United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

S.F., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Washington, DC, Employer

__________________________________________

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Docket No. 18-0003

Issued: April 19, 2018

Appearances: Case Submitted on the Record

Stephen Larkin, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On October 2, 2017 appellant, through counsel, filed a timely appeal from an August 9, 

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 over the merits of this case.

ISSUES

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

amount of $13,384.24 for the period of July 8, 2007 through May 8, 2008; and (2) whether 

 

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

appellant was at fault in the creation of the $13,384.24 overpayment and, therefore, ineligible for 

waiver of recovery of the overpayment.

FACTUAL HISTORY

On April 7, 2003 appellant, then a 58-year-old mail processor, filed an occupational disease 

claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome as a result of her 

repetitive federal employment duties. By decision dated June 5, 2003, OWCP accepted the claim 

for bilateral carpal tunnel syndrome. Appellant stopped work and received wage-loss 

compensation. OWCP initially paid appellant wage-loss compensation on the supplemental rolls

commencing June 16, 2003, and then paid benefits on the periodic rolls as of October 31, 2004.

In a report dated March 16, 2012, Dr. Daniel R. Ignacio, appellant’s treating physician, 

Board-certified in physical medicine and rehabilitation, related that appellant had 49 percent 

permanent impairment of the right upper extremity and 35 percent permanent impairment of the 

left upper extremity. He explained that, regarding her right upper extremity, appellant had 3 

percent diagnosis-based permanent impairment, as well as 14 percent permanent impairment for 

sensory deficit, 12 percent impairment for motor deficit, and 20 percent impairment for causalgia. 

Regarding her left upper extremity, Dr. Ignacio explained that appellant had 3 percent diagnosisbased permanent impairment, 12 percent permanent impairment for sensory deficit, 10 percent 

permanent impairment for motor deficit, and 10 percent permanent impairment for causalgia.

On June 13, 2012 appellant filed a claim for a schedule award (Form CA-7).

In a report dated July 22, 2012, Dr. Lawrence A. Manning, an orthopedic surgeon acting 

as OWCP’s district medical adviser (DMA) reported that he did not concur with Dr. Ignacio’s 

report. He explained that Dr. Ignacio had provided redundant ratings for diagnosis-based 

impairment, as well as sensory and motor deficit impairments. 

OWCP prepared a statement of accepted facts (SOAF) on September 14, 2012, which 

related that appellant’s claim was accepted for bilateral carpal tunnel syndrome, bilateral wrist 

tendinitis, and reflex sympathetic dystrophy (complex regional pain syndrome).

On February 5, 2013 OWCP referred appellant to Dr. Olumuyiwa Paul, a Board-certified 

orthopedic surgeon, for an impartial medical evaluation to resolve the conflict in medical opinion 

between the DMA and Dr. Ignacio with regard to the degree of appellant’s permanent impairment.

In his February 20, 2013 report, Dr. Paul related that appellant’s wrist sprain was rated 

under the diagnosis-based grid for tendinitis. He found that appellant had two percent permanent 

impairment of each wrist for tendinitis, which was the highest possible impairment rating for 

tendinitis. Dr. Paul also related that appellant’s carpal tunnel syndrome resulted in five percent 

permanent impairment of each upper extremity, due to entrapment neuropathy. He concluded that 

appellant had seven percent permanent impairment of each upper extremity.

In an August 24, 2015 medical report, Dr. Manning, acting as OWCP’s DMA, concurred 

with Dr. Paul’s impairment rating and found that appellant sustained seven percent permanent 

impairment of her right upper extremity and seven percent permanent impairment of her left upper 

extremity. 
3

By decision dated August 27, 2015, OWCP granted appellant a schedule award in the 

amount of $26,515.54 for the period July 8, 2007 through May 8, 2008. The decision failed to 

note the nature and percentage of permanent impairment. The date of maximum medical 

improvement was noted as January 6, 2007 and the award covered a period of 43.68 weeks. The 

start date of the schedule award was adjusted to July 8, 2007 because appellant had received wageloss compensation through July 7, 2007. OWCP noted that the award was based on the reports of

Dr. Paul and OWCP’s DMA.

