United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charleston, WV, Employer
__________________________________________

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

Docket No. 12-1143
Issued: September 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 30, 2012 appellant filed a timely appeal from an April 16, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment in
compensation. 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $1,653.86 for the period January 10 to February 12, 2011 because
she received Office of Personnel Management (OPM) retirement benefits and wage-loss
compensation concurrently; and (2) whether she was at fault in the creation of the overpayment
and not entitled to waiver of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on August 1, 2007 appellant, then a 56-year-old rural mail carrier,
sustained a head laceration and a broken wrist, leg and foot when a privately-owned vehicle
collided with her carrier’s vehicle in the performance of duty. Appellant stopped work that day.
Her claim was accepted for left forehead flap laceration, right wrist fracture, left knee tibial
plateau fracture, left ankle laceration, and left foot fractures of the second, third and fourth
metatarsals. Appellant received disability compensation.
On December 5, 2007 appellant returned to limited duty as an administrative assistant.2
On October 1, 2008 appellant stopped work again. On January 23, 2009 she returned to
limited duty as a modified rural carrier. On April 29, 2009 OWCP issued a loss of wage-earning
capacity determination based on appellant’s new position as a modified rural carrier.
Appellant submitted various claims for disability compensation from April 27, 2009 to
October 22, 2010.
In EN1032 forms dated October 30, 2009 and October 19, 2010, OWCP advised
appellant, as part of its annual periodic review, to report any retirement benefits, either disability
or regular, that she received from OPM, the Foreign Service, or any other federal disability or
retirement system except for benefits under FECA as it constituted a dual benefit.
On February 9, 2011 OWCP received a January 26, 2011 Notice of Separation indicating
that appellant retired due to disability effective January 10, 2011.
In a letter dated February 10, 2011, the employing establishment advised OWCP that
appellant retired on January 10, 2011 and attached a copy of her PS Form 50. It noted that she
was currently on the periodic rolls.
An overpayment worksheet indicated that appellant received compensation in the amount
of $1,362.00 every 28 days, at a daily rate of $48.64. As appellant was overpaid 34 days,
calculations resulted in an overpayment of $1,653.86. It was noted that she retired on
January 10, 2011, but received compensation benefits through February 12, 2011.
On March 15, 2012 OWCP issued a preliminary determination that appellant received an
overpayment in the amount of $1,653.86 for the period January 10 to February 12, 2011 because
she continued to receive compensation benefits after she retired on OPM disability benefits
effective January 10, 2011. It determined that she was at fault in the creation of the overpayment
because she knew or should have known that she was not entitled to compensation for total
disability when in receipt of disability retirement benefits. OWCP pointed out that appellant was
advised in OWCP’s October 19, 2010 Form EN1032 as part of OWCP’s annual periodic review
concerning other federal benefits and programs. It calculated that she received compensation
2

On February 12, 2008 OWCP issued a preliminary determination finding that appellant received an
overpayment in the amount of $790.60 for the period December 6 to 22, 2007. On March 3, 2008 it advised her that
her overpayment of compensation in the amount of $790.60 was repaid in full.

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benefits in the amount of $1,362.00 every 28 days or $48.642857 per day. Appellant was
overpaid for 34 days resulting in an overpayment in the amount of $1,653.86. It requested that
she complete an overpayment recovery questionnaire within 30 days. No response was received.
By decision dated April 16, 2012, OWCP finalized the overpayment in the amount of
$1,653.86 and found that appellant was at fault in the creation of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except
for services actually performed or for certain payments related to service in the Armed Forces,
including benefits administered by the Department of Veterans Affairs unless such benefits are
payable for the same injury or the same death being compensated for under FECA.4 The
implementing regulations provide that a beneficiary may not receive wage-loss compensation
concurrently with a federal retirement or survivor annuity.5 The beneficiary must elect the
benefit that he or she wishes to receive.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,653.86 for the period January 10 to February 12, 2011.
Appellant retired due to disability effective January 10, 2011 and received compensation from
OPM in addition to the wage-loss compensation she had been receiving under FECA during this
period. The record establishes that she never completed an election of benefits and therefore
received both OPM and OWCP benefits. Consequently, any wage-loss compensation appellant
received from OWCP for a period beginning on or after January 10, 2011 constitutes an
overpayment of benefits.
As appellant received $1,362.00 in compensation benefits every 28 days, and received
compensation which she was not entitled to receive for a period of 34 days, the Board finds that
OWCP properly calculated that appellant received an overpayment of compensation in the
amount of $1,653.86. Thus, the Board finds that appellant received an overpayment of
compensation in the amount of $1,653.86 for the period January 10 to February 12, 2011.

3

5 U.S.C. § 8102.

4

Id. at § 8116(a).

5

20 C.F.R. § 10.421(a).

6

Id.

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LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.7 No waiver of
payment is possible if appellant is with fault in helping to create the overpayment.8
In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have known to
be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect.9
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in creating the overpayment because she
accepted a payment that she knew or should have known that she was not entitled to the
compensation. The record establishes that she received two EN1032 forms, dated October 30,
2009 and October 19, 2010, instructing her to report any benefits she received from OPM. Thus,
appellant knew or should have known that acceptance of compensation benefits for periods after
her retirement on January 10, 2011 were incorrect. As she received compensation benefits from
OWCP which covered the period January 10 through February 12, 2011, the Board finds that she
was at fault in the creation of the overpayment and is not entitled to waiver.
On appeal, appellant alleged that she was not at fault because she contacted OWCP when
she received a check with dates for the period January to September 2011 and was told that the
payment had been made and her case was closed. The record indicates however that her last
compensation check was issued February 12, 2011, in the same amount of $1,362.00 she had
previously received every 28 days, as a periodic rolls payment.

7

5 U.S.C. § 8129(b).

8

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

9

20 C.F.R. § 10.433(a).

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The Board also notes that it has held that the fact that OWCP was negligent in making
payments to a claimant does not relieve the claimant of fault in accepting incorrect payments.10
Thus, the Board finds that appellant was at fault in the creation of the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,653.86 during the period January 10 through February 12, 2011 because she received dual
compensation benefits from OPM and under FECA. The Board further finds that OWCP
properly found that she was at fault in the creation of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

