United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.H., Appellant 

and 

DEPARTMENT OF DEFENSE, DEFENSE 

FINANCE & ACCOUNTING SERVICE, 

Columbus, OH, Employer 

__________________________________________ 

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Docket No. 14-1463 

Issued: November 25, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On June 16, 2014 appellant filed a timely appeal from a June 5, 2014 merit decision of 

the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’ 

Compensation Act1

 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over 

the merits of the case. 

ISSUES 

The issues are: (1) whether OWCP properly found that an overpayment of compensation 

in the amount of $16,757.66 was created; and (2) whether OWCP properly denied waiver of the 

overpayment. 

On appeal, appellant asserts that she is entitled to waiver of the overpayment. 

 1

 5 U.S.C. §§ 8101-8193. 
2

FACTUAL HISTORY 

This case has previously been before the Board. In a June 1, 2011 decision, the Board 

modified a June 7, 2010 OWCP schedule award decision to find that appellant was entitled to an 

additional one percent left upper extremity impairment, for a total impairment of 20 percent.2 

The law and facts of the previous Board decision are incorporated herein by reference. 

On September 7, 2011 OWCP granted appellant a schedule award for the additional one 

percent impairment of the left upper extremity, for 3.12 weeks, to run from July 26 to 

August 16, 2011. 

On October 1, 2012 appellant filed a new schedule award claim. On October 22, 2012 

OWCP asked the attending physician Dr. Raymond Tesner, a Board-certified osteopath 

specializing in orthopedic surgery, to provide an impairment rating in accordance with the sixth 

edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides).3 This was to include whether maximum medical improvement 

had been reached and a detailed description of all objective findings and subjective complaints in 

support of his impairment rating. Dr. Tesner was asked to respond within 30 days. In a 

treatment note dated October 29, 2012, he indicated that appellant had full left shoulder range of 

motion with a significant amount of subacromial crepitus, popping, and discomfort. Strength 

was mildly diminished. Dr. Tesner recommended more surgery. The surgery was approved on 

October 31, 2012 but on December 3, 2012 stated that appellant wished to postpone surgery. 

In January 2013, OWCP referred appellant to Dr. Manhal A. Ghanma, a Board-certified 

orthopedic surgeon, for a second opinion. In a February 19, 2013 report, Dr. Ghanma noted 

accepted conditions of low back and left shoulder strains. He reviewed the statement of accepted 

facts and medical record and provided physical examination findings. Dr. Ghanma indicated that 

appellant had no upper or lower extremity impairment. 

Appellant telephoned OWCP on March 6, 2013 and maintained that the statement of 

accepted facts provided Dr. Ghanma was incorrect. OWCP prepared an updated statement of 

accepted facts that indicated that left shoulder impingement syndrome was accepted and that she 

had authorized left shoulder surgery on December 3, 1990 and October 2, 1999. It forwarded the 

updated statement of accepted facts to Dr. Ghanma and in a May 12, 2013 report, he 

 2

 Docket No. 10-1927 (issued June 1, 2011). On September 16, 1989 appellant, a payroll supervisor, had back 

pain while bending over to lift boxes. The claim was accepted for low back and left shoulder strains. Appellant 

worked intermittently until October 26, 1989 and was placed on the periodic compensation rolls. OWCP 

additionally accepted left shoulder impingement syndrome and on December 3, 1990 she had left shoulder 

acromioplasty and had a second procedure with resection of the distal clavicle on October 2, 1999. On April 24, 

2008 it waived a $5,598.88 overpayment of compensation that was created because appellant’s life insurance 

premiums had not been deducted from her compensation. Appellant returned to a full-time accounting technician 

position at the employing establishment on September 29, 2008. On October 8, 2008 she filed a schedule award 

claim. By decision dated December 15, 2008, OWCP found that appellant’s actual earnings fairly and reasonably 

represented her wage-earning capacity and reduced her compensation accordingly. Appellant retired in 2010. By 

decision dated June 7, 2010, she was granted a schedule award for a 19 percent impairment of the left upper 

extremity. 

3

 A.M.A., Guides (6th ed. 2008). 
3

acknowledged the accepted conditions as low back strain, left shoulder strain and impingement 

syndrome of the left shoulder. Dr. Ghanma found a class 1 impairment under Table 15-5, 

Shoulder Regional Grid, with a functional history modifier of 2 and modifiers of 1 for clinical 

studies and physical examination. After applying the net adjustment formula, he concluded that 

appellant had 11 percent left upper extremity impairment. Dr. Ghanma also used the alternative 

range of motion method. He found that, under Table 15-34, appellant had three percent 

impairment for loss of flexion, three percent impairment for loss of abduction, one percent 

impairment for loss of adduction and two percent impairment for loss of external rotation and no 

impairments for loss of extension and loss of internal rotation, for a total nine percent left arm 

impairment under the range of motion method. As this was less than the impairment found 

under the diagnosis-based estimate, Dr. Ghanma concluded that, under Table 15-5, for a primary 

diagnosis of shoulder impingement with a distal clavicle resection, appellant had 11 percent left 

upper extremity impairment, with maximum medical improvement reached on February 2, 2000. 

