United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.T., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Blackwood, NJ, Employer 

__________________________________________ 

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Docket No. 14-1669 

Issued: December 28, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On July 28, 2014 appellant, through counsel, filed a timely appeal from a May 9, 2014 

merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the 

Federal Employees’ Compensation Act1

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

has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant has established greater than one percent permanent 

impairment of her right upper extremity for which she previously received a schedule award; 

(2) whether OWCP properly found an overpayment of compensation in the amount of $2,479.67; 

and (3) whether it abused its discretion in denying waiver of recovery of the overpayment. 

On appeal counsel argues that the independent medical examiner’s report is insufficiently 

rationalized. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On June 29, 2007 appellant, then a 50-year-old rural letter carrier, filed a traumatic injury 

claim (Form CA-1) alleging that on June 28, 2007 she sustained an injury to her right wrist after 

lifting mail in a truck and feeling something snap in her wrist. OWCP accepted her claim for 

right wrist sprain on August 24, 2007. 

In a report dated July 24, 2007, Dr. Ira Stark, a Board-certified osteopath, examined the 

results of a magnetic resonance imaging (MRI) scan of appellant’s right wrist. He noted a 

possible tear of the ulna attachment of the triangular fibrocartilage, with no evidence of ligament 

tears or fractures. 

On August 24, 2007 Dr. Eric D. Strauss, a Board-certified orthopedic surgeon, performed 

an arthroscopy on appellant’s right wrist to repair a triangular fibrocartilage complex (TFCC) 

tear. During surgery, he noted that the TFCC showed no signs of damage, whereas the “volarmost aspect of the radius at its articulation with the proximal scaphoid showed an articular injury 

down to bone with fibrillation.” Appellant’s postoperative diagnosis was an osteochondral 

injury to the right wrist. 

In a report dated November 8, 2007, Dr. Nicholas P. Diamond, a Board-certified 

osteopath, examined appellant, reviewed her medical history, and diagnosed a right wrist TFCC 

tear and status post right wrist arthroscopic debridement and TFCC repair. He noted that her 

right wrist injury impacted activities of her daily living, including difficulty in performing 

household chores, personal care when washing, sleeping, grasping, pulling, pushing, playing 

piano, and driving a motor vehicle. Appellant’s QuickDASH disability index was 66 percent and 

her pain level was 6/10. On physical examination Dr. Diamond noted no tenderness over the 

palmar or dorsal aspects of the hand and no extensor carpi ulnaris tenderness. Appellant had 

negative results for a Tinel’s sign, Phalen’s sign, Finkelstein’s test, carpal compression testing, 

metacarpal load testing, and Watson Scaphoid shift testing. Her wrist range of motion included 

dorsiflexion of 0 to 25/75 degrees, palmar flexion of 0 to 25/75 degrees, radial deviation of 0 to 

10/20 degrees, and ulnar deviation of 0 to 20/35 degrees. Dr. Diamond noted that all ranges of 

motion caused pain at the extremes. TFCC load and provocative tests were positive. Grip 

testing performed via a Jamar hand dynamometer at Level 3 revealed 16 kilograms (kg) of force 

in the right hand versus 28 kg of force in the left hand. Pinch key unit testing measured 6.5 kg 

on the right versus 7.75 kg on the left. Manual muscle strength testing was graded at 3+ to 4/5 

involving all right wrist movements. Dr. Diamond calculated that, according to the fifth edition 

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., 

Guides), appellant had a total right upper extremity impairment of 19 percent, which included an 

additional 3 percent for pain. 

On March 21, 2008 appellant filed a claim for a schedule award. 

On September 24, 2008 OWCP forwarded appellant’s medical history, along with a 

statement of accepted facts (SOAF), to Dr. Morley Slutsky, a district medical adviser (DMA), to 

determine her impairment rating according to the fifth edition of the A.M.A., Guides. The SOAF 

noted that appellant injured her wrist while lifting a mailbox. On September 25, 2008 

Dr. Slutsky rated her impairment at 16 percent, noting that inclusion of an additional 3 percent 
3

for pain-related impairment would be duplicative because her pain had already limited the 

maximum active motion measurements. He determined that appellant’s date of maximum 

medical improvement was November 8, 2007, the date of Dr. Diamond’s rating examination. 