10

M.J., Docket No. 11-2142 (issued May 2, 2012); Neill D. Dewald, 57 ECAB 451 (2006).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1650
Issued: December 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 22, 2014 appellant, through his attorney, filed a timely appeal from a June 25,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for reconsideration without a merit review. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this decision. Because more than 180 days elapsed from March 5, 2013 the date of the most
recent OWCP merit decision, to the filing of this appeal, the Board lacks jurisdiction to review
the merits of the case.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 23, 2012 appellant, then a 57-year-old electronics mechanic, filed an
occupational disease claim alleging that he developed carpal tunnel syndrome in the performance
of duty. He first became aware of his condition and its relation to his federal employment on
March 20, 2012. Appellant did not stop work.
On April 27, 2012 OWCP notified appellant of the factual and medical evidence needed
to establish his claim. On May 1, 2012 it received a description of his position and certain
personnel records.
By decision dated May 31, 2012, OWCP denied appellant’s claim. It found that he did
not submit evidence identifying work events that contributed to his condition.
On June 19, 2012 appellant requested an oral hearing. In an October 31, 2012 statement,
he advised that he was assigned to “demil” work on outdated equipment from December 2011 to
March 2012. Appellant stated that such work required him to destroy equipment by hand with
the use of screwdrivers, pliers, hammers, diagonal cutters, wrenches, scrappers, power screw
drivers, and nut drivers. He further stated that cutting large diameter cables put pressure on his
hands and caused pain. Appellant was referred to a neurologist who diagnosed carpal tunnel
syndrome.
In a March 14, 2012 report, Dr. Adhikari Reddy, a Board-certified neurologist, found that
appellant’s symptoms were consistent with bilateral carpal tunnel syndrome. He advised that
appellant had numbness and tingling of both hands that increased within the previous three
months. Appellant worked with his hands using cutters and pliers. He stated that appellant had
difficulty sleeping at night as a result of his symptoms. Dr. Reddy also advised that appellant
had a history of diabetes, hypertension and hyperlipidemia. In an accompanying March 15, 2014
electromyogram (EMG) study, Dr. Reddy listed an impression of bilateral carpal tunnel
syndrome, greater on the right. He also noted that delayed conduction was consistent with
neuropathy that can be seen in diabetes mellitus.
Appellant submitted treatment records from the employing establishment’s health unit.
In March 21, 2012 treatment notes, Dr. Anna Abrigo, a pediatrician, noted that appellant had
numbness and tingling in both hands. Appellant’s symptoms kept him awake at night and were
onset by gripping hand tools. Dr. Abrigo opined that the repetitive work of cutting cables was
the cause of his carpal tunnel. She stated that he related that his symptoms began six months
earlier. Other treatment notes related appellant’s bilateral carpal tunnel syndrome diagnosis and
advised that he was awaiting surgery. In an April 17, 2012 work status report from the
employing establishment, appellant was advised to avoid strenuous gripping and strenuous use of
his hands.
A telephone hearing was held on November 14, 2012. Appellant described the work
duties that he believed caused his carpal tunnel. Since December 2012, he was involved in
“demil” work which included destroying electronic equipment used by the military. Appellant
stated that this work put considerable pressure on his hands. Following the hearing, he submitted
a June 25, 2012 report from Dr. Udaya G. Moti, an internist, who noted that an EMG was

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positive for carpal tunnel that was particularly more severe on the right side. In a November 27,
2012 addendum, Dr. Moti noted that appellant’s job required fine manipulation. He opined that
appellant’s carpal tunnel could be related to his occupation.
By decision dated January 4, 2013, an OWCP hearing representative set aside the
May 31, 2012 decision. She found that appellant established the work factors that he believed
contributed to his condition. The case was remanded for further development. The hearing
representative directed that he be referred for a second opinion.
On January 23, 2013 OWCP referred appellant to Dr. Alexander Doman, a Boardcertified orthopedic surgeon, for a second opinion. It asked Dr. Doman to address appellant’s
diagnoses. OWCP also asked if appellant’s work duties were directly related to the diagnosed
condition, and, if so, how the duties either caused or aggravated the diagnosed condition.2
In a February 26, 2013 report, Dr. Doman noted examining appellant on
February 14, 2013. He reviewed the employment history and advised that appellant related to
him that he began to experience pain and tingling in his hands when he began demolition work.
Dr. Doman reported findings on examination and stated that x-rays of the wrists were normal;
but that nerve conduction studies indicated significant median nerve compression of the wrist on
both left and right side consistent with severe carpal tunnel syndrome. He diagnosed severe
bilateral tunnel syndrome. Dr. Doman opined that appellant’s carpal tunnel was directly related
to his diabetes and not the physical requirements of his federal employment. He attributed
appellant’s carpal tunnel to his longstanding diabetes mellitus, which he stated was a well-known
cause in the development of carpal tunnel syndrome.
By decision dated March 5, 2013, OWCP denied appellant’s claim. It found that the
weight of the medical evidence, as represented by Dr. Doman, did not establish that appellant’s
claimed carpal tunnel syndrome was caused or contributed to his work duties.
On June 5, 2014 appellant, through his attorney, requested reconsideration. Counsel
asserted that OWCP should have sought clarification from Dr. Doman regarding whether work
conditions contributed in any way to the diagnosed condition. He stated that Dr. Doman was
asked if carpal tunnel syndrome was “directly related” to work factors, and not whether work
factors were a contributing factor to the condition.
By decision dated June 25, 2014, OWCP denied appellant’s request as untimely. It found
that there was no evidence of clear error in the denial of his claim.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a

2

A January 7, 2013, statement of accepted facts provided to Dr. Doman, advised that the physical requirements of
appellant’s position included carrying and lifting up to 40 pounds and frequent standing, walking, bending,
crouching, reaching, stooping and climbing.

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benefit unless the application for review is filed within one year of the date of that decision.3
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that its final merit decision was in error.4 Its
regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation set forth section 10.607 of OWCP regulations, if the claimant’s
application for review shows clear evidence of error on the part of OWCP.5 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To establish clear
evidence of error, the evidence submitted must be of sufficient probative value to shift the weight
of the evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision.7
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.8 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.9
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The most recent OWCP merit decision in this case was issued on
March 5, 2013. Appellant did not request reconsideration until June 5, 2014, more than one year
3

20 C.F.R. § 10.607(b); see Gladys Mercado, 52 ECAB 255 (2001).

4

Cresenciano Martinez, 51 ECAB 322 (2000).

5

20 C.F.R. § 10.607.

6

See Alberta Dukes, 56 ECAB 247 (2005).

7

Robert G. Burns, 57 ECAB 657 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
9

Nancy Marcano, 50 ECAB 110 (1998).

