United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.W., Appellant 

and 

U.S. POSTAL SERVICE, PROCESSING & 

DISTRIBUTION CENTER, Carol Stream, IL, 

Employer 

__________________________________________ 

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Docket No. 14-195 

Issued: October 10, 2014 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 5, 2013 appellant, through his attorney, filed a timely appeal of a 

September 9, 2013 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 $31,473.32 for the period November 17, 2011 through August 15, 2012, for which he 

was without fault; (2) whether OWCP properly denied waiver of recovery of the overpayment; 

and (3) whether OWCP properly found that the overpayment could be recovered by deducting 

$400.00 from continuing compensation. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On September 8, 2003 appellant, then a 46-year-old mail handler, sustained cervical and 

head injuries due to a forklift accident in the performance of duty. OWCP accepted the claim for 

cervical strain, concussion and cervical spinal stenosis.2

 Appellant stopped work that day and 

returned to limited-duty work on January 21, 2004. 

On May 29, 2005 and March 30, 2007 appellant filed claims for a schedule award. 

By decision dated October 15, 2007, OWCP granted appellant schedule awards for a two 

percent right upper extremity impairment and a two percent left upper extremity impairment. 

By decision dated June 25, 2009, OWCP granted appellant an additional 11 percent 

impairment for his right upper extremity, or a total 13 percent impairment and an additional 12 

percent impairment for his left upper extremity, or a total 14 percent impairment. 

On October 18, 2011 appellant filed a claim for an additional schedule award. 

On December 8, 2011 OWCP received a September 30, 2011 report from Dr. William N. 

Grant, an examining Board-certified internist, who concluded that appellant had a 62 percent 

impairment to each upper extremity using the sixth edition of the American Medical Association, 

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Grant rated a 19 

percent upper extremity impairment using Table 15-34, page 475 due to appellant’s combined 

limited shoulder range of motion (i.e., 3 percent impairment for 90 degrees flexion, 1 percent 

impairment for 30 degrees extension, 6 percent impairment for 80 degrees abduction, 2 percent 

impairment for 30 degrees adduction, 4 percent impairment for 40 degrees internal rotation and 4 

percent impairment for 40 degrees internal/external rotation). He rated a 24 percent bilateral 

upper extremity impairment due to sensory and motor deficits of the C5, 6, 7, 8 nerves using 

Table 15-7, page 406 and Table 15-8, page 408. Using Table 15-4, page 399, Dr. Grant found a 

two percent left upper extremity impairment for appellant’s left arm epicondylitis. Using Table 

15-21, page 449, he rated 17 percent bilateral upper extremity impairment due to his bilateral 

carpal tunnel syndrome. Dr. Grant combined appellant’s upper extremity impairments to find a 

total 62 percent upper extremity impairment. 

In a December 22, 2011 addendum, Dr. Grant reiterated his opinion that appellant had 62 

percent bilateral upper extremity impairment. 

On January 13, 2012 OWCP received a November 17, 2011 functional capacity 

addendum from Dr. Eugene Lopez, an examining Board-certified orthopedic surgeon, who 

concluded that appellant had a total six percent left upper extremity impairment and a six percent 

right upper extremity impairment. Using Table 15-5, page 402 Dr. Lopez determined that a class 

1 or grade C was appropriate for both his right and left shoulder impingement. He assigned a 

 2

 OWCP assigned File No. xxxxxx464. On March 6, 2008 it combined File Nos. xxxxxx258 and xxxxxx464, 

which the latter as the master file number. Under File No. xxxxxx258 OWCP accepted the conditions of bilateral 

shoulder capsulitis, bilateral carpal tunnel syndrome and left medial epicondylitis due to a February 24, 2005 

traumatic injury involving a bay door. 
3

grade modifier 3 for functional history, a grade modifier 2 for physical examination and a grade 

modifier 2 for clinical studies which resulted in a net adjustment of 1 or impairment rating of 

grade D or two percent for the right shoulder. For the left shoulder and using Table 15-5, page 

402 Dr. Lopez determined that a class 1 or grade C was appropriate for appellant’s left shoulder 

impingement. He assigned a grade modifier 3 for functional history, a grade modifier 2 for 

physical examination and a grade modifier 2 for clinical studies which resulted in a net 

adjustment of 1 or impairment rating of grade D or two percent for the right shoulder and a two 

percent impairment for the left shoulder. 

