United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Saddle Brook, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1495
Issued: March 30, 2022

Case Submitted on the Record

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

JURISDICTION
On August 3, 2020 appellant, through counsel, filed a timely appeal from a March 6, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The case record contains August 13, 2019 and January 16, 2020 decisions in which OWCP denied appellant’s
request that the acceptance of her claim be expanded to include additional cervical conditions causally related to her
accepted February 24, 2015 employment injury. As more than 180 days has elapsed from the issuance of these
decisions to the filing of this appeal, the Board lacks jurisdiction over the denial of appellant’s expansion claim. See
20 C.F.R. §§ 501.2(c) and 501.3.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective September 22, 2018, as she no longer had
disability or residuals causally related to her accepted February 24, 2015 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing disability or residuals
after September 22, 2018 causally related to her accepted February 24, 2015 employment injury.
FACTUAL HISTORY
On March 2, 2015 appellant, then a 23-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on February 24, 2015 she sustained a back injury when she slipped and
fell on ice while in the performance of duty. She stopped work on February 25, 2015. In
March 2015 appellant first returned to work after her original work stoppage and, in May 2015,
she stopped work again. OWCP paid her wage-loss compensation for disability from work on the
supplemental rolls for the period May 18 through December 22, 2015.
On January 14, 2016 Dr. Marc Cohen, a Board-certified orthopedic surgeon, performed
OWCP-authorized back surgery, including open laminectomy and lateral recess decompression at
L5-S1, and posterolateral discectomy at L3-4 and L5-S1. In April 2016 appellant returned to lightduty work on a full-time basis.
OWCP accepted appellant’s claim for intervertebral disc disorders of the lumbosacral
region at L3-4 and L5-S1 with radiculopathies, and other specified dorsopathies of the cervical
region.
In a November 5, 2017 report, Dr. Michael Binder, a Board-certified anesthesiologist,
noted that appellant primarily complained of neck and lower back pain. He indicated that, upon
physical examination, appellant exhibited diminished range of motion of the cervical and lumbar
spine. Dr. Binder diagnosed left cervical post-traumatic sprain/strain; left cervical radiculopathy
at C6 versus bilateral cervical post-traumatic facet syndrome at the C4-5, C5-6, and C6-7; lumbar
post-traumatic sprain/strain; and left lumbar radiculopathy at L3-4 versus bilateral lumbar posttraumatic facet syndrome at the L3-4, L4-5, and L5-S1. He opined that these conditions were
related to the February 24, 2015 employment injury.
In March and July 2018 OWCP referred appellant for second opinion examinations and
evaluations with Dr. Melvin Vigman, a Board-certified neurologist, and Dr. Andrew Farber, a
Board-certified orthopedic surgeon. It provided each physician with a statement of accepted facts
(SOAF) and a series of questions and requested that they provide an opinion regarding whether
appellant continued to have disability or residuals causally related to her accepted February 24,
2015 employment injury.
In an April 5, 2018 report, Dr. Vigman discussed appellant’s factual and medical history,
noting that the SOAF indicated that the accepted conditions were “intervertebral discs disorders
with radiculopathy, lumbar region L3-4 and L4-5 and cervical region and dorsopathy.” He further
noted, “I presume that means dorsal spine.” Dr. Vigman advised that appellant currently
complained of back pain and shooting pain into the left lateral thigh. He reported the findings of
the physical examination he performed on April 4, 2018, noting that appellant’s upper extremity
examination showed normal strength in all muscle groups proximally and distally, normal
2