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after the March 5, 2013 merit decision. Therefore, it was not timely filed. Consequently,
appellant must establish clear evidence of error by OWCP in denying his claim for
compensation.
The Board finds that appellant has not established clear evidence of error on the part of
OWCP in the denial of his occupational disease claim. Before OWCP and also on appeal,
appellant’s counsel contends that Dr. Doman’s report should be discredited because OWCP
asked if the diagnosed condition, carpal tunnel syndrome, was “directly related” to factors of
appellant’s employment, instead of whether the work factors contributed to his diagnosed
condition. He asserts that a condition is compensable even if the work factors did not cause the
diagnosed condition as long as the work-related factors accelerated, aggravated or precipitated a
preexisting condition.10 Counsel also contends that Dr. Doman should have been provided with
OWCP’s definition of acceleration or aggravation. The Board finds that these assertions are
insufficient to establish clear evidence of error.
The term clear evidence of error is intended to represent a difficult standard and the
argument provided here is not the type of positive, precise and explicit evidence which
manifested on its face that OWCP committed an error.11 Although Dr. Doman was asked if the
physical requirements of appellant’s work were directly related to his diagnosed condition,
OWCP also asked him to address whether appellant’s federal duties had aggravated his
diagnosed conditions. In response, he clearly opined that appellant’s carpal tunnel was
attributable to his diabetes. The Board finds that the questions posed by OWCP to Dr. Doman
do not establish clear evidence of error in these circumstances. Counsel did not cite any
authority supporting that OWCP’s failure to provide its definition of acceleration or aggravation
to Dr. Doman is sufficient to meet this difficult standard and establish clear evidence of error.12
The argument submitted by counsel is insufficient raise a substantial question as to the
correctness of the March 5, 2013 OWCP decision. Appellant has not established that OWCP
committed error by its June 25, 2014 decision. Consequently, OWCP properly found that the
untimely reconsideration request did not establish clear evidence of error.

10

See, e.g,, Beth P. Chaput, 37 ECAB 158, 161 (1985).

11

Supra note 7.

12

The Board notes that OWCP procedures do not affirmatively mandate that such definitions be sent to second
opinion physicians but instead contemplate that OWCP will provide information appropriate to the question at issue.
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.7(f)
(September 2009) (when OWCP needs to define such terms as aggravation, precipitation or acceleration, he or she
should do so in a letter to the physician); Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and
Evaluating Medical Evidence, 2.810.9(a) (September 2010) (the second opinion specialist should generally be
provided with a statement of accepted facts, a list of pertinent questions or issues to be addressed, and copies of
pertinent medical reports from the case record); Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP
Directed Medical Examinations, Chapter 3.500.3(c) (July 2011) (the second opinion physician should be provided
with the description of the reasons for requesting the examination, a list of questions to be resolved, a statement of
accepted facts, and copies of pertinent medical reports).

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CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and that
he failed to establish clear evidence of error. OWCP therefore properly denied a merit review of
his claim.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2014
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
BUTLER VETERANS MEDICAL CENTER,
Butler, PA, Employer
__________________________________________

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Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2329
Issued: August 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 20, 2010 appellant, through his attorney, filed a timely appeal from the
March 18, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which terminated his compensation benefits. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation effective March 18, 2010 on the grounds that he no longer had any residuals or
disability causally related to his accepted employment-related injuries; and (2) whether appellant
met his burden of proof to establish that he had continuing disability or residuals causally related
to the January 13, 2004 employment injury.
1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s attorney contends that OWCP: (1) was required to provide an
impartial medical examination under 5 U.S.C. § 8123(a) as the report of Dr. Frank T. Vertosick,
a second opinion Board-certified neurosurgeon, was the only evidence contradicting appellant’s
claim; (2) failed to meet its burden of proof to terminate appellant’s compensation benefits; and
(3) failed to consider all evidence that was sufficient to overcome termination and created a new
conflict regarding continuing disability.
FACTUAL HISTORY
On October 12, 2005 appellant, then a 51-year-old tractor operator, filed a traumatic
injury claim (Form CA-1) alleging a herniated disc and chest pains as a result of lifting a heavy
trash bag on January 13, 2004. On October 17, 2008 OWCP accepted the claim for a herniated
disc at T5-6. An October 14, 2008 statement of accepted facts noted that appellant worked in a
light-duty capacity from the date of injury until March 25, 2005 when the assignment was
terminated by the employing establishment. Appellant has not worked since March 25, 2005.
To determine whether appellant continued to have residuals of his January 13, 2004
employment injury and his work capacity, OWCP referred him to Dr. Vertosick for a second
opinion evaluation. In a December 11, 2008 report, Dr. Vertosick reviewed appellant’s medical
records and a statement of accepted facts. The low back and thoracic examination revealed
normal spinal curvatures without spasm, tenderness or external abnormalities. Dr. Vertosick
reported normal gait, normal straight leg raise tests and normal neurological findings upon
examination. There was no evidence of reflex abnormality, numbness or weakness.
Dr. Vertosick found that appellant’s clonus was absent, he had a downgoing Babinski’s and
normal tone. He opined that appellant’s thoracic spine condition was caused by the employment
injury which had resolved. Dr. Vertosick found that appellant was at maximum medical
improvement and capable of performing his date-of-injury job without restrictions.
In a May 6, 2004 report, Dr. Kathryn Ryan, a Board-certified family practitioner,
diagnosed disc degenerative changes in the mid and lower thoracic spine, focal central disc
protrusion or herniation at T5-6 and disc bulges or protrusions at T6-7 and T10-11.
By letter dated February 24, 2009, OWCP referred appellant to Dr. Vertosick for a
supplemental evaluation. In a March 16, 2009 report, Dr. Vertosick reviewed additional medical
records and an addendum to the statement of accepted facts which listed the accepted herniated
disc at T5-6. He reported that his opinions rendered in the December 11, 2008 report did not
change. Dr. Vertosick opined that there were no objective findings to support any residual
compensable medical condition, that appellant had reached maximum medical improvement and
was capable of performing his full-time regular-duty job without restrictions.
In a February 12, 2009 medical report, Dr. Joseph Nour, an anesthesiologist, diagnosed
chronic back and bilateral lower extremity pain, multilevel discogenic disease, bilateral carpal
tunnel, status post carpal tunnel release on the right side, degenerative arthritis and status post an
episode of syncope. In a March 12, 2009 progress report, he diagnosed possible intercostal
neuralgia and possible costochondritis. In an April 7, 2009 progress report, Dr. Nour diagnosed
facet joint arthropathy.

