United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Tucson, AZ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1121
Issued: March 18, 2010

Case Submitted on the Record

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

JURISDICTION
On March 20, 2009 appellant filed a timely appeal from the January 29, 2009 decision of
the Office of Workers’ Compensation Programs concerning schedule award compensation.
Pursuant to 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 has more than a three percent permanent impairment of
her right and left leg for which she received schedule awards.
FACTUAL HISTORY
The Office accepted that on May 2, 2006 appellant, then a 52-year-old agriculture
specialist, sustained thoracic and lumbosacral neuritis and displacement of a lumbar
intervertebral disc without myelopathy due to climbing, lifting and bending in order to inspect
fruit containers. Appellant stopped work on May 19, 2006 and the Office paid compensation for

periods of disability. She returned to limited-duty work for the employing establishment on a
full-time basis in July 2006.
On July 13, 2006 appellant was first examined by Dr. Robert I. Winer, an attending
Board-certified neurologist, who noted that she complained of back pain which radiated down
her buttocks and lateral thighs and that she reported an April 2004 left foot fracture which caused
her to miss work for 18 weeks and resulted in continuing foot swelling and pain. Dr. Winer
advised that the findings of the May 16, 2006 magnetic resonance imaging (MRI) scan testing
showed a left disc herniation at L4-5 and a central disc herniation at L5-S1, more significant at
L4-5. There was chronic disc desiccation at multiple lumbar levels. Dr. Winer obtained
electromyogram (EMG) and nerve conduction velocity testing on July 14, 2006 which showed
bilateral radiculopathy at L3-4 and S1, left radiculopathy at L5 and probable axonal neuropathy.
On June 19, 2007 Dr. Steven J. Valentino, an osteopath serving as an Office referral
physician, indicated that his evaluation showed that appellant continued to have residuals of her
work-related injury in the form of spasms and diminished range of motion. The motor
examination of appellant’s legs was normal. Dr. Valentino noted that she suffered a fracture of
her right great toe three weeks prior.1
On July 9, 2007 Dr. Winer stated that physical examination revealed limited back motion
with pain; normal proximal and distal leg strength, bulk and mass; and normal sensory findings
in all four extremities to pinprick, pain sensation, vibration, temperature sensation and position
sense. He found that appellant had continued pain and limitation of activities related to her
lumbosacral conditions. The findings of August 2, 2007 EMG and nerve conduction velocity
testing showed bilateral radiculopathy at L3-4 and L5-S1, worse at L3-4 and possible axonal
neuropathy.
On September 7, 2007 appellant filed a claim for a schedule award due to her May 2,
2006 work injury.
In October 1, 2007 reports, Dr. Winer noted that appellant reported low back pain which
radiated into her legs and intermittent numbness in her feet. He found that appellant’s L5-S1
nerve roots were affected bilaterally and that there was L5-S1 sensory loss with activity despite
normal pinprick, touch and proprioception on resting neurological examination. Dr. Winer
indicated that lumbar range of motion was restricted on flexion to 80 degrees, extension to 20
degrees, right lateral bending to 20 degrees and left lateral bending to 20 degrees. He noted
functional leg weakness with walking or standing despite the normal tone, bulk and strength on
gross neurological testing.2 Dr. Winer determined that appellant had a 36 percent permanent
impairment of each leg. This impairment was comprised of an 11 percent impairment due to
sensory loss,3 a 5 percent impairment due to weakness manifested by station and gait
1

In June 2007 appellant began performing full-duty work as a supervisory agriculture specialist.

2

Dr. Winer referenced Table 13-15 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) concerning impairment due to station and gait disorders.
3

Dr. Winer determined that appellant had a Class 3 sensory loss under Table 13-23 of the A.M.A., Guides for
evaluating pain or sensory loss from peripheral nerve disorders.

2

deficiencies and a 20 percent impairment due to limited motion on flexion, extension, right
lateral bending and left lateral bending.4
In a November 7, 2007 report, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon serving as an Office medical adviser, determined that appellant had a three percent
permanent impairment of her right leg and a three percent permanent impairment of her left leg.
He stated that, under Table 15-18 of the A.M.A., Guides, the maximum loss of function due to
sensory deficit or pain associated with the S1 nerve root was five percent. Under Table 15-15,
appellant had a Grade 3 or 60 percent sensory loss in each leg which multiplied by the 5 percent
maximum value equaled 3 percent impairment in each leg.5 Dr. Berman indicated that none of
the examining physicians, other than Dr. Winer, noted any muscle loss or decreased strength in
appellant’s legs and therefore he was not including an impairment value for strength loss.
In a November 27, 2007 decision, the Office granted appellant schedule awards for three
percent permanent impairment of her right and left legs. The awards ran for 17.28 weeks from
July 9 to November 6, 2007.
In a December 6, 2007 report, Dr. Winer provided further explanation of his opinion that
appellant had a 36 percent permanent impairment of each leg. He expressed disagreement with
the impairment rating of Dr. Berman. Dr. Winer felt that it was more appropriate to evaluate
sensory loss under Table 13-23 of the A.M.A., Guides than under Table 15-15 as had been
carried out by Dr. Berman. He also believed that Dr. Berman improperly discounted appellant’s
station and gait abnormalities.
The Office determined that there was a conflict in the medical opinion between
Dr. Winer and Dr. Berman regarding the extent of the permanent impairment to appellant’s legs.
It referred appellant, pursuant to section 8123(a) of the Act, to Dr. Michael Okin, a Boardcertified orthopedic surgeon, for an impartial medical examination and an opinion on the matter.
In a February 12, 2008 report,6 Dr. Okin described appellant’s work injury and detailed
her medical history, including findings on examination and diagnostic testing. He noted that on
physical examination appellant’s gait and station were within normal limits and she had no
palpable spinal tenderness. Range of motion of the lumbar spine was limited on flexion and
extension with pain complaints and right and left lateral bending was to 20 degrees without
discomfort. Appellant had 5/5 strength upon dorsiflexion of the feet and ankles as well as 5/5
strength in the extensors and flexors of her knees and the abductors, adductors, flexors and
extensors of her hips. Dr. Okin indicated that the sensory examination in both legs was intact.
Appellant was able to sit on the examining table with her knees fully extended and her feet
completely dorsiflexed under resistance in both areas without any complaints of discomfort in
the low back or down the posterior thighs. She went from the seated to supine position and from
4

Dr. Winer applied Tables 15-8 and 15-9 of the A.M.A., Guides detailing impairment for limited flexion, extension
and lateral bending of the lumbar spine.
5

Dr. Berman stated that appellant’s sensory loss was manifested by pain rather than abnormal sensation patterns.

6

The first page of the report contains the date February 12, 2008 but the remaining pages are dated February 12,
2008, the date of Dr. Okin’s examination.

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the supine to seated position with some discomfort, but she did not really exhibit symptom
magnification. Dr. Okin diagnosed degenerative disc disease of the lumbar spine and resolved
lumbosacral spine sprain and stated:
“Based on my review of the records, evaluating the patient, seeing the patient,
examining the patient, I have made the following conclusions within a reasonable
degree of medical certainty. The patient has underlying disc degenerative disease
of the lumbar spine prior to the date of so-called injury on May 2, 2006. Her
EMGs and nerve conduction studies performed by Dr. Winer revealed that she
had chronic radicular changes at L3-4 and L5-S1 by EMG. Not acute. Also, her
examination does not carry out any neurologic deficit whatsoever. On clinical
examination all her motor function was intact. Sensory function intact. Reflexes
were intact and her only deficit was range of motion causing back pain which is a
disc degenerative process and this is not a compensable or an impairment rated
issue.
“I disagree with Dr. Berman and I disagree with Dr. Winer and this patient is left
with no impairment as result of injury, but she does have disc degenerative
disease of the lumbar spine, which I feel does limit her ability to do lifting,
bending, or stooping, and she should remain at her present job position.”
In an April 7, 2008 decision, the Office affirmed its November 27, 2007 decision. It
found that the opinion of Dr. Okin did not establish that appellant had more than a three percent
permanent impairment of her right leg and a three percent permanent impairment of her left leg.
On September 16, 2008 Dr. Steven M. Allon, an attending orthopedic surgeon, indicated
that sensory examination revealed that appellant had a perceived sensory deficit over the L4, L5
and S1 dermatomes involving the right and left lower extremity. He stated that she sustained a
left foot crush injury in 2004 and reported that manual muscle strength testing revealed left ankle
dorsiflexion, inversion and eversion of 4/5. Dr. Allon determined that, under the standards of the
A.M.A., Guides, appellant had a 29 percent permanent impairment of her left leg based on a 4
percent impairment for a Grade 2 sensory deficit of the left L4 nerve root; a 4 percent
impairment for a Grade 2 sensory deficit of the left L5 nerve root; a 4 percent impairment for a
Grade 2 sensory deficit of the left S1 nerve root; a 5 percent impairment for 4/5 motor strength
deficit on left ankle inversion; a 5 percent impairment for 4/5 motor strength deficit on left ankle
eversion and a 12 percent impairment for 4/5 motor strength deficit on left ankle dorsiflexion.7
Appellant had a 12 percent permanent impairment of her right leg based on a 4 percent
impairment for a Grade 2 sensory deficit of the right L4 nerve root; a 4 percent impairment for a
Grade 2 sensory deficit of the right L5 nerve root; and a 4 percent impairment for a Grade 2
sensory deficit of the right S1 nerve root.
On January 27, 2009 Dr. Berman indicated that Dr. Allon had not adequately explained
his opinion that appellant had permanent impairment due to sensory and strength deficits in her
legs. He determined that appellant only had a three percent permanent impairment of her right
7