cutaneous sensation at dermatomes C5 through C8, and 1+ reflexes. On lower extremity
examination, appellant had normal strength in all muscle groups proximally and had normal
cutaneous sensation dermatomes L3 through S1 bilaterally. Dr. Vigman noted that, on flexing her
lower back to 90 degrees, appellant complained of left paraspinal discomfort. He provided a
diagnosis of no neurological disease, damage, or dysfunction.
After his review of the medical records, Dr. Vigman opined that there did not appear to
have been a true indication for the January 14, 2016 lumbar surgery. He indicated that the
magnetic resonance imaging (MRI) scans of record obtained on the date of injury demonstrated a
normal lumbar MRI scan and did not indicate that there were herniated lumbar discs and did not
confirm central spinal stenosis. Dr. Vigman maintained that these diagnoses were used to justify
the surgery, but that the surgery was not done for neurological purposes. He indicated that the
“objective aspects of the case are totally normal neurologically” and did not support the subjective
symptomatology. Dr. Vigman indicated that the lumbar spine MRI scans of record “did not
support neurological problems in this case.” He noted “the current diagnoses” from a neurological
standpoint did not exist and there was no neurological diagnosis, neurological damage, or
dysfunction. Dr. Vigman indicated, “[i]n my opinion, the question of the work-related conditions
having resolved: the work-related conditions never caused a neurological problem. Appellant has
reached maximum medical improvement [MMI] neurologically with no permanency.”
Dr. Vigman noted that, from a neurological standpoint, appellant was capable of full-time work
without any restrictions. In an April 4, 2018 work capacity evaluation (Form OWCP-5c), he
indicated that appellant was able to perform her regular job without restrictions.
In a July 2, 2018 report, Dr. Farber discussed appellant’s factual and medical evidence,
noting that she continued to complain of radicular symptoms in her left upper and left lower
extremities. He noted that, upon physical examination of the cervical spine, appellant was
nontender about the cervical spine and had a negative Spurling’s test. Upon examination of the
lumbar spine, there was no erythema or evidence of infection around the incision area from the
January 14, 2016 lumbar surgery and straight leg raising was negative bilaterally. Dr. Farber did
not find neurovascular deficits of the extremities. He indicated that appellant was not presently
suffering from disabling residuals of the accepted conditions and did not have a “current disability
based on the examination of today.” Dr. Farber concluded that appellant did not require further
medical treatment as she had reached MMI and was capable of returning to her date-of-injury work
without restrictions. In a July 2, 2018 Form OWCP-5c, he indicated that appellant was able to
perform her regular job without restrictions.
OWCP then requested that Dr. Farber clarify his July 2, 2018 report by providing a more
detailed discussion regarding appellant’s work-related residuals and disability. In a July 25, 2018
supplemental report, Dr. Farber indicated that appellant was not presently suffering from disabling
residuals of the accepted conditions based upon the July 2, 2018 physical examination. He noted
that, upon examination of the cervical spine, she was nontender about the cervical spine, range of
cervical motion was normal in all planes, and Spurling’s test was negative. Examination of the
lumbar spine revealed no erythema or evidence of infection and normal range of motion during
extension and side bending. Dr. Farber advised that flexion was decreased, a finding he believed
was normal given that appellant was status post lumbar laminectomy. Appellant had negative
straight leg raise bilaterally and there was no evidence of radiculopathy on examination.
Dr. Farber indicated that appellant had reached MMI and there was no need for further treatment.
He opined that appellant was not disabled and was capable of returning to her date-of-injury job
without restrictions.
3

In a notice dated July 26, 2018, OWCP advised appellant that it proposed to terminate her
entitlement to wage-loss compensation and medical benefits as she no longer had residuals or
disability causally related to her accepted February 24, 2015 employment injury. It informed her
that the weight of the medical opinion evidence regarding work-related residuals/disability rested
with the opinions of Dr. Vigman and Dr. Farber, OWCP’s referral physicians. OWCP provided
appellant 30 days to submit evidence and argument challenging the proposed termination action.
Appellant submitted an August 20, 2018 report in which Dr. Cohen indicated that, after the
January 14, 2016 surgery, she did have improvement with reduction in some of her leg pain , but
still had residual issues with respect to numbness and intermittent pain in the left leg. Dr. Cohen
further explained, “[u]nfortunately the patient was left with persistent back and left leg
radiculopathy…. She had pain going from the buttocks to the thigh to the calf to the foot with
associated tingling and numbness.” Dr. Cohen noted that appellant was left with a two-level
lumbar disc surgery that caused “functional and work-related permanency” with respect to her
ability to forward and laterally bend, to lift, and to sit or stand in one position for any extreme
period. Regarding appellant’s post-surgery condition, he opined that appellant’s injuries were
permanent in nature and that appellant was unable to return back to her job without restrictions.
Dr. Cohen noted that he was completely in disagreement with the opinions of Dr. Vigman and
Dr. Farber, which had been provided to him.
By decision dated September 21, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective September 22, 2018, as she no longer had disability
or residuals causally related to her accepted February 24, 2015 employment injury.
On October 2, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During a hearing held on January 29,
2019, counsel argued that the opinions of Dr. Vigman and Dr. Farber were not well rationalized,
or in the alternative, there was a conflict in the medical opinion evidence between their reports and
those of appellant’s attending physicians, Dr. Binder and Dr. Cohen.
OWCP received a January 3, 2019 report from Dr. Joseph W. Dryer, a Board-certified
orthopedic surgeon, who indicated that appellant did not sustain any permanent lumbar injuries
due to the February 24, 2015 accident.
By decision dated April 4, 2019, OWCP’s hearing representative affirmed the
September 21, 2018 termination decision.4
By decision dated March 6, 2020, OWCP denied modification of its April 4, 2019
termination decision.