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On May 8, 2009 OWCP proposed to terminate appellant’s compensation benefits on the
grounds that the weight of medical evidence from Dr. Vertosick established that he was no
longer disabled due to the accepted condition. Appellant was given 30 days to submit additional
evidence or argument.
In response, appellant’s attorney submitted a narrative statement dated May 21, 2009 and
a May 26, 2009 report by Dr. Nour, who diagnosed chronic back pain, discogenic disease and
possible myofascial disease. Dr. Nour reported that appellant continued to have muscle spasms
in the middle and upper part of his back.
By decision dated July 9, 2009, OWCP finalized termination of appellant’s wage-loss
compensation benefits effective July 8, 2009 finding that his accepted conditions had resolved.2
On December 28, 2009 appellant requested reconsideration and submitted additional
evidence.
In a June 11, 2009 attending physician’s report (Form CA-20), Dr. Ryan diagnosed
herniated nucleus pulposus at T5-6 and disc bulge at T6-7 and T10-11. She indicated that
starting July 22, 2009, appellant would be able to work two days a week, four hours a day in a
light-duty capacity with restrictions: no lifting over 20 pounds; no reaching overhead; no
bending and no stooping. On July 22, 2009 Dr. Ryan stated that he continued to be afflicted by
and treated for mid-back pain. She noted that appellant’s mid-thoracic spine herniated disc was a
result of his January 13, 2004 employment injury and opined that his condition would be
aggravated by a full-duty workload.
In a July 14, 2009 medical report, Dr. Nour diagnosed chronic back pain, disc herniation
at T5-6, disc bulging at T6-7 and T10-11 and facet joint disease. He indicated that he had treated
appellant with steroid injections approximately once a year and opined that his symptoms were
caused by discogenic disease.
In a June 24, 2009 medical report, Dr. Francis T. Ferraro, a Board-certified neurosurgeon,
reported that appellant complained of pain in his mid-thoracic spine and a second pain in the
lower thoracic spine radiating around his coastal margin to the upper abdomen on the left side
which was aggravated when he sits or stands. He stated that he disagreed with Dr. Vertosick’s
medical opinion as appellant’s symptoms were consistent with thoracic disc herniations.
Dr. Ferraro compared a magnetic resonance imaging (MRI) scan of appellant’s thoracic spine
from April 23, 2008 to an MRI scan from May 6, 2004 and found a central and slightly rightsided disc herniation at T5-6, which appeared to be slightly smaller on the more recent scan and
a disc herniation on the left side at T10-11, which appeared to be slightly larger than the previous
scan.

2

By decision dated July 9, 2009, OWCP denied appellant’s claim for compensation (Form CA-7) for the period
December 11, 2008 to present. On January 14, 2010 the Office of Personnel Management notified OWCP that an
overpayment of $79,809.87 was paid in full and the account was closed.

3

By decision dated March 18, 2010, OWCP modified the July 9, 2009 decision to also
terminate appellant’s medical benefits effective March 18, 2010 because he was no longer
disabled nor had residuals of the accepted thoracic condition.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of compensation benefits.3 After it has determined that an employee
has disability causally related to his or her federal employment, it may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5 The right to
medical benefits for an accepted condition is not limited to the period of entitlement to
compensation for disability.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
requires further medical treatment.7
ANALYSIS -- ISSUE 1
On October 17, 2008 OWCP accepted appellant’s claim for a herniated thoracic disc at
T5-6. The issue is whether it properly terminated his benefits effective March 18, 2010 on the
grounds that he no longer continued to experience any disability or residuals due to his
employment-related injury. The Board finds that the weight of the medical evidence establishes
that appellant’s accepted herniated disc resolved by December 16, 2009. The Board finds that
OWCP met its burden of proof to terminate his compensation benefits as of March 18, 2010 for
the accepted herniated disc condition.
In a December 11, 2008 medical report, Dr. Vertosick, an OWCP second opinion
physician, reviewed appellant’s medical records and a statement of accepted facts and conducted
a low back and thoracic examination which revealed normal curvatures without spasm,
tenderness or external abnormalities. He reported normal gait, normal straight leg raise tests and
normal neurological findings upon examination. There was no evidence of reflex abnormality,
numbness or weakness. Dr. Vertosick found that appellant’s clonus was absent, he had a
downgoing Babinski’s and normal tone. He opined that appellant may have had a thoracic spine
condition caused by the January 13, 2004 employment injury but concluded that it had resolved
and appellant was able to work in his date-of-injury job without restrictions. In a March 16,
2009 supplemental report, Dr. Vertosick reviewed additional medical records and an addendum
to the statement of accepted facts which contained the accepted herniated disc, thoracic spine,
3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

T.P., 58 ECAB 524 (2007).

7

Kathryn E. Demarsh, 56 ECAB 677 (2005).

4

level T5-6 employment injury. He reported that his opinions rendered in the December 11, 2008
report did not change and opined that there were no objective findings to support any residual
compensable medical condition.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
opinion addressing the causal relationship between a claimant’s diagnosed condition and the
accepted employment injury. To be probative, the opinion of a physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the employment factor accepted in the case.8
The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.9 The Board finds that the weight of the medical evidence
rests with the December 11, 2008 and March 16, 2009 reports of Dr. Vertosick, who provided a
comprehensive evaluation based on his review of the statement of accepted facts and medical
record, the history of injury and findings on physical examination.10 Dr. Vertosick advised that
appellant had no residuals of his accepted herniated disc. Appellant was found capable of
returning to his usual job of tractor operator without restriction.
Dr. Nour submitted progress reports dated March 12 to May 21, 2009 concluding that
appellant continued to experience muscle spasms in his middle and upper back, but he provided
no explanation as to whether the condition was employment related or why the condition
precluded appellant from working. There is no rationalized medical evidence from Dr. Nour
explaining how the accepted herniated disc caused or contributed to any continuing disability.
The Board finds that OWCP properly terminated appellant compensation benefits effective
March 18, 2010 relating to the accepted herniated disc, thoracic spine, level T5-6.
LEGAL PRECEDENT -- ISSUE 2
Following the proper termination of benefits, the claimant has the burden to establish
continuing employment-related residuals and/or disability with probative medical evidence.11
The medical evidence required to establish a causal relationship, generally, is rationalized
medical evidence. Rationalized medical evidence is medical evidence, which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated factors. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship

8

See Sedi L. Graham, 57 ECAB 494 (2006).

9

I.R., Docket No. 09-1229 (issued February 24, 2010); C.B., Docket No. 08-1583 (issued December 9, 2008).

10

A.E., Docket No. 10-1862 (issued May 11, 2011).

11

Talmadge Miller, 47 ECAB 673 (1996).