By notice dated April 5, 2017, OWCP made a preliminary determination that an 

overpayment of compensation in the amount of $13,384.24 had been created for the period July 8, 

2007 through May 8, 2008 because appellant was overpaid for her schedule award. It further found 

that she was at fault in the creation of the overpayment because she accepted a payment that she 

knew or reasonably should have known that she was not entitled to receive. OWCP explained that 

appellant was incorrectly paid $26,515.54 based on 14 percent permanent impairment of her left 

upper extremity and 14 percent permanent impairment of her right upper extremity. However, 

appellant was only entitled to seven percent permanent impairment of her left upper extremity and 

seven percent permanent impairment of her right upper extremity in the amount of $13,131.30, 

resulting in an overpayment of $13,384.24. OWCP informed her of her appeal rights and 

instructed her to complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and 

submit supporting financial documentation within 30 days.

An accompanying July 30, 2015 payroll computer printout indicated that seven percent 

permanent impairment of the upper extremity resulted in 21.84 weeks of compensation amounting 

to $13,131.30. The comments section noted that the schedule award was based on seven percent 

permanent impairment of the right upper extremity. An August 25, 2015 payroll computer printout

noted 14 percent permanent impairment of an upper extremity and 14 percent permanent 

impairment of an upper extremity resulted in 43.68 weeks of compensation amounting to a 

$26,515.54 schedule award. The comments section indicated that the schedule award was based 

on seven percent permanent impairment of the right upper extremity and seven percent permanent 

impairment of the left upper extremity. 

In a June 5, 2017 overpayment action request, appellant contested the preliminary 

overpayment determination and finding of fault and requested a telephone conference. No 

evidence was submitted with her request. 

By decision dated August 9, 2017, OWCP finalized the preliminary overpayment 

determination finding that appellant was overpaid in the amount of $13,384.24 for the period 

July 8, 2007 through May 8, 2008 because she was paid $26,515.54 for seven percent permanent 

impairment of the left upper extremity and seven percent permanent impairment of the right upper 

extremity when she should have only received $13,131.30.3 OWCP also found that appellant was 

at fault in the creation of the overpayment and, thus, not entitled to waiver of recovery. Recovery 

was directed by repayment of the full amount within 30 days.

 

3 OWCP’s claims examiner reported that he attempted to reach appellant by telephone and no financial documents 

were received in support of her claim.
4

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 

vested the authority to implement the FECA program with the Director of OWCP.4 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.5 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 American Medical Association, Guides to the Evaluation of Permanent 

Impairment (hereinafter A.M.A. Guides)

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as the appropriate standard for evaluating schedule 

losses.7 

Section 8129(a) of FECA provides that when an overpayment has been made to an 

individual because of an error of fact or law, adjustment shall be made under regulations prescribed 

by the Secretary of Labor.8 When OWCP makes a determination that an overpayment of 

compensation has occurred because the claimant received an erroneous schedule award, it must 

properly resolve the schedule award issue. Before the amount of the overpayment can be 

determined, the evidence must establish the degree of permanent impairment.9

ANALYSIS -- ISSUE 1

The Board finds that this case is not in posture for decision regarding whether appellant 

received a $13,384.24 overpayment of compensation for the period of July 8, 2007 through 

May 8, 2008.10

In its overpayment determination, OWCP found that an overpayment of compensation 

occurred because appellant was incorrectly paid $24,515.54 based on 14 percent permanent 

impairment of the left upper extremity and 14 percent permanent impairment of the right upper 

extremity. It found that she was only entitled to seven percent permanent impairment for each 

upper extremity in the amount of $13,131.30, resulting in an overpayment of $13,384.24. 

When OWCP makes a determination that an overpayment of compensation has occurred 

because the claimant received an erroneous schedule award, it must first properly calculate the 

 

4 See 20 C.F.R. §§ 1.1-1.4.

5 For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

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

7 20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8 5 U.S.C. § 8129(a).