4

OWCP’s hearing representative also found that there was a conflict in the medical opinion evidence regarding
appellant’s expansion claim and remanded the case to OWCP for further development, including referral of appellant
for an impartial medical examination. Based on the July 18, 2019 report of Dr. Lydia Shajenko, a Board-certified
neurologist serving as an impartial medical examiner (IME), OWCP issued August 13, 2019 and January 16, 2020
decisions denying appellant’s request that the acceptance of her claim be expanded to include additional cervical
conditions causally related to her accepted February 24, 2015 employment injury. As noted above, the Board lacks
jurisdiction over the denial of appellant’s expansion claim. See supra note 3.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 22, 2018.
In his April 5, 2018 report, Dr. Vigman determined that appellant did not have any
residuals of her accepted employment injuries and could return to her date -of-injury job without
restrictions. However, he did not provide any notable discussion of the conditions accepted in
connection with the February 24, 2015 employment injury, i.e., intervertebral disc disorders of the
lumbosacral region at L3-4 and L5-S1 with radiculopathies, and other specified dorsopathies of
the cervical region. Dr. Vigman did not provide any discussion of when and how the accepted
employment injuries had resolved.
Moreover, in portions of his report, Dr. Vigman suggested that appellant did not actually
sustain all of the accepted employment conditions. He noted, “[i]n my opinion, the question of
the work-related conditions having resolved: the work-related conditions never caused a
neurological problem.” Dr. Vigman indicated that the magnetic resonance imaging (MRI) scans
of record obtained on the date of injury demonstrated a normal lumbar MRI scan and did not
indicate that there were herniated lumbar discs and therefore did not confirm central spinal
stenosis. However, OWCP had accepted that appellant sustained a lumbar condition that could be
characterized as having caused a neurological problem, i.e., the accepted lumbar radiculopathy
stemming from the L3-4 and L5-S1 discs. In addition, Dr. Vigman provided an opinion that the
January 14, 2016 lumbar surgery, which was authorized by OWCP was not necessitated by an
accepted employment injury. The Board has held that the findings of an OWCP referral physician
or IME must be based on the factual underpinnings of the claim, as set forth in the SOAF. 8
OWCP’s procedures provide that when an OWCP referral physician, IME, or district medical
adviser (DMA) renders a medical opinion based on an SOAF, which is incomplete or inaccurate
or does not use the SOAF as the framework in forming his or her opinion, the probative value of

5

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See A.D., Docket No. 20-0553 (issued April 19, 2021).

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the opinion is seriously diminished or negated altogether. 9 Given his failure to acknowledge all
the accepted employment conditions, Dr. Vigman’s opinion is of diminished probative value.
The Board further finds that Dr. Farber’s opinion also is not sufficiently well-rationalized
to justify the termination of appellant’s entitlement to wage-loss compensation and medical
benefits, effective September 22, 2018. Dr. Farber indicated, in reports dated July 2 and 25, 2018,
that appellant did not have any residuals of her accepted employment injuries and could return to
her date-of-injury job without restrictions. However, his opinion in this regard consisted of brief
conclusory statements without adequate explanation. Dr. Farber also did not provide any notable
discussion of the conditions accepted in connection with the February 24, 2015 employment injury
or explain when and how these conditions had resolved. In fact, in a portion of his July 25, 2018
report, he suggested that appellant still had residuals of the OWCP-authorized January 14, 2016
lumbar surgery. Dr. Farber advised that appellant’s lumbar flexion was decreased, a finding he
believed was related to that lumbar surgery. After Dr. Farber produced his July 2, 2018 report,
OWCP requested that he provide a supplemental report, which included a more detailed discussion
regarding appellant’s work-related residuals and disability. However, the July 25, 2018
supplemental report did not provide significant additional discussion in this regard and essentially
summarized examination findings contained in his July 2, 2018 report.
For these reasons, the Board finds that OWCP did not met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits, effective September 22, 2018.10
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 22, 2018.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3a(10)
(October 1990).
10

In light of the Board’s finding regarding Issue 1, Issue 2 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the March 6, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

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

Docket No. 11-337
Issued: September 26, 2011

Case Submitted on the Record

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

JURISDICTION
On November 23, 2010 appellant, through counsel, filed a timely appeal of an
October 21, 2010 decision of the Office of Workers’ Compensation Programs (OWCP)
terminating her compensation for wage-loss and medical benefits effective April 13, 2010.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation for wage-loss
and medical benefits effective April 13, 2010 on the grounds that she no longer had any residuals
or disability causally related to her accepted employment-related injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 26, 2004 appellant, then a 54-year-old rural letter carrier, filed a traumatic injury
claim alleging that she sustained injuries to her left leg and hip when she stepped into a hole in
the performance of duty. OWCP accepted the claim for left hip strain, aggravation of thoracic
and lumbosacral neuritis or radiculopathy, aggravation of displacement of lumbar intervertebral
disc without myelopathy and aggravation of postlaminectomy syndrome, lumbar region.2
Appellant underwent low back surgery on September 22, 2005. She returned to part-time
employment until December 2005, when she stopped working altogether.
In a report dated March 13, 2009, Dr. Srinivason R. Parthasarathy, an attending Boardcertified physiatrist, provided a history of injury and treatment and stated that appellant had
chronic lumbosacral and lower extremity pain due to a May 26, 2004 work-related injury to her
spine. He noted that she underwent a laminectomy, successfully completed work conditioning
and resumed modified work until December 2005 when she experienced an exacerbation of her
condition due to medication intolerance.
Examination of the thoracic and lumbar spine revealed a normal kyphosis; no significant
scoliosis or list; a normal lumbar lordosis; normal S1 joint motion bilaterally; and normal
lumbosacral alignment. Appellant had trunk weakness and experienced pain on all aspects of
range of motion testing. Lumbar flexion was to 60 degrees; extension was to 15 degrees.
Lateral flexion was to 15 degrees bilaterally. Left straight leg raise produced radicular pain.
Laseague’s maneuver did not produce any radicular symptoms. The lower thoracic and
lumbosacral spine was diffusely tender to palpation and appellant was tender over the coccyx.
The left hip was tender to palpation over the gluteal muscles, trochanter. Left hip range of
motion testing revealed flexion to 90 degrees; abduction to 45 degrees; internal rotation to 20
degrees; extension to 10 degrees; adduction to 20 degrees; and external rotation to 45 degrees,
with no significant pain. Left lower extremity sensation was intact to light touch except over the
left lateral thigh, left medial knee, left medial leg, left posterior calf, left lateral calf, left anterior
leg, left medial ankle, left lateral ankle, left dorsal foot, left dorsal first web space.
An October 15, 2007 magnetic resonance imaging (MRI) scan of lumbar spine
demonstrated mild-to-moderate neural foraminal narrowing at L4/5 and L5/S1. The left
posterior tibial motor conduction demonstrated reduced amplitude and slightly increased latency.
The left perineal motor conduction demonstrated a delayed distal latency and significantly
reduced amplitude. The left common peroneal F-wave latency was significantly prolonged.
Needle electromyography demonstrated small amplitude acute denervation potentials along with
increased amplitude, increased duration polyphasic motor units potentials with overall

