United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 11-1581
Issued: March 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 22, 2011 appellant filed a timely appeal from a June 1, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization of
cervical surgery.

1
2

5 U.S.C. §§ 8101-8193.

At the time appellant filed her appeal on June 22, 2011, she was represented by an attorney, Harry J. Nichols,
and requested oral argument. In letters dated January 18 and 19, 2012, Mr. Nichols withdrew his representation
because he had retired and appellant requested that the case be reviewed on the record.

On appeal appellant asserts that the weight of the medical evidence regarding the need for
surgery rests with her attending physician. She further requested that her monetary
compensation be reinstated.
FACTUAL HISTORY
This case has previously been before the Board. In a July 13, 2011 decision, the Board
found that OWCP met its burden of proof to terminate appellant’ wage-loss compensation
effective October 25, 2009 on the grounds that she was no longer disabled from her date-ofinjury position.3 The law and the facts of the previous Board decision are incorporated herein by
reference.
In the interim, by report dated February 1, 2010, Dr. David B. Robson, an attending
Board-certified orthopedic surgeon, noted that appellant had been his patient since 1989. He
described her surgical history, and advised that she was totally disabled and could possibly
require further surgery. In reports dated March 3 and September 7, 2010, Dr. Robson provided
physical examination findings and advised that appellant’s condition had not changed
significantly. He advised that she was totally disabled and recommended computerized
tomography (CT) scans. A September 21, 2010 CT scan of the thoracic spine demonstrated
multilevel degenerative endplate changes and multilevel posterior protrusions of disc, possibly
resulting in some compromise of the central canal. A September 21, 2010 CT scan of the lumbar
spine demonstrated postoperative changes and mild juxtafusional stenosis at L1-2 with no
change seen since a previous study of September 25, 2009. On September 22, 2010 Dr. Robson
noted his review of the CT studies. He indicated that appellant would ultimately require surgery,
stating “I think this is related to her initial injury as it is the sequelae of juxtafusional changes
which have happened to her previously on two occasions. [Appellant] is prone to this.” By
report dated November 16, 2010, Dr. Robson noted appellant’s complaints of severe low back
and bilateral leg pain with numbness and tingling. He provided physical examination findings
and advised that he was recommending surgery for the removal of hardware and extending the
fusion to L1. On December 13, 2010 Dr. Robson requested authorization for L2-4 hardware
removal, L1-4 laminectomy, L1-4 posterior lumbar fusion with expedium instrumentation and
allograft.
OWCP requested that an OWCP medical adviser review the surgery request, and in a
December 14, 2010 report, the medical adviser noted his review of CT scan reports and
Dr. Robson’s November 16, 2010 report. The medical adviser indicated that Dr. Robson
requested the surgery to relieve spinal stenosis, whereas the September 21, 2010 CT scan of the
lumbar spine indicated that appellant’s spinal stenosis at L1-2 was only mild and unchanged
3

Docket No. 10-2145 (issued July 13, 2011). OWCP accepted that on October 3, 1979 appellant, then a 28-yearold clerk typist, sustained lumbar and thoracic strains, subluxations of L1, L2 and L3 and an L4-5 disc herniation
when her chair fell backwards. She underwent a laminectomy at L4-5 on June 16, 1980, and a fusion procedure
from L4 to S1 on October 29, 1980. Appellant returned to private employment until September 20, 1989 and was
thereafter placed on the periodic compensation rolls. On May 9, 1990 she had a posterior spinal fusion at L4-5 and
lumbar laminectomy and decompression from L3 to L5, and on October 23, 2007 underwent removal of
instrumentation and exploration of a fusion mass at L4-5; bilateral L2-3 and L3-4 laminectomy, facetectomy and
foraminotomy; and pedical screw fixation and fusion at L2-5.

2

since September 25, 2009. The medical adviser indicated that, based on the medical record, it
was unlikely that a fifth surgical procedure would be beneficial to appellant and concluded that
OWCP could not authorize the surgery.
By letter dated December 16, 2010, OWCP provided appellant with a copy of the medical
adviser’s report and asked that her physician provide a medical opinion that addressed the
concerns raised by him. Appellant was given 30 days to respond. In a December 22, 2010 letter,
addressed to appellant, Dr. Robson stated that, if appellant could get clearance for the surgery, he
would do it, but that he was not going to be involved anymore, based on the amount of time and
money required.
In a January 24, 2011 decision, OWCP denied appellant’s request for surgery. Appellant
timely requested a review of the written record, and by decision dated April 13, 2011, an OWCP
hearing representative found that a conflict of medical opinion had been created between
Dr. Robson and OWCP’s medical adviser regarding the need for surgery. She set aside the
January 24, 2011 decision and remanded the case to OWCP for referral for a referee
examination.
On April 15, 2011 OWCP referred appellant along with the medical record and a
statement of accepted facts to Dr. Peter Anderson, a Board-certified orthopedic surgeon, for an
impartial evaluation as to whether the proposed back surgery was medically appropriate to treat
the effects of the employment injury. In a May 24, 2011 report, Dr. Anderson noted appellant’s
complaints of incapacitating back pain. He described her past medical and surgical history and
reviewed the CT scan reports. Dr. Anderson advised that on examination appellant had good
motion of her back with more pain on extension than flexion, and found her to be neurologically
intact. He indicated that she is presently having surgery for axial pain, which is dubious at best.
Dr. Anderson opined that she basically had failed back syndrome and concluded that the
proposal to fuse the rest of the joints in the spine was an “incredibly bad idea” and recommended
that she not go through with it. He stated that weight loss, cortisone, anti-inflammatory
medication, epidural injections, and physical therapy would be beneficial and that further surgery
was, at best, a “crap shoot” that probably would not work.
In a merit decision dated June 1, 2011, OWCP found the weight of the medical evidence
rested with the opinion of Dr. Anderson and denied appellant’s request for additional lumbar
surgery.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.4 While OWCP is obligated to pay for treatment of employment-related

4

5 U.S.C. § 8103; see L.D., 59 ECAB 648 (2008).

3

conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.5
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on
OWCP’s authority being that of reasonableness.6 Abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.7 To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.8 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.9
Section 8123(a) of FECA provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11
ANALYSIS
The Board finds that the weight of the medical evidence rests with the opinion of the
referee physician Dr. Anderson who opined that the requested lumbar surgery was not medically
warranted. In order for a surgical procedure to be authorized, a claimant must submit evidence
to show that the surgery is for a condition causally related to an employment injury and that it is
medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.12 The accepted conditions in this case are lumbar and thoracic strains, subluxations of
L1, L2 and L3 and an L4-5 disc herniation.
5

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

See D.K., 59 ECAB 141 (2007).

7

Minnie B. Lewis, 53 ECAB 606 (2002).

8

M.B., 58 ECAB 588 (2007).

9

R.C., 58 ECAB 238 (2006).

10

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

11

Manuel Gill, 52 ECAB 282 (2001).

12

Supra note 9.