Dr. Allon used the Combined Values Chart on page 604 of the A.M.A., Guides to combine these values. He
used Tables 15-15 and 15-18 to evaluate sensory loss and Table 17-8 to evaluate strength loss.

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leg and a three percent permanent impairment of her left leg due to pain impairment as calculated
under Chapter 18.3 of the A.M.A., Guides. In a January 29, 2009 decision, the Office affirmed its
April 7, 2008 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing regulations9 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, the Act 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 A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.10 It is well
established that in determining the amount of a schedule award for a member of the body that
sustained an employment-related permanent impairment, preexisting impairments of the body are
to be included.11 Neither the Act nor its implementing regulations provide for a schedule award for
impairment to the back or to the body as a whole. Furthermore, the back is specifically excluded
from the definition of organ under the Act.12
Section 8123(a) of the Act 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.”13 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 the Act, to resolve the conflict in the medical
evidence.14 In situations where there exist 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 upon a proper
factual background, must be given special weight.15 Office procedures provide that selection of

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404 (1999).

10

Id.

11

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b (June 1993). This portion of Office procedure provides that the impairment rating of a
given scheduled member should include “any preexisting permanent impairment of the same member or function.”
12

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

13

5 U.S.C. § 8123(a).

14

William C. Bush, 40 ECAB 1064, 1975 (1989).

15

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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impartial medical specialists is made by a rotational system using the Physician’s Directory
System, whenever possible, to ensure consistent rotation among physicians.16
In a situation where the Office secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.17
ANALYSIS
The Office accepted that on May 2, 2006 appellant sustained thoracic and lumbosacral
neuritis and displacement of a lumbar intervertebral disc without myelopathy. On November 27,
2007 it granted appellant a schedule award for a three percent permanent impairment of her right
leg and a three percent permanent impairment of her left leg.
After granting appellant a schedule award, the Office determined that there was a conflict
in the medical opinion between Dr. Winer, an attending Board-certified neurologist, and
Dr. Berman, a Board-certified orthopedic surgeon serving as an Office medical adviser,
regarding the extent of the permanent impairment of appellant’s legs.
In October 1, 2007 reports, Dr. Winer determined that appellant had a 36 percent
permanent impairment of each leg. This impairment was comprised of 11 percent impairment
due to sensory loss,18 a 5 percent impairment due to weakness manifested by station and gait
deficiencies19 and a 20 percent impairment due to limited motion on flexion, extension, right
lateral bending and left lateral bending.20 In contrast, Dr. Berman found on November 7, 2007
that appellant only had a three percent permanent impairment of her right leg and a three percent
permanent impairment of her left leg due to sensory loss associated with the S1 nerve root.21

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4, 7 (March 1994,
May 2003); FECA Bulletin No. 00-01 (issued November 5, 1999).
17

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

18

Dr. Winer determined that appellant had a Class 3 sensory loss under Table 13-23 of the A.M.A., Guides for
evaluating pain or sensory loss from peripheral nerve disorders. See A.M.A., Guides 346, Table 13-23.
19

Dr. Winer referenced Table 13-15 of the A.M.A., Guides concerning impairment due to station and gait
disorders. See A.M.A., Guides 336, Table 13-15.
20

Dr. Winer applied Tables 15-8 and 15-9 of the A.M.A., Guides detailing impairment for limited flexion,
extension and lateral bending of the lumbar spine. See A.M.A., Guides 407, 409, Tables 15-8 and 15-9. The Board
notes that the Act does not allow impairment ratings for loss of back motion because neither the Act nor its
implementing regulations provide for a schedule award for impairment to the back. See supra note 12.
21

Dr. Berman applied Tables 15-15 and 15-18 of the A.M.A., Guides and found that she had a Grade 3 sensory
loss associated with the S1 nerve root. See A.M.A., Guides 424, Tables 15-15 and 15-18.

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In order to resolve the conflict, the Office properly referred appellant, pursuant to section
8123(a) of the Act, to Dr. Okin, a Board-certified orthopedic surgeon, for an impartial medical
examination and an opinion on the matter.22
On February 12, 2008 Dr. Okin determined that appellant did not have any permanent
impairment of her legs. He noted that diagnostic testing of appellant’s back showed
degenerative changes at L3-4 and L5-S1 but indicated that these changes were “not acute.”
Dr. Okin stated that examination revealed that sensory and motor functions were intact. He
indicated that appellant’s “only deficit was range of motion causing back pain which is a disc
degenerative process and this is not a compensable or an impairment rated issue.”
The Board finds that Dr. Okin’s report is in need of clarification in order to properly
evaluate the permanent impairment of appellant’s legs.23 The diagnostic testing of record shows
that appellant has suffered disc herniations and/or radiculopathies at the L3, L4, L5 and S1 discs.
Dr. Okin did not adequately explain why these diagnostic testing results and the clinical findings
of record would not show that appellant is entitled to an impairment rating for sensory loss
associated with at least one of these discs and attendant nerve roots. It also is unclear whether
Dr. Okin adequately evaluated appellant’s impairment due to loss of strength in her legs. He
indicated that appellant had 5/5 strength on dorsiflexion of the ankles, but he did not provide
specific findings for manual muscle testing of her lower extremities.24 It appears that appellant
sustained a left foot crush injury in 2004 and any permanent impairment due to this preexisting
injury would be included in an evaluation of the impairment of appellant’s legs.25 The Board
further notes, that Dr. Okin did not provide specific findings for range of motion testing of the
legs.26
For the above-described reasons, the opinion of Dr. Okin required clarification. The case
will be remanded to the Office for referral of the case record, a statement of accepted facts, and,
if necessary, appellant, to Dr. Okin for a supplemental report regarding the extent of the
permanent impairment of her legs. If he is unable to clarify or elaborate on his original report or if
his supplemental report is also vague, speculative or lacking in rationale, the Office must submit
the case record and a detailed statement of accepted facts to a second impartial specialist for the
purpose of obtaining his rationalized medical opinion on the issue.27 After such further
development as the Office deems necessary, an appropriate decision should be issued regarding
appellant’s entitlement to schedule award compensation.
22

Appellant’s attorney suggested that the Office did not select Dr. Okin on a proper rotational basis using the
Physician’s Directory System. However, he did not adequately explain the basis for this assertion. See supra
note 16.
23

See supra note 17.

24

See A.M.A., Guides 531-33. For example, Dr. Okin did not provide specific findings for ankle flexion and
eversion.
25

See supra note 12.

26

See A.M.A., Guides 533-34.

27

Harold Travis, 30 ECAB 1071, 1078 (1979).