In a May 7, 2013 report, Dr. James H. Rutherford, Board-certified in orthopedic surgery, 

advised that he had examined appellant that day. He reviewed medical records and noted that he 

had also examined her for OWCP in June 2007. Dr. Rutherford provided examination findings. 

He concluded that appellant had reached maximum medical improvement and, based on left 

upper extremity range of motion, under Table 15-34, she had a total nine percent impairment of 

the left upper extremity, which was less than the schedule award previously received. 

By report dated December 13, 2013, Dr. Morley Slutsky, an OWCP medical adviser 

Board-certified in occupational medicine, noted his review of the medical record, including 

Dr. Ghanma’s reports. He agreed with Dr. Ghanma’s analysis and conclusion that appellant had 

11 percent left upper extremity impairment with maximum medical improvement reached 

February 19, 2013, the date of Dr. Ghanma’s examination. 

In a March 5, 2014 decision, OWCP found that appellant was not entitled to an increased 

left arm schedule award as the medical evidence demonstrated that her current impairment of 11 

percent was less than the 20 percent previously awarded. 

On March 10, 2014 OWCP issued a preliminary determination that an overpayment of 

compensation in the amount of $16,757.66 was created because appellant received a schedule 

award for a 20 percent left upper extremity impairment, totaling $37,006.46 for the period 

June 6, 2010 to August 16, 2011. As subsequent medical evidence demonstrated only an 11 

percent left upper extremity impairment, appellant would only be entitled to 240 days of 

compensation or $20,248.80. This yielded an overpayment of compensation in the amount of 

$16,757.66. Appellant was found without fault and OWCP provided her an overpayment action 

request form and an overpayment recovery questionnaire (OWCP Form 20). She was informed 

that, to consider waiver, she must complete the overpayment questionnaire and attach supporting 

documents, including copies of income tax returns, bank statements, bills and canceled checks, 

pay slips, and any other records which supported the income and expenses listed. 

Computer print-outs and an overpayment worksheet indicate that appellant was paid 

$37,006.46 for the period June 6, 2010 to August 16, 2011 for 20 percent left upper extremity 

impairment, when she should have received $20,248.80 for 240 days, from June 6, 2010 to 
4

February 1, 2011, for an 11 percent impairment. This yielded an overpayment of compensation 

of $16,757.66. 

Appellant requested a decision on the written record by the Branch of Hearings and 

Reviews. She submitted an overpayment recovery questionnaire in which she indicated that she 

and her husband received social security and other benefits totaling $2,880.00 each month and 

had monthly expenses of $2,693.00.4

 Appellant did not furnish supportive documentation. 

By decision dated June 5, 2014, OWCP finalized the preliminary overpayment decision. 

It found that appellant was not at fault in creating the overpayment and that repayment was due 

in full. OWCP noted that she had not furnished requested financial information but, nonetheless, 

her reported income exceeded her reported expenses by $187.00 per month. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA5 and its implementing federal regulations,6 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss or loss of use, of scheduled members or functions of the body. However, 

FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued 

after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.8

If a claimant received a schedule award and the medical evidence does not support the 

degree of permanent impairment awarded, an overpayment of compensation may be created. 

Claims for an increased schedule award based on the same edition of the A.M.A., Guides are 

subject to overpayment.9 

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained low back and left shoulder strains and left 

shoulder impingement syndrome. She filed a schedule award claim on October 8, 2008 and in a 

June 7, 2010 decision, OWCP granted her a schedule award for 19 percent impairment of the left 

arm. By decision dated June 1, 2011, the Board modified the June 7, 2010 decision to reflect 

 4

 In addition to listing monthly expenses for rent or mortgage, food, clothing and utilities, appellant listed $400.00 

each month for tithes, $450.00 for vehicle gas and insurance, $401.00 for a car loan, and $25.00 payment on credit 

card debt. 

5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7 Id. at § 10.404(a). 

8

 FECA Bulletin No. 09-03 (issued March 15, 2009). 

9 E.M., Docket No. 13-1378 (issued February 12, 2014); Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Schedule Awards and Permanent Disability Claims, Chapter 2.808.9.e (February 2013). 
5

that appellant was entitled to an additional one percent left upper extremity impairment.10 On 

September 7, 2011 OWCP awarded an additional 1 percent, for a total 20 percent left upper 

extremity impairment. 