4

In his May 24, 2011 report, Dr. Anderson noted his review of the record, including
diagnostic studies and provided examination findings. Regarding the need for surgery, he stated
that the proposal to fuse the joints not previously fused was a bad idea and recommended that
she not go through with it. Dr. Anderson stated that the recommended surgery was, at best, a
“crap shoot” that probably would not work, and recommended physical therapy and conservative
treatment.
As noted above, a reasoned opinion from a referee examiner is entitled to special
weight.13 The Board finds that Dr. Anderson provided a well-rationalized opinion based on a
complete background, his review of the accepted facts and the medical record and his
examination findings. Dr. Anderson’s opinion that the recommended lumbar spine surgery was
not medically warranted is entitled to special weight and represents the weight of the evidence.14
Accordingly, as the evidence establishes that the lumbar spine surgery was medically necessary,
OWCP acted within its discretion in denying authorization.15
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied authorization for the recommended lumbar
spine surgery.16

13

Supra note 11.

14

Id.

15

L.D., supra note 4.

16

Regarding appellant’s argument on appeal that her monetary compensation should be reinstated, as noted
above, by decision dated July 13, 2011, the Board affirmed OWCP’s termination of wage-loss compensation.
Decisions and orders of the Board are final upon expiration of 30 days from the date of issuance. 20 C.F.R.
§ 501.6(d). While an appellant may petition for reconsideration with the Board within 30 days of the date of
issuance of a Board decision, 20 C.F.R. § 501.7(a), appellant did not file a petition for reconsideration with the
Board of its July 13, 2011 decision. It is also noted that the record does not contain a request for reconsideration
with OWCP on this issue.

5

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2011 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: March 8, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-1418
Issued: October 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 18, 2012 appellant filed a timely appeal from a May 24, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the schedule award issue.
ISSUES
The issues are: (1) whether appellant has more than a six percent permanent impairment
of the left lower extremity for which he received schedule awards; and (2) whether he has more
than a four percent permanent impairment of the left upper extremity and a three percent
permanent impairment of the right upper extremity for which he received schedule awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY -- xxxxxx676
OWCP accepted that on September 14, 1998 appellant, then a 37-year-old laundry
worker, sustained lumbar strain and a permanent aggravation of a preexisting herniated disc at
L5-S1 under File No. xxxxxx676. He underwent an anterior and posterior decompression and
fusion at L4-S1 on January 5, 1999.
On June 26, 2000 OWCP’s medical adviser, utilizing the fourth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (A.M.A.,
Guides), determined that appellant had a three percent impairment of each lower extremity due
to radicular pain from S1. By decision dated October 10, 2000, OWCP granted him a schedule
award for a three percent permanent impairment of each lower extremity. On January 10, 2001 it
denied appellant’s request for reconsideration of its October 10, 2000 decision under 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY -- xxxxxx089
This case has previously been before the Board under this file number. By decision dated
April 10, 2009, the Board reversed September 19, 2007 and June 3, 2008 decisions terminating
appellant’s compensation effective May 14, 2005 on the grounds that he refused an offer of
suitable work under 5 U.S.C. § 8106(c).2 It found that the opinion of the impartial medical
examiner was insufficient to resolve the issue of whether he had the capacity to perform the
offered position. The facts and circumstances as set forth in the Board’s prior decision are
hereby incorporated by reference.
In an impairment evaluation dated October 22, 2009, Dr. Scott T. Hardin, a
Board-certified physiatrist, discussed appellant’s complaints of pain in his left lower extremity.
He measured range of motion for the right and left upper and lower extremities. On
examination, Dr. Hardin found abnormal two-point discrimination of both lower extremities. He
identified a class 1 impairment of the left sural nerve according to Table 16-12 on page 534 of
the sixth edition of the A.M.A., Guides. Dr. Hardin applied grade modifiers and concluded that
appellant had a seven percent left lower extremity impairment.
In a report dated January 21, 2010, Dr. Rudolf Teschan, Board-certified in family
medicine, discussed appellant’s history of an August 27, 2002 work injury. He diagnosed low
back pain and sciatica.
On March 3, 2010 OWCP’s medical adviser determined that appellant had a one percent
impairment due to radiculopathy of the S1 sural nerve, in addition to the previously awarded
three percent impairment under File No. xxxxxx676, for a total impairment of four percent of the
left lower extremity. He further found a three percent impairment of the right shoulder due to
loss of range of motion, in addition to what he found was a prior award of three percent for the
right upper extremity. On March 17, 2010 the medical adviser opined that appellant had a six
percent permanent impairment of the left lower extremity due to sciatica pursuant to Table 16-12
2

Docket No. 08-1996 (issued April 10, 2009). OWCP accepted that on August 27, 2002 appellant, then a 41year-old laundry worker, sustained left-sided sciatica in the performance of duty.

2

on page 535 of the sixth edition of the A.M.A., Guides. He further found a three percent right
upper extremity impairment due to loss of range of motion.
In a decision dated May 10, 2010, OWCP granted appellant a schedule award for an
additional three percent permanent impairment of the left lower extremity. It noted that he had
previously received a schedule award for a three percent impairment of each leg under File No.
xxxxxx676. By decision dated September 17, 2010, OWCP denied modification of its May 10,
2010 decision.
Appellant appealed to the Board. On October 25, 2011 the Board set aside the
September 17, 2010 decision.3 It found that OWCP had referred to evidence from File No.
xxxxxx676 in its schedule award decision but that record was not available for its review. The
Board remanded the case for it to combine the current File No. xxxxxx676.
FACTUAL HISTORY -- xxxxxx 568
On September 20, 2006 appellant, then a 45-year-old laundry worker, filed an
occupational disease claim alleging that he sustained a neck and bilateral shoulder condition in
the performance of duty. OWCP accepted the claim for a sprain of the left shoulder, upper arm
and rotator cuff.4
In a report dated July 24, 2007, Dr. Theodore H. Gertel, a Board-certified orthopedic
surgeon, discussed appellant’s history of a subacromial decompression and debridement of the
left shoulder in October 2006. On examination, he measured active forward flexion of 130
degrees and passive external rotation of 60 degrees and found a mildly positive impingement
sign. Dr. Gertel diagnosed subacromial bursitis, anterior labral tears, articular cartilage damage,
a partial thickness tear of the anterior supraspinatus tendon and probably ulnar nerve irritation.
On November 9, 2009 OWCP’s medical adviser reviewed Dr. Gertel’s report. He utilized Figure
15-34 on page 475 of the sixth edition of the A.M.A., Guides to find that appellant had a three
percent impairment of the left arm due to decreased flexion and external rotation. The medical
adviser further found a one percent impairment due to impingement syndrome under Table 15-5
on page 402, for a total left upper extremity impairment of four percent.
By decision dated December 15, 2009, OWCP granted appellant a schedule award for a
four percent permanent impairment of the left upper extremity. The period of the award ran
from July 24 to October 19, 2007.

3

Order Remanding Case, Docket No. 11-570 (issued October 25, 2011).

4

In a decision dated March 3, 2008, OWCP denied appellant’s claim for compensation from September 27, 2006
through January 3, 2007 based on its termination of his compensation for refusing suitable work in File No.
xxxxxx089. On June 25, 2008 it denied merit review of its March 3, 2008 decision. By order dated April 14, 2009,
the Board set aside the March 3 and June 25, 2008 decisions. Order Remanding Case, Docket No. 08-1997 (issued
April 14, 2009). It noted that a termination for refusing suitable work barred the receipt of further compensation for
the same injury and not for a separate injury. The Board remanded the case for OWCP to adjudicate appellant’s
claim for disability compensation.

