United States Department of Labor

Employees’ Compensation Appeals Board

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M.T., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

FEDERAL AVIATION ADMINISTRATION

WILLIAM J. HUGHES TECHNICAL CENTER,

Atlantic City, NJ, Employer

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Docket No. 19-1810

Issued: September 9, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Deputy Chief Judge

JANICE B. ASKIN, Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On August 27, 2019 appellant filed a timely appeal from an August 14, 2019 merit decision 

of the Office of Workers’ Compensation Programs (OWCP).1 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.

 

1 The Board notes that following the August 14, 2019 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.

2 5 U.S.C. § 8101 et seq.
2

ISSUES

The issues are: (1) whether OWCP properly determined that appellant received an 

overpayment of compensation in the amount of $86,254.00, for which he was not at fault, for the 

period September 22, 2016 through January 6, 2018 as he received schedule award compensation 

to which he was not entitled; and (2) whether OWCP properly denied waiver of recovery of the 

overpayment.

FACTUAL HISTORY

On October 24, 2012 appellant, then a 58-year-old construction representative, filed a 

traumatic injury claim alleging that on October 22, 2012 he experienced pain in his low back and 

right leg when he slipped on a hole in the sidewalk while in the performance of duty. He stopped 

work on October 24, 2012. OWCP accepted the claim, which had been assigned OWCP File No. 

xxxxxx475, for lumbosacral radiculitis on the right side. It subsequently expanded acceptance of 

the claim to include a right shoulder sprain and right rotator cuff tear.

OWCP previously had accepted that appellant sustained a lumbosacral strain and internal 

derangement of the right knee due to a June 1, 1995 employment injury, assigned File No. 

xxxxxx701. It also had accepted that he sustained neck and shoulder sprains, a tear of the right 

medial meniscus, a right knee sprain, and a left knee contusion due to a May 8, 1997 employment 

injury, assigned File No. xxxxxx543. OWCP combined File No. xxxxxx701 into Master File No. 

xxxxxx543. Under File No. xxxxxx701, by decision dated February 13, 2004, OWCP granted 

appellant a schedule award for 37 percent permanent impairment of the right lower extremity, 

based upon his total right knee replacement.

3

By decision dated June 25, 2015, OWCP terminated appellant’s entitlement to wage-loss 

compensation effective that date as he had no further disability causally related to his October 22, 

2012 employment injury.4

 

3 By decision dated February 7, 2003, the Board affirmed in part January 31 and May 16, 2002 OWCP decisions 

issued under File No. xxxxxx701 finding that appellant had no permanent impairment of the left lower extremity, but 

set aside the decisions regarding the extent of permanent impairment of the right lower extremity. Docket No. 02-

2065 (issued February 7, 2003). The Board found that OWCP had properly determined the extent of his right lower 

extremity impairment due to his knee condition, but that a conflict in medical opinion existed regarding the extent of 

any permanent impairment of the right lower extremity originating from his back condition. By decision dated 

June 23, 2003, OWCP granted appellant a schedule award for an additional eight percent permanent impairment of 

the right lower extremity, for a total right lower extremity impairment of 37 percent, due to his total right knee 

replacement. By decision dated December 15, 2003, an OWCP hearing representative vacated the June 23, 2003 

decision and remanded the case for further development of the medical evidence. In decisions dated February 13, 

2004 and February 1, 2005, OWCP found that appellant had no more than 37 percent permanent impairment of the 

right lower extremity for which he received schedule award compensation. By decision dated April 6, 2015, it denied 

his request for reconsideration of the merits under 5 U.S.C. § 8128(a).

4 By decision dated April 5, 2016, OWCP granted appellant a schedule award for 15 percent permanent impairment 

of the right upper extremity. It noted that he had 12 percent permanent impairment of the right upper extremity under 

the current claim and 3 percent permanent impairment under OWCP File No. xxxxxxx441, for a total permanent 

impairment of 15 percent. The period of the award ran for 46.8 weeks from August 19, 2015 to July 11, 2016.
3

On April 25, 2016 appellant filed a claim for a schedule award (Form CA-7). 

