United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.F., Appellant

and

DEPARTMENT OF TRANSPORTATION, 

U.S. COAST GUARD, FIFTH DISTRICT 

HOUSING BRANCH, Portsmouth, VA, 

Employer

__________________________________________

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Docket Nos. 21-0759 &

21-1037

Issued: May 4, 2022

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On April 7, 2021 appellant filed a timely appeal from a January 26, 2021 merit decision 

and a March 5, 2021 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP) assigned Docket No. 21-0759. On April 26, 2021 she filed a timely appeal from a 

March 23, 2021 merit decision of OWCP, assigned Docket No. 21-1037. 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.2

1

5 U.S.C. § 8101 et seq.

2 The Board notes that,followingtheissuance of the March23, 2021 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

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish greater than 

37 percent permanent impairment of her right lower extremity, for which she previously received 

schedule award compensation; (2) whether OWCP properly denied appellant’s request for 

reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a); (3) whether OWCP 

properly determined that appellant received an overpayment of compensation in the amount of 

$14,371.24, for which she was without fault, for the period May 18 through December 25, 2018, 

as she received schedule award compensation at a percentage greater than to which she was 

entitled; and (4) whether OWCP properly denied waiver of recovery of the overpayment.

FACTUAL HISTORY

This case has previously been before the Board on another issue.3 The facts and 

circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The 

relevant facts are as follows.

On December 9, 1994 appellant, then a 34-year-old leased housing contract specialist, filed 

a traumatic injury claim (Form CA-1) alleging that on November 23, 1994 she fractured her right 

leg when she slipped and missed a step as she descended stairs at work while in the performance 

of duty. She stopped work on November 28, 1994. OWCP accepted comminuted fracture of the 

right leg. On June 6, 2000 appellant underwent a right knee arthroscopic meniscectomy, and 

removal of intramedullary rod. OWCP, on October 16, 2006, accepted that she sustained a 

recurrence of disability on December 1, 2004 due to her accepted employment injury. On

January 29, 2015 it expanded the acceptance of appellant’s claim to include localized primary 

osteoarthritis of the right knee. 

On March 26, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule 

award.

In a July 7, 2015 medical report, Dr. Richard Layfield, III, a Board-certified orthopedic 

surgeon, noted that appellant had severe right knee medial arthritis and had reached maximum 

medical improvement (MMI). Utilizing Table 16-3, page 511, of the sixth edition of the American 

Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A. Guides),4 he 

determined that she had 26 percent diagnosis-based impairment (DBI) of the right lower extremity. 

On August 7, 2015 OWCP referred appellant’s case to Dr. Lawrence A. Manning, a Boardcertified orthopedic surgeon serving as an OWCP district medical adviser (DMA). By letter dated

August 7, 2015, Dr. Manning noted his review of the medical record, including Dr. Layfield’s 

July 7, 2015 report. He agreed that appellant had 26 percent right lower extremity permanent 

impairment in accordance with the sixth edition of the A.M.A, Guides. and that she reached MMI

on July 7, 2015, the date of Dr. Layfield’s impairment evaluation. 

3 Docket No. 97-1034 (issued December 2, 1998).

4 A.M.A., Guides(6th ed. 2009).
3

By decision dated August 27, 2015, OWCP granted appellant a schedule award for 26 

percent permanent impairment of the right lower extremity. The period of the award ran for 74.88 

weeks from July 7, 2015 through December 20, 2016 and was based on the opinions of

Dr. Layfield, the attending physician, and Dr. Manning, the DMA.

Appellant underwent a right knee total arthroplasty on May 23, 2016. 

On November 15, 2017 OWCP again expanded the acceptance of appellant’s claim to 

include primary osteoarthritis of the right ankle and foot.

OWCP subsequently received an additional report dated April 17, 2018 from Dr. Layfield 

who referenced Table 16-2, page 506, and determined that appellant had 16 percent permanent 

impairment of the right lower extremity due to her accepted right ankle tibiotalar joint

osteoarthritis. 

On April 23, 2018 appellant filed a Form CA-7 for an additional schedule award.