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CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has more than a three percent permanent impairment of her right leg and a three percent
permanent impairment of her left leg, for which she received a schedule award. The case is
remanded to the Office for further development.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: March 18, 2010
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SRVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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

Docket No. 14-975
Issued: September 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 25, 2014 appellant filed a timely appeal from a March 11, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment of
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 merits of this case.
ISSUES
The issues are: (1) whether appellant received a $544.64 overpayment of compensation
for the period September 21, 2013 through February 8, 2014; (2) whether the overpayment is
subject to waiver of recovery; and (3) whether OWCP properly withheld $50.00 from appellant’s
continuing compensation payments beginning March 9, 2014.
FACTUAL HISTORY
On February 25, 2011 appellant, then a 53-year-old letter carrier, sustained injury, when
her right knee popped while in the performance of her regular duties. OWCP accepted a right
1

5 U.S.C. § 8101 et seq.

knee strain and right medial meniscus tear. It paid wage-loss benefits and for a December 13,
2011 right knee arthroscopy. Appellant eventually retired.
In a letter dated January 21, 2014, the Office of Personnel Management (OPM) advised
OWCP that appellant had elected Federal Employees’ Group Life Insurance (FEGLI) and that
there had been no reduction for postretirement life insurance election, which commenced
September 21, 2013. Deduction was to be made using code WO, effective September 21, 2013,
for basic life insurance and optional life insurance, option B, at five times salary full reduction.
In a February 6, 2014 manual adjustment form, OWCP calculated the life insurance
deductions for the period of September 21, 2013 to February 8, 2014: the gross sum of
$14,592.69 was reduced by $89.13 for basic life insurance, $736.73 for optional life insurance
and $0 for postretirement basic life insurance, which netted a payment of $13,766.84. It found
that the gross entitlement for the same period, $14,592.69, should have been reduced by $89.13
for basic life insurance, $660.18 for optional life insurance and $621.18 for postretirement basic
life insurance, which equaled net entitlement amount of $13,222.20. OWCP found that net
payment of $13,766.84 minus net entitlement of $13,222.20 resulted in total overpayment
of $544.64.
OWCP informed appellant in a preliminary determination dated February 6, 2014 that
she had received an overpayment of compensation in the amount of $544.64 because optional
life insurance and postretirement basic life insurance were not properly deducted from her
compensation payments for the period September 21, 2013 to February 8, 2014. It provided a
calculation of the overpayment, noting that optional life insurance was deducted in the amount of
$736.73 but should only have been deducted $660.18 and that OWCP had failed to make any
deduction for postretirement benefit life insurance when it should have deducted $621.18. The
credit of $76.54 from the over deduction of optional life insurance, subtracted from the under
deduction of postretirement life insurance in the amount of $621.18 resulted in an overpayment
of $544.64. It found that appellant was not at fault in the creation of the overpayment and
requested that she provide financial information within 30 days or if she contested that an
overpayment occurred.
Appellant requested that OWCP make a decision based on the written evidence. She
completed an overpayment recovery questionnaire with supporting documentation on
February 24, 2014 listing monthly income of $2,585.54 and total monthly expenses of $2,650.98.
This was comprised of mortgage, $1,066.00; car payment $352.73; car insurance $103.25; food
$500.00; clothing $100.00; utilities $200.00 for electricity; $60.00 for water; $60.00 for
telephone; $139.00 for cable; and $270.00 as minimum payments on five credit cards. Total
assets of $83,341.31 were also listed, which included $20.00 cash; $600.00 checking; $1,400.00
savings; $14,521.00 in Edward Jones investment; and $66,800.00 thrift saving plan (TSP).
By decision dated March 11, 2014, OWCP finalized that appellant had received an
overpayment of compensation in the amount of $544.64 for the period September 21, 2013
through February 8, 2014 as optional life insurance was over deducted but no postretirement
basic life insurance was deducted from her compensation payments. It found that she was not at
fault in the creation of the overpayment but that the overpayment was not subject to waiver as
her assets exceeded the statutory amount of $4,800.00. OWCP directed recovery by deducting
$50.00 every 28 days from her continuing compensation benefits.
2

LEGAL PRECEDENT -- ISSUE 1
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.2 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.3
Under FEGLI, most civilian employees of the Federal Government are eligible to
participate in basic life insurance and one or more of the options.4 The coverage for basic life
insurance is effective unless waived5 and the premiums for basic and optional life coverage are
withheld from the employee’s pay.6 When an under withholding of life insurance premiums
occurs, the entire amount is deemed an overpayment because OWCP must pay the full premium
to OPM upon discovery of the error.7
ANALYSIS -- ISSUE 1
The record reflects that OPM notified OWCP of incorrect withholding of two FEGLI
options for the period September 21, 2013 to February 8, 2014. OWCP calculated the amount of
the resulting overpayment to be $544.64. On January 21, 2004 OPM informed OWCP that
appellant elected postretirement basic life insurance coverage. Appellant’s final base salary was
$56,508.00 and OPM instructed OWCP to make deductions for code WO for basic life under
opinion B at 5 times salary, full reduction as OWCP did not receive timely notice of her election
in 2013 it under withheld insurance primaries in the amount of $544.64. The Board finds that
OWCP properly determined the fact and the amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
because of an error of fact of law, adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.8 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b).
Adjustment or recovery by the United States may not be made when incorrect payment
has been made to an individual who is without fault and when adjustment or recovery would
defeat the purpose of FECA or would be against equity and good conscience.
2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Id. at § 8702(a).

5

Id. at § 8702(b).

6

Id. at § 8707.

7

Id. at § 8707(d). See Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

8

Id. at § 8129(a).

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Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience, pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations9 provide that recovery of an overpayment
will defeat the purpose of FECA if recovery would cause hardship to a currently or formerly
entitled beneficiary such that: (a) 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 (b) the beneficiary’s assets do not exceed the
resource base of $4,800.00 for an individual.10 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. In other words, the amount of
monthly funds available for debt repayment is the difference between current income and
adjusted living expenses (i.e., ordinary and necessary living expenses plus $50.00).11
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his position for the worse.12 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.13
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. This information will also be used to determine the
repayment schedule, if necessary.14
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of compensation
and considered whether she was entitled to waiver of recovery. Waiver is only possible if
recovery would defeat the purpose of FECA or would be against equity and good conscience. In
order to establish that repayment of the overpayment would defeat the purpose of FECA,
appellant must show that she requires substantially all of her income to meet current ordinary

9

20 C.F.R. § 10.436.

10

Id. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (October 2004).
11

Id.

12

Id. at § 10.437(b).

13

Federal (FECA) Procedure Manual, see supra note 10, Chapter 6.200.6.b(3) (October 2004).

14

20 C.F.R. § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

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and necessary living expenses and that her assets do not exceed the established limit as
determined by OWCP’s procedures.15
OWCP determined that appellant’s financial assets exceeded the allowed resource base.
Appellant provided an overpayment recovery questionnaire listing assets of $83,341.31.
OWCP’s procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent.16 Appellant has no qualifying dependent and thus her qualifying amount
for waiver is $4,800.00.17 As her assets of $83,341.3118 exceed the amount specified, she has not
established that recovery would defeat the purpose of FECA.19
Additionally, the evidence does not demonstrate that repayment of the overpayment
would be against equity and good conscience. Appellant submitted no argument that she relied
upon the incorrect payments to her detriment or that she would experience severe financial
hardship attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery
of the overpayment.
On appeal, appellant contends that she was not at fault in creating the overpayment. The
fact that a claimant is without fault in creating an overpayment does not preclude OWCP from
recovering all or part of the overpayment.20
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of the regulations provide.
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
error is discovered or his or her attention is called to 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.21
15

Id. at § 10.436.

16

See 5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

17

See J.F., Docket No. 10-1185 (issued February 1, 2011).

18

See R.A., Docket No. 13-1121 (issued October 29, 2013). TSP savings can be included in the asset base.

19

It is unclear whether the hearing representative took into account a fifth credit card and cable in appellant’s
monthly expenses, which would make her monthly expenses a few hundred over her reported monthly income.
However, as appellant has the financial assets to resolve the debt and she has not shown that repayment of the
overpayment would defeat the purpose of FECA, an analysis into the whether appellant substantially requires all of
her income to meet current ordinary and necessary living expenses is not necessary.
20

See George A. Rodriguez, 57 ECAB 224 (2005); Joyce O. Diaz, 51 ECAB 124 (1999).

21

Id. at § 10.441.

