assumed the overpayment was deducted from his schedule award. The
February 24, 2006 schedule clearly explained the period of the award, the number of weeks of
compensation and the weekly pay rate. There is, therefore, nothing to support appellant’s
assumption that the overpayment was deducted from his schedule award.
The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments were incorrect.11 It is not appropriate, however,
to make a finding that a claimant has accepted an overpayment via direct deposit until such time
as a reasonable person would have been aware that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or

8

20 C.F.R. § 10.433 (1999); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

9

Tammy Craven, 57 ECAB ____ (Docket No. 05-249, issued July 24, 2006).

10

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

11

See Karen K. Dixon, 56 ECAB 145 (2004).

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notification from the Office or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.12
In this case, only one compensation payment by direct deposit is at issue. It is unclear,
however, whether the deposit was made before or after the Office informed appellant on
November 22, 2005 that he was overpaid. Since Office regulations define fault by what the
claimant knew or should have known at the time of acceptance, one of the consequences of
electronic fund transfers is that in many cases the claimant will not be at fault for accepting the
first incorrect payment because the requisite knowledge is lacking at the time of deposit and the
Board so finds in this case as there is no evidence of record to show when appellant received the
direct deposit in question.13 A finding of no fault does not mean, however, that the claimant may
keep the money, only that the Office must consider eligibility for waiver for this period. The
Board, therefore, finds that this case is not in posture for decision regarding whether appellant
was at fault in the creation of the overpayment in compensation in the amount of $1,171.76
because the record does not show when the direct deposit in question was made. The case must
be remanded to the Office to determine when the direct deposit was made. If it was after
November 22, 2005, the date that the Office informed appellant of the incorrect payment, a
finding of fault can be made and he would not be entitled to waiver. If, however, the deposit was
made before the Office informed appellant that the deposit was incorrect, fault cannot be
imputed for the reasons stated above. If, on remand, appellant is found to be not at fault, the
Office should then determine if he is entitled to waiver of the overpayment in compensation.
CONCLUSION
The Board finds that the Office properly determined that an overpayment in
compensation in the amount of $1,171.76 had been created. The Board further finds that the
case is not in posture for decision regarding whether appellant was at fault for the overpayment
period covered by a direct deposit and is remanded for a determination of fault and, if
appropriate, whether he is entitled to waiver for this period.

12

See K.H., Docket No. 06-191 (issued October 30, 2006).

13

See generally Karen K. Dixon, supra note 11.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 3, 2007 be affirmed in part, vacated in part and the case
remanded to the Office for further proceedings consistent with this opinion of the Board.
Issued: April 17, 2008
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION WHIDBEY ISLAND,
Oak Harbor, WA, Employer
__________________________________________

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

Docket No. 09-1193
Issued: May 6, 2010

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 April 2, 2009 appellant filed a timely appeal of the October 29, 2008 and March 13,
2009 merit decisions of the Office of Workers’ Compensation Programs finding that he did not
sustain an injury in the performance of duty. 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 fungus condition in the performance of duty
causally related to factors of his federal employment.
FACTUAL HISTORY
On February 6, 2007 appellant, then a 60-year-old supply technician, filed a traumatic
injury claim alleging that on December 6, 2006 he developed fungus in his lungs, spine and brain
from bird droppings at work. He experienced a severe cough four weeks prior to the alleged