On June 19, 2018 OWCP referred appellant’s case to Dr. Todd Fellars, a Board-certified 

orthopedic surgeon serving as a DMA, to provide an opinion on permanent impairment under the 

standards of the A.M.A., Guides. In a June 26, 2018 letter, Dr. Fellars advised that the range of 

motion (ROM) rating method was not appropriate for impairment rating of appellant’s accepted 

conditions of right knee and right ankle osteoarthritis. Utilizing the DBI method, under Table 16-

2, page 506, he found that a cystic change of the right ankle as demonstrated by x-ray resulted in 

16 percent permanent impairment. The DMA further found that appellant’s total right knee 

replacement resulted in 25 percent permanent impairment under Table 16-3, page 511. Utilizing 

Table 16-6, page 516, he assigned a grade modifier for functional history (GMFH) of 2 due to 

ongoing pain and functional limitations associated with appellant’s ankle arthritis. Using Table 

16-7, page 517, the DMA assigned a grade modifier for physical examination (GMPE) of 2 due to 

moderate palpatory findings. He noted that there was no grade modifier for clinical studies

(GMCS) under Table 16-8, page 519, as the studies were used to determine the class of 

impairment. The DMA found a net adjustment of 0, which resulted in a 25 percent right knee

permanent impairment and 16 percent right ankle permanent impairment. Using the Combined 

Values Chart, page 604, he combined the 25 percent right knee impairment rating and 16 percent 

right ankle impairment rating, which yielded a total 37 percent permanent impairment of the right 

lower extremity.

By decision dated July 24, 2018, OWCP granted appellant a schedule award for an 

additional 11 percent permanent impairment of the right lower extremity, for a total 37 percent 

permanent impairment of the right lower extremity. The period of the award ran for 31.68 weeks 

from May 18 through December 25, 2018 and was based on the opinion of Dr. Fellars, the DMA.

On August 25, 2020 appellant filed another Form CA-7 for an additional schedule award. 

On September 16, 2020 OWCP referred appellant to Dr. D. Burke Haskins, a Boardcertified orthopedic surgeon, for a second opinion examination to determine the extent of 

employment-related permanent impairment of the right lower extremity in accordance with the 

sixth edition of the A.M.A., Guides.
4

Dr. Haskins, in an October 27, 2020 report, noted appellant’s right knee complaints, and 

his review of the SOAF and the medical record, including a January 19, 2018 right ankle magnetic 

resonance imaging (MRI) scan. He noted that the January 19, 2018 MRI scan revealed 

subchondral cysts in the tibiotalar, subtalar, and talonavicular joints, which were believed to be 

degenerative. On physical examination, Dr. Haskins observed that appellant ambulated without 

an assistive device or brace and she had an antalgic gait. An inspection of the lower extremities 

revealed normal alignment with a healed midline surgical scar in the knee. Dr. Haskins provided

ROM measurements which included 0 degrees of extension and 110 degrees of flexion measured 

three times with a goniometer. The left quadriceps measured 1.5 centimeters (cm) which was 

greater in circumference than the right. Strength was fair in knee extension and flexion with mild 

patellar crepitus in the right knee. There was no ligament laxity. The right calf was smaller than 

the left by 1 cm. There were surgical scars in the medial and lateral aspect of the right distal tibia. 

Leg lengths were symmetric. There was no deformity in the right ankle. There was no obvious 

effusion or increased warmth. There was also no laxity. Dr. Haskins also noted ROM 

measurements of the right tibioltalar joint which included 15 degrees of plantar flexion and 5 

degrees of dorsiflexion beyond zero, measured three times with a goniometer. There was no 

restriction in subtalar motion. There was neutral alignment with mild varus of the right heel with 

weight-bearing. Dr. Haskins diagnosed healed tibial fracture, osteoarthritis of the right knee with 

knee replacement, and ankle and subtalar arthritis of the right foot. He determined that appellant 

reached MMI on October 26, 2020. Dr. Haskins noted that she had a prior schedule award for 37 

percent permanent impairment of the right lower extremity, but advised that he could not comment 

on that impairment rating because he was not provided with a copy of the report referencing this 

impairment rating. Utilizing the ROM method, he determined that 0 degrees of extension and 100 

degrees of flexion resulted in 0 percent impairment of the right knee. Dr. Haskins also utilized the 

DBI method to rate permanent impairment of the right knee and found that, under Table 16-3, page

511, a class of diagnosis (CDX) of right total knee replacement resulted in a class 2 impairment 

with a default value of 25 percent. Referring to Table 16-6, page 516, he assigned a GMFH of 1. 

Dr. Haskins assigned a GMPE of 1 due to atrophy demonstrated by measurement in the extremity

under Table 16-7, page 517. He noted that GMCS was not utilized. Dr. Haskins applied the net 

adjustment formula (GMFH - CDX) + (GMPE - CDX) = (1 - 2) + (1 - 2) = -2, which shifted the 

default value of 25 percent to 21 percent permanent impairment due to right total knee replacement. 

