United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

K.W., Appellant

and

U.S. POSTAL SERVICE, TRENTON 

PROCESSING TRANSPORTATION OFFICE, 

Trenton, NJ, Employer

__________________________________________

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Docket No. 17-1577

Issued: February 15, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On July 13, 2017 appellant, through counsel, filed a timely appeal from a February 28, 

2017 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 to consider the merits of this case.

ISSUES

The issues are: (1) whether appellant received an overpayment of compensation in the 

amount of $18,801.21, as he was not entitled to schedule award for more than 13 percent 

 

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.
2

permanent impairment of the left lower extremity; and (2) whether OWCP properly denied 

waiver of recovery of the overpayment.

FACTUAL HISTORY

This case has previously been before the Board.3 The facts of the case as presented in the

Board’s prior decision are incorporated herein by reference. The relevant facts are as follows. 

On April 13, 2007 appellant, then a 59-year-old tractor trailer operator, filed a traumatic 

injury claim (Form CA-1) alleging that he injured his left knee that same date while using the 

clutch to back up his truck while in the performance of duty. He stopped work on the date of 

injury. OWCP accepted the claim for left knee lateral collateral ligament sprain, and

subsequently expanded acceptance of the claim to include left anterior cruciate ligament tear. 

In an August 7, 2008 report, Dr. Nicholas Diamond, an examining osteopath, noted 

appellant’s employment and medical histories. He diagnosed post-traumatic left knee anterior 

cruciate ligament, patellar tendon, and distal quadriceps tears. Dr. Diamond provided physical 

examination findings and applied the fifth edition of the American Medical Association, Guides 

to the Evaluation of Permanent Impairment (A.M.A., Guides)

4

to determine that appellant had 

38 percent permanent impairment of his left lower extremity. 

On December 23, 2008 appellant filed a claim for a schedule award (Form CA-7). 

On September 22, 2009 OWCP received a new report from Dr. Diamond in which he 

applied the sixth edition of the A.M.A., Guides and determined that appellant had 35 percent 

permanent impairment of his left lower extremity. Dr. Diamond used Table 16-23, on page 549 

of the A.M.A., Guides, to calculate that impairment rating based on range of motion deficits. 

OWCP subsequently referred appellant to Dr. Stanley Askin, a Board-certified orthopedic 

surgeon, for a second opinion. In a February 3, 2010 report, Dr. Askin reviewed appellant’s 

medical history. He noted that appellant had pain complaints, but continued working as a tractor 

trailer operator on trucks without a clutch. Dr. Askin related that his examination of appellant’s

left knee revealed no knee effusion. Appellant reported some tenderness on palpation along the 

lateral patella side and anterolateral and anteromedial joint line areas. Dr. Askin noted no 

instability in the collateral ligaments, either medially or laterally and a negative Lachman’s test. 

He applied the sixth edition of the A.M.A., Guides and determined that appellant had 20 percent 

permanent impairment of his left lower extremity.

OWCP referred Dr. Askin’s report to a district medical adviser (DMA). In an August 5, 

2010 report, a DMA concurred with Dr. Askin’s 20 percent left lower extremity permanent 

impairment rating and date of maximum medical improvement. 

 

3 Docket No. 12-0985 (issued December 19, 2012).

4 A.M.A., Guides (5th ed. 2001).
3

On September 1, 2010 OWCP granted appellant a schedule award for 20 percent 

permanent impairment of the left lower extremity. The award covered a period of 57.6 weeks

and covered the period January 22, 2010 to March 1, 2011. 

By letter dated September 10, 2010, appellant, through counsel, requested a hearing 

before an OWCP hearing representative, seeking increased impairment. 

Following a preliminary review, by decision dated December 27, 2010, OWCP’s hearing 

representative set aside the September 1, 2010 schedule award decision, finding that there was an 

unresolved conflict in the medical opinion evidence between Dr. Askin and Dr. Diamond 

regarding appellant’s range of motion and permanent impairment rating. The hearing 

representative remanded the case for resolution of the conflict and a de novo decision. 