3

On January 15, 2010 appellant requested reconsideration. He noted that he had not seen
Dr. Gertel for over three years.
In a decision dated March 29, 2010, OWCP modified the December 15, 2009 decision. It
indicated that OWCP’s medical adviser had reviewed the evidence from appellant’s multiple
claims, including a January 21, 2010 report from Dr. Teschan submitted in File No. xxxxxx089.
OWCP noted that in another file number, the medical adviser, in reports dated March 3 and 17,
2010, advised that he had a permanent impairment of the right upper extremity. It indicated that
it would issue a new schedule award determination. OWCP further found that appellant had no
more than the previously awarded four percent permanent impairment of the left upper
extremity.
In a decision dated March 29, 2010, OWCP granted appellant a schedule award for a
three percent permanent impairment of the right upper extremity. The period of the award ran
from October 22 to December 26, 2009.
On May 5, 2010 appellant requested reconsideration. In a report dated May 13, 2010,
Dr. Spencer J. Block, a Board-certified neurosurgeon, discussed appellant’s complaints of neck
and upper extremity pain subsequent to a fusion at C3-4 and low back pain with left
radiculopathy.
On August 2, 2010 OWCP’s medical adviser related that based on a review of the
evidence he found no basis to alter the finding of a four percent left upper extremity impairment.
By decision dated August 18, 2010, OWCP denied modification of its March 29, 2010
decision. On August 24, 2010 appellant again requested reconsideration. He enclosed the
October 13, 2006 operative report from his subacromial decompression and debridement of the
glenohumeral joint. In a decision dated November 12, 2010, OWCP denied modification of its
August 18, 2010 decision.
Appellant appealed to the Board. In an order dated December 19, 2011, the Board set
aside August 18 and November 10, 2010 schedule award decisions.5 The Board found that
OWCP had referenced medical evidence in two other file numbers that were not available for
review. The Board remanded the case for OWCP to combine the file numbers and issue an
appropriate decision.
By decision dated May 24, 2012, OWCP denied modification of its March 29, 2010
decision in File No. xxxxxx568 and its September 17, 2010 decision in File No. xxxxxx089.
On appeal, appellant describes his pain and questions the schedule award determination.

5

Order Remanding Case, Docket No. 11-811 (issued December 19, 2011).

4

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA6 and its implementing federal regulations7 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).10 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
For peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP procedures indicate that The Guides Newsletter, Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition (July to August 2009) is to be applied.11
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained lumbar strain and a permanent aggravation of a
preexisting herniated disc at L5-S1 due to a September 14, 1998 employment injury in File No.
xxxxxx676. By decision dated October 10, 2000, it granted him a schedule award for a three
percent permanent impairment of each lower extremity due to radicular pain from S1.
OWCP further accepted that appellant sustained sciatica on the left side due to an
August 27, 2002 work injury in File No. xxxxxx089. On October 22, 2009 Dr. Hardin noted that
he complained of pain in his left lower extremity extending into his foot and numbness of the
foot. On examination, he found abnormal sensation and an antalgic gait. Dr. Hardin utilized the
diagnosis of a left sural nerve impairment under Table 16-12 of the sixth edition of the A.M.A.,
Guides in rating appellant’s impairment. After applying grade modifiers, he found a seven
percent left lower extremity impairment. On March 3, 2010 OWCP’s medical adviser reviewed
Dr. Hardin’s clinical findings and advised that appellant had a one percent impairment due to
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
10

A.M.A., Guides 494-531.

11

See P.G., Docket No. 12-30 (issued May 15, 2012); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700 (January 2010) The Guides Newsletter is included as Exhibit 4.

5

radiculopathy from the S1 sural nerve. On March 17, 2010 the medical adviser determined that
appellant had a six percent impairment of the left lower extremity using Table 16-12. Neither
Dr. Hardin nor the medical adviser, however, referenced the A.M.A., Guides’ July to
August 2009 Newsletter in evaluating the extent of appellant’s lower extremity impairment due
to his spinal injury. As noted above, for nerve impairments to the upper or lower extremities
resulting from spinal injuries, OWCP procedures indicate that the examiner should apply the July
to August 2009 The Guides Newsletter.12 The Board will thus remand the case for proper
application of the A.M.A., Guides regarding the extent of appellant’s permanent impairment of
the left lower extremity.
LEGAL PRECEDENT -- ISSUE 2
With respect to evaluation of shoulder impairments, reference is first made to Table 15-5
(Shoulder Regional Grid). A class of diagnosis may be determined from the Shoulder Regional
Grid.13 Table 15-5 also provides that, if loss of motion is present, the impairment may
alternatively be assessed using section 15.7 (range of motion impairment). Such a range of
motion impairment stands alone and is not combined with a diagnosis-based impairment.14
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of his or her employment injury entitling him or her
to a schedule award.15
ANALYSIS -- ISSUE 2
Regarding the extent of impairment of appellant’s left upper extremity, in File No.
xxxxxx568 OWCP accepted that he sustained sprains of the left shoulder, upper arm and rotator
cuff. In a report dated July 24, 2007, Dr. Gertel noted that appellant underwent a subacromial
decompression of the left shoulder in October 2006. He measured range of motion of the left
shoulder as 130 degrees forward flexion and 60 degrees passive external rotation. OWCP’s
medical adviser reviewed Dr. Gertel’s report in November 2009. He applied the sixth edition of
the A.M.A., Guides and found that, under Table 15-34, appellant had a three percent impairment
of the left arm due to loss of range of motion in flexion and external rotation. The medical
adviser also applied the diagnosis-based grid for the shoulder at Table 15-5 to find an additional
one percent left upper extremity impairment due to impingement syndrome, for a total left upper
extremity impairment of four percent. He based his range of motion rating, however, only on
Dr. Gertel’s measurements for forward flexion and external rotation. The A.M.A., Guides
requires evaluation of six ranges of motion for the shoulder: flexion, extension, abduction,
adduction, external rotation and internal rotation.16 Dr. Gertel’s report thus provides insufficient
12

Id.

13

See P.W., Docket No. 11-1962 (issued April 17, 2012); see also A.M.A., Guides 401-11 (6th ed. 2009).

14

A.M.A., Guides 405, Table 15-5.

15

See Veronica Williams, 56 ECAB 367 (2005); Annette M. Dent, 44 ECAB 403 (1993).

16

A.M.A., Guides 475.

6

clinical findings to evaluate appellant’s shoulder impairment using range of motion.17
Additionally, the medical adviser combined the range of motion impairment with a diagnosisbased impairment; however, an impairment due to range of motion stands alone and is not
combined with a diagnosis-based impairment.18 Accordingly, the Board finds that the case must
be remanded to OWCP to obtain a report consistent with the A.M.A., Guides on the issue of
appellant’s left upper extremity impairment.
Regarding appellant’s right upper extremity impairment, the Board notes that OWCP
accepted that appellant sustained lumbar strain and a permanent aggravation of a herniated disc
at L5-S1 under File No. xxxxxx676. It accepted that he sustained left-sided sciatic under file
number xxxxxx089. OWCP further found that appellant sustained a left shoulder, upper arm and
rotator cuff sprain under File No. xxxxxx568. In reports dated February 3 and March 3 and 17,
2010, submitted in association with File No. xxxxxx089, an OWCP medical adviser reviewed
Dr. Hardin’s report and opined that appellant had a three percent right upper extremity
impairment due to loss of range of motion.
In decisions dated March 29, 2010, issued in File No. xxxxxx568, OWCP discussed
OWCP’s medical adviser’s finding in File No. xxxxxx089. It granted appellant a schedule award
for a three percent permanent impairment of the right upper extremity. OWCP, however, did not
explain why he was entitled to a schedule award for a permanent impairment of the right upper
extremity. It does not appear from the records that it accepted a condition that would result in a
right upper extremity impairment. Consequently, on remand, the medical adviser should review
the case records and provide an opinion regarding whether appellant has a permanent impairment
of the right upper extremity due to an accepted work injury. After such further development as
deemed necessary, it should issue an appropriate de novo decision on appellant’s schedule award
claims.
CONCLUSION
The Board finds that the case is not in posture for decision.