In an addendum report dated February 12, 2009, Dr. Diamond stated that taking 

appellant’s pain level of 6/10 and the impact this pain had on her activities of daily living into 

consideration, an extra three percent should be added to her percentage of impairment. 

On March 9, 2009 OWCP forwarded Dr. Diamond’s addendum report, along with a 

SOAF, to Dr. Slutsky to determine whether he agreed with Dr. Diamond’s findings and to 

explain any differences between their reports. The SOAF noted that appellant injured her wrist 

while lifting a mailbox and had conservative treatment. Dr. Slutsky responded on March 10, 

2009 stating that he disagreed with Dr. Diamond’s impairment rating for the same reason as in 

his September 25, 2008 report. He found that appellant’s pain limited the maximum active 

motion measurements and was already incorporated in the impairment rating. Assigning an 

additional rating for pain-related impairment would, therefore, be duplicative. 

By letter dated March 11, 2009, OWCP advised appellant that, due to the conflict in 

medical opinion between Drs. Diamond and Slutsky, it intended to schedule a referee medical 

examination. 

Effective May 1, 2009, OWCP changed its procedures for rating permanent impairment. 

For all schedule awards calculated after May 1, 2009, the sixth edition of the A.M.A., Guides

would be used.2

 Accordingly, on June 30, 2009 OWCP requested that Dr. Diamond submit an 

impairment rating determined in accordance with sixth edition of the A.M.A., Guides within 30 

days. 

By letter dated June 22, 2009, appellant’s counsel contacted her congressional 

representative, contending that appellant was entitled to a formal decision with appeal rights on 

her schedule award request under the fifth edition of the A.M.A., Guides. He contended that all 

requests for schedule awards made prior to May 1, 2009 should be calculated according to the 

fifth edition of the A.M.A., Guides. 

On August 11, 2009 OWCP forwarded appellant’s medical history, along with the SOAF, 

to a second opinion physician for determination of permanent impairment under the sixth edition. 

In a report dated September 18, 2009, Dr. Robert F. Draper, a Board-certified orthopedic 

surgeon, provided results on examination, noted reviewing her medical history, and provided a 

diagnosis of right wrist sprain and status post arthroscopic surgery for the right wrist with 

osteochondral injury. He noted range of motion for right wrist extension of 0 to 60 degrees, 

flexion of 0 to 60 degrees, ulnar deviation of 0 to 30 degrees, and radial deviation of 0 to 20 

degrees. Dr. Draper stated that appellant continued to complain of pain in the right wrist, noting 

that the pain was exacerbated by twisting, turning, and use of the right wrist. He noted a 

negative Tinel’s sign, no thenar or hypothenar atrophy, and normal light touch sensation. 

 2

 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability, Chapter 

2.808.5(a) (February 2013). 
4

Dr. Draper diagnosed wrist sprain/strain as a class 1 and found a grade modifier of one each for 

functional history, for physical examination, and for clinical studies. He noted that this resulted 

in one percent permanent impairment according to Table 15-3 on page 395 of the sixth edition of 

the A.M.A., Guides. Dr. Draper stated that appellant’s date of maximum medical improvement 

was June 28, 2008, one year from her date of injury. 

On September 30, 2009 OWCP forwarded Dr. Draper’s report, along with the SOAF, to a 

DMA for review. On October 11, 2009 Dr. Andrew Merola, a DMA, concurred with 

Dr. Draper’s impairment rating and date of maximum medical improvement. 

By decision dated December 2, 2009, OWCP granted appellant a schedule award for one 

percent impairment of her right upper extremity, for a total payment of $2,479.67. The period of 

the award ran from June 28 to July 19, 2008. OWCP noted that the weight of the medical 

evidence was accorded to the September 18, 2009 report of Dr. Draper and the October 11, 2009 

report of Dr. Merola in calculating the schedule award. 

On December 8, 2009 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. 

With her request, appellant submitted an updated medical report from Dr. Diamond. This 

report dated January 8, 2010 utilized the same examination findings from the November 8, 2007 

report, but added an addendum which updated its calculation of impairment to conform to the 

sixth edition of the A.M.A., Guides. Dr. Diamond rated appellant as having 15 percent right 

upper extremity impairment based upon her range of motion deficits and her QuickDASH score 

of 66 percent. 