2

The Board notes that File No. xxxxxx219 was accepted for left hip strain. Appellant’s January 19, 2006
traumatic injury claim was accepted for aggravation of thoracic or lumbosacral neuritis or radiculitis; aggravation of
displacement of lumbar intervertebral disc without myelopathy; aggravation of postlaminectomy syndrome, lumbar
region. (File No. xxxxxx787) The files were consolidated, with File No. xxxxxx219 serving as the master file.

2

diminished numbers of motor units. Dr. Parthasarathy diagnosed lumbar postlaminectomy
syndrome, lumbar radiculopathy and sacroiliitis and opined that appellant was unable to work.3
OWCP referred appellant to Dr. Robert A. Smith, a Board-certified orthopedic surgeon,
for a second opinion examination to clarify her work capability and to determine whether her
accepted injuries had resolved. In a report dated June 15, 2009, Dr. Smith reviewed the medical
and factual history and provided examination findings.
Examination of the spine revealed satisfactory active range of motion, with forward
flexion to 50 degrees, extension to 20 degrees and side bending to 20 degrees bilaterally. There
was no spasm or rigidity present during these maneuvers. The neurologic examination revealed
no focal atrophy with both calves measuring 34 centimeters in diameter and no clinically
significant weakness. Sensation was reduced in the lateral calf area. All reflexes were normal
and symmetrical. Distracted straight leg raising test did not provoke any radicular finding. A
comparison of preoperative and postoperative MRI scan studies showed satisfactory
decompression of the spine with no recurrent or residual disc protrusion.
Dr. Smith opined that the accepted conditions of hip sprain and displacement of the L4-5
disc (which was surgically removed) had resolved. He opined, however, that appellant continued
to experience residuals of the thoracic or lumbosacral neuritis and radiculitis and
postlaminectomy syndrome. Dr. Smith stated that she was not totally disabled and could return
to work in the medium category based on the 2005 functional capacity evaluation (FCE). In an
accompanying work capacity evaluation, he indicated that appellant could return to work eight
hours a day, provided that she be restricted from walking or standing more than four hours per
shift and from pushing, pulling or lifting more than 50 pounds.
OWCP found a conflict in medical opinion between Dr. Parthasarathy and Dr. Smith on
the issue of appellant’s ability to work. On October 2, 2009 it referred her, together with a
statement of accepted facts, a list of questions and the medical record to Dr. Dhruv B. Pateder, a
Board-certified orthopedic surgeon, to resolve the conflict in medical opinion.
In an October 30, 2009 report, Dr. Pateder reviewed appellant’s medical history and
statement of accepted facts. On examination, range of motion of the lumbar spine was limited
due to subjective pain. Objectively, Dr. Pateder did not sense any spasm or mechanical block.
Appellant did have pain with light touch over the lumbar spine and in the lateral aspect of her
hips. Forward flexion was to 5 degrees; extension to 15 degrees; left lateral flexion to 15
degrees; right lateral flexion to 15 degrees. Dr. Pateder stated that he was unable to test
sensation “as the exam[ination] was variable.” Reflexes in the upper and lower extremities,
straight leg raise and contralateral straight leg raise “could not be elicited secondary to pain.”
Dr. Pateder stated:
“Based on all the evidence and examining [appellant], I do not see any kind of
objective problem now which could be attributed to her injury in May 2004. I
think that while she might be having pain, it certainly cannot be attributed
3

The record contains numerous follow-up reports from Dr. Parthasarathy reiterating his opinion that appellant
continued to experience disabling residuals of the accepted injury.