17

See W.F., Docket No. 11-440 (issued October 27, 2011).

18

A.M.A., Guides 405, Table 15-5.

7

ORDER
IT IS HEREBY ORDERED THAT the May 24, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 3, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, Boston, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant
Miriam D. Ozur, Esq., for the Director

Docket No. 10-914
Issued: December 10, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 5, 2010 appellant, through her representative, filed a timely appeal of the
August 31, 2009 and January 14, 2010 merit decisions of the Office of Workers’ Compensation
Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant was an “employee” of the United States within the
meaning of the Federal Employees’ Compensation Act at the time of her injury.
FACTUAL HISTORY
On January 16, 2009 appellant, then a former recruiting assistant, filed a traumatic injury
claim for a right eye injury. On January 14, 2009 she was leaving her home office to meet with
U.S. Census Bureau Manager John Veryzer in order to return recruiting kits and to discuss future
job opportunities when a bungee chord securing the heaviest box snapped, causing a metal hook

to strike her right eye. Appellant submitted CA-16, CA-20 and OWCP-957 forms, an injury
report, emergency room records and a copy of a receipt for her travel from the hospital.
The employing establishment controverted the claim on the basis that appellant was not
an employee at the time of injury because her job had been terminated the day prior on
January 13, 2009.
The employing establishment submitted a termination report, dated
January 13, 2009, a performance evaluation and a supplement to Form CA-16.
By letter dated February 3, 2009, the Office advised appellant that there was insufficient
evidence to support her claim. It requested additional factual and medical information and asked
that she clarify when her employment was terminated.
On February 6, 2009 appellant submitted an accident report and additional hospital
records. She stated that on January 13, 2009 she was terminated from her job as a recruiting
assistant, but she agreed to meet with Mr. Veryzer in order to return the kits and to discuss the
possibility of continuing work. Appellant explained that she was exiting her home office when a
bungee cord used to secure a heavy box snapped and caused a large metal hook to strike her right
eye. She was transported to the hospital where she was treated for her injury and given
prescriptions. Appellant contended that “but for” her appointment to return the kits and discuss
the possibility of future work, she would not have brought the heavy boxes and the incident
would not have occurred.
In a letter dated February 6, 2009, Louis R. Fox, an administrative officer, stated that
Mr. Veryzer had agreed to meet with appellant on January 14, 2010 to discuss the potential for
future work, not the continuation of work. In a February 17, 2009 letter, Mr. Veryzer stated that
he informed appellant on January 13, 2010 that she was being laid off from the employing
establishment and requested that she return her kit. They decided to meet the next day in order
for her to return the kit and to discuss future employment opportunities.
In a March 12, 2009 decision, the Office denied appellant’s compensation claim on the
grounds that she was not a civil employee within the meaning of the Act at the time of the
alleged injury. It found that she was a recruiting assistant employed by the employing
establishment until January 13, 2009 and that she injured her right eye on January 14, 2009. The
evidence did not establish, however, that she was an employee at the time of injury. Although
appellant was on her way to a meeting with her former manager at the time of the incident, she
was not being paid for this meeting and the purpose of the meeting was to discuss future
opportunities for employment and possible rehire, not a continuation of current employment.
On March 19, 2009 appellant, through her representative, requested a hearing. She
submitted additional evidence, including progress notes from Dr. Ivana Kyung Kim, a Boardcertified ophthalmologist, and Dr. Anupama R. Anchala, a Board-certified ophthalmologist.1
In a decision dated May 14, 2009, the Branch of Hearings and Review vacated the
March 12, 2009 decision and remanded the case for further development. The hearing
1

Two SF-50 forms were submitted addressing appellant’s hiring in a temporary position as of December 1, 2008
and her termination based on lack of work on January 19, 2009.

2

representative noted that the two SF-50 forms created a discrepancy regarding appellant’s last
day in her position. The hearing representative determined that the January 19, 2009 SF-50 form
notation conflicted with statements from both appellant and her supervisor that she was
terminated on January 13, 2009. The case was remanded to clarify the discrepancy regarding
when appellant’s termination was effective. The hearing representative directed the Office to
pay for appellant’s emergency room bills based on the CA-16 form issued by the employer.2
By letters dated May 22 and June 17, 2009, the Office contacted the employing
establishment and requested an explanation regarding the effective date of termination.
On August 18, 2009 Raymond C. Ahlberg, an administrative specialist for workers’
compensation, responded to the Office, stating that the effective date of appellant’s termination
was January 13, 2009. That was the date she was informed of her termination and the last date at
which she earned wages. Mr. Ahlberg submitted copies of D-283 and D-282 forms and of
appellant’s payroll record, which all listed her last day of employment as January 13, 2009. He
explained that the January 19, 2009 date on the Form SF-50 was the employer’s personnel and
payroll system’s processing date for a terminated employee’s last pay period. Since the system
required the effective date of termination to only be shown as the day after the end of the pay
period, the employing establishment could not list January 13, 2009, which was in the middle of
a pay period, as appellant’s effective date of termination.
By decision dated August 31, 2009, the Office denied appellant’s claim for compensation
on the grounds that she was not a civil employee at the time of her injury. It determined that the
Form SF-50 termination date was a system processing date due to the employer’s payroll system
and that the Form D-283, Form D-282 and appellant’s payroll record supported January 13, 2009
as the last day of earned wages. The Office found that appellant was terminated on January 13,
2009 and was not a civil employee when her injury occurred.
Appellant, through her representative, requested a telephone hearing that was held on
December 3, 2009. A transcript was forwarded to the employer in accordance with Office
procedure. On December 31, 2009 Lavonne M. Lewis and Robert Heitman, workers’
compensation specialists, responded by reiterating that appellant’s job had terminated before she
was injured. They contended that bringing equipment back to the employer did not make
appellant an employee as former employees were routinely asked to return government
materials.
In a January 14, 2010 decision, an Office hearing representative affirmed the August 31,
2009 Office decision. The hearing representative determined that returning to her former place
of employment to discuss future employment possibilities and to return government equipment
did not establish that appellant was injured while performing a service similar to a civil
2

Federal (FECA) Procedure Manual, Part 5 -- Benefit Payments, Principles of Bill Adjudication, Chapter
5.204.2(a) (January 1996) provides that a completed Form CA-16 obligates the Office to pay for any injury-related
treatment performed by the physician or medical facility identified in Part A. In this case, the employing
establishment issued appellant a Form CA-16 to take to the emergency room on the date of the incident. Thus, the
Office was required to enter the Form CA-16 into its computer system to ensure payment of the emergency room
bills.