5

between the diagnosed condition and the specific employment factors identified by the
claimant.12
ANALYSIS -- ISSUE 2
The Board finds that the issue of whether appellant had any continuing disability or
residuals after March 18, 2010 is not in posture for decision due to a conflict in the medical
evidence between Drs. Ryan, Ferraro and Vertosick.
Once OWCP properly terminated appellant’s compensation and medical benefits, he had
the burden to establish continuing residuals and/or disability due to his accepted injury with
probative medical evidence.13 Subsequent to the March 18, 2010 decision terminating his
compensation, he submitted medical reports from Drs. Ryan and Ferraro. In a June 11, 2009
attending physician’s report, Dr. Ryan diagnosed herniated nucleus pulposus at T5-6 and disc
bulge at T6-7 and T10-11. She indicated that starting July 22, 2009 appellant would be able to
work in a light-duty capacity with restrictions. In a July 22, 2009 medical report, Dr. Ryan
stated that he continued to be afflicted by and treated for mid-back pain. She noted that
appellant’s mid-thoracic spine herniated disc was a result of a January 13, 2004 employment
injury and opined that his condition would be aggravated by a full-duty workload. In a June 24,
2009 medical report, Dr. Ferraro reported that appellant complained of pain in his mid and lower
thoracic spine which was aggravated by sitting and standing. He compared a MRI scan of
appellant’s thoracic spine from April 23, 2008 to an MRI scan from May 6, 2004 and found a
central and slightly right-sided disc herniation at T5-6, which appeared to be slightly smaller and
a disc herniation on the left side at T10-11, which appeared to be slightly larger. Dr. Ferraro
stated that he disagreed with Dr. Vertosick’s medical reports and opined that appellant’s
symptoms were consistent with thoracic disc herniations.
As noted, Dr. Vertosick, the second opinion examiner, indicated that appellant’s low back
and thoracic spine condition had resolved. His examinations revealed normal curvatures of the
low back and thoracic spine, normal gait, normal straight leg raise tests and normal neurological
findings. Dr. Vertosick also stated there was no evidence of reflex abnormality, numbness or
weakness and that appellant was at maximum medical improvement. He concluded that
appellant was able to work in his date-of-injury job without restrictions. The Board finds that a
conflict in medical opinion exists between the opinions of Drs. Ryan, Ferraro and Vertosick.
The Board finds that, since Drs. Ryan and Ferraro’s reports contain sufficiently well-rationalized
medical opinions that appellant’s employment-related condition had not resolved and he still
suffers from residuals, the reports create a conflict with the opinion of Dr. Vertosick who found
no continuing work-related condition.
On remand, OWCP should refer appellant, the case record and a statement of accepted
facts to an appropriate medical specialist for an impartial medical evaluation pursuant to section

12

Joe L. Wilkerson, 47 ECAB 604 (1996); Alberta S. Williamson, 47 ECAB 569 (1996).

13

See Talmadge Miller, supra note 11.

6

8123(a).14 After such development of the case record as OWCP deems necessary, a de novo
decision shall be issued.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective March 18, 2010. The Board further finds that the case is not in
posture for decision regarding whether appellant has any employment-related residuals of his
T5-6 herniated disc after March 18, 2010.
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, as to the termination of compensation
benefits effective March 18, 2010. The case is set aside and remanded, in part, for further
development of the medical evidence on the issue of continuing residuals and disability.
Issued: August 5, 2011
Washington, DC

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

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

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

14

5 U.S.C. § 8123(a). See also Marvin J. Gan, 2005 LRP 46993 (Docket No. 02-2212, issued June 6, 2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Peoria, IL, Employer
)
__________________________________________ )
G.S., Appellant

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

Docket No. 17-1318
Issued: October 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 30, 2017 appellant filed a timely appeal from a May 12, 2017 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 merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish permanent impairment
of a scheduled member of the body, warranting a schedule award.
On appeal appellant requests that he be referred to another attending physician as his
current attending physician did not conduct a thorough impairment evaluation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 2, 2016 appellant, then a 51-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on July 27, 2016 he experienced constant pain in his
lower left abdominal wall above the pubic area to his waist while performing squats in the
employing establishment’s gym. OWCP accepted the claim for unilateral left inguinal hernia
without obstruction or gangrene, not specified as recurrent. It also authorized laparoscopic left
inguinal hernia repair with mesh performed on September 23, 2016 by Dr. John K. Paulsen, an
attending Board-certified surgeon.
On December 13, 2016 appellant filed a claim for a schedule award (Form CA-7).
On December 28, 2016 OWCP received an August 2, 2016 progress note from
Dr. Paulsen. He indicated that appellant presented complaining about a seven-day history of leftsided groin pain. Dr. Paulsen noted a history of the accepted July 27, 2016 work injury. He
reviewed appellant’s medical history which included a right inguinal hernia repair in 1997 and
his social and family background. Dr. Paulsen further reviewed his systems and reported normal
findings on examination. He advised that appellant had a groin injury.
By letter dated December 29, 2016, OWCP advised appellant of the deficiencies of his
claim and requested a medical report from his physician assessing his permanent impairment
based on the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides)2 and establishing the date on which he reached
maximum medical improvement (MMI).
Dr. Paulsen, in a progress note dated January 12, 2017, advised that appellant was fully
healed status post the September 23, 2016 laparoscopic left inguinal hernia repair. He opined
that appellant had no permanent impairment and could return to full-duty work without
restriction. Appellant also submitted a January 12, 2017 progress note from a nurse in
Dr. Paulsen’s office.
On May 8, 2017 an OWCP district medical adviser (DMA) reviewed the medical record,
including Dr. Paulsen’s August 12, 2016 and January 12, 2017 findings, and found that appellant
had no impairment of either lower extremity due to his left inguinal hernia repair.3 He utilized
Table 6-10 on page 122 of the sixth edition of the A.M.A., Guides and assigned a class 0
impairment rating for physical findings in the absence of symptoms, which correlated with no
impairment due to the authorized left inguinal hernia repair.4 The DMA determined that
appellant had reached MMI on January 12, 2017, the date of Dr. Paulsen’s impairment

2

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

3

The Board notes that the DMA inadvertently found that, appellant had no permanent impairment of the bilateral
upper extremities rather than the bilateral lower extremities as OWCP, in its April 19, 2017 memorandum referring
appellant’s case record to the DMA, specifically requested that he determine the extent of impairment of appellant’s
bilateral lower extremities.
4

Table 6-10 provides ratings for whole person impairment due to a hernia.

2

evaluation. He concluded that no further medical or surgical intervention was likely to improve
his condition.
In a May 12, 2017 decision, OWCP denied appellant’s claim for a schedule award. It
found that the DMA’s report established that appellant had no impairment as a result of his
accepted employment injury.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.7
The sixth edition requires identifying the impairment for the Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.9 FECA identifies members such as the arm, leg,
hand, foot, thumb and finger, organs to include the eye and functions as loss of hearing and loss
of vision.10 Section 8107(c)(22) of FECA provides for the payment of compensation for
permanent loss of any other important external or internal organ of the body as determined by the
Secretary of Labor.11 The Secretary of Labor has made such a determination and pursuant to the
authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle,
ovary, uterus, and tongue to the schedule.12
5

Supra note 2.

6

20 C.F.R. § 10.404 (1999).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
8

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

9

See Leroy M. Terska, 53 ECAB 247 (2001).

10

Id.; 5 U.S.C. § 8107(c).

11

Id. at § 8122(c)(22).