Using Table 15-23, page 449, Dr. Lopez found that appellant had a five percent 

impairment for left carpal tunnel syndrome and a five percent impairment for right carpal tunnel 

syndrome. Using Table 15-4, page 399, he classified appellant’s lateral epicondylitis as a class 1 

with a default impairment rating of one or grade C. Dr. Lopez assigned a grade modifier 1 for 

mild problems under functional history, a grade modifier 1 for physical examination findings of 

minimal palpatory findings without any observed abnormalities and a grade modifier 0 for 

clinical studies. Totaling the grade modifiers resulted in an adjustment value of -1 which moved 

the impairment rating from grade C to grade B or one percent impairment for left lateral 

epicondylitis. Dr. Lopez combined appellant’s upper extremity impairment ratings to find a six 

percent impairment of both arms. 

On March 19, 2012 Dr. Sanjai Shukla, an OWCP medical adviser, reviewed the medical 

evidence. He noted several discrepancies between the reports of Dr. Lopez and Dr. Grant. Dr. 

Shukla stated that in this type of situation, Dr. Grant’s rating should be disregarded in favor of 

the impairment rating by Dr. Lopez. He concurred with Dr. Lopez that appellant had a five 

percent impairment for the diagnosis of left carpal tunne syndrome, a one percent impairment for 

left lateral epicondylitis and two percent impairment for left shoulder impingment, resulting in a 

total six percent left upper extremity impairment. With respect to the right upper extremity, 

Dr. Shukla determined that there was a five percent impairment for the diagnosis of carpal tunnel 

syndrome, a two percent impairment for right shoulder impingment, resulting in a total six 

percent left upper extremity impairment. 

By decision dated April 16, 2012, OWCP granted appellant schedule awards for six 

percent impairment of the right and left upper extremities. The period of the awards ran from 

November 17, 2011 to August 5, 2012. 

On May 7, 2012 appellant requested a telephonic hearing before an OWCP hearing 

representative, which was held on August 6, 2012. 

By decision dated October 16, 2012, the hearing representative set aside the April 16, 

2012 decision and remanded the case for further development as he found no analysis supporting 

a 19 percent right upper extremity permanent impairment or a 20 percent left upper extremity 

permanent impairment. OWCP was instructed to obtain clarification from the medical adviser 

explaining whether appellant had an additional six percent impairment to each upper extremity, 

given that the previous schedule awards were for 13 percent right upper extremity impairment 

and a 14 percent left upper extremity impairment. 
4

In a January 5, 2013 report, Dr. Christopher Gross, an OWCP medical adviser, noted that 

appellant previously received schedule awards for a 13 percent right upper extremity impairment 

and a 14 percent left upper extremity impairment. He stated that, as the prior schedule award 

incorporated the diagnoses of shoulder impingement and carpal tunnel syndrome, the conditions 

had been incorporated in the prior awards. Therefore, no additional schedule award was in order. 

By notice dated February 1, 2013, OWCP advised appellant of its preliminary 

determination that he received an overpayment of $31,473.32. Appellant received a schedule 

award for an additional 6 percent impairment to each upper extremity but had previously been 

paid for a 13 percent right upper extremity impairment and a 14 percent left upper extremity 

impairment for the same medical conditions. The compensation received for the additional 

schedule award constituted an overpayment. OWCP made the preliminary finding that appellant 

was not at fault in creation of the overpayment. It provided him an overpayment recovery 

questionnaire (Form OWCP-20) and afforded 30 days to submit financial information about his 

income, assets and expenses. OWCP explained that this information was required to consider 

waiver of recovery of the overpayment. 

On February 25, 2013 appellant requested a telephonic prereoupment hearing with an 

OWCP hearing representative. 