3

employee. The hearing representative found that appellant was injured while performing a task
of a former employee and as an individual seeking possible further employment; therefore, she
was not a civil employee at the time of injury.
LEGAL PRECEDENT
An employee seeking compensation under the Act3 has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence,4
including that she is an “employee” within the meaning of the Act5 and that she filed her claim
within the applicable time limitation.6 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.7
Section 8102(a) of the Act provides that compensation can only be paid for the “disability
or death of an employee resulting from personal injury sustained while in the performance of
duty.”8 For purposes of awarding compensation benefits under the Act, section 8101(1) defines
“employee,” in relevant part, as a “civil officer or employee in any branch of the Government of
the United States” or as “an individual rendering personal service to the United States similar to
the service of a civil officer or employee of the United States.”9 In determining whether a
claimant is an employee for purposes of compensation, the Board will consider the particular
facts and circumstances surrounding his or her employment.10
ANALYSIS
The Board finds that the circumstances surrounding appellant’s employment demonstrate
that she was not a civil employee of the United States at the time of her injury on
January 14, 2009. The Office accepted that she was a recruiting assistant for the employer from
December 1, 2008 to January 13, 2009 and that she sustained injury to her right eye on
January 14, 2009, following her termination.
The record establishes that appellant’s employment was terminated on January 13, 2009.
Both the employing establishment and appellant stated that she was notified of her termination
on January 13, 2009. Moreover, appellant’s employment and payroll records establish that her
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
6

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

7

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

5 U.S.C. § 8102(a).

9

Id. at § 8101(1).

10

Wendy S. Warner, 38 ECAB 103 (1986).

4

last day of employment and earned wages was January 13, 2009. Her injury, on the other hand,
occurred on January 14, 2009 after she was no longer employed or earning wages. As the injury
occurred after appellant was no longer a federal civil employee, she is not entitled to
compensation under the Act.11
Appellant contended that “but for” the fact that she was requested to return certain
government materials and to meet with her former manager to discuss potential job
opportunities, she would not have been injured. This assertion is insufficient to establish an
employee and employer relationship. On December 31, 2009 Mr. Heitman noted that former
employees were routinely asked to return government materials following employment.
Similarly, in a February 6, 2009 letter, Mr. Veryzer noted that the purpose of the meeting was to
discuss future employment opportunities. Appellant was not receiving wages from her former
employer or any other benefit. She voluntarily chose to meet with her former manager and was
not performing a service similar to that of a civil employee.12 She attended the meeting for her
own benefit to discuss potential job opportunities and was not yet an “employee” as of the time
of injury. Accordingly, her activities on returning government materials are insufficient to
establish her status as a civil employee of the United States within the meaning of the Act.13 As
noted in the memorandum in justification from the Director of the Office, appellant was already
meeting with her former supervisor who asked that she return certain materials. Appellant did
not meet her burden of proof to establish entitlement to compensation.14
CONCLUSION
The Board finds that appellant was not an “employee” of the United States for purposes
of compensation at the time of her injury.15

11

See Lloyd E. Griffin, Jr., 46 ECAB 979 (1995) (denying claim for compensation because alleged treatments
that led to his alcoholism occurred after he had retired from federal employment, and thus, the claimant was not an
“employee” as defined under the Act when the claimed incidents occurred).
12

See Larry Knoke, 39 ECAB 353 (1998) (denying claim for injury incurred while undergoing preemployment
testing on the grounds that the claimant was receiving no pay from the employing establishment, was providing no
identifiable service to the potential employer and had received no guarantee of employment).
13
14

Sandra Davis, 50 ECAB 450 (1999); William K. Bowen, 49 ECAB 248 (1997).
Perez A. Brooks, 7 ECAB 480 (1955); Harold Hendrix, 1 ECAB 54, 55 (1947).

15

The Board notes that appellant submitted additional evidence to the record following the January 14, 2010
decision. Since the Board’s jurisdiction is limited to evidence that was before the Office at the time it issued its final
decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 14, 2010 and August 31, 2009 are affirmed.
Issued: December 10, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
London, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0050
Issued: March 26, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 8, 2017 appellant, through counsel, filed a timely appeal from a July 18, 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.

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.

ISSUE
The issue is whether appellant met his burden of proof to establish permanent impairment
of his lower extremities warranting a schedule award.
FACTUAL HISTORY
On February 2, 2008 appellant, then a 35-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained a back injury due to factors of his federal
employment. He stopped work on December 31, 2007 due to administrative issues.3
On April 6, 2009 OWCP referred appellant to Dr. James H. Rutherford, a Board-certified
orthopedic surgeon for a second opinion evaluation to determine whether appellant’s federal
employment factors caused or aggravated his lumbar, bilateral knee, and left ankle conditions.
In an April 27, 2009 report, Dr. Rutherford, based upon a review of the statement of
accepted facts (SOAF) and medical records and physical examination, opined that appellant
sustained a lumbar sprain and temporary aggravation of his bilateral knee genu varum and
temporary aggravation of left ankle degenerative joint disease due to his duties as a letter carrier.
He opined that appellant required no further treatment for these conditions as he had no active
symptoms from his diagnosed conditions.
By decision dated June 2, 2009, OWCP accepted appellant’s claim for lumbar sprain and
temporary aggravation of his left ankle degenerative joint disease based on Dr. Rutherford’s
April 27, 2009 report.
By letter dated June 9, 2009, OWCP requested that Dr. Rutherford clarify whether
appellant sustained a temporary aggravation of a knee condition causally related to the factors of
his federal employment. In a June 11, 2009 addendum and response, Dr. Rutherford related that
appellant’s diagnoses of bilateral iliotibial band syndrome, capsulitis, and degenerative disease of
the left knee were medically established and were temporarily aggravated by his federal
employment. Dr. Rutherford opined that appellant’s work-related aggravation ceased as of
March 1, 2008 and noted appellant’s last date of work exposure was December 21, 2007.
On June 25, 2010 appellant filed a claim for a schedule award (Form CA-7).4
By decision dated May 9, 2011, OWCP expanded acceptance of appellant’s claim to
include temporary aggravation of bilateral iliotibial band syndrome and bilateral patellar capsulitis
based on Dr. Rutherford’s June 11, 2009 addendum.

3
On the reverse side of the form, appellant’s supervisor noted that appellant submitted the Form CA-2 after
receiving a February 8, 2018 notice of proposed removal. The employing established removed appellant from
employment effective February 22, 2008 due to unsatisfactory performance and improper conduct.
4
OWCP continued to address appellant’s claim for wage-loss compensation commencing February 4, 2008 in
multiple decisions, however, OWCP did not further develop appellant’s schedule award claim until 2015.