3

directly to that injury. In fact, I do not think it can be attributed to the injury at
all. [Appellant] has received [a] more than appropriate amount of treatment for
that type of injury and in my opinion, she has been grossly over-treated at State
of Art Rehab[ilitation]. I think that there are no objective findings to validate
her subjective complaints, which could be attributed to the injury.”
Dr. Pateder opined that the pain appellant was experiencing, as well as the disability, was
related to her underlying condition, including depression, arthritis and malingering, rather than
the 2004 injury. He further opined that her total disability ceased three months after her
discectomy and that she did not have any residuals of the accepted injury. Dr. Pateder diagnosed
“back pain and hip pain of unknown origin” and opined that appellant was able to return to work
without any restrictions as it related to the accepted injury.
By letter dated January 12, 2010, OWCP asked Dr. Pateder to clarify his October 30,
2009 report by providing a medical reason as to why his medical opinion differed from that of
the second opinion evaluator, who opined that appellant return to work with restrictions.
Dr. Pateder was also asked to comment on the November 2005 FCE indicating that appellant was
able to return to medium work level.
In a January 18, 2010 follow-up report, Dr. Parthasarathy opined that appellant could
return to work in a sedentary capacity. He recommended that she return to work on a trial basis
eight hours a day with restrictions including sitting, standing and walking no more than three
hours a day; lifting and carrying no more than 10 pounds, three hours a day; pulling and pushing
no more than 10 pounds, two hours a day; bending and stooping rarely; and no climbing or
kneeling. Dr. Parthasarathy also recommended that appellant use an ergonomic chair.
In a supplemental report dated January 27, 2010, Dr. Pateder stated:
“Upon further review of the case, I personally think that [appellant] should be
able to work without any restrictions whatsoever. I think that my opinion differs
from the second opinion in that I think that she can do more than what the other
opinion thinks. I think that [appellant] has been malingering this entire time, as I
do not see any objective evidence of an acute injury. While she does have some
chronic degenerative changes, these are problems that are seen in all patients and
are not related to her work injury in any way whatsoever. As far as the FCE goes,
I think that [appellant] can certainly return to work at least under those conditions,
if not under complete return to work without any restrictions whatsoever.”
The record contains a January 26, 2010 job offer for a modified rural carrier position.
The position required appellant to drive and transport equipment to various sites up to two hours
a day and to type and take photos up to five hours a day. Physical requirements included
intermittent lifting, walking and bending.
In a letter dated February 17, 2010, Dr. Parthasarathy responded to the employing
establishment’s January 26, 2010 job offer. He indicated that appellant was able to perform
sedentary work, but not the duties required for the offered position. Because of her lumbar
radiculopathy and severe pain, she had limited ability to stand, bend, walk, lift and twist and

4

would be unable to perform the duties of the offered position, which would require her to lift
unspecified amounts, sit and drive for repetitive and extended periods and get in and out of a car
frequently.
On March 2, 2010 OWCP proposed to terminate appellant’s medical and compensation
benefits on the grounds that the medical evidence established that she had no disability or
residuals due to her accepted injury. It found that the weight of medical evidence was
represented by the report of the impartial medical examiner, Dr. Pateder.
By decision dated April 12, 2010, OWCP finalized its termination of appellant’s medical
and compensation benefits effective April 13, 2010. On April 26, 2010 appellant, through her
representative, requested a telephonic hearing.
At an August 3, 2010 hearing, counsel contended that OWCP improperly terminated
appellant’s benefits. He argued that there was no real conflict between the second opinion
physician and the treating physician as to whether she could return to work or whether she had
continuing residuals.
By decision dated October 21, 2010, an OWCP’s hearing representative affirmed the
April 12, 2010 termination decision, finding that the weight of the medical evidence was
represented by Dr. Pateder.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation.4 After it has been determined that an employee has disability causally related
to her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.5 OWCP’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which requires further medical treatment.8
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
4

A.W., 59 ECAB 593 (2008).

5

J.M., 58 ECAB 478 (2007).

6

See Del K. Rykert, 40 ECAB 284 (1988).

7

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

8

I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

5

the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.9
ANALYSIS
The Board finds that OWCP improperly terminated appellant’s compensation and
medical benefits effective April 13, 2010. Therefore, the October 21, 2010 decision must be
reversed.
OWCP referred appellant to Dr. Pateder to resolve the conflict in medical opinion
between her treating physician, who opined that she was totally disabled and its second opinion
physician, who opined that she could return to work with restrictions related to her accepted
conditions. The Board finds that OWCP properly determined that a conflict existed regarding
her capacity to work; it further finds, however, that Dr. Pateder’s referee reports are insufficient
to resolve the conflict.
In his October 30, 2009 report, Dr. Pateder provided minimal examination findings,
noting that he was unable to test sensation “as the exam[ination] was variable” and that reflexes
in the upper and lower extremities, straight leg raise and contralateral straight leg raise “could
not be elicited secondary to pain.” He failed to explain why he believed that appellant was able
to return to work without restrictions or why he disagreed with Dr. Smith’s opinion regarding her
work capability, nor did Dr. Pateder explain why appellant’s multiple work-related conditions
had improved to the extent that they no longer caused her to sustain wage loss. The fact that he
was unable to provide relevant examination findings further diminishes the probative value of his
report.
Dr. Pateder’s brief supplemental report dated January 27, 2010 failed to clarify why his
medical opinion differed from that of Dr. Smith or to comment on the November 2005 FCE
indicating that appellant was able to return to medium work level. He essentially reiterated his
belief that she had been malingering “this entire time” and was able to return to work without
restrictions. Dr. Pateder did not render his opinion to a reasonable degree of medical certainty;
nor did he explain the basis for his conclusion. For all of these reasons, his. Pateder’s reports are
of limited probative value and are insufficient to resolve the conflict in medical opinion.10
Accordingly, OWCP did not meet its burden or proof to terminate appellant’s wage-loss
compensation effective April 13, 2010.