On February 2 and March 7, 2011 OWCP referred appellant to Dr. James P. Taitsman, a 

Board-certified orthopedic surgeon, to resolve the conflict in the medical opinion evidence 

between Drs. Askin and Diamond regarding appellant’s permanent impairment rating, as 

instructed by OWCP’s hearing representative.

On March 25, 2011 Dr. Taitsman, based upon a physical examination, statement of 

accepted facts (SOAF), and review of the medical evidence, determined that appellant had no 

more than 13 percent left lower extremity permanent impairment using the sixth edition of the 

A.M.A., Guides.

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On April 18, 2011 OWCP referred Dr. Taitsman’s report to the DMA for review. On 

April 30, 2011 the DMA concurred with Dr. Taitsman’s permanent impairment rating of 13 

percent. 

By decision dated May 16, 2011, OWCP denied appellant’s request for an increased 

schedule award. It found that, while appellant was previously paid a schedule award for 20 

percent permanent impairment of the left lower extremity, the correct impairment rating is 13 

percent based on the reports of Dr. Taitsman and the DMA. OWCP advised that, as the previous 

schedule award was paid in error, it is recoverable as an overpayment. A notice of overpayment 

would be provided under separate cover.

By letter dated May 23, 2011,

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appellant, through counsel, requested a telephonic hearing 

before an OWCP hearing representative, which was held on September 20, 2011.

By decision dated December 19, 2011, OWCP’s hearing representative affirmed the

May 16, 2011 decision. Appellant subsequently appealed to the Board on April 4, 2012.

In December 19, 2012 decision,7the Board set aside the December 19, 2011 hearing 

representative’s decision, finding that OWCP had not properly selected Dr. Taitsman under the 

 

5 A.M.A., Guides (6th ed. 2009).

6 The year was mistakenly written as 2010 instead of 2011.

7 Supra note 3.
4

Physicians Directory System (PDS). The Board remanded the case to OWCP for referral to 

another impartial medical specialist and issuance of a de novo decision. 

On remand OWCP referred appellant, the case record, and a SOAF to Dr. Dean Carlson, 

a Board-certified orthopedic surgeon, for an impartial medical examination and impairment 

evaluation regarding the permanent impairment of appellant’s left lower extremity.

In a November 7, 2013 report, Dr. Carlson, based upon a review of the medical evidence, 

SOAF, and physical examination, diagnosed resolved anterior cruciate ligament interstitial tear, 

resolved suprapatellar and infrapatellar interstitial tears, and left knee severe nonorganic loss of 

flexion. Using the sixth edition of the A.M.A., Guides, he determined that appellant had zero 

percent permanent impairment of the left lower extremity using a range of motion assessment. 

Dr. Carlson opined that appellant’s range of motion deficit was nonorganic. He also determined 

the physical examination findings were inconsistent among the physicians of record and, thus, 

were invalid.

On May 19, 2014 an OWCP medical adviser reviewed Dr. Carlson’s opinion and 

concurred with the finding of zero percent left lower extremity permanent impairment.

By decision August 11, 2014, OWCP denied appellant’s claim for a schedule award, 

finding that appellant had not established permanent impairment of his left lower extremity. 

While appellant was previously awarded 20 percent permanent impairment of her left lower 

extremity, his impairment was found to be 0 percent. An overpayment therefore, occurred, and a 

notice of overpayment would be provided under separate cover.

On August 14, 2014 counsel disagreed with the August 11, 2014 decision and requested 

an oral hearing before an OWCP hearing representative, which was held on December 19, 2014. 

On August 25, 2014 OWCP issued a preliminary notice of an overpayment of 

compensation in the amount of $42,289.28. It found that the overpayment occurred because 

appellant had been paid a schedule award for 20 percent left lower extremity permanent 

impairment when his actual permanent impairment was 0 percent. OWCP further found that 

appellant was without fault in the creation of the overpayment.

On September 5, 2014 counsel requested a prerecoupment hearing before an OWCP 

hearing representative, which was held on February 24, 2015. 

By decision dated March 11, 2015, OWCP’s hearing representative vacated the 

August 11, 2014 decision, finding that OWCP had not properly selected Dr. Carlson under the 

PDS. The case was remanded to OWCP for a new impartial medical examiner to determine 

appellant’s left lower extremity permanent impairment rating.