2

In a June 7, 2011 report, Dr. Brant Holtzmeier, an attending Board-certified osteopathic
family practitioner, reviewed Dr. Rutherford’s reports and noted his disagreement with the
diagnosis of temporary aggravation. He opined that appellant’s letter carrier duties caused a
substantial aggravation of appellant’s preexisting left ankle degenerative joint disease.
Furthermore, Dr. Holtzmeier concluded that appellant sustained a more severe lumbar injury than
the accepted lumbar sprain, which he explained was based on the persistence of appellant’s
complaints.
On January 26, 2015 appellant again filed a claim for a schedule award (Form CA-7).
By development letter dated February 5, 2015, OWCP noted receipt of appellant’s
schedule award claim and the accepted conditions. It informed him that based on Dr. Rutherford’s
reports the accepted temporary aggravation of his accepted conditions had ceased over five years
ago with a lumbar sprain as the only remaining unresolved condition. OWCP advised appellant
as to the medical evidence necessary to support his schedule award claim and afforded him 30
days to provide this information. No evidence was received.
By decision dated March 11, 2015, OWCP denied appellant’s claim as it found the
evidence of record insufficient to establish a permanent impairment of a scheduled member as a
result of his accepted employment injury.
In a letter dated March 18, 2015, appellant, through counsel, requested a telephonic hearing
before an OWCP hearing representative, which was held on October 7, 2015.
On October 7, 2015 OWCP received a February 25, 2015 report, from Dr. Michael E.
Hebrard, an examining Board-certified physiatrist, diagnosing lumbar sprain and strain, ankle and
foot osteoarthritis, patellar tendinitis, and muscle, ligament, and fascia disorders. Medical and
injury histories were detailed, objective testing reviewed, and physical examination findings
provided. Dr. Hebrard opined that appellant’s federal employment aggravated his current
disabling condition and concluded that appellant reached maximum medical improvement (MMI)
as of February 25, 2015. Using the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides),5 he found seven percent left lower
extremity permanent impairment and seven percent right lower extremity permanent impairment.
In reaching this impairment rating, Dr. Hebrard used Table 16-3, page 509 and assigned a default
grade C for class 1 impairment for mild motion deficits and grade modifiers.
By decision dated November 12, 2015, an OWCP hearing representative vacated the
March 11, 2015 decision and remanded the case to OWCP for referral to an impartial medical
examiner to resolve the conflict in the medical opinion evidence between Dr. Rutherford, an
OWCP referral physician, and Dr. Holtzmeier, a treating physician, as to whether appellant’s
accepted knee and ankle conditions were permanently or temporarily aggravated. She indicated
that the issue of employment-related permanent impairment of either lower extremity related to
the accepted knee and left ankle conditions are dependent on the resolution of that conflict. The
hearing representative ordered that the impartial medical examiner comment on the nature of
aggravation, whether temporary or permanent, and submit a permanent impairment award if
5

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

3

indicated. On April 7, 2016 OWCP referred appellant to Dr. Howard Sturtz, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence as to whether appellant
sustained a permanent a temporary aggravation of the accepted conditions, and thereby a ratable
permanent impairment pursuant to the sixth edition of the A.M.A., Guides.6
In a July 5, 2016 report, Dr. Sturtz, based upon a review of the medical evidence, injury
history, SOAF, and physical examination, diagnosed resolved lumbar strain, resolved temporary
aggravation of bilateral knee chondromalacia, resolved temporary aggravation of left ankle
degenerative arthritis, and right ankle pain. He noted that appellant last worked at the employing
establishment on December 21, 2007. Dr. Sturtz summarized the findings from the medical
reports, objective tests, and factual evidence he reviewed. A physical examination revealed a
normal walking manner along with no evidence of either limping or favoring one leg over the
other, no bilateral knee crepitus or effusion, and no tenderness or joint line instability. Based on
the length of time from when appellant last worked, Dr. Sturtz opined that it was unreasonable for
appellant to continue to have symptoms from the aggravation. He noted his agreement with
Dr. Rutherford that any aggravation was temporary and disagreed with Dr. Holtzmeier’s opinion
that appellant sustained a permanent aggravation due to his repetitive work duties. Dr. Sturtz
concluded that, based on the lack of any objective findings or credible diagnostic studies, the
accepted employment injuries resolved with no permanent ratable impairment.
By decision dated September 16, 2016, OWCP denied appellant’s claim as it found the
evidence of record insufficient to establish a permanent impairment due to a scheduled member as
a result of his accepted employment injury.
In a letter dated September 26, 2017, appellant, through counsel, requested a telephonic
hearing before an OWCP hearing representative, which was held on May 11, 2017.
By decision dated July 18, 2017, OWCP’s hearing representative affirmed the
September 16, 2016 decision denying appellant’s claim for a schedule award. She found the
special weight of the medical opinion evidence rested with the opinion of Dr. Sturtz, the impartial
medical examiner, who concluded that appellant’s accepted conditions had resolved without
disability or permanent impairment.
LEGAL PRECEDENT
The schedule award provision 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. The
6

Id.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

4

A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.9 Effective May 1, 2009, OWCP adopted the sixth edition of the
A.M.A., Guides as the appropriate edition for all awards issued after that date.10
Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.11 It is the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of an employment injury.12 OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred.13 An impairment description must be in sufficient detail so the
claims examiner and others reviewing the file will be able to clearly visualize the impairment with
its restrictions and limitations.14
Section 8123(a) of FECA provides in pertinent part: “if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”15 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.16 Where a case is referred to an impartial medical examiner for the purpose of resolving
a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual and medical background must be given special weight.17
ANALYSIS
The Board finds that appellant has not established a permanent impairment of a scheduled
member warranting a schedule award.
OWCP accepted appellant’s occupational disease claim for a temporary aggravation of left
ankle degenerative joint disease, temporary aggravation of bilateral iliotibial band syndrome, and
bilateral patellar capsulitis, and lumbar sprain.

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013); see also Part 3 -- Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
11

G.E., Docket No. 09-1412 (issued February 17, 2010); Thomas P. Lavin, 57 ECAB 353 (2006).

12

D.F., Docket No. 09-1463 (issued August 12, 2010); Tammy L. Meehan, 53 ECAB 130 (2001).

13

See D.S., Docket No. 08-0885 (issued March 17, 2009); Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

14

C.A., Docket No. 13-0762 (issued April 1, 2014); Peter C. Belkind, 56 ECAB 580 (2005).

15

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

16

Bryan O. Crane, 56 ECAB 713 (2005).

17

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

5

Due to a conflict between Dr. Rutherford, an OWCP referral physician, and
Dr. Holtzmeier, a treating physician, regarding permanent aggravation of appellant’s preexisting
left ankle degenerative joint disease and bilateral knee conditions, OWCP properly referred
appellant to Dr. Sturtz as the impartial medical specialist, to resolve the conflict in medical
opinion, pursuant to 5 U.S.C. § 8123(a).
In his July 5, 2016 report, Dr. Sturtz reviewed the medical records and the SOAF and
discussed appellant’s employment duties, his medical history, and provided examination findings.
He opined that appellant sustained a temporary aggravation of his preexisting bilateral knee
chondromalacia and left ankle degenerative joint disease which had ceased. In support of this
conclusion, Dr. Sturtz related that it was unreasonable for appellant to continue to be symptomatic
so many years following the accepted injury when there was a lack of any credible diagnostic
studies or any credible objective findings to document residuals of the accepted conditions. In
situations where there are opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual
background, must be given special weight.18 The Board finds Dr. Sturtz’s report to be sufficiently
detailed and well-reasoned to resolve the conflict of medical opinion evidence and established that
appellant sustained a temporary rather than a permanent aggravation of a preexisting condition,
and that the temporary aggravation had ceased. Dr. Sturtz properly concluded that appellant was
not entitled to a schedule award. The Board finds that his report is entitled to the special weight
of the medical evidence, afforded an impartial medical examiner, with regard to whether appellant
sustained a temporary or permanent aggravation and entitlement to a schedule award for
employment-related permanent impairment.19
On appeal counsel contends that OWCP’s decision was contrary to fact and law. Based on
the findings and reasons stated above, the Board finds the attorney’s arguments are not
substantiated.
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 impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member warranting a schedule award.