In a report dated September 22, 2016, Dr. Samy F. Bishai, an orthopedic surgeon, opined 

that appellant had 24 percent permanent impairment of the right upper extremity due to a loss of 

range of motion of the shoulder and 24 percent permanent impairment of the right lower extremity 

due to radiculopathy at the L5 and S1 nerve root under the sixth edition of the American Medical 

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

5

On January 19, 2017 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as 

a district medical adviser (DMA), noted that appellant was status post a lumbar interbody fusion 

at L4-5, a decompressive laminectomy at L3 through L5, and lumbar interbody fusion at L3 

through S1. For the right lower extremity, he applied the provisions of The Guides Newsletter, 

Rating Spinal Nerve Impairment Using the Sixth Edition (July/August 2009), to find that appellant 

had 16 percent permanent impairment due to pain and motor weakness from L5 radiculopathy on 

the right, and 10 percent permanent impairment due to pain and motor weakness from S1 

radiculopathy, for a total right lower extremity impairment of 24 percent due to lumbar 

radiculopathy after utilizing the Combined Values Chart.

By decision dated February 27, 2017, OWCP granted appellant a schedule award for 24 

percent permanent impairment of the right lower extremity. The period of the award ran for 69.12 

weeks from September 22, 2016 to January 18, 2018 at a weekly compensation rate of $1,262.50.

On November 5, 2018 appellant filed a Form CA-7 claim for an increased schedule award. 

He submitted an October 11, 2018 impairment evaluation from Dr. Mark A. Seldes, Boardcertified in family practice, in support of his request. Dr. Seldes found that appellant had an 

additional 28 percent permanent impairment of the right upper extremity.

On February 21, 2019 Dr. David I. Krohn, a Board-certified internist serving as a DMA, 

reviewed Dr. Seldes’ report and advised that appellant had no more than the previously awarded 

24 percent permanent impairment of the right lower extremity. He further found no additional 

right upper extremity impairment.6

In a July 11, 2019 memorandum, OWCP noted that appellant had received multiple 

schedule awards for the right upper and lower extremities under different OWCP file numbers. It 

noted that he had received a schedule award for 24 percent of the right lower extremity under File 

No. xxxxxx475 and 37 percent permanent impairment of the right lower extremity under File No. 

xxxxxx701. OWCP found that it had erred in paying appellant 24 percent permanent impairment 

of the right lower extremity impairment under File No. xxxxxx475 as he had previously received 

 

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

6

In a supplemental report dated March 12, 2019, Dr. Seldes again found an additional 28 percent permanent 

impairment of the right upper extremity, for a total impairment of 43 percent. On June 28, 2019 Dr. Krohn found 32 

percent permanent impairment of the right upper extremity.
4

a schedule award for 37 percent permanent impairment of the right lower extremity under File No.

xxxxxx701.

7

On July 11, 2019 OWCP informed appellant of its preliminary determination that he had 

received an $86,254.00 overpayment of schedule award compensation for the period 

September 22, 2016 to January 6, 2018. It found that it had previously paid him a schedule award 

for 37 percent permanent impairment of the right lower extremity under OWCP File No. 

xxxxxx701 and thus had erred in paying him an additional schedule award for 24 percent 

permanent impairment of the right lower extremity under OWCP File No. xxxxxx475. OWCP 

further advised appellant of its preliminary finding that he was without fault in the creation of the 

overpayment of schedule award compensation. It requested that he complete an enclosed 

overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial 

documents. Additionally, OWCP notified appellant that, within 30 days of the date of the letter, 

he could request a telephone conference, a final decision based on the written evidence, or a 

prerecoupment hearing. No response was received by OWCP.

By decision dated August 14, 2019, OWCP found that appellant had received an

overpayment of schedule award compensation in the amount of $86,254.00 for the period 

September 22, 2016 to January 6, 2018. It determined that he was without fault in the creation of 

the overpayment, but denied waiver of recovery of the overpayment, noting that he had not 

responded to its preliminary overpayment determination. OWCP found that appellant should 

forward payment for the entire amount to repay the overpayment.