Appellant requested an additional schedule award on October 1, 2012. In February 19 

and May 12, 2013 reports, Dr. Ghanma, an OWCP referral physician, provided detailed clinical 

findings and, in accordance with the sixth edition of the A.M.A., Guides, determined that she had 

an 11 percent impairment of the left upper extremity. Dr. Slutsky, an OWCP medical adviser, 

agreed with Dr. Ghanma’s impairment rating. By decision dated June 5, 2014, OWCP denied 

appellant’s claim for an additional schedule award and thereafter developed the overpayment of 

compensation. 

The Board finds that the schedule award issue has been properly resolved. OWCP 

appropriately developed the medical evidence in determining that appellant’s left upper 

extremity impairment had improved and her permanent impairment was only 11 percent. Both 

impairment ratings were performed under the same edition of the A.M.A., Guides and there is no 

medical evidence indicating a greater percentage of impairment. OWCP calculated that 

appellant had received compensation of $37,006.46, based on a 20 percent impairment, for the 

period June 6, 2010 to August 16, 2011, when she should have received compensation of only 

$20,248.80. This yielded an overpayment of compensation of $16,757.66. 

As noted above, if a claimant has received a schedule award and the medical evidence 

does not support the degree of permanent impairment awarded, an overpayment of compensation 

may be created. If, as in this case, the claim for an increased schedule award is based on the 

same edition of the A.M.A., Guides, the schedule award is subject to overpayment.11 Therefore, 

OWCP’s June 5, 2014 decision finding a $16,757.66 overpayment of compensation was proper 

under the law and facts of this case.12

LEGAL PRECEDENT -- ISSUE 2 

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP unless “incorrect payment has been made to an individual who is without fault and 

when adjustment or recovery would defeat the purpose of FECA or would be against equity and 

good conscience.”13 Section 10.438 of OWCP regulations provide that the individual who 

received the overpayment is responsible for providing information about income, expenses and 

assets as specified by OWCP. This information is needed to determine whether or not recovery 

on an overpayment would defeat the purpose of FECA or be against equity and good 

 10 Supra note 2. 

11 Supra note 9. 

12 E.M., supra note 9. 

13 5 U.S.C. § 8129. 
6

conscience.14 Failure to submit the requested information within 30 days of the request shall 

result in denial of waiver.15 

Section 10.438 of FECA’s implementing regulations provide that the individual who 

received the overpayment is responsible for providing information about income, expenses and 

assets as specified by OWCP. This information is needed to determine whether or not recovery 

of an overpayment would defeat the purpose of FECA or be against equity and good 

conscience. Failure to submit the requested information within 30 days of the request shall result 

in the denial of waiver and no further request for waiver shall be considered until the requested 

information is furnished.16 OWCP procedures further indicate that an individual is deemed to 

need substantially all of his or her current income to meet current ordinary and necessary living 

expenses if monthly income does not exceed monthly expenses by more than $50.00.17

ANALYSIS -- ISSUE 2 

OWCP advised appellant in the March 10, 2014 preliminary overpayment determination 

of the $16,757.66 overpayment and that she was not at fault. It advised her to submit 

information regarding her income, assets and expenses by completing an attached overpayment 

questionnaire and to provide documentation of her income and expenses. While appellant 

provided the overpayment questionnaire, she did not provide the requested supportive financial 

information or documentation. Moreover, she reported on the overpayment questionnaire that 

her monthly income totaled $2,880.00 and her monthly expenses totaled $2,693.00, which 

rendered an excess of $187.00 per month. OWCP procedures provide that an individual is 

deemed to need substantially all of his or her current income to meet current ordinary and 

necessary living expenses if monthly income does not exceed monthly expenses by more than 

$50.00,18 which is not the case here. 

In the absence of the information requested, OWCP properly denied waiver of recovery.19 

 14 Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a 

currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs 

substantially all of his or her current income (including compensation benefits) to meet current or ordinary and 

necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by 

OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is 

considered to be against equity and good conscience when an individual who received an overpayment would 

experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such 

payments or on notice that such payments would be made, gives up a valuable right or changes his or her position 

for the worse. Id. at § 10.437. 

15 20 C.F.R. § 10.438. 

16 Id. See Linda Hilton, 52 ECAB 476 (2001). 

17 Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 

6.200.6(b) (June 2009). 

18 Id. 

19 E.M., supra note 9. 
7

CONCLUSION 

The Board finds that OWCP properly determined that an overpayment of compensation 

in the amount of $16,757.66 was created and that it properly denied waiver of recovery.20

ORDER 

IT IS HEREBY ORDERED THAT the June 5, 2014 decision of the Office of Workers’ 

Compensation Programs is affirmed. 

Issued: November 25, 2014 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 20 The Board notes that appellant did not file an appeal from the March 5, 2014 schedule award decision.