18

S.R., Docket No. 09-2332 (issued August 16, 2010); Darlene R. Kennedy, supra note 15; Anna M. Delaney, 53
ECAB 384 (2002).
19

Supra note 15.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated July 18, 2017 is affirmed.
Issued: March 26, 2018
Washington, DC

Christopher J. Godfrey, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, WOBURN POST
OFFICE, Woburn, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Richard Heavey, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0546
Issued: March 4, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 2, 2019 appellant, through counsel, filed a timely appeal from a December 10,
2018 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.3

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.

3
The Board notes that, following the December 10, 2018 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.

ISSUES
The issues are: (1) whether appellant received a $22,992.48 overpayment of compensation
for the period July 1, 2016 through April 28, 2018, for which she was found to be without fault,
because she concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits; (2) whether OWCP properly denied waiver
of recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $200.00 every 28 days from appellant’s continuing compensation
payments.
FACTUAL HISTORY
On June 24, 1998 appellant, then a 47-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, she sustained injuries to her neck, left shoulder and arm
when she stumbled and twisted her foot and body when exiting her truck while in the performance
of duty. She did not stop work. OWCP accepted the claim, assigned OWCP File No. xxxxxx770,
for the condition of cervical and shoulder strain and paid medical expenses associated with this
injury.
On January 30, 1999 appellant filed an occupational disease claim (Form CA-2) attributing
soreness of her upper back and shoulder areas to carrying heavy mail volumes in satchels. She
indicated that she first became aware of her condition and that it was caused or aggravated by
factors of her federal employment on January 23, 1999. OWCP accepted that claim, assigned
OWCP File No. xxxxxx772, for a cervical sprain.4 Appellant stopped work on April 16, 2000 and
has not returned. OWCP accepted her recurrence claim commencing April 16, 2000 and paid her
wage-loss compensation on the daily rolls as of May 20, 2000 and on the periodic rolls as of
January 27, 2001. On August 19, 2003 OWCP expanded the acceptance of appellant’s claim to
include fibromyalgia of the left paracervical and parascapular muscles and chronic pain syndrome.
In Form EN1032s dated July 19, 2016 and July 28, 2017, appellant, through counsel,
informed OWCP that she was in receipt of Social Security Administration (SSA) age-related
retirement benefits.
On May 21, 2018 OWCP received from SSA a May 16, 2018 Federal Employees
Retirement System (FERS)/(SSA) dual benefits calculation form. The form indicated SSA benefit
rates with a FERS offset and without a FERS offset. For July 2016, appellant’s SSA rate with
FERS was $1,544.70 and without FERS was $506.10; for December 2016, appellant’s SSA rate
with FERS was $1,549.30 and without FERS was $507.60; and for December 2017, appellant’s
SSA rate with FERS was $1,580.20 and without FERS was $517.70.5
On May 21, 2018 OWCP utilized SSA’s figures and calculated a monthly FERS offset and
a 28-day FERS offset. For July 1, 2016, it found that the monthly FERS offset was $1,038.60 and
the 28-day FERS offset was $958.71. For December 1, 2016, the monthly FERS offset was

4

OWCP has administratively combined OWCP File Nos. xxxxxx770 and xxxxxx772, with OWCP File No.
xxxxxx772 serving as the master file.
5

The form also noted that appellant had been in receipt of disability benefits from October 2000 through June 2016.

2

$1,041.70 and the 28-day FERS offset was $961.57. For December 1, 2017, the monthly FERS
offset was $1,062.50 and the 28-day FERS offset was $980.77.
In a May 21, 2018 worksheet, OWCP then calculated the overpayment of compensation
by determining the difference between appellant’s SSA amount with and without FERS for each
period, and then multiplying that amount by the number of days in each period. The FERS offset
calculation worksheet indicated that OWCP had utilized the 28-day FERS offset amount for the
153 days from July 1 through November 30, 2015 and found an overpayment of $5,238.65; for the
365 days from December 1, 2016 through November 30, 2017 and found an overpayment of
$12,534.74; and for the 149 days from December 1, 2017 through April 28, 2018 and found an
overpayment of $5,219.09. Using these figures, OWCP calculated that the total overpayment
amount was $22,992.48.
On May 21, 2018 OWCP adjusted appellant’s periodic compensation to reflect the FERS
offset, effective April 29, 2018.
In a letter dated May 22, 2018, OWCP advised appellant that she had been receiving a
prohibited dual benefit from SSA on account of age/retirement since July 1, 2016. It noted that
the SSA had confirmed that a portion of her SSA benefits were attributed to her years of Federal
service as an employee under the FERS retirement program and that portion required an offset of
her FECA compensation benefits. OWCP indicated that the adjustment of appellant’s FECA
benefits to account for her SSA offset would begin with her payment dated May 26, 2018 and
would reflect a new net compensation amount of $1,688.91.
On June 20, 2018 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $22,992.48 because she had received FECA wageloss compensation benefits concurrently with SSA age-related retirement benefits for the period
July 1, 2016 through April 28, 2018. It explained how the overpayment of compensation was
calculated and enclosed its FERS offset calculation worksheet which reflected the total
overpayment of $22,992.48. OWCP further advised appellant that she was with fault in the
creation of the overpayment as she knowingly accepted compensation to which she was not
entitled.6 It requested that she complete an enclosed overpayment recovery questionnaire (Form
OWCP-20) and submit supporting financial documentation. Additionally, OWCP notified
appellant that, within 30 days of the date of the letter, she could request a final decision based on
the written record or request a prerecoupment hearing.
On July 20, 2018 appellant, through counsel, requested a prerecoupment hearing on the
issues of fault and possible waiver with OWCP’s Branch of Hearings and Review. He advised
that appellant suffers from dementia and that she was unable to use telephone, drive, or
communicate effectively. Counsel submitted an overpayment recovery questionnaire (Form
OWCP-20), which indicated that she received $1,446.00 from SSA7 and that her checking account
balance was $25,649.95. He noted monthly expenses of $4,525.00. This was comprised of

6

OWCP noted that appellant was aware that she was receiving incorrect compensation as she had noted the receipt
of SSA benefits due to retirement on the EN1032 forms dated July 19, 2016 and July 28, 2017.
7

Appellant’s FECA compensation was not included.

3

rent/mortgage $400.00; $1,000.00 food; $50.00 clothing; $125.00 utilities; other expenses of
$1,950.00 for home health aide, and $1,000.00 for credit card debt.
The prerecoupment hearing was held on November 8, 2018.8 Counsel indicated that
appellant has had dementia and Alzheimer’s disease for many years. Appellant’s living situation
and finances were discussed. Subsequent to the hearing, counsel provided supporting
documentation of her dementia. He advised that appellant has a home health aide who is paid
$536.00 per week for services three days a week, and that on two other days a week she attends
adult day care at a cost of $287.00 per month. Counsel indicated that her food cost included that
of her home health aide and that an occasional cash disbursement was made for lunches outside
her home. The most recent bank statement ending November 16, 2018 showed a balance of
$12,997.41.9
By decision dated December 10, 2018, an OWCP hearing representative finalized the
preliminary determination that appellant received an overpayment of compensation in the amount
of $22,992.48 for the period July 1, 2016 through April 28, 2018 as she had received wage-loss
compensation from OWCP without an appropriate offset for age-related SSA benefits attributable
to FERS. OWCP’s hearing representative reversed the finding of fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment. The hearing representative found
that appellant received $1,829.65 every 28 days from OWCP in addition to her reported $1,446.00
income from SSA benefits, for a total monthly income of $3,275.65. OWCP’s hearing
representative indicated that appellant had monthly expenses of $2,925.00, which included
$400.00 rent, $400.00 food (which was reduced down from the listed $1,000.00 as counsel failed
to provide an explanation), $50.00 clothing, $125.00 utilities, and $1,950.00 for home health aide.
She excluded the $1,000.00 monthly expense for credit card debt as the record was devoid of any
explanation or documentation for the expense. The hearing representative noted that
documentation from November 15, 2018 showed a checking account balance of $12,997.41.
OWCP’s hearing representative concluded that as appellant continued to have assets in the bank,
waiver could not be considered. The hearing representative directed recovery of the overpayment
by deducting $200.00 every 28 days from her continuing compensation payments until the debt
was paid in full.
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 his or her duty.10 Section 8116 limits the right of an employee to receive