He then referred to Table 16-2, page 502, to find that a CDX of appellant’s right extraarticular 

tibia fracture resulted in a class 1 impairment with a default grade value of nine percent due to 

mild motion deficit. Dr. Haskins assigned a GMFH of 1 and GMPE of 1. He applied the net 

adjustment formula (GMFH - CDX) + (GMPE - CDX) = (1 - 2) + (1 - 2) = -2, which shifted the 

default value from nine percent to five percent permanent impairment due to right extraarticular

tibial fracture. Regarding impairment to the right ankle and foot, Dr. Haskins noted that there was 

no ratable impairment for the subtler region under Table 16-2. He then found a CDX of right ankle 

arthritis resulted in a class 1 impairment with a default value of two percent due to mild osteophytes

in accordance with Table 16-2. Dr. Haskins assigned a GMFH of 1 because appellant used custom 

orthotics. He assigned a GMPE of 1 due to atrophy. Dr. Haskins indicated that GMCS was not 

utilized. He applied the net adjustment formula (GMFH - CDX) + (GMPE - CDX) = (1 - 2) + (1 

- 2) = -2, which shifted the impairment from two percent to one percent permanent impairment of 

the right ankle and foot. Dr. Haskins also used the ROM method for calculating right ankle 

impairment and found no permanent impairment to the ankle and subtalar joints. Utilizing the 

Combined Values Chart, pages 604, he combined the 21 percent right total knee replacement 

impairment rating, 5 percent right extraarticular tibia shaft fracture impairment rating, for a value 
5

of 25 percent and 1 percent right ankle arthritis impairment rating, which yielded a total of 26 

percent permanent impairment of the right lower extremity. 

On December 17, 2020 OWCP referred appellant’s case to Dr. Nathan Hammel, a Boardcertified orthopedic surgeon serving as an OWCP DMA, to provide an opinion on permanent 

impairment under the standards of the A.M.A., Guides.

In a letter dated January 5, 2021, Dr. Hammel noted that he reviewed the SOAF, the 

medical record, and the October 27, 2020 report of Dr. Haskins. He utilized the ROM method to 

determine that appellant had no permanent impairment of the right knee, noting that ROM of the 

knee was normal. Utilizing the DBI method under Table 16-3, page 511, the DMA noted that a 

CDX of right total knee arthroplasty resulted in a class 2 impairment with a default value of C or 

25 percent impairment. He assigned a GMFH of 1 due to ongoing pain. The DMA assigned a 

GMPE of 1 due to mild crepitus. He noted that GMCS was not applicable. The DMA applied the 

net adjustment formula which resulted in a net adjustment of -2, yielding 21 percent permanent 

impairment of the right lower extremity due to right total knee arthroplasty. He then advised that 

the ROM method could not be used to rate impairment due to appellant’s right extraarticular tibia 

fracture. Utilizing the DBI method under Table 16-2, page 502, the DMA found that a CDX of 

right extraarticular tibia shaft fracture resulted in a class 1 impairment with a default value of C or 

nine percent impairment. He assigned a GMFH of 1 for continued symptoms. The DMA assigned 

a GMPE of 1 for tenderness. He advised that GMCS was not applicable because this was used to 

identify the CDX. The DMA applied the net adjustment formula which yielded nine percent 

permanent impairment of the right lower extremity due to right extraarticular tibia shaft fracture. 

Regarding permanent impairment to the right ankle, he advised that the ROM method yielded no 

permanent impairment. Using the DBI method under Table 16-2, the DMA found that a CDX of 

subtalar arthritis represented a class 1 impairment with a default value of C or two percent 

impairment. He assigned a GMFH of 1 for ongoing symptoms. The DMA assigned a GMPE of 

1 for tenderness and mild decrease in ROM. He again advised that GMCS was not applicable 

because this was used to identify the CDX. The DMA applied the net adjustment formula which 

yielded two percent permanent impairment of the right lower extremity due to right ankle subtatlar 

arthritis. He utilized the Combined Values Chart to combine the 21 percent right total knee 

arthroplasty impairmentrating, 9 percent right extraarticular tibia shaft fracture impairmentrating,

and 2 percent right ankle subtatlar arthritis impairment rating, which yielded a final 29 percent 

permanent impairment of the right lower extremity. The DMA opined that since his 29 percent 

impairment rating was less than the 37 percent impairment rating previously awarded, no 

additional impairment rating was warranted. He determined that appellant had attained MMI on 

October 26, 2020. The DMA agreed with the October 27, 2020 findings of Dr. Haskins5 with the 

exception of his DBI impairment calculations. He noted that Dr. Haskins set the CDX of tibia 

fracture and ankle arthritis as class one impairments, but then he performed grade modifier 