The hearing was held on March 30, 2010. At the hearing, appellant contended that 

Dr. Draper had only examined her for about 5 minutes out of a 15-minute visit. Counsel noted 

that OWCP delayed processing her schedule award claim for over a year and a half, and that no 

development of her claim was undertaken until her congressman’s intervention on 

September 12, 2008. He stated that the conflict between Drs. Diamond and Slutsky remained as 

to whether 3 percent for pain should be added to appellant’s 16 percent impairment rating based 

on range of motion, and that she should at least be paid 16 percent because at that time there was 

no conflict. Counsel argued that the use of the fifth edition, A.M.A., Guides in the reports of 

Drs. Diamond and Slutsky should be accepted because OWCP’s delay in adjudication of her 

claim was improper due to no fault of her own and that this delay deprived her of her due process 

rights. He also argued that Dr. Draper utilized the sixth edition of the A.M.A., Guides

improperly, because he failed to apply the range of motion method in calculating appellant’s 

impairment rating and that, if the hearing representative found that the fifth edition of the 

A.M.A., Guides were not the proper standard to use, then he should have directed an independent 

medical examination to resolve the conflict of opinion between the sixth edition reports of 

Drs. Diamond and Draper. Counsel noted that the SOAF incorrectly stated that appellant injured 

herself by lifting a mailbox when, in fact, she was injured by lifting catalogues when her hand 

got caught in a tray. The SOAF also failed to indicate that OWCP had accepted a TFCC tear and 

approved the wrist surgery on August 24, 2007. Rather, it only stated that she had received 

conservative treatment. 
5

By decision dated June 16, 2010, the hearing representative set aside OWCP’s 

December 2, 2009 decision and remanded the case for further development of the medical 

evidence. OWCP noted that the SOAF was not accurate in that it did not describe appellant’s 

mechanism of injury correctly or clarify that OWCP had approved surgery for her wrist. The 

hearing representative stated that OWCP should update its SOAF, forward the new SOAF to 

Dr. Draper along with Dr. Diamond’s updated impairment rating, and request that Dr. Draper 

provide a supplemental report regarding upper right extremity impairment. She advised that 

OWCP should then refer Dr. Draper’s report to a DMA for review and issue a new decision. 

On July 6, 2010 OWCP forwarded Dr. Diamond’s updated impairment rating, along with 

a new SOAF, to Dr. Draper for review. The SOAF indicated that appellant had undergone a 

right wrist arthroscopy on August 24, 2007, that her mechanism of injury was lifting mail into a 

truck, and that her claim had been subsequently accepted for a right TFCC tear.3

 Dr. Draper 

responded on August 19, 2010, stating that Dr. Diamond’s report of February 12, 2009 was not 

usable as it rendered an impairment rating according to the fifth edition of the A.M.A., Guides. 

He stated that he had reviewed all of the medical records and there was nothing to add to his 

report. Dr. Draper’s September 18, 2009 report remained unchanged. 

On September 27, 2010 OWCP requested another supplemental report from Dr. Draper. 

It noted that it was not clear whether he reviewed the new SOAF and that there was an updated 

report from Dr. Diamond, dated January 8, 2010, which had been updated to the sixth edition of 

the A.M.A., Guides.

In a report dated October 7, 2010, Dr. Draper stated that he had reviewed the medical 

evidence of record, but that his report remained unchanged and that the evidence did not support 

an increase in appellant’s impairment rating beyond one percent. He continued to state that 

Dr. Diamond’s report was calculated under the fifth edition of the A.M.A., Guides. 

OWCP forwarded Dr. Draper’s October 7, 2010 report to Dr. Henry J. Magliato, a DMA, 

on October 18, 2010. In a report dated November 9, 2010, Dr. Magliato concurred with 

Dr. Draper’s impairment rating and date of maximum medical improvement. 

By decision dated November 23, 2010, OWCP denied appellant’s request for an 

increased schedule award. It found the weight of the medical evidence to be the October 7, 2010 

report of Dr. Draper and the November 9, 2010 report of Dr. Magliato. 

On November 30, 2010 appellant’s counsel requested a hearing before an OWCP hearing 

representative. 