5

ANALYSIS -- ISSUE 3
OWCP reduced appellant’s future compensation benefits by $50.00 per month taking into
account the amount of the compensation and the financial circumstances of appellant to
minimize hardship, as well as the factors set forth in section 10.441. It found that this method of
recovery would minimize any resulting hardship on her. The Board finds that OWCP properly
required repayment of the overpayment by deducting $50.00 from appellant’s ongoing
compensation payments every four weeks.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $544.64 for the period September 21, 2013 through
February 8, 2014 for which she was not at fault. Appellant is not entitled to waiver of recovery
of the overpayment and it should be recovered by withholding $50.00 per month from her
continuing compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AIR NATIONAL GUARD, Selfridge, MI,
Employer
__________________________________________

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

Docket No. 12-550
Issued: July 16, 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 January 20, 2012 appellant filed a timely appeal from a December 21, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying a schedule award
for an employment-related hearing loss. 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 the
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
ratable hearing loss entitling him to a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 18, 2010 appellant, a 55-year-old supervisory firefighter, filed an
occupational disease claim (Form CA-2) alleging that he developed hearing loss as a result of
employment-related noise exposure. He noted that he developed a significant hearing shift due
to constant noise exposure from tools, equipment, vehicles, aircraft and engine noise. Appellant
also stated that, on March 4, 1993, he was inspecting a vehicle when another firefighter turned
the siren on, causing him hearing loss. He notified his supervisor that same day.
By letter dated October 20, 1998, the Michigan Air National Guard informed appellant
that his hearing showed a permanent threshold shift compared to his reference audiogram.
In a November 7, 2002 Michigan Air National Guard Memorandum, appellant was
informed that his audiogram revealed a permanent threshold shift or a decrease in his hearing in
both ears when compared to his reference audiogram of October 20, 1998. It was further noted
that his hearing tests were still within normal limits.
An audiometric case history was submitted dated July 17, 1983 to September 27, 2002.
Hearing conservation data and examinations were also submitted dated May 23, 1990 to
September 7, 2010.
By letter dated December 1, 2010, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history, when he related his hearing loss to conditions of
employment and all nonoccupational exposure to noise. OWCP also requested that he provided
medical documentations pertaining to any prior treatment he received for ear or hearing
problems. It requested that the employing establishment provide noise survey reports for each
site where appellant worked, the sources and period of noise exposure for each location and
whether he wore ear protection.
In a December 7, 2010 narrative statement, appellant stated that he worked for Selfridge
Air National Guard Base (ANGB) Fire Department from July 1982 to the present. He reported
that his first incident of hearing loss occurred at work on March 4, 1993 when a vehicle siren
was turned on while he was standing next to the vehicle. Appellant stated that his employer at
Selfridge ANGB Fire Department did not issue proper hearing protection devices until 1997. He
stated that he was constantly exposed to noise and developed hearing loss while working around
aircraft, tools, vehicles, engines, equipment and sirens. Appellant stated that he was still exposed
to employment-related noise until his planned retirement on December 31, 2010. He further
noted that he had a hole in his left eardrum since the age of five. Along with his narrative
statement, appellant submitted noise survey reports dated March 14, 2003.
OWCP referred appellant to Dr. Lascelles Pinnock, a Board-certified otolaryngologist,
for a second opinion evaluation on May 18, 2011. It prepared a statement of accepted facts
addressing his federal work duties as an Air Force firefighter and the types of
employment-related noise to which he was exposed. An audiogram was completed on May 18,
2011 which revealed the following decibels (dBA) losses at 500, 1,000, 2,000 and 3,000 cycles
per second: 10, 10, 15 and 35 for the right ear and 10, 10, 20 and 20 for the left ear. Dr. Pinnock

2

noted that the audiogram showed bilateral normal hearing in low frequency and mild in high
frequency worse in the right. Speech discrimination scores were 100 percent bilaterally.
Dr. Pinnock diagnosed mild high frequency sensorineural hearing loss and opined that the
hearing loss was due to appellant’s workplace noise exposure.
By decision dated June 27, 2011, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss.
On July 19, 2011 appellant filed a claim for a schedule award.
On October 28, 2011 OWCP’s medical adviser reviewed Dr. Pinnock’s May 18, 2011
otologic examination and agreed that appellant developed a mild high frequency sensorineural
hearing impairment. In accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment2 (A.M.A., Guides), the medical adviser
applied the audiometric data to OWCP’s standard for evaluating hearing loss and determined that
appellant had a zero percent monaural hearing loss in the left ear, a zero percent monaural
hearing loss in the right ear and zero percent binaural hearing loss.3 The medical adviser
concluded that appellant had no ratable hearing loss and opined that hearing aids should not be
authorized. The date of maximum medical improvement was noted as May 18, 2011.
By decision dated December 21, 2011, OWCP denied appellant’s schedule award claim
finding that his hearing loss was not severe enough to be considered ratable.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations 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 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
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.5
According to the A.M.A., Guides, using the frequencies of 500, 1,000, 2,000 and 3,000
cycles per second, the losses at each frequency are added up and averaged. Then, the fence of 25
dBA is deducted because, as the A.M.A., Guides points out, losses below 25 dBA result in no
impairment in the ability to hear everyday speech under everyday conditions.6 The remaining
2

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

3

Id. at 252, Table 11-2.

4

5 U.S.C. §§ 8101-8193.

5

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

6

See A.M.A., Guides 250.

3

amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.7
ANALYSIS
Appellant filed a claim for bilateral hearing loss and was referred to Dr. Pinnock for a
second opinion examination. After reviewing the statement of accepted facts and medical file,
conducting a thorough physical evaluation and obtaining an audiogram on May 18, 2011,
Dr. Pinnock diagnosed mild high frequency sensorineural bilateral hearing loss due to
occupational noise exposure. OWCP’s medical adviser concurred with this finding and further
concluded that appellant had no ratable hearing loss to warrant a schedule award or hearing aids.
OWCP accepted appellant’s occupational disease claim for bilateral hearing loss. By decision
dated December 21, 2011, it denied his schedule award claim.8
The Board finds that OWCP properly denied appellant’s schedule award claim.
According to the audiometry obtained on May 18, 2011, appellant’s hearing thresholds were 10,
10, 15 and 35 on the right and 10, 10, 20 and 20 on the left. These total 70 and 60 dBA,
respectively, for averages of 17.5 and 15 dBA. Because these averages are below the fence of
25 dBA, appellant is deemed to have no impairment in his ability to hear everyday sounds under
everyday listening conditions.9 This does not mean that he has no hearing loss. It means that the
extent or degree of loss is not sufficient to show a practical impairment in hearing according to
the A.M.A., Guides. The A.M.A., Guides set a threshold for impairment and appellant’s
occupational hearing loss did not cross that threshold. Thus, OWCP’s medical adviser applied
the proper standards to the May 18, 2011 audiogram. Appellant’s hearing loss was not ratable.
For this reason, the Board finds that OWCP properly denied a schedule award for appellant’s
nonratable hearing loss.
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 established a ratable loss of hearing such that he is
entitled to a schedule award.

7

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).
8

This does not preclude appellant from seeking authorization for hearing aids or other appropriate medical
treatment. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter
3.400.3(d)(2) (October 1990); Raymond VanNett, 44 ECAB 480 (1993).
9

See L.F., docket No. 10-2115 (issued June 3, 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the December 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant
No appearance, for the Director

Docket No. 11-1111
Issued: March 6, 2012

Oral Argument January 12, 2012

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 1, 2011 appellant filed a timely appeal from a March 29, 2011 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 established a recurrence of disability commencing
January 1, 2010.
FACTUAL HISTORY
Appellant filed a claim for injury on October 5, 1995. OWCP accepted the claim for
right shoulder sprain/strain and aggravation of cervical disc disease with radiculopathy.
Appellant returned to work in a part-time light-duty position. An attending neurologist,
1