9

Gloria J. Godfrey, 52 ECAB 486 (2001). FECA provides that, if there is a 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 the examination. 5 U.S.C. § 8123(a). The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion of either a second
opinion physician or an Office medical adviser, OWCP shall appoint a third physician to make an examination.
This is called a referee examination and it will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case. 20 C.F.R. § 10.321 (1999).
10

The Board notes that appellant’s treating physician eventually opined that appellant was able to return to a
sedentary position. There still remains an unresolved conflict as to her physical abilities and restrictions to be
encompassed in any proposed position.

6

The Board also finds that OWCP did not meet its burden of proof to terminate appellant’s
medical benefits. The medical evidence of record does not establish that she no longer has
residuals of her accepted condition.11
The Board notes that both appellant’s treating physician and the second opinion physician
believed that appellant had continuing residuals related to her accepted injury. The conflict in
medical opinion arose regarding the issue of her ability to work. As there was no conflict
regarding whether appellant had remaining residuals of the accepted injury, Dr. Pateder did not
serve as an impartial medical examiner on this issue. Rather, Dr. Pateder’s report constitutes
another second opinion evaluation.12
Reports from both Dr. Parthasarathy and Dr. Smith provide probative evidence that
appellant continues to experience residuals of her accepted injury. Dr. Parthasarathy provided
detailed examination findings, which revealed decreased range of motion pain, sensory
impairment related to appellant’s accepted conditions. Dr. Smith opined that the accepted
conditions of hip sprain and displacement of the L4-5 disc (which had been surgically removed)
had resolved. He opined, however, that appellant continued to experience residuals of the
thoracic or lumbosacral neuritis and radiculitis and postlaminectomy syndrome, which required
work restrictions.
Dr. Pateder’s reports are insufficiently rationalized to meet the OWCP’s burden of proof
that appellant no longer had residuals of the accepted conditions.
Dr. Pateder opined without any explanation that appellant’s total disability ceased three
months after her discectomy and that she did not have any residuals of the accepted injury. He
expressed his belief that any pain she was experiencing could not be due to the accepted injury.
Instead, Dr. Pateder attributed appellant’s complaints to malingering and other underlying,
nonwork-related conditions. As discussed above, he failed to provide rationale for his opinion.
Such an explanation is particularly important in light of the examination findings and opinion of
the treating physician and OWCP referral physician that appellant continues to experience
residuals of the 2004 injury. As Dr. Pateder served as a second opinion examiner on the issue of
continuing residuals, his report is not entitled to the special weight accorded to an impartial
medical examiner. The Board finds his report to be of limited probative value and insufficient to
meet the OWCP’s burden to terminate appellant’s medical benefits.13
The Board finds that OWCP improperly terminated appellant’s compensation and
medical benefits effective April 13, 2010. Accordingly, the October 21, 2010 decision is
reversed.

11

See supra note 6 and accompanying text.

12

The Board notes that Dr. Smith opined that the accepted conditions of hip sprain and displacement of the L4-5
disc had resolved. Although this opinion could be construed as conflicting with the treating physician’s opinion,
OWCP did not determine that a conflict existed on this issue and did not task Dr. Pateder to resolve that conflict.
13

To the extent that there existed a conflict as to whether the accepted conditions of hip sprain and displacement
of the L4-5 disc had resolved, Dr. Pateder’s reports are insufficient to resolve the conflict.

7

CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss and medical
benefits, effective April 13, 2010, on the grounds that she had no residuals or disability related to
her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 26, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Somerset, KY, Employer
__________________________________________

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

Docket No. 20-1676
Issued: April 28, 2021

Case Submitted on the Record

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

JURISDICTION
On September 28, 2020 appellant filed a timely appeal from a May 7, 2020 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 met his burden of proof to establish permanent
impairment of his left lower extremity, warranting a schedule award.
FACTUAL HISTORY
On June 26, 2017 appellant, then a 59-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on that date he fractured the left side of his foot when he
was inside his truck while in the performance of duty. OWCP accepted the claim for nondisplaced
1