The hearing was held on March 24, 2011. Counsel noted that Dr. Draper had incorrectly 

stated that Dr. Diamond had provided an impairment rating only under the fifth edition of the 

A.M.A., Guides. He noted that an updated report of Dr. Diamond had calculated the impairment 

according to the sixth edition of the A.M.A., Guides and was in the record. Counsel noted that 

Dr. Magliato simply reviewed Dr. Draper’s October 7, 2010 report and concurred with his 

 3

 The record does not contain a formal notice of acceptance, but OWCP did acknowledge in the SOAF that the 

claim was subsequently accepted for a right TFCC tear. 
6

calculations. He contended that the prior hearing representative’s decision had not been 

effectuated by OWCP. In a follow-up letter, counsel stated that Dr. Draper’s report was without 

basis to be considered as a second opinion evaluation, and that appellant must be sent to a new 

second opinion evaluator or an independent medical examiner in order to resolve the conflict. 

By decision dated June 28, 2011, the hearing representative vacated OWCP’s 

November 23, 2010 decision and remanded the case for further development. She noted that 

Dr. Diamond’s January 8, 2010 report was rendered under the sixth edition of the A.M.A., 

Guides, which used the range of motion alternative for calculating an impairment rating. The 

hearing representative directed that Dr. Diamond’s updated report of January 8, 2010 be 

forwarded to a DMA for review to provide a reasoned opinion as to whether there was sufficient 

evidence to support that the diagnosis-based impairment method did not adequately reflect the 

degree of appellant’s permanent impairment. 

In a report dated July 19, 2011, Dr. Magliato stated that the reports of Drs. Diamond and 

Draper both used correct methods of calculating impairment under the sixth edition of the 

A.M.A., Guides. He noted that both examinations were old, and suggested that the conflict be 

resolved by referral to a referee medical examiner. 

OWCP forwarded medical records, along with the SOAF, to Dr. Howard Zeidman, a 

Board-certified orthopedic surgeon, on August 26, 2011 for an independent medical 

examination. In a report dated September 15, 2011, Dr. Zeidman provided results on 

examination, noting reviewing the medical history, and found that appellant had no residual 

disability identifiable on objective examination. He noted that the operative report of August 24, 

2007 found that there had been no TFCC tear. 

By decision dated October 20, 2011, OWCP denied appellant’s claim for an increased 

schedule award based on Dr. Zeidman’s September 15, 2011 report, which found no residual 

disability. It advised her that her previously paid schedule award would be recovered as an 

overpayment. 

On November 1, 2011 OWCP notified appellant of its preliminary finding of an 

overpayment in the amount of $2,479.67 for the period June 28 through July 19, 2008. 

On October 27 and November 7, 2011 appellant, through counsel, requested a prerecoupment hearing before an OWCP hearing representative. She noted that she disagreed with 

the fact of overpayment, stating that she had a permanent disability to her wrist. 

In a letter dated February 13, 2012, Dr. Diamond noted that Dr. Zeidman’s September 15, 

2011 report did not include range-of-motion measurements, even as he noted that motion was 

intact and symmetrical bilaterally. He contended that a TFCC tear diagnosis was reasonable 

because the operative report noted that appellant had an osteochondral injury with cartilage 

debrided. 

The hearing was held on February 27, 2012. Counsel contended that the selection of an 

independent medical examiner was incorrect, as Dr. Draper’s report had been “thrown out as 

insufficient” and that there was no conflict before Dr. Magliato at the time of his evaluation of 

Dr. Diamond’s July 19, 2011 report. He noted that Dr. Zeidman’s report was insufficient, 
7

because Dr. Zeidman stated that appellant’s range of motion was symmetrical and therefore full, 

despite the fact that she had a previous injury to her left upper extremity, and because he did not 

give range-of-motion measurements. Counsel also noted that Dr. Zeidman’s report had not been 

sent to a DMA for review. 

By decision dated May 7, 2012, the hearing representative vacated the October 20 and 

November 1, 2011 OWCP decisions. She found that Dr. Diamond’s February 13, 2012 report 

indicated that appellant sustained a permanent impairment to the right upper extremity, and 

supported his findings with medical rationale. The hearing representative directed that OWCP 

should refer the SOAF, the case record, and Dr. Diamond’s February 12, 2012 report to 

Dr. Zeidman for review, after which OWCP should issue a de novo decision. 