12

20 C.F.R. § 10.404; Henry B. Floyd, III, 52 ECAB 220 (2001).

3

Before the A.M.A., Guides can be utilized, a description of impairment must be obtained
from the claimant’s physician. In obtaining medical evidence required for a schedule award, the
evaluation made by the attending physician must include a description of the impairment
including, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation, or other pertinent descriptions of the impairment. This description
must be in sufficient detail so that the claims examiner and others reviewing the file will be able
to clearly visualize the impairment with its resulting restrictions and limitations.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides with the medical adviser providing rationale
for the percentage of impairment specified.14
ANALYSIS
The Board finds that appellant failed to establish any permanent impairment to his
bilateral lower extremities. OWCP accepted appellant’s claim for unilateral left inguinal hernia
without obstruction or gangrene, not specified as recurrent as a result of a July 27, 2016
employment injury. On December 13, 2016 appellant filed a claim for a schedule award.15
In support of his claim, appellant submitted progress notes from Dr. Paulsen, his
attending physician. In a January 12, 2017 progress note, Dr. Paulsen found that appellant had
no permanent impairment and released him to return to full-duty work without restriction. He
opined that appellant was fully healed status post his authorized September 23, 2016
laparoscopic left inguinal hernia repair. Dr. Paulsen opined that appellant had no permanent
impairment to a scheduled body member causally related to his accepted employment injury
under the sixth edition of the A.M.A., Guides. His subsequent progress note dated August 2,
2016 did not address the extent of any permanent impairment due to appellant’s accepted injury,
provide a description of any impairment in accordance with the A.M.A., Guides, or opine on
whether appellant reached MMI. As noted, the evaluation made by the attending physician must
include a description of the impairment that is of sufficient detail so that the claims examiner and
others reviewing the file will be able to clearly visualize the impairment with its resulting
restrictions and limitations.16 Dr. Paulsen found no permanent impairment due to the accepted
13

D.M., Docket No. 11-775 (issued October 11, 2011); Peter C. Belkind, 56 ECAB 580 (2005).

14

Supra note 7 at Chapter 2.808.6(f) (March 2017).

15

The Board finds that a schedule award cannot be granted for permanent impairment based on appellant’s
accepted hernia condition because the hernia or abdomen have not been included under FECA or the regulations as a
scheduled member. D.C., Docket No. 14-1648 (issued December 15, 2014); K.S., Docket No. 14-133 (issued
April 1, 2014); K.H., Docket No. 09-275 (issued August 14, 2009); S.K., Docket No. 08-848 (issued
January 26, 2009). The terms of FECA are specific as to the method and amount of payment of compensation.
Neither, OWCP nor the Board has the authority to enlarge the terms of FECA or to make an award of benefits under
terms other than those specified in the statute. D.C., id.; Danny E. Haley, 56 ECAB 393 (2005).
16

Supra note 12.

4

work injury. As such his progress notes are of diminished probative value and therefore
insufficient to establish appellant’s permanent impairment.
On May 8, 2017 an OWCP DMA reviewed the medical record and found that appellant
had no permanent impairment of either lower extremity. He used Dr. Paulsen’s August 12, 2016
and January 12, 2017 examination results and found no basis for permanent impairment of the
legs. He also applied Table 6-10, page 122 of the sixth edition of the A.M.A., Guides. Table 610 provides criteria for evaluating whole person impairment due to abdominal herniation.
However, the Board notes that FECA does not authorize schedule awards for permanent
impairment of the whole person.17 Furthermore, a schedule award cannot be granted for a hernia
because a hernia is not listed in FECA or the regulations as a scheduled member or organ of the
body. The terms of FECA are specific as to the method and amount of payment of
compensation. Neither OWCP nor the Board has the authority to enlarge the terms of FECA or
to make an award of benefits under terms other than those specified in the statute.18
The Board finds that there is no medical evidence in conformance with the A.M.A.,
Guides showing that appellant has permanent impairment of a scheduled member of the body,
warranting a schedule award.
Appellant failed to submit sufficient medical evidence to establish permanent impairment
to a specified member, organ, or function of the body listed in FECA or its implementing
regulations as a result of his employment-related accepted unilateral left inguinal hernia without
obstruction or gangrene, not specified as recurrent. Thus, he has not met his burden of proof.
On appeal appellant requests that he be referred to another attending physician as his
current attending physician did not conduct a thorough impairment evaluation. He may submit a
written request for a new physician to OWCP.19
The Board also notes that appellant may request a schedule award or increased schedule
award, 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 of the body warranting a schedule award.

17

S.M., Docket No. 14-1052 (issued September 4, 2014).

18

Id.; S.K., Docket No. 08-848 (issued January 26, 2009).

19

20 C.F.R. § 10.316.

5

ORDER
IT IS HEREBY ORDERED THAT the May 12, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 11, 2017
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Los Angeles, CA, Employer )
__________________________________________ )
N.C., Appellant

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

Docket No. 16-0441
Issued: October 21, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 4, 2016 appellant filed a timely appeal from a July 6, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from July 6, 2015, the date of OWCP’s last decision was January 2,
2016, a Saturday. Consequently, the period for filing the appeal ran to the next business day, Monday,
January 4, 2016. Since using January 11, 2016, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is January 4, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

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
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment of compensation in the amount of $16,955.80 because it paid compensation at an
inaccurate pay rate for the period October 30, 2005 to June 28, 2014; and (2) whether it properly
denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On August 9, 2004 appellant, then a 50-year-old screener, filed a traumatic injury claim
(Form CA-1) alleging that on August 3, 2004 he strained a muscle in his shoulder and arm when
lifting a bag. He stopped work on August 7, 2004. OWCP accepted the claim for right shoulder
strain, cervical strain, acromioclavicular joint arthritis and tendinitis of the right shoulder,
cervical discogenic disc disease at C5-6, reflex sympathetic dystrophy of the right upper
extremity, causalgia, and psychogenic pain. It paid compensation beginning September 21, 2004
at a weekly pay rate of $583.14 using a pay rate date of August 3, 2004, the date of injury.
OWCP included night differential.
Appellant accepted a December 13, 2004 offer of modified employment from the
employing establishment. The duties of the position of modified lead transportation security
screener were within those set by his attending physician. Appellant received a salary of
$30,146.00 as a “D” Band employee.
OWCP accepted that appellant sustained a recurrence of disability on March 26, 2005.
On April 13, 2005 the employing establishment offered appellant a position as a modified
lead transportation security screener with an annual salary of $39,158.00 in the “F” Band. The
position required no lifting over 20 pounds or reaching above the right shoulder level. Appellant
accepted the position and returned to work on May 7, 2005 at a base pay of $39,158.00.4
Appellant, on September 4, 2005, stopped work as the employing establishment no
longer had a position available within his restrictions. OWCP paid compensation beginning
October 30, 2005 based on a recurrent pay rate date of September 4, 2005. Including night shift
differential of $4.71, it calculated appellant’s weekly pay rate as $757.75.
2

5 U.S.C. § 8101 et seq.

3

The record also contains a September 10, 2015 decision denying modification of its reduction in appellant’s
wage-earning capacity as he failed to cooperate with vocational rehabilitation under 5 U.S.C. § 8113(b). Appellant
appealed the September 10, 2015 decision to the Board on March 4, 2016. The Board will consider his appeal of the
September 10, 2015 decision under Docket No. 16-1152.
4

By decision dated May 9, 2005, OWCP found that appellant received an overpayment of compensation in the
amount of $471.74 because he returned to work on December 17, 2004 but received compensation through
December 25, 2004. It further determined that he was at fault in creating the overpayment.