injury. Appellant handled boxes covered in dust while working in a warehouse that was over 50
years old.1
By letter dated February 22, 2007, the Office advised appellant that the evidence of
record was insufficient to establish his claim. It requested that he submit factual evidence,
including clarification as to whether he was claiming a traumatic injury or an occupational
disease. The Office also requested medical evidence, including a rationalized medical report
from an attending physician which described appellant’s symptoms, results of examination and
tests, a diagnosis, treatment provided and an opinion on whether his federal employment
contributed to his condition. It requested that the employing establishment respond to his
allegations and provide information regarding his workplace exposure.
Appellant submitted a January 4, 2007 medical report from Dr. C. Clay Danenhower, a
Board-certified anatomic and clinical pathologist, and report dated January 11 to 29, 2007
reports from Dr. Steven H. Kirtland, a Board-certified internist. The physicians advised that
appellant sustained systemic cryptococcus of the lungs with central nervous system involvement.
A January 11, 2007 report from Dr. Richard P.M. Koehler, a Board-certified surgeon,
stated that appellant sustained acute and chronic inflammation and fungal organisms consistent
with cryptococcus.
In an undated narrative statement, appellant related that his claim should be treated as an
occupational disease claim since he experienced coughing, shortness of breath and choking
symptoms six to eight months prior to December 6, 2006. He provided a history of his medical
treatment from December 8, 2006 to March 1, 2007. Appellant described his work duties and
environment.
A December 8, 2006 report from Dr. Andrew D. Glass, a Board-certified osteopath,
found that appellant had a cough, which he suspected was due to a viral infection. Appellant
also experienced chronic sweats.
In reports dated December 22, 2006, Dr. Rudolph H. Knaack, a Board-certified family
practitioner, stated that appellant had a chronic cough, fever and bronchitis. Appellant was a
long-term smoker at significant risk for lung cancer.
In progress notes dated December 27, 2006 to January 5, 2007, Dr. Paul A. Zaveruha, a
surgeon, stated that appellant had lesions on both lungs, which were highly suspect for lung
carcinoma.
In reports dated December 14, 2006 and February 20, 2007, Dr. Brian G. Waite, a Boardcertified family practitioner, advised that appellant had acute bronchitis.
In a December 24, 2006 report, Dr. Bonnie C. Davis, a Board-certified radiologist,
advised that masses on appellant’s right lung and in the pulmonary parenchyma were likely
neoplasm.
1

Appellant retired from the employing establishment on December 31, 2006.

2

On March 19, 2007 the employing establishment controverted appellant’s claim. It
advised that a recent site inspection revealed no evidence of bird droppings as claimed in the
work area. The warehouse was deemed an acceptable environment in which to conduct business.
In an April 2, 2007 report, Dr. Kirtland stated that appellant’s systemic cryptococcal
infection in both lungs and central nervous system was a fungal organism often found in bird and
pigeon guano. He advised that appellant was inoculated through inhalation. Dr. Kirtland noted
that appellant denied being exposed to birds at his home. Appellant’s only known exposure was
at work where there were apparently birds in the roof of the warehouse. Dr. Kirtland opined that
it was possible appellant was inoculated by inhaling fecal elements from the birds.
By decision dated May 14, 2007, the Office denied appellant’s claim. It adjudicated the
claim as an occupational disease and found that he did not sustain an injury in the performance
of duty. The Office found that appellant failed to establish that he was exposed to bird droppings
at work, as alleged.
On June 6, 2007 appellant requested an oral hearing before an Office hearing
representative.
In a March 27, 2008 decision, an Office hearing representative affirmed the May 14,
2007 decision. He found the evidence insufficient to establish that appellant was exposed to bird
droppings at work.
By letter dated May 21, 2008, appellant, through counsel, requested reconsideration. He
submitted letters dated April 4 to 28, 2008 from employees, supervisors and his wife. They
advised that they saw bird droppings in the employing establishment’s warehouse where he
worked.
In an October 10, 2008 letter, the employing establishment acknowledged the presence of
bird droppings in its warehouse. However, no employee raised a health concern or was denied
personal protection equipment to mitigate any exposure.
On October 10, 2008 the Office requested that an Office medical adviser review a
statement of accepted facts and the medical evidence of record to determine whether the bird
droppings in appellant’s work area would reasonably cause or contribute to the claimed fungus
condition. It also requested that the medical adviser provide a diagnosis related to the
employment factors.
In an October 28, 2008 report, Dr. Lois J. Weaver, an Office medical adviser, stated that
according to the National Center for Disease Control (CDC), cryptococcus neoformans was a
type of fungus found in soil, usually in association with bird droppings and was commonly
spread by them, especially pigeon droppings. She stated that, in contrast, appellant’s far more
rare cryptococcus neoformans, variety C. gattii, was found in samples from soil and on trees,
wood chips, swabs of footwear and cars according to an accompanying CDC article. Dr. Weaver
opined that given these numerous possibilities for tree, wood, soil and environmental dispersal of
cryptococcus neoformans gattii, it was not very likely, reasonable or medically probable that
appellant’s C. gattii infection was caused, acquired or contributed to by the claimed exposure to
bird droppings at the employing establishment.
3