5 U.S.C. § 8101 et seq.

Dr. Jeffrey Steier, indicated on December 5, 2003 that appellant could work four to six hours per
day.
In a work restriction evaluation (Form OWCP-5) dated March 9, 2006, Dr. Steier found
that appellant could sit, with repetitive wrist movements, for two to four hours per day. As to
how many hours appellant could work, Dr. Steier listed four to eight hours. On March 14, 2006
appellant accepted a full-time light-duty job offer as a modified maintenance support clerk. The
description of the job duties included monitoring the facility security system. The stated
physical requirements included lifting of up to 10 pounds, and two hours of intermittent standing,
walking and reaching above shoulder. In a duty status report (Form CA-17) dated December 6,
2007, the employing establishment indicated that the modified maintenance support clerk
included 5 pounds of lifting for 30 minutes per day, 12 pounds of pulling/pushing for .01 hours,
and 1 pound of reaching above shoulder for .01 hours.2 No other work activities were noted.
On December 2, 2009 the employing establishment offered appellant a new light-duty
job. The duties were described as six to eight hours of “pars/waste mail, main office box section
[and] manuals 030.” The job offer included a written description of waste mail and manual mail
duties and provided physical requirements similar to the requirements accompanying the
March 14, 2006 job offer of record.3 The effective date of the job was January 1, 2010.
In an OWCP-5c dated December 28, 2009, Dr. Steier advised that appellant had a 10pound lifting restriction, and was limited to one hour per day of reaching and reaching above
shoulder. He diagnosed severe cervical dystonia.
In a notice of recurrence (Form CA-2a) dated January 28, 2010, appellant claimed
compensation as of January 4, 2010. He indicated on the claim form that the employing
establishment had withdrawn his prior light-duty job in the security office.
By letter dated February 10, 2010, the employing establishment asked Dr. Steier to
review the December 2, 2009 job offer and address whether appellant could perform the job
duties. On February 25, 2010 Dr. Steier responded that appellant could not perform the offered
job.
In a decision dated September 30, 2010, OWCP denied the claim for a recurrence of
disability. It found the evidence did not establish a material worsening of the employmentrelated condition or a change in the light-duty job requirements.
Appellant requested a hearing before an OWCP hearing representative, which was held
on February 8, 2011. The employing establishment submitted a March 2, 2011 response to the
hearing transcript, stating that appellant’s previous light-duty job was closed for

2

A May 13, 2008 Form CA-17 provides the same job requirements.

3

With respect to fine manipulation and simple grasping, the December 2, 2009 offer referred to the left hand
only, while the prior offer did not distinguish left or right hand.

2

administrative reasons. The job duties were accurately described and speculation that appellant
would have to case mail for eight hours was unsupported. The employing establishment stated
that appellant was working under the same restrictions since 2006. Appellant, through his
representative, submitted a response dated March 20, 2011. He argued that the evidence
established that the nature and extent of the light-duty job requirements had changed.
By decision dated March 29, 2011, the hearing representative affirmed the September 30,
2010 OWCP decision. The hearing representative found the medical evidence did not establish
any employment-related disability as of January 1, 2010 and that the new modified position had
the same restrictions as the prior job.
LEGAL PRECEDENT
OWCP’s regulations define the term recurrence of disability as follows:
“Recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means
an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical
limitations.”4
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.5 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.6
ANALYSIS
A claimant who is working in a light-duty position following an employment injury may
establish a recurrence of total disability if the medical evidence shows a change in the nature and
4

20 C.F.R. § 10.5(x).

5

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
6

Maurissa Mack, 50 ECAB 498 (1999).

3

extent of the employment-related condition that is disabling, or if there is a change in the lightduty job that is outside appellant’s work restrictions.
Appellant did not argued that a change in his employment-related condition occurred as
of January 1, 2010. He contends that there was a change in the light-duty job that establishes a
recurrence of disability as of January 1, 2010.7 In this regard the factual evidence establishes
that appellant had been working a modified maintenance support clerk position in a security
office since 2006. This position was no longer available to him as it was administratively
closed.8 Appellant was offered an entirely new position that involved handling of “waste” mail,
going through trays of nixie mail, casing letters are other related activity. The written job duties
of the offered position indicated that six to eight hours of the activities described as “pars/waste
mail, main office box section [and] manuals 030.”
OWCP found that the new position had exactly the same requirements as the prior
position, as the stated physical requirements were the same in the December 2, 2009 job offer as
in the March 14, 2006 offer. It did not, however, adequately consider all the relevant evidence of
record on this issue. The actual physical requirements of the position held since 2006 are not
clear from the record. The physical requirements of the security office position were reported by
the employing establishment in duty status reports issued after appellant accepted the position on
March 14, 2006. This evidence reflects that the security office job had limited reaching above
shoulder to less than one hour per day and occasional lifting of five pounds. The new position
had reaching above shoulder of up to two hours a day with occasional lifting of 10 pounds.
OWCP did not fully explain whether the original written physical requirements of the position
appellant had been performing since March 14, 2006 accurately represented the requirements of
the job. Before it can be determined if there is a change in the nature and extent of the light-duty
job, there must be adequate findings with respect to the prior job duties.
In addition, the offered position did not appear to be within the current medical
restrictions of record. Dr. Steier’s OWCP-5c dated December 28, 2009 limited appellant to one
hour of reaching above shoulder and the physical requirements of the new position were up to
two hours per day. OWCP considered the medical evidence insufficient to establish a recurrence
of disability as it did not show a material worsening of the employment-related condition. The
hearing representative also found that Dr. Steier did not specifically state that appellant could not
perform the new position but appellant was claiming that there was a change in the nature and
extent of the light-duty job requirements and he submitted current medical evidence. If there is a
new position with new job duties that are inconsistent with the current medical restrictions, then
OWCP needs to make a proper finding as to whether the medical restrictions are employment
related.

7

Appellant’s representative argued that there was a procedural error with respect to 20 C.F.R. § 10.618(e) which
provides an opportunity for a claimant to receive the employer’s comments to an oral hearing transcript and have 20
days to provide additional comments. Appellant did review the employer’s comments and submitted a response
prior to the March 29, 2011 decision.
8

The employing establishment asserts the job was not “withdrawn,” but it is not clear how the employing
establishment would define that term. The prior job was clearly no longer available to appellant.

4

The case will be remanded to OWCP for further adjudication on the recurrence of
disability issues presented. After such further development as OWCP deems necessary, it should
issue an appropriate decision.
CONCLUSION
The Board finds that the case must be remanded to OWCP for proper findings and an
appropriate decision as to the recurrence of disability claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 29, 2011 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: March 6, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 12-451
Issued: November 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 29, 2011 appellant filed a timely appeal from the November 15, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which granted a schedule
award. 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 has more than a 25 percent impairment of his left lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
On March 29, 2006 appellant, then a 45-year-old letter carrier, filed an occupational
disease claim alleging that the torn cartilage in his left knee was a result of performing the duties
of his employment. OWCP accepted his claim for derangement of the posterior horn of the left
1

5 U.S.C. § 8101 et seq.

medial meniscus, left knee meniscus tear, chondromalacia “except patella” left, current tear of
left medial meniscus and pain in the lower left leg joint.
On August 5, 2009 appellant underwent a left medial unicompartmental knee
arthroplasty. He filed a schedule award claim.
In August 2010, Dr. Brett R. Levine, the Board-certified orthopedic surgeon, performed
the operation, described his findings on examination. Appellant had no limp. He had no
instability to varus and valgus stress or anterior and posterior drawer testing. Appellant had no
extensor or flexor contracture. He had good quadriceps strength. Range of motion was 0 to 120
degrees. There was no effusion, no patellofemoral problems and no increased temperature.
Appellant reported medial joint line tenderness, but overall Dr. Levine found appellant’s
examination to be very stable and very benign. Dr. Levine noted that appellant had neutral
alignment to his lower extremity. X-rays showed well-placed and well-fixed unicompartmental
knee arthroplasty with no evidence of wear or loosening.
In November 2010, Dr. Scott Sporer, a Board-certified orthopedic surgeon and an
associate of Dr. Levine, described his findings on examination. Appellant had no appreciable
limp and used no assistive devices. Sensory and motor examinations were grossly intact distally.
Left knee range of motion showed full extension with flexion to 130 degrees. The knee was
stable to varus and valgus stresses. There was no effusion. Appellant had pain to palpation
along his medial joint line. There was no lateral joint line tenderness and the patellofemoral
grind test was negative.
Dr. David J. Fletcher, Board-certified in occupational and preventative medicine,
evaluated appellant’s permanent impairment in January 2011. He related appellant’s history and
complaints. Appellant had an antalgic gait with decreased weight bearing on the left lower
extremity. He used no assistive devices. Dr. Fletcher found atrophy over the left quadriceps and
crepitus. He also found a 10-degree lack of knee extension. Current x-rays showed previous
insertion of a medial joint compartment prosthesis. The lateral joint compartment was
maintained with no evidence of arthritic changes.
Dr. Fletcher characterized appellant’s impairment as moderate. Applying the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,2 he
found a 20 percent impairment of the left lower extremity due to loss of extension. Dr. Fletcher
found an 18 percent impairment due to gait derangement and an 8 percent impairment due to
unilateral muscle atrophy. Combining all three of these impairments, he concluded that
appellant had a 39 percent total impairment of the left lower extremity.
OWCP’s medical adviser reviewed Dr. Fletcher’s evaluation and noted that appellant had
persistent subjective complaints of left knee pain that were not supported by physical
examination. Using Table 16-3, page 511 of the sixth edition of the A.M.A., Guides,3 he found a

2

A.M.A., Guides (5th ed. 2001).