5 The DMA related that he essentially agreed with the October 27, 2020 findings of Dr. James Schwartz, an 

orthopedic surgeon, rather than the October 27, 2020 findings of Dr.Haskins, the OWCP second opinion physician, 

as OWCP, in its December 17, 2020 memorandum referring appellant’s case record to the DMA, requested that he 

review the purported report from Dr.Schwartz. The Board notes, however, that the case record does not contain an 

October 27, 2020 report from Dr.Schwartz. This appears to be a typographical error, as the record only contains an 

October 27, 2020 report from Dr.Haskins addressing appellant’s right lower extremity permanent impairment under 

the sixth edition of the A.M.A., Guides.
6

calculations as if these diagnoses were class 2 impairments. The DMA noted, however, that they 

both found appellant had no additional right lower extremity permanent impairment. 

OWCP, by decision dated January 26, 2021, denied appellant’s claim for an increased 

schedule award for the right lower extremity based on the opinion of Dr. Hammel, the DMA.

In a preliminary overpayment determination dated February 4, 2021, OWCP notified 

appellant that she had received an overpayment of schedule award compensation in the amount of

$14,371.24 for the period May 15 through December 25, 2018. It explained that she had received

$19,760.44 for an additional 11 percent permanent impairment of the right lower extremity when 

she was only entitled to $5,389.20 for an additional 3 percent right lower extremity permanent 

impairment, creating an overpayment of compensation for the period May 15 through 

December 25, 2018. OWCP also made a preliminary determination that appellant was without

fault in the creation of the overpayment. It requested that she submit a completed overpayment 

recovery questionnaire (Form OWCP-20) to determine a reasonable repayment method and 

advised her that she could request a waiver of recovery of the overpayment. OWCP further 

requested financial information, including copies of income tax returns, bank account statements, 

bills, pay slips, and any other records to support income and expenses. It advised appellant that it 

would deny waiver if she failed to furnish the requested financial information within 30 days. 

OWCP provided an overpayment action request form and further notified her that, within 30 days 

of the date of the letter, she could contest the overpayment and request a telephone conference, a 

final decision based on the written evidence, or a prerecoupment hearing.

On February 23, 2021 appellant requested reconsideration of the January 26, 2021 

schedule award decision. She contended that, according to Dr. Layfield, Dr. Haskins’ opinion was 

not based on a complete review of the medical records. Appellant asserted that Dr. Haskins did 

not review the January 19, 2018 right ankle MRI scan results.

OWCP also received on February 23, 2021 an overpayment action request form dated 

February 13, 2021, wherein appellant disagreed with the fact and amount of the overpayment and 

requested waiver of recovery of the overpayment. Appellant also submitted a completed Form 

OWCP-20 of even date and supporting financial documentation. She indicated that she had a 

dependent, adult son who was unemployed and lived at home with her, and that she was the sole 

provider for the household. Appellant reported monthly income of $6,000.00 and total monthly 

expenses of $4,100.00. She also reported that she had funds totaling $2,700.00.

By decision dated March 5, 2021, OWCP denied appellant’s request for reconsideration of 

the merits of her schedule award claim pursuant to 5 U.S.C. § 8128(a).

By decision dated March 23, 2021, OWCP finalized the February 4, 2021 preliminary 

overpayment determination, finding that appellant was overpaid compensation in the amount of 

$14,371.24 during the period May 18 through December 25, 2018 because she received schedule 

award compensation for an additional 11 percent permanent impairment of the right lower 

extremity when the evidence established that she only had an additional 3 percent permanent 

impairment. It further found that she was without fault in the creation of the overpayment, but 

denied waiver of recovery of the overpayment as her monthly income of $6,000.00 exceeded her

monthly expenses of $4,100.00 by more than $50.00. OWCP directed appellant to repay the 

overpayment by submitting monthly payments in the amount of $299.40.
7

LEGAL PRECEDENT -- ISSUE 1

It is the claimant’s burden of proof to establish permanent impairment of a scheduled 

member or function of the body as a result of an employment injury.

6

The schedule award provisions of FECA7 and its implementing regulations8 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss or loss of use of scheduled members or functions of the body. However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results and 

to ensure equal justice under the law to all claimants, good administrative practice necessitates the 

use of a single set of tables so that there may be uniform standards applicable to all claimants. 

Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.9 As of May 1, 2009, schedule awards are determined in 

accordance with the sixth edition of the A.M.A., Guides (2009).10 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.11

The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the 

World Health Organization’s International Classification of Functioning, Disability and Health 

(ICF).12 In determining impairment for the lower extremities under the sixth edition of the A.M.A., 

Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity 

to be rated. With respect to the foot/ankle and knee, the relevant portions of the lower extremity 

for the present case, reference is made to Table 16-2 through Table 16-4 beginning on page 501.13 

After the CDX is determined from each of these tables (including identification of a default grade 

value), the net adjustment formula is applied using the grade modifier for GMFH, grade modifier 

for GMPE and grade modifier for GMCS. The net adjustment formula is (GMFH - CDX) + 

(GMPE - CDX) + (GMCS - CDX).14 Under Chapter 2.3, evaluators are directed to provide reasons 

6

See T.H., Docket No. 19-1066 (issued January29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019); 

Tammy L. Meehan, 53 ECAB 229 (2001).

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

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

(January2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.5.a (March2017).

11 P.R., Docket No. 19-0022 (issued April9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

12 A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): 

A Contemporary Model of Disablement.

13 See A.M.A., Guides 501-11 (6th ed. 2009).

14 Id. at 515-22.
8

for their impairment rating choices, including choices of diagnoses from regional grids and 

calculations of modifier scores.15

OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file 

should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage 

of impairment in accordance with the A.M.A., Guides, with OWCP’s DMA providing rationale 

for the percentage of impairment specified.16

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish greater than 37 

percent permanent impairment of her right lower extremity.

OWCP accepted appellant’s claim for nondisplaced fracture of the right leg, comminuted 

fracture of the right leg, and localized primary osteoarthritis of the right knee. In an August 27, 

2015 decision, it granted her a schedule award for 26 percent permanent impairment of the right 

lower extremity. On November 15, 2017 OWCP expanded the acceptance of appellant’s claim to 

include primary osteoarthritis of the right ankle and foot. By decision dated July 24, 2018, it

granted her a schedule award for an additional 11 percent permanent impairment of the right lower 

extremity. On August 25, 2020 appellant filed another claim for an increased schedule award 

(Form CA-7). 

OWCP properly referred appellant for a second opinion evaluation with Dr. Haskins who, 

in his October 27, 2020 report, diagnosed healed tibial fracture, osteoarthritis of the right knee 

with knee replacement, and ankle and subtalar arthritis of the right foot, and found that she had 

reached MMI. Utilizing the DBI rating method, Dr. Haskins found that, under Table 16-3, page 

511, the CDX of right total knee replacement resulted in a class 2 impairment with a default value 

of 25 percent. He assigned a GMFH of 1 under Table 16-6, page 516, and a GMPE of 1 under 

Table 16-7, page 517, and he noted that GMCS was not utilized. Dr. Haskins utilized the net 

adjustment formula (GMFH - CDX) + (GMPE - CDX) = (1 - 2) + (1 - 2) = -2, which shifted the 

default value of 25 percent to 21 percent permanent impairment due to right total knee replacement. 

Utilizing the DBI method to rate permanent impairment to appellant’s right leg, he found that, 

under Table 16-2, page 502, a CDX of an extraarticular tibial fracture resulted in a class 1 

impairment with a default value of nine percent. Dr. Haskins assigned a GMFH of 1 and GMPE 

of 1 and noted that a grade modifier for GMCS was not used. Applyingthe net adjustment formula 

(GMFH - CDX) + (GMPE - CDX) = (1 - 2) + (1 - 2) = -2, moved the default value from nine 

percent to five percent permanent impairment due to a right tibial fracture. Regarding impairment 

to the right ankle and foot, Dr. Haskins referenced the DBI method and explained that, under Table 

16-2, there was no ratable impairment for the subtler region. He found that a CDX of ankle arthritis 

resulted in a class 1 impairment with a default grade D value of two percent under Table 16-2. 

Dr. Haskins assigned a GMFH of 1 and a GMPE of 1, and again indicated that a grade modifier 

for GMCS was not utilized. Applying the net adjustment formula (GMFH - CDX) + (GMPE -

CDX) = (1 - 2) + (1 - 2) = -2, shifted the default value from two percent to one percent permanent 

impairment of the right ankle. Dr. Haskins also used the ROM method and found no permanent 

15 Id. at 23-8.

16 See supra note 11at Chapter 2.808.6(f) (March 2017); see D.J.,Docket No. 19-0352 (issued July 24, 2020).
9

impairment to the ankle and subtalar joints. Using the Combined Values Chart, pages 604, he 

combined the 21 percent impairment rating for right total knee replacement, 5 percent impairment 

rating for right extraarticular tibia shaft fracture, and 1 percent impairment rating for right ankle 

arthritis, to calculate 26 percent permanent impairment of the right lower extremity. 