The SOAF dated June 28, 2012 noted that appellant had sustained a work-related injury 

to her left wrist on February 24, 2009, which was accepted under OWCP File No. xxxxxx931 for 

left hand contusion, left wrist sprain, and left hand joint derangement. 

In a report dated July 26, 2012, Dr. Zeidman stated that “the only item which is new at 

this point is the letter from Dr. Zieman, dated February 13, 2012. He discussed the question of 

evaluation of the motion and how it is reported.”4

 Dr. Zeidman stated that “if the opposite 

extremity is neither involved nor previously injured, it must be used to define normal for that 

individual and any losses should be made in comparison to the opposite extremity.” He stated 

that he noted that motion was symmetrical in his previous report. 

OWCP forwarded Dr. Zeidman’s report, along with the SOAF and medical reports, to 

Dr. Merola, a DMA. In a report dated August 23, 2012, Dr. Merola noted that, with regard to 

Dr. Zeidman’s clinical measurements of range of motion, Dr. Zeidman’s supplemental report 

dated July 26, 2012 “backs up his objective data with comparison of motion to the uninjured 

side.” He concurred with Dr. Zeidman’s finding of no evidence of residual impairment. 

By decision dated September 24, 2012, OWCP denied appellant’s claim for an increased 

schedule award, as the evidence was insufficient to establish permanent impairment. It relied 

upon Dr. Zeidman’s July 26, 2012 and Dr. Merola’s August 23, 2012 reports in determining 

appellant’s eligibility for a schedule award. 

On October 2, 2012 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. Counsel noted that Dr. Zeidman’s July 26, 2012 report referenced that 

the only new evidence received was from a “Dr. Zieman,” which did not make sense. He also 

noted that Dr. Zeidman apparently did not read the SOAF, as he justified his range of motion 

measurements based upon appellant’s left wrist, referencing a part of the A.M.A., Guides that 

allows the opposite extremity to be used as a baseline. Appellant’s left wrist sustained a workrelated previous injury and thus could not be so compared. Counsel contended that, as 

Dr. Magliato stated that Dr. Diamond’s assessment of 15 percent impairment under the sixth 

edition of the A.M.A., Guides was correct, appellant should be paid that amount. He stated that 

 4

 Dr. Zeidman’s reference to a “Dr. Zieman” appears to be a typographical error, as the only February 13, 2012 

letter of record was a letter from Dr. Diamond. 
8

there was no conflict for a referee yet and that appellant should be directed for a new second 

opinion examination. 

By decision dated May 30, 2013, the hearing representative vacated the September 24, 

2012 decision of OWCP. He found that direction for a referee examination based upon the 

reports of Drs. Diamond and Draper was proper because they were two reports of equal quality 

and weight. However, the hearing representative also found that Dr. Zeidman had not resolved 

the conflict in medical opinion because he did not explain why he did not use the accepted 

condition of a right wrist TFCC tear in lieu of the right wrist sprain diagnosis, and because he 

failed to acknowledge that appellant’s left wrist was previously injured and could not be used for 

an accurate determination of range of motion. He directed that OWCP schedule a new impartial 

referee examination and that this examination be forwarded to a DMA for review. 

On June 10, 2013 OWCP forwarded medical records, along with a SOAF, to Dr. Zohar 

Stark, a Board-certified orthopedic surgeon, in order to resolve the conflict in medical opinion 

between Drs. Diamond and Draper. In a report dated July 9, 2013, Dr. Stark found that appellant 

had zero percent permanent impairment. He noted complaints of numbness over the dorsal 

aspect of the third and fourth fingers of her right hand. On examination of appellant’s right 

wrist, Dr. Stark found local tenderness to palpation over the dorsoradial aspect of the wrist, no 

tenderness to palpation over the ulnar aspect of the wrist, and a range of motion of dorsiflexion 

to 0 to 60 degrees, ulnar flexion to 0 to 70 degrees, radial deviation to 0 to 20 degrees, and ulnar 

deviation to 0 to 30 degrees. He noted no crepitation or clicking on motion and no sensory 

deficit to the digits. Dr. Stark noted strength at 28 kilogram (kg), pinch strength of 7 kg, and 

negative Tinel’s and Phalen’s tests. He stated that there was no evidence of a TFCC tear and that 

as such, it was not appropriate to calculate appellant’s impairment with the diagnosis of a TFCC 

tear. 