3

Id. (6th ed. 2009).

2

25 percent impairment of the left lower extremity for a good result (good position, stable,
functional) following knee arthroplasty.
On November 15, 2011 OWCP issued a schedule award for a 25 percent impairment of
appellant’s left lower extremity.
Appellant argues on appeal that Dr. Fletcher stands by his assessment of 39 percent. He
adds that Dr. Fletcher put him through two hours of walking, climbing up and down stairs and
other exercises to simulate his job, after which he noted limping and weakness in his lower
extremities from atrophy. Appellant is incredulous that there is no atrophy. He states that he has
pain on a daily basis. Appellant takes issue with the opinion of OWCP’s medical adviser, who
did not conduct a physical examination and who dismissed the pain experienced on a regular
basis.
LEGAL PRECEDENT
The schedule award provision of FECA4 and the implementing regulations5 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 shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.6
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 A.M.A., Guides has been adopted by regulations as
the appropriate standard for evaluating schedule losses.7 As of May 1, 2009, the sixth edition of
the A.M.A., Guides is used to calculate schedule awards.8
ANALYSIS
Under the applicable sixth edition of the A.M.A., Guides, diagnosis-based impairment is
the primary method of evaluating the lower extremity. Impairment is determined first by
identifying the relevant diagnosis, then by selecting the class of the impairment: no objective
problem, mild problem, moderate problem, severe problem, very severe problem approaching
total function loss. Each class of impairment has a default impairment rating, which can usually

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

7

Supra note 5; Ronald R. Kraynak, 53 ECAB 130 (2001).

8

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

3

be adjusted slightly using grade modifiers or nonkey factors such as functional history, physical
examination or clinical studies.9
Chapter 16 of the A.M.A., Guides provides criteria for evaluating permanent impairment
due to impairments of the lower extremities.
Although appellant’s arthroplasty was
unicompartmental, the most relevant diagnosis under Table 16-3, the Knee Regional Grid, is
total knee replacement, at page 511. Dr. Fletcher characterized appellant’s impairment as
moderate. This appears consistent with the findings of appellant’s surgeon, Dr. Levine, and his
associate Dr. Sporer: appellant’s prosthesis was well-positioned, stable and functional. A
moderate problem following knee arthroplasty has a default impairment value of 25 percent. In
fact, this is the maximum impairment rating any claimant may receive for a moderate problem
following knee arthroplasty. The rating cannot be adjusted higher based on grade modifiers or
nonkey factors.
As OWCP’s medical adviser based his recommendation of 25 percent on a review of the
relevant medical evidence and on the applicable edition of the A.M.A., Guides, the Board finds
that appellant has no more than a 25 percent impairment of his left lower extremity due to left
knee arthroplasty. The Board will affirm OWCP’s November 15, 2011 decision.
Appellant argues that Dr. Fletcher stands by his rating of 39 percent, but Dr. Fletcher
based that rating on an outdated version of the A.M.A., Guides, one that was published in 2001.
The sixth edition, the second printing of which was published in April 2009 and is currently in
use, does not allow the combination of impairments that Dr. Fletcher performed to obtain his
rating. Because he did not apply the proper edition of the A.M.A., Guides, Dr. Fletcher’s rating
does not establish appellant’s impairment rating.
A rating not based on the proper edition of the A.M.A., Guides is of little probative
value. Further, the Board has held that when OWCP’s medical adviser provides the only rating
that conforms to the applicable edition of the A.M.A., Guides, that evaluation constitutes the
weight of the medical evidence.11 Even though the medical adviser in this case did not examine
appellant, he was competent to analyze Dr. Fletcher’s evaluation to determine if it was
performed in accordance with the A.M.A., Guides.12
10

Appellant’s case is similar to that of S.L., Docket No. 12-595 (issued July 25, 2012). In
S.L., the attending physician improperly used the fifth edition of the A.M.A., Guides to evaluate
the impairment of the claimant’s left lower extremity. OWCP forwarded the evaluation to
OWCP’s medical adviser, who applied the sixth edition to the attending physician’s findings.
Using Table 16-3, OWCP’s medical adviser found that the claimant had a moderate problem
9

A.M.A., Guides 497.

10

James Kennedy, Jr., 40 ECAB 620, 627 (1989) (an opinion that is not based upon standards adopted by OWCP
and approved by the Board as appropriate for evaluating schedule losses is of little probative value in determining
the extent of permanent impairment).
11

John L. McClenic, 48 ECAB 552 (1997).

12

A.M.A., Guides 23.

4

following total knee replacement, which carried a default impairment value of 25 percent.
Unlike the present case, the medical adviser in S.L. reduced the default value by 2 percent for
lack of gait abnormality and 2 percent for an unremarkable physical examination, leaving the
claimant with a final rating of 21 percent. The Board affirmed a schedule award based on the
medical adviser’s rating.
The A.M.A., Guides explains that the impairment ratings in the body organ system
chapters, including Chapter 16, The Lower Extremities, make allowance for most of the
functional losses accompanying pain.13 Pain is most appropriately construed as a component of
a medical disorder14 and so the diagnosis-based impairment value for appellant’s left knee
arthroplasty accounts for the effect of pain that is typically associated with such a procedure.
As for putting appellant through two hours of exercises to simulate conditions of
employment, Dr. Fletcher’s findings may be relevant to the issue of appellant’s disability for
work or whether he should perform limited duty, but they do not reflect the permanent state of
physical impairment due to the left knee arthroplasty, from which appellant appears to have had
a reasonably good result with only moderate problems.15
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 no more than a 25 percent impairment of his left lower
extremity.

13

Id. at 25.

14

Id. at 35.

15

Dr. Fletcher’s finding of a 10-degree extension lag differs from previously recorded observations by Dr. Levine
and Dr. Sporer, both of whom found full extension. Until such a motion deficit becomes a reliably consistent
finding, it may be excluded from the impairment calculation. See id. at 496; see also id. at 544: “If it is clear that a
restricted range of motion has an organic basis, three measurements should be obtained and the greatest range
measured should be used. If multiple evaluations exist, and there is inconsistency of a rating class between the
findings of two observers or in the findings on separate occasions by the same observer, the results are considered
invalid.”