In accordance with its procedures,17 OWCP properly referred the evidence of record to

Dr. Hammel, serving as a DMA. On January 5, 2021 the DMA reviewed the medical evidence of 

record, including Dr. Haskins’ October 27, 2020 report, and determined that appellant had 29 

percent permanent impairment of the right lower extremity based on the sixth edition of the 

A.M.A., Guides. Using the ROM method he found no permanent impairment of the right knee 

explaining that ROM of the knee was normal. Utilizing the DBI method, under Table 16-3, page 

511, the DMA found that a CDX of right knee arthroplasty resulted in a class 2 impairment with 

a default value of C or 25 percent impairment. He assigned a GMFH of 1 and a GMPE of 1, and 

noted that a grade modifier for GMCS was not applicable. Applying the net adjustment formula 

(GMFH - CDX) + (GMPE - CDX) = (1 - 2) + (1 - 2) = -2 shifted the default value from C to A or 

21 percent permanent impairment of the right knee. The DMA noted that the ROM method could 

not be used to rate impairment due to appellant’s right extraarticular tibia fracture. Utilizing the 

DBI method under Table 16-2, page 502, he found that a CDX of extraarticular tibia shaft fracture 

resulted in a class 1 impairment with a default value of C or nine percent impairment. The DMA 

assigned a GMFH of 1 and a GMPE of 1, and advised that GMCS was not applicable because this 

was used to identify the CDX. He applied the net adjustment formula (GMFH - CDX) + (GMPE 

- CDX) = (1 - 1) + (1 - 1) = 0, which yielded nine percent permanent impairment due to 

extraarticular tibia shaft fracture. The DMA found that appellant had zero percent permanent 

impairment of the right ankle under the ROM method. Using the DBI method, under Table 16-2, 

he found that a CDX for subtalar arthritis represented a class 1 impairment with a default value of 

C of two percent impairment. The DMA assigned a GMFH of 1 and a GMPE of 1, and continued 

to advise that GMCS was not applicable because it was used to identify the CDX. He applied the 

net adjustment formula (GMFH - CDX) + (GMPE - CDX) = (1 - 1) + (1 - 1) = 0, which yielded

two percent permanent impairment of the right ankle. Using the Combined Values Chart, page 

604, the DMA combined the 21 percent impairment rating for right total knee replacement, 9

percent impairment rating for right extraarticular tibia shaft fracture, and 2 percent impairment 

rating for right ankle arthritis, to calculate 29 percent permanent impairment of the right lower 

extremity. He explained that since his 29 percent impairment rating was less than the 37 percent 

impairment rating previously awarded, no additional impairment rating was warranted. The DMA

disagreed with the DBI impairment calculations of Dr. Haskins, although they both found

appellant had no additional right lower extremity permanent impairment. He noted that

Dr. Haskins identified the CDX of tibia fracture and ankle arthritis as class one impairments, but 

then he performed grade modifier calculations as if these diagnoses were class 2 impairments.

The Board finds that Dr. Hammel, serving as DMA, explained with rationale how he 

arrived at his conclusion that appellant sustained 29 percent permanent impairment of the right 

lower extremity under the A.M.A., Guides. Dr. Hammel explained that he had reached a greater 

permanent impairment rating as Dr. Haskins identified appellant’s tibia fractures and ankle 

arthritis as class 1 impairments, but calculated appellant’s impairment as if they were class 2 

impairments. The Board also notes that under Table 16-2, Dr. Hammel’s and Dr. Haskins’ ratings

17 Id.
10

differed as to the grade default placement value. However, this discrepancy in Dr. Hammel’s 

explanation did not modify the final permanent impairment rating. 

As the record contains no other probative, rationalized medical opinion that supports 

greater impairment of the right lower extremity based upon the A.M.A., Guides, the Board finds 

that appellant has not met her burden of proof.

Appellant may request a schedule award or increased schedule award at any time based on 

evidence of a new exposure or medical evidence showing progression of an employment-related 

condition resulting in permanent impairment or increased permanent impairment.

LEGAL PRECEDENT -- ISSUE 2

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation. The Secretary of Labor may review an award for 

or against compensation at any time on his own motion or on application.18

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.19

A request for reconsideration must be received by OWCP within one year of the date of 

OWCP’s decision for which review is sought.20 If it chooses to grant reconsideration, it reopens 

and reviews the case on its merits.21 If the request is timely, but fails to meet at least one of the 

requirements for reconsideration, OWCP will deny the request for reconsideration without 

reopening the case for review on the merits.22

18 5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April30, 2020); L.D., Docket No. 18-1468 (issued 

February11, 2019); W.C., 59 ECAB 372 (2008).