Regarding the TFCC tear, Dr. Stark wrote, “Although that was an accepted condition, it 

is my opinion that if [appellant] had the TFCC tear, she has completely recovered from it. At 

this point the diagnosis for [appellant] is nonspecific wrist pain postacute injury or surgery.” He 

used the Wrist Regional Grid, page 395 and diagnosed a class 1 impairment for nonspecific wrist 

pain because there was a history of painful injury and residual symptoms without consistent 

objective findings. As to functional history, according to Table 15-7, page 406, Dr. Stark found 

pain symptoms with strenuous-vigorous activities with or without medication to control her 

symptoms and found appellant able to perform self-care activities independently which 

warranted a grade modifier of 1. For physical examination adjustment, he provided a grade 

modifier of 1 according to Table 15-8, page 408, based on clicking or clanking by history that is 

not reproducible. As for clinical study adjustments, Dr. Stark noted that no imaging studies were 

available thereby warranting a zero grade modifier. The net adjustment was minus one 

corresponding to grade B and class 1 which was zero percent permanent impairment. 

On September 17, 2013 OWCP forwarded Dr. Stark’s report to DMA, Dr. Magliato, for 

review. Dr. Magliato concurred with Dr. Stark’s report. He stated that the date of maximum 

medical improvement was September 15, 2011. 
9

By decision dated October 1, 2013, OWCP denied appellant’s claim for an increased 

schedule award relying upon the well-rationalized report of Dr. Stark, the impartial medical 

specialist. 

On October 7, 2013 appellant, through counsel, requested a hearing before an OWCP 

hearing representative. 

By letter dated October 31, 2013, OWCP made a preliminary determination that appellant 

received an overpayment of compensation in the amount of $2,479.67 from June 28 through 

July 19, 2008 because she received a schedule award for one percent impairment, but that 

subsequent formal decisions found that she actually had zero percent impairment. It found that 

she was without fault in the creation of the overpayment. Attached to the decision was a Form 

OWCP-20 overpayment recovery questionnaire. OWCP allotted appellant 30 days to complete 

the questionnaire and provide supporting documentation for any income or expenses listed. 

Appellant did not respond. 

The hearing was held on February 19, 2014. Counsel contended that Dr. Stark’s medical 

examination was lacking, because he did not perform any neurological testing other than Tinel’s 

and Phalen’s tests, range-of-motion measurements, or motor strength measurements. He stated 

that Dr. Stark found that there was no TFCC tear, but that this determination was contrary to the 

SOAF. Counsel requested that the case file be remanded for another referee medical 

examination. 

By decision dated May 9, 2014, the hearing representative affirmed the October 1, 2013 

decision of OWCP and finalized the overpayment of $2,479.67. Appeal rights for both the 

schedule award decision and the overpayment decision were provided to appellant and his 

counsel. 

LEGAL PRECEDENT -- ISSUE 1 

The schedule award provision of FECA5

 and its implementing federal regulations6 set 

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

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

FECA, however, does not specify the manner by which the percentage loss of a member, 

function, or organ shall be determined. To ensure consistent results and equal justice for all 

claimants under the law, good administrative practice requires the use of uniform standards 

applicable to all claimants.7

 The A.M.A., Guides has been adopted by the implementing 

regulations as the appropriate standard for evaluating schedule losses.8 For decisions issued after 

 5

 5 U.S.C. § 8107. 

6

 20 C.F.R. § 10.404. 

7 Ausbon N. Johnson, 50 ECAB 304, 311 (1999). 

8 Id.
10

May 1, 2009, the sixth edition is used to calculate schedule awards.9 It is well established that in 

determining the amount of a schedule award for a member of the body that sustained an 

employment-related permanent impairment, preexisting impairments of the body are to be 

included.10

The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation 

utilizing the World Health Organization’s International Classification of Functioning, Disability 

and Health (ICF).11 Under the sixth edition, the evaluator identifies the impairment Class of 

Diagnosis condition (CDX), which is then adjusted by grade modifiers based on Functional 

History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).12 The net 

adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13

FECA provides that, if there is a 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 the examination.14 The implementing regulations state 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 or impartial examination and OWCP 

will select a physician who is qualified in the appropriate specialty and who has no prior 

connection with the case.15

To be of probative value, a medical opinion must be based on a complete factual and 

medical background, must be of reasonable medical certainty, and be supported by medical 

rationale.16 Medical rationale is a medically sound explanation for the opinion offered.17

It is well established that, when a case is referred to an impartial medical specialist for the 

purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and 

based on a proper factual and medical background, must be given special weight.18

 9

 Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 Exhibit 1 

(January 2010). 