5

ORDER
IT IS HEREBY ORDERED THAT the November 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
U.S. POSTAL SERVICE, LOS ANGELES
PROCESSING & DISTRIBUTION CENTER,
Los Angeles, CA, Employer
__________________________________________
Appearances:
Manuel B. Madrid, for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1298
Issued: November 22, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On June 15, 2020 appellant, through his representative, filed a timely appeal from an
April 29, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2
The Clerk of the Appellate Boards docketed the appeal as Docket No. 20-1298.
On October 29, 2018 appellant, then a 61-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that beginning on September 20, 2018 he sustained degenerative

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

Appellant, through his representative, submitted a timely request for oral argument before the Board. 20 C.F.R.
§ 501.5(b). Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20
C.F.R. § 501.5(a). In light of the Board’s disposition in this case, the requested oral argument is hereby denied.

lumbar disc disease, necessitating lumbar fusion, due to factors of his federal employment.3 In an
accompanying statement, he described repetitive lifting, bending, and twisting while handling bags
and containers of mail weighing 35 to 60 pounds, pushing and pulling mail containers weighing
from 200 to 700 pounds, loading 600 sacks weighing 50 pounds each during an 8 -hour shift, and
moving over-the-road containers weighing 700 pounds and all-purpose containers from the work
area to the staging area. Appellant had performed these duties over a 30-year period. He
acknowledged that his current condition was similar to a lumbar condition for which he had
undergone surgery in May 2015 and October 2016. Appellant stopped work on approximately
September 24, 2018.
By decision dated January 29, 2019, OWCP denied appellant’s claim finding that the
medical evidence of record was insufficient to establish causal relationship between a diagnosed
medical condition and the accepted employment factors.
On January 31, 2020 appellant requested reconsideration. By decision dated April 29,
2020, OWCP denied his reconsideration request, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 4 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required. 5 Herein, appellant had a
prior claim for a lumbar condition, assigned OWCP File No. xxxxxx042. He subsequently filed
an occupational disease claim for the same region of the body on October 29, 2018, assigned
OWCP File No. xxxxxx263, which is the claim presently before the Board.
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record, OWCP File No. [xxxxxx]263 with OWCP File No. [xxxxxx]042,
so it can review all appellant’s relevant claim files in determining whether appellant has submitted
sufficient evidence to demonstrate clear evidence of error. Following this and such further
development as OWCP deems necessary, it shall issue an appropriate decision. Accordingly,

3

OWCP assigned the present claim OWCP File No. xxxxxx263. Appellant has a prior occupational disease claim
(Form CA-2), filed on June 8, 2011, alleging sciatica, lumbosacral radiculitis, and bulging discs. Appellant’s claims
have not been administratively combined.
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
5

Id.; S.G., Docket No. 21-0396 (issued September 27, 2021); R.L., Docket No. 20-0901 (issued July 27, 2021);
M.E., Docket No. 21-0094 (issued May 27, 2021); L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket
No 18-1777 (issued July 2, 2019).

2

IT IS HEREBY ORDERED THAT the April 29, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: November 22, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
GUARD BUREAU, Sacramento, CA, Employer
__________________________________________

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

Docket No. 13-623
Issued: July 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 23, 2013 appellant filed a timely appeal from an August 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 merits of this case.
ISSUE
The issue is whether appellant has established that OWCP’s July 2, 2002 loss of wageearning capacity (LWEC) determination should be modified.
FACTUAL HISTORY
This case has previously been before the Board. In an April 8, 2004 decision, the Board
affirmed OWCP’s decision reducing appellant’s compensation to reflect his wage-earning

1

5 U.S.C. § 8101 et seq.

capacity in the constructed position of budget officer.2 The Board accorded determinative
weight to the August 30, 2000 opinion of Dr. Warren Clift, a Board-certified neurologist selected
as the impartial medical examiner, who indicated that appellant was capable of working an eighthour day with restrictions, which included a six-hour sitting limit.
The Board further found that appellant had not met his burden of proof to establish that
either his preexisting migraine headaches or attention deficit hyperactivity disorder were caused
or aggravated by the April 7, 1999 work injury or caused disability for the constructed position.
In a March 4, 2011 decision, the Board set aside OWCP’s November 9, 2009 decision,
which found that his reconsideration request was untimely filed and did not establish clear
evidence of error and directed OWCP to adjudicate the request as a request for modification of a
wage-earning capacity determination.3 In a June 27, 2012 order, the Board set aside and
remanded OWCP’s May 19, 2011 merit decision denying his request for reconsideration of
OWCP’s July 2, 2002 LWEC determination.4 The Board requested OWCP to issue a de novo
decision as it was unclear whether the proper standard of review had been used in determining
whether modification of the wage-earning capacity determination was warranted. The facts of
the case are set forth in the Board’s prior decisions and are incorporated herein by reference.
The relevant facts are as follows: on April 22, 1999 appellant, then a 50-year-old heavy
mobile equipment mechanic supervisor, filed a traumatic injury claim alleging that on April 7,
1999 he experienced pain in his lower back and loss of strength and feeling in his left leg while
jogging during a diagnostic fitness test. OWCP accepted his claim for temporary aggravation of
lumbar radiculopathy, a herniated disc at L4-5 and an aggravation of degenerative disc disease.
This was later expanded to include the permanent aggravation of a herniated nucleus pulposus at
L5 on the left. Appellant did not work from May 5 through 7, 1999 and returned on
May 11, 1999. He stopped work on May 12, 1999 due to increasing pain. Effective
September 29, 2000, appellant was discharged from the employing establishment.5 He received
total disability compensation benefits from June 20, 1999 until his compensation was reduced,
effective July 14, 2002, when OWCP determined that appellant’s wage-earning capacity was that
of the constructed position of budget officer.
In a June 16, 2009 statement, appellant stated that he was required to maintain concurrent
military membership in the National Guard and that failure to hold military membership would
cause separation from federal civilian service. He alleged that OWCP had failed to consider the
facts of his medical condition; specifically, the May 11, 2000 results of the Medical Duty
2

Docket No. 03-2281 (issued April 8, 2004), order denying petition for recon. (issued August 2, 2004).

3

Docket No. 10-1379 (issued March 4, 2011).

4

Docket No. 11-1958 (issued June 27, 2012).

5

The record reflects that, since appellant was in an excepted position in the Federal Civil Service, he was
required to maintain concurrent military membership in the National Guard. Failure to hold military membership
would cause separation from the Federal Civil Service. Due to his work-related medical condition, appellant was
honorably discharged by the Army National Guard on July 11, 2000. Soon after, his federal civilian employment
was terminated on September 29, 2000.

2

Review Board and the medical reports of Col. Phillip Siegel, the military physician, regarding
his migraine headaches. Appellant alleged that the statement of accepted facts was inaccurate
and incomplete, OWCP failed to maintain his records in accordance with Department of Labor
regulations, that there was a violation of the Privacy Act and that there were procedural errors in
the vocational rehabilitation program, which resulted in the wage-earning capacity decision.
Medical reports of record since the Board’s April 8, 2004 decision include multiple
reports from Dr. Frederick Karl Gregorius, a Board-certified neurosurgeon. In an April 2, 2004
report, Dr. Gregorius diagnosed myofascial spinal pain in both the lumbar and cervical regions
and noted that appellant’s disability status was unchanged. He also noted that appellant was last
seen on September 17, 2003 and that he did home exercises until he received authorization for
physical therapy. In an October 18, 2005 report, Dr. Gregorius stated that appellant continued to
suffer from chronic lumbar spine pain and that his disability remained the same as it has been in
the past. He noted that appellant had paraspinous cervical spasms, which begin at the base of the
skull and progress to migraines. In February 9, 2006 and July 13, 2007 reports, Dr. Gregorius
noted that appellant had an exacerbation of his lumbar spine pain from sitting for a prolonged
period of time. He noted no change in the disability status from the past. On November 12,
2007 Dr. Gregorius noted that appellant’s pain continued to be present in the left side of his
lumbar spine with posterolateral radiation down the left leg, depending on how long he sits.
Appellant’s sitting tolerance was noted to be 30 to 45 minutes, beyond which his back pain
increases and he develops more pain down the left leg. Dr. Gregorius stated that appellant’s
disability is the same as it has been in the past. On May 1, 2008 he stated that appellant’s pain is
about the same. Dr. Gregorius noted that the lumbar spine pain alternates between legs and can
radiate down the posterolateral left leg to the toes and he can have right-sided pain down to the
hamstring. He opined that appellant’s disability is the same as it has been in the past.
In reports dated September 4, 2008, January 12, 2009 and August 27, 2010,
Dr. Gregorius noted that appellant had an exacerbation of his disabling lumbar spine pain with
left leg pain, but noted that appellant’s disability was the same as it has been in the past. In a
January 6, 2011 report, he advised that appellant’s pain had continued to worsen since he was
last seen in August 2010. Appellant continued to have pain down the back of the right leg which
was increasing in intensity. Dr. Gregorius stated that appellant has become more disabled
because of persistent pain and thought it justified to do neurodiagnostic studies, but noted that
appellant’s disability is the same as it has been in the past.
Appellant underwent lumbar x-ray and comparison lumbar magnetic resonance imaging
(MRI) scan studies on January 21, 2011 and in a January 31, 2011 report, Dr. Gregorius
indicated that the x-rays showed a mild scoliosis with a concavity to the right side with
anterolisthesis of L4-5 and degenerative disc disease, most impressive at L4-5 and L5-S1 levels.
The MRI scan revealed a grade 1 spondylolisthesis at L4-5 with a disc protrusion resulting in
moderate-to-severe central and lateral recess stenosis and narrowing of the L4 neural foramina.
Other levels show degenerative changes, most impressive at L4-5 level. Dr. Gregorius opined
that appellant’s scan findings had deteriorated since the last set of studies, which had been
obtained a number of years ago. He stated that appellant was responding to conservative
measures and was not a surgical candidate. Dr. Gregorius noted that appellant was undergoing
acupuncture and physical therapy and that his disability has been the same as it has been in the
past.