By decision dated May 15, 2015, OWCP’s hearing representative found the issues of 

overpayment and waiver were not in posture for decision based on the March 11, 2015 hearing 

representative’s decision. He, therefore, vacated the August 25, 2015 preliminary overpayment 

determination and remanded the case to OWCP. The hearing representative advised that once 

the schedule award issue was finalized, OWCP could then consider whether there was an 

overpayment of compensation.
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On September 11, 2015 OWCP referred appellant to Dr. Jeffrey Lakin, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine an impairment rating. 

Dr. Lakin, in a report dated October 8, 2015, determined that appellant had zero percent left 

lower extremity permanent impairment using Table 16-3, page 510 of the A.M.A., Guides (6

th

ed.) based on a diagnosis of cruciate or collateral ligament injury with no instability or surgery. 

He found the date of maximum medical improvement (MMI) was October 8, 2015. 

On November 12, 2015 a DMA reviewed Dr. Lakin’s report, objective tests and medical 

reports and noted that it did not correlate with prior impairment ratings. The DMA found that 

appellant had 13 percent left lower extremity impairment based on the opinion of Dr. Taitsman, 

who the Board had previously found was not properly selected as an impartial medical examiner. 

The DMA determined that the date of MMI was March 25, 2011, the date of Dr. Taitsman’s

examination. 

By decision dated December 18, 2015, OWCP denied appellant’s schedule award claim, 

finding that appellant had not established permanent impairment of a scheduled member or 

function of the body. It further advised that, because appellant was previously awarded a 

schedule award for 20 percent permanent impairment, an overpayment of compensation had 

occurred. A notice of overpayment would be provided under separate cover.

In a letter dated December 29, 2015, counsel requested an oral hearing before an OWCP

hearing representative. On April 4, 2016 he withdrew his request for an oral hearing.

On August 18, 2016 OWCP issued a preliminary determination that appellant received an 

overpayment of compensation in the amount of $42,289.28 for the period August 11, 2014 

through December 18, 2015. It explained that the overpayment occurred as appellant received a 

schedule award for 20 percent permanent impairment of the left lower extremity when he had no 

permanent impairment. OWCP further advised that appellant was without fault in the creation of

the overpayment.

Appellant, through counsel, requested a prerecoupment hearing before an OWCP hearing 

representative, which was held on November 30, 2016. 

Following the hearing, appellant submitted a completed overpayment recovery 

questionnaire (OWCP-20) dated November 29, 2016 with supporting financial documentation. 

By decision dated February 28, 2017, an OWCP hearing representative affirmed 

OWCP’s August 11, 2016 preliminary overpayment determination regarding the fact of the 

overpayment. She modified the amount of the overpayment from $42,289.28 to $14,801.21 as 

appellant was entitled to a schedule award for 13 percent permanent impairment of the left lower 

extremity, but had received a schedule award for 20 percent permanent impairment. The hearing 

representative also affirmed OWCP’s finding that appellant was without fault in the creation of

the overpayment, but denied waiver of recovery as the financial information submitted failed to 

establish that appellant would incur undue financial hardship.

LEGAL PRECEDENT -- ISSUE 1

Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules 

and regulations for the administration and enforcement of FECA. The Secretary of Labor has 
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vested the authority to implement FECA’s program with the Director of OWCP.

8

 Section 8107 

of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of 

use of specified members, functions, and organs of the body.9 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 under the law, good administrative practice 

requires the use of uniform standards applicable to all claimants. Through its implementing 

regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating 

schedule losses.10 

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition 

of the A.M.A., Guides (2009).11 The Board has approved the use by OWCP of the A.M.A., 

Guides for the purpose of determining the percentage loss of use of a member of the body for 

schedule award purposes.12

If a claimant who has received a schedule award calculated under a previous edition of 

the A.M.A., Guides is entitled to additional benefits, the increased award will be calculated 

according to the current, sixth edition.13 Should the subsequent calculation result in a percentage 

of impairment lower than the original award, as sometimes occurs, a finding should be made that 

the claimant has no more than the percentage of impairment originally awarded, that the 

evidence does not establish an increased impairment, and that OWCP has no basis for declaring 

an overpayment.14 However, where both the prior and subsequent ratings were calculated under 

the sixth edition of the A.M.A., Guides, a subsequent determination that there is a lesser degree 

of impairment than previously awarded may support a finding of overpayment.15

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision as the underlying schedule 

award determination remains not in posture for decision. Thus, the issues of fact of overpayment

and waiver are premature.16

 

8 See 20 C.F.R. §§ 1.1-1.4.

9 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. 