2

In a decision dated December 18, 2008, OWCP reduced appellant’s compensation under
5 U.S.C. § 8113(b) effective that date as he failed without good cause to participate in vocational
rehabilitation. In applying the formula set forth in Albert C. Shadrick,5 it used a pay rate date of
September 4, 2005. Based on its calculations, OWCP determined that he was entitled to net
compensation of $786.78 each four weeks.
By decision dated January 16, 2009, OWCP granted appellant a schedule award for 17
percent permanent impairment of the right arm. The period of the award ran from January 18,
2009 to January 24, 2010. OWCP used an effective pay rate date of September 4, 2005 in
determining his pay rate for compensation purposes for the schedule award.
Appellant requested an oral hearing, which was held before an OWCP hearing
representative on November 5, 2009. In a decision dated February 1, 2010, an OWCP hearing
representative affirmed the December 18, 2008 decision.
On January 26, 2011 appellant requested reconsideration, arguing that he cooperated with
vocational rehabilitation and that his injury did not allow him to undergo vocational
rehabilitation or employment. He noted that he had obtained disability retirement from the
Social Security Administration (SSA).
In a decision dated April 25, 2011, OWCP denied modification of the February 1, 2010
decision. On April 12, 2012 appellant again requested reconsideration of OWCP’s finding that
he did not cooperate with vocational rehabilitation. By decision dated August 13, 2012, OWCP
denied modification of its April 25, 2011 decision.
On October 30, 2012 OWCP requested that the employing establishment clarify
appellant’s salary as of August 3, 2004 and as of September 4, 2005.
By letter dated April 16, 2013, the employing establishment advised that appellant
sustained an injury on August 3, 2004, returned to work on May 6, 2005, and stopped work in
September 2005. It noted that he received compensation from OWCP at a recurrent pay rate
even though he had not returned to work for six months following his injury. The employing
establishment further advised that OWCP should calculate the amount appellant received for his
loss of wage-earning capacity by applying the formula applicable to determining pay rate under
performance-based pay systems.6
The employing establishment, in a May 16, 2014 e-mail, related that on August 3, 2004,
the date of injury, it paid appellant using pay band “D at an adjusted base salary of $30,146.00.
At the time of his September 4, 2005 recurrence of disability, it paid him using pay band “F” at
an adjusted base salary of $39,158.00. The employing establishment provided the minimum and
maximum salary for each pay band. In a telephone call, it indicated that appellant received a
promotion on September 4, 2005 to the “F” Band. In a May 19, 2014 e-mail, the employing
5

5 ECAB 376 (1953); codified by regulation at 20 C.F.R. § 10.403.

6

The employing establishment indicated that appellant sustained a recurrence of disability on October 31, 2005
rather than September 4, 2005.

3

establishment provided updated information for pay band minimum and maximum salaries
for 2014.
In a letter dated May 27, 2013, the employing establishment informed appellant that he
should not have been paid at a recurrent pay rate as he had not returned to his usual employment
for six months after his injury. Appellant had returned to a modified lead transportation
screener.
On August 13, 2013 appellant requested reconsideration. He argued that he should be
paid at an “F” band rate as he was promoted on October 3, 2004. Appellant also advised that the
date of his recurrence of disability was March 26, 2005.
OWCP, on May 20, 2014, notified appellant of its proposed modification of the
December 18, 2008 loss of wage-earning capacity determination. It found that it had incorrectly
calculated his recurrent pay rate effective September 4, 2005 as it failed to include eight hours of
Sunday premium pay and 25 hours of night differential. OWCP also determined that it failed to
apply the formula applicable to performance-based pay systems, or pay banding, prior to
calculating appellant’s pay rate.
On June 20, 2014 OWCP advised appellant of its preliminary determination that he had
received an overpayment of compensation in the amount of $16,955.80 because it had paid him
compensation from October 30, 2005 to June 28, 2014 using an inaccurate pay rate. It calculated
that during this period it underpaid him $10,059.42 in wage-loss compensation from October 30,
2005 to December 20, 2008 and underpaid him $3,392.76 in schedule award compensation from
January 18, 2009 to January 24, 2010 due to its failure to include Sunday premium pay and night
shift differential in calculating his pay rate. OWCP next found that it overpaid appellant $492.99
from December 1, 2008 to January 17, 2009 and $29,914.99 from January 25, 2010 to June 28,
2014 as it did not apply the formula for calculating pay rates under performance-based pay
systems. It subtracted the overpayment from the underpayment to find a total overpayment of
$16,955.80. OWCP informed appellant of its preliminary determination that he was without
fault in the creation of the overpayment. It requested that he complete the enclosed overpayment
recovery questionnaire and submit supporting financial documents. Additionally, OWCP
notified appellant that, within 30 days of the date of the letter, he could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
By decision dated June 20, 2014, OWCP modified its December 18, 2008 loss of wageearning capacity determination as it based its original determination on an incorrect pay rate. It
found that it failed to include 8 hours of Sunday premium pay and 25 hours of night differential
in calculating appellant’s recurrent pay rate and failed to properly calculate his weekly
compensation rate using the formula applicable for performance-based pay systems. OWCP
again used a recurrent pay rate date of September 4, 2005 in its calculations.
In a separate decision dated June 20, 2014, OWCP vacated in part and affirmed in part
the August 13, 2012 decision as it used an inaccurate pay rate in its loss of wage-earning
capacity determination.

4

Appellant, in a response dated July 13, 2014, argued that he did not receive an
overpayment of compensation. He noted that he earned a “D” Band salary of $30,146.00 on the
date of injury with a promotion scheduled for October 3, 2004. Appellant worked as a lead
screen at an “F” Band salary effective September 4, 2005 and earned $39,158.00 including
locality pay.
He contended that he was promoted on October 3, 2004 rather than
September 4, 2005. Appellant advised that he initially returned to work on December 17, 2004
as an “F” Band level 3 lead screener earning $37,336.00. On March 1, 2005 he returned to light
duty as an “F” Band lead screener earning $39,158.00. Appellant questioned why OWCP used a
recurrent pay rate date of September 4, 2005 when he initially returned to work on
December 17, 2004.
On July 16, 2014 appellant requested a prerecoupment hearing. A telephone hearing was
held on February 18, 2015. Appellant asserted that OWCP had not adequately explained the
overpayment. He maintained that he was promoted on October 3, 2004 rather than
September 5, 2005. Appellant’s representative advised that it was the policy at the employing
establishment not to promote injured workers.
In a decision dated July 6, 2015, an OWCP hearing representative found that appellant
received an overpayment of compensation in the amount of $16,955.80 for the period
October 30, 2005 to June 28, 2014 because he received compensation at in incorrect rate. He
further found that appellant was not at fault in the creation of the overpayment but denied waiver
of recovery as he failed to provide the required financial information. The hearing representative
determined that the overpayment of compensation would be recovered in full.7
On appeal appellant contends that OWCP owes him money as it did not pay him based on
his lead screener pay rate of $39,158.00 per year or include night shift differential or Sunday
premium pay in his compensation. He provides his calculations.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA8 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.9 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.10
7

Appellant, on June 19, 2015, requested reconsideration of the June 20, 2014 decision modifying his loss of
wage-earning capacity. By decision dated September 10, 2015, OWCP denied modification of its June 20, 2014
decision. It found that appellant had not demonstrated cooperation with vocational rehabilitation such that it would
remove the sanction of section 8113(b). As noted, the Board will adjudicate appellant’s appeal of the September 10,
2015 decision under a separate docket number.
8

5 U.S.C. § 8101 et seq.

9

Id. at § 8102.