5 U.S.C. § 8101 et seq.

fracture of the fourth metatarsal of the left foot and displaced fracture of the fifth metatarsal of the
left foot. On July 26, 2017 appellant underwent authorized open reduction internal fixation (ORIF)
left fourth and fifth metatarsal fractures with removal of defective hardware from the fifth
metatarsal. The operative report indicated that he had undergone a prior probable ORIF left fifth
metatarsal fracture (date unknown).
Appellant received disability retirement from the employing establishment effective
October 29, 2018.
On September 25, 2019 appellant filed a claim for a schedule award (Form CA-7).
OWCP, in an October 9, 2019 development letter, requested that appellant submit an
impairment evaluation from his attending physician addressing whether he had reached maximum
medical improvement (MMI) and, if so, the extent of any permanent impairment, in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).2 It afforded him 30 days to submit the necessary evidence. No
additional evidence was received.
On February 21, 2020 OWCP referred appellant, together with a statement of accepted
facts (SOAF) and the case record, to Dr. Stacie L. Grossfeld, a Board-certified orthopedic surgeon,
for review and a determination of permanent impairment in accordance with the sixth edition of
the A.M.A., Guides and the date of MMI.
In a March 12, 2020 report, Dr. Grossfeld noted a history of the June 26, 2017 employment
injury and appellant’s medical treatment. On physical examination of the left foot she reported a
6-centimeter (cm) incision over the ﬁfth metatarsal and a long 10-cm incision over the fourth
metatarsal. Capillary reﬁll was less than one second at the tips of the toes present. Capillary refill
involving the third toe was somewhat delayed compared to the other toes and was also on the
contralateral side. Appellant was able to flex his second, first, fourth, and ﬁfth toes, but he had
some difﬁculty ﬂexing his third toe. Sensation was intact to all dermatomes. Dr. Grossfeld also
noted range of motion (ROM) measurements of the left ankle which included 25 degrees of
dorsiflexion and 60 degrees of plantarflexion measured three times with a goniometer. She opined
that, pursuant to the sixth edition of the A.M.A., Guides, appellant had zero percent permanent
impairment of the left foot regarding his accepted work-related diagnoses of displaced fourth and
fifth metatarsal fractures of the left foot secondary to normal ROM and the absence of specific
permanent partial impairment for the diagnosis of metatarsal fracture with ORIF.
On April 12, 2020 OWCP referred the record to Dr. Arthur S. Harris, a Board-certified
orthopedic surgeon serving as a district medical adviser (DMA), for a review and rating of
appellant’s permanent impairment of the left lower extremity in accordance with the sixth edition
of the A.M.A., Guides.
In an April 21, 2020 report, Dr. Harris reviewed a SOAF and the medical record, including
the March 12, 2020 report of Dr. Grossfeld. Using the diagnosis-based impairment (DBI) rating
method, he concurred with her that, under the sixth edition of the A.M.A., Guides, appellant had
2

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

2

zero percent permanent impairment of the left lower extremity attributable to his diagnoses of
status post probable ORIF left fifth metatarsal fracture (date unknown) and status post ORIF left
fourth and fifth metatarsal fracture with removal of defective hardware on July 26, 2017.
Referencing section 16.7, page 543, of the A.M.A., Guides, the DMA explained that the A.M.A.,
Guides allow for the ROM method to be used as a standalone rating when there were no DBI
sections that were applicable or in rare cases when a severe injury results in passive ROM loss
qualifying for class 3 or 4 impairment or for amputation ratings. Dr. Harris explained that, because
the A.M.A., Guides did contain an appropriate DBI for appellant’s diagnosed conditions, it did not
meet any of the criteria of section 16.7, page 543, of the A.M.A., Guides to allow for impairment
to be calculated under the ROM method. The DMA determined that the date of MMI was
March 12, 2020, the date of Dr. Grossfeld’s impairment evaluation.
By decision dated May 7, 2020, OWCP denied appellant’s claim for a schedule award. It
found that the opinions of Dr. Grossfeld and the DMA established that appellant had no permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
LEGAL PRECEDENT
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.3
The schedule award provisions of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members, or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability and Health
(ICF).8 In determining lower extremity impairment, the sixth edition of the A.M.A., Guides
requires identifying the impairment class of diagnosis (CDX), which is then adjusted by a grade
modifier for functional history (GMFH), grade modifier for physical examination (GMPE), and/or
3

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019);
Tammy L. Meehan, 53 ECAB 229 (2001).
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
8
A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement.