10 See Dale B. Larson, 41 ECAB 481, 490 (1990); id. at Chapter 3.700.3.a.3 (January 2010). This portion of 

OWCP procedures provide that the impairment rating of a given scheduled member should include any preexisting 

permanent impairment of the same member or function. 

11 A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability 

and Health (ICF): A Contemporary Model of Disablement. 

12 Id. at 383-419. 

13 Id. at 411. 

14 5 U.S.C. § 8123(a). 

15 20 C.F.R. § 10.321. 

16 Jennifer Atkerson, 55 ECAB 317, 319 (2004). 

17 See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641 

(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound, and logical). 
11

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained right wrist sprain and a right TFCC tear as a 

result of her June 28, 2007 employment injury. By decision dated December 2, 2009, it granted 

a schedule award for one percent impairment of her right upper extremity. However, in 

subsequent decisions by OWCP and hearing representatives, OWCP denied increased schedule 

awards and found that the previous award of one percent impairment had been issued in error. 

The most recent OWCP decision of May 9, 2014 affirmed the finding of no permanent 

impairment and finalized the $2,479.67 overpayment due to the previously-awarded one percent 

schedule award. 

On June 10, 2013 OWCP forwarded medical records, along with a SOAF, to Dr. Stark, to 

resolve the conflict in medical opinion between Drs. Diamond and Draper. In a report dated 

July 9, 2013, Dr. Stark found zero percent impairment. He noted: “Although [TFCC tear] was 

an accepted condition, it is my opinion that if she had the TFCC tear, she has completely 

recovered from it. At this point the diagnosis for [appellant] is nonspecific wrist pain post-acute 

injury or surgery.” Dr. Stark found no tenderness over the area of the TFCC and a full range of 

motion and no instabilities of her wrist. As such he opined that it was inappropriate to include 

any calculations for a TFCC tear in his schedule award calculation. 

With regard to the impairment calculation, Dr. Stark calculated the impairment of the 

wrist using the Wrist Regional Grid on page 395. He placed appellant in class 1 impairment for 

nonspecific wrist pain given the history of painful injury and residual symptoms without 

consistent findings. As to functional history Dr. Stark indicated that she was able to perform 

self-care activities independently which warranted a grade modifier of 1. For physical 

examination adjustment he assigned a grade modifier 1 for clicking or clanking that was not 

reproducible. For clinical studies, Dr. Stark reported no relevant imaging studies in the record 

warranting a grade modifier of 0. The net adjustment formula of (GMFH-CDX) + (GMPECDX) + (GMCS-CDX) would equal (1-1) + (1-1) + (0-1) = -1. This would correspond to grade 

B and class 1, grade B which is zero percent impairment. 

The Board finds that Dr. Stark’s report is well rationalized, based on the SOAF, and 

properly applies the A.M.A., Guides to the examination results. Dr. Stark is properly afforded 

the weight of the medical evidence. 

On appeal, counsel argues that Dr. Stark’s July 9, 2013 report is insufficiently 

rationalized because Dr. Stark stated that appellant had no sensory deficit in the digits without 

indicating neurological testing, and he did not indicate whether he performed a measurement of 

range of motion in accordance with the A.M.A., Guides. He also contends that Dr. Stark 

inappropriately found that appellant did not have a TFCC tear, which was contrary to the 

accepted conditions listed in the SOAF. However, Dr. Stark’s report provided results on 

examination and was based on all of the relevant medical records and diagnostic studies. 

Furthermore, his report is not contrary to the SOAF. Dr. Stark recognized that OWCP accepted 

the condition of right TFCC tear, but he opined that “if she had the TFCC tear, she has 

 18 Gloria J. Godfrey, 52 ECAB 486, 489 (2001). 
12

completely recovered from it.” This observation was based on a physical examination and a 

complete review of the medical record. As such, the Board finds the permanent impairment 

rating of zero percent was appropriate and based on sound medical explanation. 