10

Id. at § 8129(a).

5

OWCP pays an employee compensation for total disability equal to a percentage of his
monthly pay. Section 8101(4) provides that monthly pay means the monthly pay at the time of
injury or the monthly pay at the time disability begins or the monthly pay at the time
compensable disability recurs, if the recurrence begins more than six months after the injured
employee resumes regular full-time employment with the United States, whichever is greater.11
If the disability is partial, the United States shall pay the employee during the disability
monthly monetary compensation equal to 66 2/3 percent of the difference between monthly pay
and monthly wage-earning capacity after the beginning of the partial disability.12
Where an employee has a recurrence of disability more than six months after resuming
regular, full-time employment with the employing establishment, under section 8101(4) of
FECA, the employee is entitled to have his compensation increased based on his pay at the time
of this first recurrence of disability.13 The Board has defined regular employment as established
and not fictitious, odd-lot, or sheltered and has contrasted it with a job that was created especially
for the claimant. The duties of regular employment are covered by a specific job classification
and such duties would have been performed by another employee if the claimant did not perform
them. The test is not whether the tasks the claimant performed during his limited duty would
have been done by someone else, but instead whether he occupied a regular position that would
have been performed by another employee.14
OWCP’s procedures provide a method for calculating compensation under performancebased alternate pay systems, also known as pay banding.15
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision regarding whether appellant
received an overpayment of compensation and the amount of any overpayment as OWCP
utilized an incorrect effective pay rate date in calculating his pay rate for compensation purposes
from October 30, 2005 to June 28, 2014.
Appellant sustained an injury on August 3, 2004. He stopped work following his injury
on August 7, 2004 and returned to modified employment in December 2004. Appellant
experienced a recurrence of disability beginning March 26, 2005. On May 7, 2005 he resumed
modified work with the employing establishment. Appellant again stopped work on
September 4, 2005.

11

Id. at § 8101(4). See also K.B., Docket No. 13-569 (issued June 17, 2013).

12

5 U.S.C. § 8106(a).

13

Id. at § 8101(4); see Jon L. Hoagland, 57 ECAB 635 (2006).

14

See Jeffrey T. Hunter, 52 ECAB 503 (2001).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815e(3) (June 2013).

6

OWCP paid compensation for total disability beginning October 30, 2005 using a
recurrent pay rate date of September 4, 2005. Beginning December 18, 2008, it paid
compensation based on a loss of wage-earning capacity. In calculating appellant’s loss of wageearning capacity, OWCP used a pay rate effective date of September 4, 2005. From January 18,
2009 to January 24, 2010 OWCP paid schedule award compensation based on a recurrent pay
rate of September 4, 2005. Following the expiration of appellant’s schedule award, it again paid
compensation based on its loss of wage-earning capacity determination.
On June 20, 2014 OWCP modified its December 18, 2008 loss of wage-earning capacity
determination after finding that it had not included Sunday premium pay and night differential in
appellant’s recurrent pay rate or properly determined his pay rate under the performance-based
pay system used by the employing establishment.
OWCP found that appellant received an overpayment of compensation in the amount of
$16,955.80 because it underpaid him $10,059.42 in wage-loss compensation from October 30,
2005 to December 20, 2008 and underpaid him $3,392.76 in schedule award compensation from
January 18, 2009 to January 24, 2010 due to its failure to include Sunday premium pay and night
differential in calculating his pay rate. It further determined that it overpaid appellant $492.99
from December 1, 2008 to January 17, 2009 and $29,914.99 from January 25, 2010 to June 28,
2014 as it did not apply the formula set forth in its procedures applicable in calculating pay rates
under performance-based pay systems. OWCP subtracted the underpayment from the
overpayment to find an overpayment of $16,955.80. The Board notes that such an offset permits
an unrestricted recovery of the offset portion of the overpayment without regard to the relevant
factors set forth in 20 C.F.R. § 10.441(a). This practice denies administrative due process with
respect to the amount offset.16
In determining appellant’s pay rate for compensation purposes OWCP utilized a recurrent
pay rate date of September 4, 2005. Appellant did not, however, return to his usual employment
for six months following his August 3, 2004 employment injury. As discussed, a recurrent pay
rate applies only if the work stoppage began more than six months after a return to regular fulltime employment.17 The positions appellant accepted in December 2004 and May 2005 were
designated as modified-duty work designed to comply with his medical restrictions. The Board
thus finds that OWCP improperly utilized a recurrent pay rate day in calculating his pay rate for
compensation purposes from October 30, 2005 to June 28, 2014.
As noted, OWCP computes compensation using the pay rate in effect on either the date of
injury, the date disability began, or the date disability recurred if the recurrence began more than
six months after an employee resumed regular full-time federal employment. Appellant, as
discussed, is not entitled to a recurrent pay rate as he had not returned to regular employment
following his injury. His date of injury is August 3, 2004 and the date disability began is
August 7, 2004. OWCP should utilize the pay rate that is the greater of these two days as the
applicable pay rate date. If the pay rate is the same, the pay rate should be set as the date
16

See Michael A. Grossman, 51 ECAB 673 (2000); see also G.T., Docket No. 07-793 (issued
September 13, 2007).
17

5 U.S.C. § 8101(4); J.R., Docket No. 14-1728 (issued June 17, 2015).

7

disability begins.18 The case will be remanded for OWCP to determine appellant’s pay rate for
compensation purposes using the appropriate pay rate date. It should also utilize the pay banding
formula and include any applicable Sunday premium pay and night differential.19 Following this
and any further development, OWCP should determine whether an overpayment exists and the
amount of any overpayment.20
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 6, 2015 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 21, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)(3)
(September 2011).
19

Id. at Chapter 2.900.6(b) and 2.900.12(g) (September 2011).

20

In view of the Board’s dispositions of the issue of fact and amount of overpayment, it is premature to address
the denial of waiver of recovery of the overpayment.

8