3

In an April 7, 2011 report, Dr. Gregorius noted that appellant has completed 12
acupuncture treatments but had not been able to go to physical therapy because his lumbar spine
pain persisted. In addition, appellant had severe migraine headaches which are triggered by his
back pain. Dr. Gregorius noted that appellant’s disability was the same as it has been in the past.
In his August 1, 2011 report, Dr. Gregorius noted that appellant last had acupuncture in
June 2011 and that appellant continued to have persistent back pain with radicular pain down the
posterolateral left leg. He stated that appellant had increasing pain with sitting which should be
limited to 20 to 30 minutes and due to the pain he cannot drive long distances. Dr. Gregorius
also noted that appellant’s disability was the same as it has been in the past. In a February 15,
2012 report, he stated that appellant has had a change in pain location as the pain was in the back
and posterolateral radicular down his right leg. Dr. Gregorius noted that the pain increased with
activities. He further stated that appellant’s disability was the same as it has been in the past. In
a July 27, 2012 report, Dr. Gregorius noted that appellant continued with persistent pain in the
lumbar spine. He stated that appellant continued to need medication, which he took on a daily
basis. Appellant stated that medication affects his mental status and acupuncture makes him less
dependent on medication and is the only thing that will help him. Dr. Gregorius further stated
that appellant’s disability was the same as it has been in the past.
Physical therapy reports and progress notes from Brian Loh, an acupuncturist, were
received as well as a duplicate copy of the May 11, 2000 Medical Duty Review Board Results
report. The report found appellant unfit for retention in the Army National Guard. Co. Robert
Siegel, the military physician, noted “frequent migraine headaches associated with back pain -lumbar disc herniation.”
By decision dated August 24, 2012, OWCP denied modification of its July 2, 2002 wageearning capacity decision, finding that none of the criteria for modification had been met.
LEGAL PRECEDENT
It is well established that either a claimant or OWCP may seek to modify a formal LWEC
determination. Once the wage-earning capacity of an injured employee is determined, a
modification of such determination is not warranted unless there is a material change in the
nature and extent of the injury-related condition, the employee has been retrained or otherwise
vocationally rehabilitated or the original determination was, in fact, erroneous.6 The burden of

6

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004). See also Tamra
McCauley, 51 ECAB 375 (2000).

4

proof is on the party attempting to show modification.7 There is no time limit for appellant to
submit a request for modification of a wage-earning capacity determination.8
The Board has held that OWCP may accept a limited period of disability without
modifying a standing wage-earning capacity determination. This occurs when there is a
demonstrated temporary worsening of a medical condition of insufficient duration and severity to
warrant modification of a wage-earning capacity determination. This narrow exception is only
applicable for brief periods of medical disability.9
ANALYSIS
OWCP accepted that appellant sustained temporary aggravation of lumbar degenerative
disc disease and radiculopathy and later, permanent aggravation of left-sided herniated nucleus
pulposus at L5. The current accepted diagnoses are lumbar neuritis or radiculitis and
degeneration of lumbar intervertebral disc. On July 2, 2002 OWCP found that appellant had
established his capacity to earn wages in the selected position of budget officer. It also found
that her headaches were not causally related to the April 7, 1999 work injury and his underlying
attention deficit hyperactivity disorder did not disable him from performing the selected position.
On April 29, 2004 the Board affirmed OWCP’s July 2, 2002 decision. On June 16, 2009
appellant filed a statement, which OWCP determined constituted a request to modify the original
July 2, 2002 LWEC determination. By decision dated August 24, 2012, OWCP denied
modification of its July 2, 2002 LWEC determination.
In his June 16, 2009 statement, appellant did not contend that he was retrained or
otherwise vocationally rehabilitated. He contended that the July 2, 2002 LWEC was erroneous
and that his accepted conditions had worsened. The Board finds that appellant has not submitted
sufficient evidence to establish that OWCP’s original wage-earning capacity decision should be
modified.
By decision dated July 2, 2002, OWCP determined that appellant had the wage-earning
capacity to perform the selected position of budget officer and reduced his wage loss
accordingly. This determination was reviewed by the Board in a prior appeal and affirmed. The
Board had also affirmed the impartial medical specialist’s determination that appellant’s
headaches were not causally related to the April 7, 1999 work injury and his underlying attention
deficit hyperactivity disorder did not disable him from performing the selected position.

7

Darletha Coleman, 55 ECAB 143 (2003).

8

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003). See also
Daryl Peoples, Docket No. 05-462 (issued July 19, 2005); Emmit Taylor, Docket No. 03-1780 (issued
July 21, 2004). In Peoples and Taylor, the Board determined that the claimant’s request for reconsideration of a
wage-earning capacity determination constituted a request for modification of the decision. The Board set aside
OWCP’s decision denying the claimant’s reconsideration request as untimely and remanded both cases for OWCP
to adjudicate the issue of modification of an LWEC determination.
9

K.R., Docket No. 09-415 (issued February 24, 2010).

5

In requesting modification of the wage-earning capacity determination, appellant
generally alleged that the statement of accepted facts was inaccurate and incomplete, OWCP
failed to maintain his records in accordance with Department of Labor regulations, that there was
a violation of the Privacy Act and that there were procedural errors in the vocational
rehabilitation program. However, he presented no evidence to support his general allegations of
error. Appellant also alleged that OWCP failed to consider the results of the Medical Duty
Review Board report of May 11, 2000 and the medical reports of Col. Phillip Siegel regarding
migraine headaches. The May 11, 2000 Medical Duty Review Board report, which addressed
appellant’s lack of fitness/ability to do his regular federal or collateral military job is not relevant
to the issue of his capacity to earn wages of budget officer. As noted above, the Board had
previously affirmed the determination that appellant’s headaches were not causally related to the
April 7, 1999 work injury and his underlying attention deficit hyperactivity disorder did not
disable him from performing the selected position, based upon the weight of the impartial
medical specialist’s report. Thus, the issue of appellant’s migraine headaches were addressed
and considered in the LWEC determination. Appellant has not demonstrated that the original
determination was erroneous or that he was retrained or otherwise vocationally rehabilitated. As
such, the only remaining basis for modification is whether the medical evidence establishes a
material change in the nature and extent of the injury-related condition.
It is noted that the Board previously accorded determinative weight to the August 30,
2000 opinion of Dr. Warren Clift, a Board-certified neurologist selected as the impartial medical
examiner, who indicated that appellant was capable of working an eight-hour day with
restrictions, which included a six-hour sitting limit. Dr. Gregorius opined in his January 6, 2011
report that appellant’s pain down the back of his leg continued to worsen since he was last seen
in August 2010. He also indicated that appellant had become more disabled because of
persistent pain. In his January 31, 2011 report, Dr. Gregorius reviewed January 21, 2011
diagnostic studies and opined that appellant’s scan findings had deteriorated since the last set of
studies. However he continued to opine in all his progress reports that appellant’s disability
remained the same. Although the evidence supports a finding that there was a worsening in
appellant’s accepted condition, Dr. Gregorius has offered no opinion as to whether appellant is
unable to perform the duties of the constructed budget officer position.
Additionally, it is noted that in his February 15, 2012 report, Dr. Gregorius indicated that
appellant’s pain location had changed from the left leg to the right leg but offered no opinion as
to whether the change in pain location was causally related to the April 7, 1999 work injury.
Thus, while the evidence establishes that there was a worsening in appellant’s condition,
Dr. Gregorius provides no support that appellant is unable to perform the position on which the
original LWEC determination was based.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the July 2,
2002 wage-earning capacity determination should be modified.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 24, 2012 is affirmed.
Issued: July 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7