The Board finds that OWCP properly found an impairment rating of zero percent of the 

right upper extremity. 

LEGAL PRECEDENT -- ISSUE 2 

Section 8102(a) of FECA provides that the United States shall pay compensation for the 

disability or death of an employee resulting from personal injury sustained while in the 

performance of her duty.19 Section 8129(a) of FECA provides, in pertinent part: When an 

overpayment has been made to an individual under this subchapter because of an error of fact or 

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by 

decreasing later payments to which an individual is entitled.20

ANALYSIS -- ISSUE 2 

By decision dated December 2, 2009, OWCP granted appellant a schedule award for one 

percent permanent impairment of her right upper extremity, for a total payment of $2,479.67. As 

it later correctly established that appellant did not have a ratable permanent impairment of the 

right upper extremity, she was not entitled to a schedule award for such impairment.21 The entire 

amount of the December 2, 2009 schedule award constituted an overpayment of compensation. 

Therefore, OWCP’s May 9, 2014 decision finding an overpayment of compensation in the 

amount of $2,479.67 was proper under the law and facts of this case. 

LEGAL PRECEDENT -- ISSUE 3 

Section 8129(a) of FECA22 provides that, where an overpayment of compensation has 

been made because of an error of fact or law, adjustments shall be made by decreasing later 

payments to which an individual is entitled.23 The only exception to this requirement is found in 

section 8129(b) of FECA, which provides that adjustments or recovery may not be made when 

incorrect payments have been made to an individual who is without fault and when such 

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

conscience.24

 19 5 U.S.C. § 8102(a). 

20 Id. at § 8129(a). 

21 See Charles H. Potter, 39 ECAB 645 (1988). 

22 5 U.S.C. § 8129(a). 

23 Id. at § 8129(a). 

24 Id. at § 8129(b). 
13

Thus, a finding that appellant was without fault is not sufficient, in and of itself, for 

OWCP to waive the overpayment.25 OWCP must exercise its discretion to determine whether 

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

good conscience, pursuant to the guidelines provided in sections 10.434-37 of the implementing 

federal regulations.26 Recovery of an overpayment will defeat the purpose of FECA is 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 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.27 A higher amount is specified for 

a beneficiary with one or more dependents.28 Recovery of an overpayment is considered to be 

against equity and good conscience when any individual who received an overpayment would 

experience severe financial hardship in attempting to repay the debt.29 Recovery of an 

overpayment is also considered to be against equity and good conscience when any 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.30

Section 10.438 of the 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.31

As the only limitation on OWCP’s authority is reasonableness, abuse of discretion is 

generally shown through proof of manifest error, clearly unreasonable exercise of judgment or 

actions taken which are contrary to both logic and probable deductions from known facts.32

ANALYSIS -- ISSUE 3 

In this case, appellant was found to be without fault in the creation of the overpayment. 

Accompanying the October 31, 2013 preliminary notice of overpayment, OWCP provided her 

 25 James Lloyd Otte, 48 ECAB 334, 338 (1997); see William J. Murphy, 40 ECAB 569, 571 (1989). 

26 20 C.F.R. §§ 10.434-37. 

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

6.200.6a(1)(b) (June 2009). 

28 20 C.F.R. § 10.436. 

29 Id. at § 10.437(a). 

30 Id. at § 10.437(b). 

31 Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001). 

32 Daniel J. Perea, 42 ECAB 214 (1990). 
14

with a Form OWCP-20 overpayment recovery questionnaire to obtain information about her 

income, assets, and expenses. Appellant did not provide a response to this questionnaire. As a 

result, OWCP was unable to review her financial information to determine if recovery of the 

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

conscience. 

Consequently, as appellant did not submit the financial information required under 

OWCP’s regulations, which was necessary to determine her eligibility for waiver, OWCP 

properly denied waiver of recovery of the overpayment of compensation in the amount of 

$2,479.67. 

CONCLUSION 

The Board finds that appellant has no ratable impairment of her right upper extremity. 

The Board further finds that OWCP properly determined that she received an overpayment of 

compensation in the amount of $2,479.67, and OWCP did not abuse its discretion in denying 

waiver of the overpayment. 

ORDER 

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

Compensation Programs dated May 9, 2014 is affirmed. 

Issued: December 28, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board