Appellant submitted an overpayment recovery questionnaire stating that he had a total 

monthly income of $918.72 and monthly expenses of $3,700.00. He had $50.00 cash on hand 

and $573.57 in a checking account and a total of $50.00 under other funds. Under expenses, 

appellant listed $500.00 for rent, $400.00 for food, $100.00 for clothing, $400.00 for utilities, 

$100.00 for other expenses and $2,200.00 for bankruptcy. 

At the hearing, appellant testified that he received approximatley $3,290.00 a month from 

OWCP and about $110.00 from social security. He testified that his retirement income of 

$815.72 was supposed to start in a few months. 

Subsequent to the hearing appellant submitted a more detailed accounting of his expenses 

and income. He listed monthly expenses of $900.00 for rent; $200.00 for gas; $90.00 for 

light/electricity; $60.00 for water; $200.00 for food; $2,200.00 for bankruptcy payments; 

$100.00 for cleaner; $100.00 for miscellaneous; and $300.00 for automobile insurance. 

Appellant submitted evidence showing that he had $869.65 in his Chase bank account and $5.00 

in his Credit Union 1 account. He included a copy of his lease and a one-page telephone bill 

from AT&T. The AT&T statement showed a total amount due of $241.52, but did not list the 

monthly charges. 

By decision dated September 9, 2013, OWCP’s hearing representative found that an 

$31,473.32 overpayment was created. He found that appellant was erroneously paid for an 

additional six percent permanent impairment to each upper extremity. The hearing 

representative noted that appellant’s income exceeded his expenses by approximately $473.72. 

He denied waiver and found that the overpayment could be recovered by deducting $400.00 

from continuing compensation.
5

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA3 and its implementing regulations4 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 to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

all claimants.5 The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.6

 Effective May 1, 2009, OWCP adopted the 

sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that 

date.7

 

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.8

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained cervical strain, concussion, cervical spinal 

stenosis bilateral shoulder capsulitis, bilateral carpal tunnel syndrome and left medial 

epicondylitis as the result of his September 8, 2003 and February 24, 2005 employment injuries. 

On October 15, 2007 it granted schedule awards for a two percent permanent impairment to each 

upper extremity. By decision date June 25, 2009, OWCP granted appellant additional schedule 

awards for a total 13 percent right upper extremity impairment and a 14 percent left upper 

extremity impairment. 

On December 7 and 18, 2011 appellant filed claims for an additional schedule award 

based on the December 8 and 22, 2011 reports from Dr. Grant, who rated a 62 percent bilateral 

upper extremity impairment. By decision dated April 16, 2012, OWCP granted him awards for 

an additional six percent impairment to each upper extremity based on Dr. Shukla’s opinion 

which relied on the November 17, 2011 functional capacity evaluation schedule award 

addendum by Dr. Lopez. By decision dated October 16, 2012, the hearing representative 

 3

 5 U.S.C. § 8107. 

4

 20 C.F.R. § 10.404. 

5 See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379 (2006). 

6

 20 C.F.R. § 10.404; see F.D., Docket No. 09-1346 (issued July 19, 2010); Billy B. Scoles, 57 ECAB 258 (2005). 

7 See P.B., Docket No. 10-103 (issued July 23, 2010). Federal (FECA) Procedure Manual, Part 3 -- Claims, 

Schedule Awards, Chapter 3.700, Exhibit 1 (January 9, 2010). 

8 W.M., Docket No. 13-291 (issued June 12, 2013). Federal (FECA) Procedure Manual, Part 2 -- Claims, 

Schedule Awards Claims for Increased Schedule Award, Chapter 2.809.9(e) (February 2013). See Richard Saldibar, 

51 ECAB 585 (2000). 
6

remanded for clarification as to whether the prior awards incorporated the medical conditions for 

which the most recent awards were based. On remand, Dr. Gross determined that appellant was 

not entitled to additional schedule awards as the prior schedule awards incorporated the 

diagnoses of shoulder impingement and carpal tunnel syndrome. 