LEGAL PRECEDENT -- ISSUE 1

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 duty.8 Section 8129(a) of FECA provides, in pertinent part, that 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.9

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

degree of permanent impairment awarded, an overpayment may be created.10 OWCP’s procedures 

provide that claims for an increased schedule award based on the same edition of the A.M.A., 

Guides are subject to overpayment.11 If a claimant requests an increased schedule award due to a 

belief that his or her medical condition has deteriorated since the original award has been issued, 

 

7 OWCP advised that File No. xxxxxx543 was a subsidiary of File No. xxxxxx701; however, File No. xxxxxx701 

is a subsidiary of File No. xxxxxx543.

8 5 U.S.C. § 8102(a).

9

Id. at § 8129(a).

10 R.S., Docket No. 20-0311 (issued July 8, 2020); J.C., Docket No. 09-1526 (issued June 1, 2010).

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

2.808.9(e) (February 2013).
5

and additional development is undertaken to address this claim for an increased schedule award, a

new schedule award decision should be issued that addresses and substantiates the newly 

determined impairment rating. If a lesser degree of impairment than previously awarded is 

substantiated, an overpayment thereafter is appropriate.12

ANALYSIS -- ISSUE 1

The Board finds that OWCP improperly determined that appellant had received an 

overpayment of compensation in the amount of $86.254.00 for the period September 22, 2016 to 

January 6, 2018, as it failed to resolve the issue of the extent of his right lower extremity 

impairment. OWCP paid appellant a schedule award for 37 percent permanent impairment of the 

right lower extremity under File No. xxxxxx701, a subsidiary of Master File No. xxxxxx543, based 

upon his right knee condition. Under these file numbers OWCP accepted lumbosacral strain,

internal derangement of the right knee, a neck and shoulder sprain, a tear of the right medial 

meniscus, right knee sprain, and a left knee contusion. 

Appellant subsequently requested a schedule award under OWCP File No. xxxxxx745, 

accepted for right lumbosacral radiculitis, right shoulder sprain, and a right rotator cuff tear. In a 

report dated September 22, 2016, Dr. Bishai opined that appellant had 24 percent permanent 

impairment of the right lower extremity due to radiculopathy at the L5 and S1 nerve root. 

Dr. Harris, a DMA, applied the provisions of The Guides Newsletter and concurred with his 

finding of 24 percent permanent impairment of the right lower extremity.

By decision dated February 27, 2017, OWCP paid appellant a schedule award for 24 

percent permanent impairment under OWCP File No. xxxxxx475. 

OWCP thereafter determined that appellant was not entitled to the schedule award for 24 

percent permanent impairment issued under File No. xxxxxx745 as he had previously received a 

right lower extremity award for a greater percentage of impairment. It thus found that the entire 

amount of the schedule award that he had received for the 24 percent permanent impairment under 

File No. xxxxxx475 constituted an overpayment of schedule award compensation. 

The Board finds that OWCP had not adequately supported its determination that appellant 

received an $86,254.00 overpayment of compensation. OWCP failed to consider that the right 

lower extremity ratings were not based on the same accepted conditions. It failed to request that 

a DMA compare the prior award and the current award to determine whether it was based on the 

same accepted conditions. Before the amount of overpayment can be determined, the evidence 

must clearly establish the degree of permanent impairment.13 

The Board has previously held that simply comparing the prior percentage of permanent 

impairment awarded to the current impairment for the same member is not always sufficient to 

deny an increased schedule award claim.14 The issue is not whether the current permanent 

 

12 Id.

13 Supra note 10 at Chapter 2.808.9(e) (February 2013).

14 See P.M., Docket No. 18-1215 (issued June 18, 2020).
6

impairment rating is greater than the prior impairment ratings, but whether it duplicates in whole 

or in part the prior impairment rating.15

As the schedule award issue has not been properly considered, the Board finds that the 

overpayment issues cannot be addressed.16 Therefore, the August 14, 2019 decision is reversed.17

CONCLUSION

The Board finds that OWCP has not established fact of overpayment.18

ORDER

IT IS HEREBY ORDERED THAT the August 14, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: September 9, 2020

Washington, DC

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 Id.; Richard Saldibar, 51 ECAB 585 (2000).

16 Id.

17 Upon return of the case file, OWCP should consider administratively combining the present claim file with 

Master File No. xxxxxx543 and its subsidiary File No. xxxxxx701.

18 In light of the Board’s disposition of the first issue, the issue of waiver of recovery is moot.