9 See L.S., Docket No. 08-1247 (issued December 12, 2008); Richard Saldibar, 51 ECAB 585 (2000).

10 See generally R.W., Docket No. 14-0195 (issued October 10, 2014).
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schedule award.11 The Board notes that the August 27, 2015 schedule award decision, which the 

overpayment determination relies on, was not properly issued. While the schedule award decision 

granted appellant $26,515.54 for the period July 8, 2007 through May 8, 2008, it failed to identify 

the percentage and nature of permanent impairment awarded as required under the Federal (FECA)

Procedure Manual.12 The August 27, 2015 decision found that appellant’s schedule award covered 

a period of 43.68 weeks at a 66 and 2/3 compensation rate. The August 9, 2017 overpayment 

decision found that appellant should have only received an award for seven percent permanent 

impairment of the right upper extremity and seven percent permanent impairment of the left upper 

extremity. It relied on an August 25, 2015 payroll computer printout, which noted 14 percent 

impairment for the arm and 14 percent impairment for the arm, resulting in 43.68 weeks of 

compensation in the amount of $26,515.54. The decision also referenced a July 30, 2015 payroll 

computer printout as the amount appellant should have been awarded, which indicated seven 

percent impairment for the arm and seven percent impairment for the arm resulting in 21.84 weeks 

of compensation in the amount of $13,131.30. 

The Board notes that, while the August 27, 2015 schedule award decision failed to identify 

the percentage and nature of impairment, OWCP’s overpayment decision indicated that appellant 

was entitled to seven percent permanent impairment of the left upper extremity and seven percent 

permanent impairment of the right upper extremity.13 For complete or 100 percent impairment of 

an arm, a claimant is entitled to a maximum of 312 weeks of compensation. With respect to seven 

percent impairment of the left upper extremity, appellant would be entitled to seven percent of 312 

weeks of compensation, or 21.84 weeks. With respect to seven percent impairment of the right 

upper extremity, she would be entitled to seven percent of 312 weeks of compensation, or 21.84 

weeks. Taking the 21.84 weeks of compensation for the left upper extremity and adding it to the 

21.84 weeks of compensation for the right upper extremity would result in a total 43.68 weeks of 

compensation at the 66 and 2/3 percent weekly pay rate. The Board notes that the August 27, 2015 

schedule award decision noted that the award covered a period of 43.68 weeks. While the 

August 25, 2015 computer payroll printout indicated that appellant received a 14 percent award 

for each upper extremity, the $26,515.54 amount awarded was calculated using the correct 43.68 

weeks of compensation based on seven percent permanent impairment of each upper extremity.14 

The July 30, 2015 computer payroll printout, which indicated that appellant should have only been 

awarded $13,131.30, incorrectly calculated the award based on 21.84 weeks of entitlement, which 

pertains to seven percent permanent impairment of one upper extremity only.15 As such, the record 

before the Board is unclear if an overpayment of compensation occurred. Thus, the Board finds 

that the overpayment issue is not in posture for decision as OWCP failed to properly resolve the 

 

11 See W.M., Docket No. 13-0291 (issued June 12, 2013).

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

Chapter 2.808.8 (February 2013).

13 M.W., Docket No. 11-0574 (issued October 21, 2011).

14 See 5 U.S.C. § 8107(c)(2); 20 C.F.R. § 10.404.

15 T.K., Docket No. 12-0271 (issued June 21, 2012).
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underlying issue of appellant’s entitlement to a schedule award.16 As the fact of overpayment is 

not clearly established by the record, the Board will set aside OWCP’s August 9, 2017 decision 

for further development of the evidence.17 Following such further development as it deems 

necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

ORDER

IT IS HEREBY ORDERED THAT the August 9, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: April 19, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

16 M.F., Docket No. 16-1089 (issued December 14, 2016).

17 As the issues of fact of overpayment requires further development, Issue 2 is not in posture for decision. R.L., 

Docket No. 11-1251 (issued January 27, 2012).