The Board finds that the schedule award issue has been properly resolved.9

 OWCP 

appropriately developed the medical evidence to determine that appellant was not entitled to an 

additional six percent impairment of each upper extremity. Appellant previously received 

schedule awards of 14 percent for the left upper extremity and 13 percent for the right upper 

extremity. The most recent impairment ratings were performed under the same edition of the 

A.M.A., Guides and incorporated the same medical conditions. OWCP determined that 

appellant was overpaid in the amount of $31,473.32 based upon receipt of an additional six 

percent impairment of each upper extremity. The Board notes that appellant did not contest the 

amount of the overpayment. The Board will affirm the fact and amount of the overpayment in 

this case. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8129(b) of FECA10 provides: Adjustment or recovery by the United States may 

not be made when incorrect payment has been made to an individual who is without fault and 

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

good conscience.11 

OWCP may consider waiving an overpayment of compensation 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 received from OWCP 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 with respect 

to 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 knew 

or should have known to be incorrect (this provision applies only to the overpaid individual).12 

Whether or not OWCP determines that an individual was at fault with respect to the 

creation of an overpayment depends on the circumstances surrounding the overpayment. The 

 9 W.M. and Richard Saldibar, id. 

10 5 U.S.C. § 8129(b). 

11 J.K., Docket No. 08-1761 (issued January 8, 2009); Joan Ross, 57 ECAB 694 (2006); Desiderio Martinez, 55 

ECAB 245 (2004). 

12 20 C.F.R. § 10.433(a), 
7

degree of care expected may vary with the complexity of those circumstances and the 

individual’s capacity to realize that he or she is being overpaid.13 

ANALYSIS -- ISSUE 2 

OWCP found appellant was without fault in the creation of the overpayment. The issue 

of whether he is entitled to waiver of recovery of the overpayment is not in posture for a 

decision. OWCP denied waiver without providing a clear explanation for its determination.14 

The September 9, 2013 decision noted only that appellant’s income exceeded his expenses. The 

fact that his income exceeds his expenses is just one factor in considering whether waiver of 

recovery of the overpayment is appropriate. As noted above, OWCP must also consider whether 

recovery of the overpayment would defeat the purpose of FECA or be considered against equity 

and good conscience.15 The decision by OWCP’s hearing representative provides insufficient 

discussion or analysis as to whether waiver would be against equity and good conscience or 

defeat the purpose of FECA when denying waiver of recovery of the overpayment. The decision 

of whether OWCP shall waive recovery of an overpayment is a matter that rests in its discretion 

to be exercised pursuant to regulatory guidelines. The Board will not substitute its own 

discretion to decide the matter.16

The case will be remanded to OWCP for further clarification, including the provision of 

additional detailed findings, regarding the issue of waiver of recovery of the $31,473.32 

overpayment. After such development as it deems necessary, OWCP should issue an appropriate 

decision regarding this matter.17 

CONCLUSION 

The Board finds that OWCP properly found that an overpayment of $31,473.22 was 

created, for which appellant was without fault, due to his receipt of an additional schedule award 

that he was not entitled to. The Board further finds that the case is not in posture for decision 

regarding the issue of waiver of recovery of the overpayment. 

 13 Id. at § 10.433(b). 

14 An OWCP decision shall contain findings of fact and a statement of reasons. 20 C.F.R. § 10.126; see also 

O.R., 59 ECAB 432 (2008); Paul M. Colosi, 56 ECAB 294 (2005).

15 20 C.F.R. § 10.437 (a), (b); see J.K., Joan Ross and Desiderio Martinez, supra note 11. 

16 See John M. Dunn, Docket No. 92-2096 (issued February 18, 1994). 

17 Given the Board’s finding regarding the issue of waiver of recovery of the overpayment, it is premature to 

consider the issue of the method of repayment of the overpayment. 
8

ORDER 

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated September 9, 2013 is affirmed with respect to the fact and amount 

of the overpayment. The September 9, 2013 decision is set aside with respect to the issue of 

waiver of recovery of the overpayment. The case is remanded to OWCP for further proceedings 

consistent with this decision of the Board. 

Issued: October 10, 2014 

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