19 20 C.F.R. § 10.606(b)(3); see M.T., Docket No. 21-0169 (issued October 14, 2021); J.R., Docket No. 20-1224 

(issued June 8, 2021); L.D.,id.; C.N., Docket No. 08-1569 (issued December 9, 2008).

20 Id. at § 10.607(a); see K.T., Docket No. 18-0927 (issued May 13, 2020). Timeliness is determined by the 

document receipt date (i.e., “the received date” in OWCP’s Integrated Federal Employees’ Compensation System 

(iFECS)). If the request for reconsideration has a document received date greater than one year, the request must be 

considered untimely. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,Chapter 2.1602.4(b) 

(September 2020).

21 Id. at § 10.608(a); see F.V.,Docket No. 18-0230 (issued May 8, 2020);M.S., 59 ECAB 231 (2007).

22 Id. at § 10.608(b); see B.S., Docket No. 20-0761 (issued January 29, 2021); C.L.,Docket No. 20-0385 (issued 

August 5, 2020); C.C., Docket No. 19-1622 (issued May 28, 2020); E.R., Docket No. 09-1655 (issued 

March 18, 2010).
11

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim, pursuant to 5 U.S.C. § 8128(a). 

In her February 23, 2021 request for reconsideration, appellant contended that Dr. Haskins’

opinion was not based on a complete review of the medical records. She asserted that Dr. Haskins 

did not review the results of a January 19, 2018 right ankle MRI scan. The Board notes, however, 

that Dr. Haskins specifically reviewed the January 19, 2018 MRI scan and reported that it revealed 

subchondral cysts in the tibiotalar, subtalar, and talonavicular joints, that were believed to be 

degenerative. The Board finds that appellant’s contention neither showed that OWCP erroneously 

applied or interpreted a specific point of law, nor did it advance a relevant legal argument not 

previously considered by OWCP. Thus, appellant is not entitled to a review of the merits of her

claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).23

The Board further finds that appellant did not submit relevant and pertinent new evidence 

not previously considered by OWCP in support of her reconsideration request under 20 C.F.R. 

§ 10.606(b)(3). In support of her February 23, 2021 reconsideration request, appellant submitted

Dr. Layfield’s February 5, 2021 progress note wherein he indicated that he would review her new 

impairment rating and provide his findings. However, Dr. Layfield neither provided an 

impairment rating nor a subsequent report indicating that she had greater than 29 percent 

permanent impairment of her right lower extremity. As his progress note did not provide any 

relevant and pertinent new evidence regarding permanent impairment of appellant’s right lower 

extremity due to the November 23, 1994 employment injury, it is insufficient to require OWCP to 

reopen the claim for reconsideration of the merits.24 As appellant did not provide relevant and 

pertinent evidence, she is not entitled to a merit review based on the third requirement under 20 

C.F.R. § 10.606(b)(3).25

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R. 

§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.26

23 20 C.F.R. § 10.606(b)(3); see B.B., Docket No. 20-1129 (issued December 31, 2020); L.G., Docket No. 09-1517 

(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).

24 See M.P.,Docket No. 20-0814 (issued January 26, 2021);S.M.,Docket No. 18-1047 (issued February 13, 2019).

25 L.K., Docket No. 18-1183 (issued May 12, 2020); M.O.,Docket No. 19-1677 (issued February 25, 2020).

26 Id. 
12

LEGAL PRECEDENT -- ISSUE 3

Section 8102(a) of FECA27 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 his or her duty.28 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.”

29

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

degree of permanent impairment awarded, an overpayment of compensation may be created. 30 

Claims for an increased schedule award based on the same edition of the A.M.A., Guides are 

subject to overpayment.31

ANALYSIS -- ISSUE 3

The Board finds that OWCP properly determined that appellant received an overpayment

of compensation in the amount of $14,371.24, for which she was without fault, for the period 

May 18 through December 25, 2018, as she receivedschedule awardcompensation at a percentage 

greater than that to which she was entitled. 

In the present case, appellant received $19,760.44 in schedule award compensation for an 

additional 11 percent permanent impairment of her right lower extremity. However, for the 

reasons explained above, she was only entitled to receive $5,389.20 in schedule award 

compensation for three percent additional permanent impairment of her right lower extremity. The 

difference between these two amounts, $14,371.24, constitutes an overpayment of compensation. 

As noted above, OWCP’s procedures allow for the declaration of such an overpayment as both 

awards were calculated under the same edition of the A.M.A., Guides.

32

 Therefore, OWCP 

properly determined that appellant received a $14,371.24 overpayment.

27 Supra note 1.

28 5 U.S.C. § 8102(a).