By decision dated October 29, 2008, the Office affirmed the March 27, 2008 decision as
modified. It found the evidence sufficient to establish that appellant was exposed to bird
droppings while performing his work duties at the employing establishment; however, the
medical evidence was insufficient to establish that he sustained a medical condition causally
related to the accepted exposure.
In a February 2, 2009 letter, appellant, through counsel, requested reconsideration. In a
December 8, 2008 report, Dr. Robert M. Rakita, a Board-certified internist, opined that
appellant’s cryptococcal disease in both lungs and nervous central system was more likely than
not due to exposure to birds at work. He stated that appellant was exposed to birds both outside
and inside the warehouse where he worked and did not have any other significant exposure
elsewhere. Dr. Rakita advised that cryptococcus was a fungal organism typically associated with
contaminated areas containing birds and bird droppings.
By decision dated March 13, 2009, the Office denied appellant’s request for
reconsideration. It found that the evidence submitted was duplicative in nature and of
diminished probative value and, thus, insufficient to warrant further merit review of his claim.2
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.5
To establish that, an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
2

The Board notes that the Office actually conducted a merit review of appellant’s claim. The Office found that
Dr. Rakita’s December 8, 2008 report was of diminished probative value, as it was not based on an accurate factual
background and objective findings. In making this finding, the Office based its decision on the probative value and
evidentiary weighing of Dr. Rakita’s medical opinion and, thereby, reviewed the merits of appellant’s claim.
3

5 U.S.C. §§ 8101-8193.

4

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

5

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

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The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6 Neither the fact that appellant’s condition became apparent during a
period of employment nor his belief that the condition was caused by his employment, is
sufficient to establish a causal relationship.7
ANALYSIS
The Office accepted that appellant was exposed to bird droppings while working as a
supply technician at the employing establishment. The Board finds, however, that the medical
evidence submitted is insufficient to establish that his fungus condition was caused or aggravated
by the accepted work exposure.
Dr. Kirtland advised that appellant sustained cryptococcal infection in both lungs and
central nervous system. He stated that the condition was a fungal organism found in bird and
pigeon guano. In an April 2, 2007 report, Dr. Kirtland opined that it was “possible” appellant
was infected by inhaling fecal elements from birds at work. On December 8, 2008 Dr. Rakita
stated that appellant’s cryptococcal disease was “more likely than not” due to his exposure to
birds while working at the employing establishment. Both physicians stated that appellant had
no other known significant exposure to birds. Neither Dr. Kirtland nor Dr. Rakita adequately
explained how the diagnosed conditions were causally related to the established work-related
exposure. Their use of the words “possible” and “more likely than not” regarding causal relation
are equivocal and are insufficient to establish appellant’s claim.8
Dr. Weaver’s October 28, 2008 report advised that it was not very likely, reasonable or
medically probable that appellant’s cryptococcus neoformans of the C. gattii variety was caused,
acquired or contributed to by the established employment-related exposure to bird droppings.
She did not relate his condition to the established employment factor. The Board finds,
therefore, that Dr. Weaver’s report is insufficient to establish appellant’s claim.
None of the remaining medical evidence from Dr. Danenhower, Dr. Koehler, Dr. Glass,
Dr. Knaack, Dr. Zaveruha, Dr. Waite and Dr. Davis provides any opinion addressing the causal
relationship between the diagnosed pulmonary and respiratory conditions and the established
employment-related exposure.9

6

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

7

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

8

Id.

9

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

5

The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a fungus condition causally related to the accepted factor of his
federal employment as a supply technician. Appellant did not meet his burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a fungus condition
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2009 and October 29, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 6, 2010
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

6