§ 8107(c)(1).

10 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

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

(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability 

Claims, Chapter 2.808.5(a) (February 2013). 

12 Isidoro Rivera, 12 ECAB 348 (1961).

13 Supra note 7 at Chapter 2.808.9(d).

14 Id.

15 Id. at Chapter 2.808.9(e).

16 C.S., Docket No. 16-0752 (issued April 19, 2017).
7

OWCP accepted appellant’s claim for left lateral collateral ligament sprain and left 

anterior cruciate ligament tear. In the prior appeal, the Board, in a December 19, 2012 decision,

set aside OWCP’s December 19, 2011 decision as it found Dr. Taitsman had not been properly 

selected as an impartial medical examiner. The Board remanded the case for further 

development of the evidence and resolution of the unresolved conflict. By decision dated 

August 11, 2014, OWCP denied appellant’s schedule award claim based upon the opinion of

Dr. Carlson, an impartial medical examiner. On March 11, 2015 OWCP set aside the August 11, 

2014 decision, as it found that Dr. Carlson had been improperly selected and remanded the case 

for referral to a new impartial medical examiner. 

The Board finds that the conflict between appellant’s treating physician and OWCP’s 

referral physician has not been resolved. 

While OWCP followed the Board’s instructions on remand by referring appellant to

Dr. Carlson for an impartial medical examination, OWCP’s hearing representative found that

Dr. Carlson had not been properly selected. The hearing representative vacated the August 25, 

2015 schedule award determination and remanded the case to OWCP for referral to another 

impartial medical examination. Instead of referring appellant to an impartial medical examiner 

as instructed by the hearing representative, it referred him for a second opinion evaluation with

Dr. Lakin, who found zero percent left lower extremity permanent impairment. A DMA 

reviewed Dr. Lakin’s report, which he found failed to correlate with prior reports. The DMA 

determined that appellant had 13 percent left lower extremity permanent impairment based on 

the opinion of Dr. Taitsman, who the Board had previously found was properly selected as an 

impartial medical examiner. OWCP did not refer appellant to an impartial medical examiner as 

instructed by the hearing representative and the Board to resolve the conflict in medical opinion 

evidence.17

Because there is an unresolved conflict in medical opinion, pursuant to 5 U.S.C. 

§ 8123(a), the case will be remanded to OWCP for referral of appellant, together with the 

medical record and an updated SOAF, to an appropriate Board-certified specialist for an 

impartial medical examination to determine the extent and degree of appellant’s left lower 

extremity permanent impairment in accordance with the sixth edition of the A.M.A., Guides. 

After such further development as OWCP deems necessary, it shall issue a de novo decision.

18

CONCLUSION

The Board finds that this case is not in posture for decision.

 

17 See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Referee 

Examinations, Chapter 3.500.4 (July 2011).

18 As the case is not in posture for a decision regarding the appropriate percentage of appellant’s left lower 

extremity permanent impairment, the finding of $18,801.21 overpayment of compensation and denial of waiver of 

recovery of the overpayment must be set aside as moot. It is premature for the Board to address the issue of any 

overpayment of compensation until the proper percentage of permanent impairment is determined. See A.M., 

Docket No. 16-0530 (issued December 21, 2016); Lee Z. Watson, Docket No. 04-2176 (issued March 1, 2005) 

(finding that when the decision providing the basis for the overpayment is reversed or set aside, the resulting 

overpayment issues are moot). The Board also finds counsel’s arguments on appeal moot in light of the Board’s 

disposition of this case.
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ORDER

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

Compensation Programs dated February 28, 2017 is set aside and the case is remanded for 

further proceedings consistent with this decision of the Board.

Issued: February 15, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy 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