29 Id. at § 8129(a).

30 Supra note 11at Chapter 2.808.9(e) (February 2013).

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

32 F.P., Docket No. 20-1646 (issued August3, 2021); T.D.,Docket No. 20-0972 (issued January 28, 2021).
13

LEGAL PRECEDENT -- ISSUE 4

Section 8129 of FECA provides that an individual who is without fault in creating or 

accepting an overpayment is still subject to recovery of the overpayment unless adjustment or 

recovery would defeat the purpose of FECA or would be against equity and good conscience. 33

Recovery of an overpayment will defeat the purpose of FECA when such recovery would 

cause hardship to a currently or formerly entitled beneficiary because 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 the beneficiary’s assets do 

not exceed a specified amount as determined by OWCP. 34 Section 10.437 of OWCP’s 

implementing regulations provides that recovery of an overpayment is considered to be against 

equity and good conscience when an individual who received an overpayment would experience 

severe financial hardship attempting to repay the debt; and when an 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.35 OWCP’s procedures provide that, to establish that a valuable right 

has been relinquished, an individual must demonstrate that the right was in fact valuable, that he 

or she was unable to get the right back, and that his or her action was based primarily or solely on 

reliance on the payment(s) or on the notice of payment.36

ANALYSIS -- ISSUE 4

The Board finds that OWCP properly denied waiver of recovery of the overpayment. 

As OWCP found appellant without fault in the creation of the overpayment, waiver must 

be considered, and repayment is still required unless adjustment or recovery of the overpayment 

would defeat the purpose of FECA or be against equity and good conscience. 37 

Appellant has not established that recovery of the overpayment would defeat the purpose 

of FECA because she has not shown both that she needs substantially all of her current income to 

meet ordinary and necessary living expenses and that her assets do not exceed the allowable 

resource base. Evidence of record reveals that she received an income of $6,000.00 per month and 

that she had monthly expenses of $4,100.00. As appellant’s monthly income exceeds her monthly 

expenses by more than $50.00, in this case, $1,900.00, she has not shown that she needs 

33 5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued 

December 21, 2017).

34 20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her 

current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly 

expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 --Debt Management, Initial Overpayment 

Determinations, Chapter 6.400.4a(3) (September 2020). OWCP’s procedures further provide that, assets must not 

exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus 

$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).

35 20 C.F.R. § 10.437;see E.H.,Docket No. 18-1009(issued January 29, 2019).

36 Supra note 35at Chapter 6.400.4(c)(3) (September 2020).

37 20 C.F.R. § 10.436.
14

substantially all of her current income to meet current ordinary and necessary living expenses.

38

 

Because appellant has not met the first prong of the two-prong test of whether recovery of the 

overpayment would defeat the purpose of FECA, it is unnecessary for OWCP to consider the 

second prong of the test based on her assets.

Appellant also has not established that recovery of the overpayment would be against 

equity and good conscience because she has not shown, for the reasons noted above, that she would 

experience severe financial hardship in attempting to repay the debt or that she relinquished a 

valuable right or changed her position for the worse in reliance on the payment which created the 

overpayment.

39

Because appellant has not established that recovery of the overpayment would defeat the 

purpose of FECA or be against equity and good conscience, she has failed to establish that OWCP 

acted improperly by denying waiver of recovery of the $14,371.24 overpayment.40

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish greater than 37 

percent permanent impairment of her right lower extremity for which she previously received 

schedule award compensation. The Board further finds that OWCP properly denied her request 

for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a). The Board also 

finds that OWCP properly determined that appellant received an overpayment of compensation in 

the amount of $14,371.24, for which she was without fault, for the period May 18 through 

December 25, 2018, as she received schedule award compensation at a percentage greater than 

that to which she was entitled. Additionally, the Board finds that OWCP properly denied waiver 

of recovery of the overpayment. 

38 Id. at § 10.437(a), (b).

39 T.D., supra note 33; WilliamJ. Murphy, 41 ECAB 569, 571-72(1989).

40 With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing 

those cases where OWCP seeks recovery from continuing compensation benefits under FECA. As appellant is no 

longer receiving wage-loss compensation, the Board does not have jurisdiction with respect to the recovery of the 

overpayment under the Debt Collection Act. E.S., Docket No. 20-1018 (issued December 3, 2021); R.W.,Docket No. 

18-1059 (issued February 6, 2019); Cheryl Thomas, 55 ECAB 610 (2004).
15

ORDER

IT IS HEREBY ORDERED THAT the January 26, and March 5 and 23, 2021 decisions 

of the Office of Workers’ Compensation Programs are affirmed.

Issued: May 4, 2022

Washington, DC

Alec J. Koromilas, 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