8

During the hearing, a matter concerning an overpayment of $30,573.00 from SSA was clarified as resulting from
payment of disability benefits, not age-related retirement benefits.
9

An accounting of appellant’s checking activity for the period November 1 through 15, 2018 indicated: three
checks of $536.00 for “health aide;” $286.83 for “day center;” $50.00 for lawn care; $103.00 for “National Grid;”
$58.44 for life insurance policy; and $300.00 cash for “aide to use on lunches.” Also noted was an external deposit
from the Treasury Department of $1,688.91. The ending balance was noted as $12,997.41.
10

5 U.S.C. § 8102(a).

4

compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.11
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.12 FECA Bulletin No. 97-09 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $22,992.48 for the period July 1, 2016 through April 28, 2018
because she concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits.
In its December 10, 2018 decision, OWCP found that an overpayment of compensation
was created for the period July 1, 2016 through April 28, 2018. The overpayment was based on
the evidence received from SSA with respect to age-related retirement benefits paid to appellant.
A claimant cannot receive both FECA compensation for wage-loss and SSA age-related benefits
attributable to federal service for the same period.14 The information provided by SSA indicated
that appellant received SSA age-related retirement benefits that were attributable to federal service
during the period July 1, 2016 through April 28, 2018.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of age-based SSA retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS, and without FERS for specific periods
commencing July 1, 2016 through April 28, 2018. OWCP provided its calculations for each
relevant period based on a FERS offset calculation worksheet and in its June 20, 2018 preliminary
overpayment determination. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period July 1, 2016 through April 28, 2018 and finds that an overpayment of compensation in the
amount of $22,992.48 was created.15

11

Id. at § 8116.

12

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
13

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

14

5 U.S.C. § 8116(d)(2); see L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791
(issued May 17, 2019).
15

See L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

5

LEGAL PRECEDENT -- ISSUE 2
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.16
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.17
Recovery of an overpayment will defeat the purpose of FECA if 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. For an individual with no eligible
dependents the asset base is $6,200.00. The base increases to $10,300.00 for an individual with a
spouse or one dependent, plus $1,200.00 for each additional dependent.18 An individual is deemed
to need substantially all of his or her current income to meet current ordinary and necessary living
expenses if monthly income does not exceed monthly expenses by more than $50.00.19
Additionally, 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 in attempting to repay the debt or when an individual, in reliance on such payment or on
notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse.20
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.21 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.22

16

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.F., Docket No. 19-0054 (issued
June 12, 2019).
17

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

18

20 C.F.R. § 10.436(a)(b). Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment
Determinations, Chapter 6.400.4(a)(2) (September 2018).
19

N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 (issued April 26, 2019); id. at
Chapter 6.400.4.(a)(3).
20

20 C.F.R. § 10.437(a)(b).

21

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

22

Id. at § 10.438(b).

6

ANALYSIS -- ISSUE 2
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 of
recovery of the overpayment 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.23 It considered her financial information, as indicated in counsel’s statements and
financial evidence submitted, to determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience.
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. OWCP’s hearing representative noted that she had monthly income which
exceeded monthly expenses and concluded that waiver could not be considered as she continued
to have assets in the bank. Evidence of record reveals that appellant had $12,997.41 in a
checking/savings account, a figure above the allowable resource base of $6,200.00 for an
individual.24 Because her assets exceed the allowable resource base, she has not met the second
prong of the two-prong test of whether recovery of the overpayment would defeat the purpose of
FECA.25
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.26
On appeal counsel argues that recovery of the overpayment would defeat the purpose of
FECA and be against equity and good conscience by causing severe financial hardship in
attempting to repay the debt. While he indicated that appellant’s resources are being rapidly
depleted in order to allow her to remain at home with home health care, the Board has explained
that given the current evidence of record, recovery of the overpayment would not defeat the
purpose of FECA or be against equity and good conscience.
For the foregoing reasons, the Board finds that OWCP properly denied waiver of recovery
of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
23

Id at § 10.436. See also G.L., Docket No. 19-0297 (issued October 23, 2019).

24

See supra note 18.

25

See id.; E.B., Docket No. 19-1443 (issued December 12, 2019).

26

L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

7

amount of the overpayment as the error is discovered his or her attention is called to the same. If
no refund is made, OWCP shall decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the financial circumstances of the
individual, and any other relevant factors, so as to minimize any hardship.27
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$200.00 every 28 days from appellant’s continuing compensation payments.
The record supports that, in requiring repayment of the overpayment by deducting $200.00
from appellant’s continuing compensation payments every 28 days, OWCP took into consideration
the financial information she submitted as well as the factors set forth in section 10.441 and found
that this method of recovery would minimize any resulting hardship on appellant.28 OWCP’s
hearing representative found that appellant had sufficient financial resources for more than
ordinary needs.29 She related that appellant received $1,829.65 every 28 days from OWCP, as
well as $1,446.00 per month from SSA for a total monthly income of $3,275.65, while appellant’s
monthly expenses totaled $2,925.00. The hearing representative also noted that appellant’s most
recent bank statement of November 15, 2018 reflected a checking account balance of $12,997.41.
Thus, OWCP’s hearing representative did not abuse her discretion in setting the rate of recovery.30
The Board finds that OWCP properly required recovery of the overpayment from appellant’s
continuing compensation payments at the rate of $200.00 every 28 days.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$22,992.48 for the period July 1, 2016 through April 28, 2018, for which she was without fault,
because she concurrently received SSA age-related retirement benefits while receiving FECA
benefits. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment and properly required recovery of the overpayment by deducting $200.00 every 28
days from appellant’s continuing compensation payments.

27

20 C.F.R. § 10.441(a); see A.F., supra note 16; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

28

See id.

29

See D.S., Docket No. 18-1447 (issued July 22, 2019).

30

See T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).

8

ORDER
IT IS HEREBY ORDERED THAT the December 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2020
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.I., Appellant
and
U.S. POSTAL SERVICE, PALATINE
PROCESSING & DISTRIBUTION CENTER,
Palatine, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-1379
Issued: October 27, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 2, 2021 appellant filed an appeal from a January 28, 2021 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1379.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180 th day following the January 28, 2021 decision was July 27, 2021. As appellant
did not file an appeal with the Board until September 2, 2021, more than 180 days after the
January 28, 2021 OWCP decision, the Board finds that the appeal docketed as No. 21-1379 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1379 is dismissed.
Issued: October 27, 2021
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

3

Id. at § 501.6(d).

2