3

grade modifier for clinical studies (GMCS).9 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).10
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides with the DMA providing rationale for the percentage of
impairment specified.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his left lower extremity, warranting a schedule award.
On March 12, 2020 OWCP obtained a second opinion report from Dr. Grossfeld. Utilizing
the sixth edition of the A.M.A., Guides, Dr. Grossfeld determined that appellant had zero percent
permanent impairment of the left lower extremity due to his accepted displaced fourth and fifth
metatarsal fractures of the left foot with an authorized June 26, 2017 ORIF. She explained that he
had normal ROM of the left ankle and there was no specific permanent partial impairment for the
diagnosis of metatarsal fracture with ORIF.
OWCP then properly referred the medical record to the DMA, Dr. Harris, who provided
an April 21, 2020 report. Using the DBI rating method of the A.M.A., Guides, the DMA concurred
with Dr. Grossfeld’s opinion that appellant had zero percent permanent impairment of the left
lower extremity attributable to his accepted diagnosis of status post ORIF left fourth and fifth
metatarsal fracture with removal of defective hardware on July 26, 2017. The DMA also attributed
his zero percent left lower extremity permanent impairment rating to his diagnosis of status post
probable ORIF left fifth metatarsal fracture of an unknown date. He opined that appellant’s
permanent impairment was not an exceptional circumstance which allowed rating under the ROM
method, pursuant to the guidelines provided in section 16-7, page 543 of the A.M.A., Guides.
The Board finds that both Dr. Grossfeld and the DMA properly applied the A.M.A., Guides
and provided rationale to explain their opinions that appellant had zero percent permanent
impairment of the left lower extremity. Additionally, the Board notes that appellant failed to
respond to the request to submit medical evidence supporting permanent impairment of a
scheduled member or function of the body pursuant to the A.M.A., Guides, in response to OWCP’s
October 9, 2019 development letter. Accordingly, the weight of the medical opinion evidence is
accorded to Dr. Grossfeld’s March 12, 2020 second opinion report and the April 21, 2020 report
of the DMA. As such, the Board finds that appellant has not met his burden of proof.

9

Id. at 494-531.

10

Id. at 515-22.

11

See supra note 7 at Chapter 2.808.6(f) (March 2017); see S.H., Docket No. 20-0253 (issued June 17, 2020).

4

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his left lower extremity, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 28, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Portland, OR, Employer
__________________________________________

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

Docket No. 10-189
Issued: July 15, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 26, 2009 appellant filed a timely appeal from the July 28, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his left shoulder injury
claim. 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’s left shoulder injury was a compensable consequence of
his accepted low back condition.
FACTUAL HISTORY
The Office accepted that on January 4, 2006 appellant, then a 46-year-old transportation
security screener, sustained a lumbar strain and lateral disc protrusion at L4-5 due to lifting bags

on that date. It paid wage-loss compensation for periods of disability.1 In February 2006,
appellant began participating in a physical therapy program that was approved by the Office for
treatment of his January 4, 2006 work injury. He participated in physical therapy sessions an
average of three times a week.2
Appellant claimed that he sustained a left shoulder injury in March 2008 due to lifting
weights while participating in an approved physical therapy program. He noticed a gradual
increase in his left shoulder symptoms over time.
The record contains copies from appellant’s physical therapy sessions in Spring 2008.3
The therapy sessions noted that he performed reverse butterflies (i.e., swinging handheld weights
back and forth to both sides) with weights of up to 22 pounds. By April 2008, appellant
complained of pain in the deltoid muscle of his left shoulder.
On May 13, 2008 Dr. Hart indicated that appellant’s back condition was at maximum
medical improvement and returned him to work with no restrictions. Dr. Hart noted, however,
that appellant had developed a little tendinitis at the left deltoid muscle at the upper-third
humeral junction while engaging in physical therapy sessions. He stated that this condition was
expected to resolve in time on its own with no expected residuals.4
In a November 14, 2008 report, Dr. David T.C. Lee, an attending Board-certified
internist, stated that appellant reported that he hurt his left shoulder in March 2008 while
performing reverse butterflies with weights up to 22 pounds in physical therapy sessions for a
low back injury. Appellant indicated that his left shoulder pain increased over time. Dr. Lee
stated that appellant used his left arm to some extent in his trucking industry job, noting:
“Left shoulder that failed [physical therapy] and steroid injection once. I do n[o]t
think repeat injection is helpful. Plan: I would suggest [magnetic resonance
imaging testing] and discussed this with Dr. Hart as clearly [physical therapy] in
March was the initial precipitating event. I do believe going to work without
completely recovering may have been exacerbation.”
Appellant submitted other medical evidence listing problems with his left shoulder. In a
December 29, 2008 report, Dr. Hart advised that appellant had a positive impingement sign in his
left shoulder. In a January 12, 2009 report, Dr. Anthony S. Wei, an attending Board-certified
orthopedic surgeon, stated that appellant reported that his left shoulder problems started after he
performed reverse butterflies during physical therapy sessions. He diagnosed left rotator cuff
1

Appellant initially returned to light-duty work for the employing establishment and then returned to regular
duty. In August 2007, he underwent decompression surgery of his low back which was authorized by the Office.
Appellant stopped work and received compensation for periods of disability.
2

On April 15, 2008 Dr. John L. Hart, an attending osteopath and Board-certified physical medicine and
rehabilitation, noted that appellant’s low back condition had improved and reduced his physical therapy sessions to
two times per week.
3

Documents from this period show that appellant’s physical therapy program was approved by the Office.

4

In June 2008, appellant returned to work performing tie-down work in the trucking industry.

2

tendinitis with a possible articular-sided partial tear. The findings of a January 9, 2009 magnetic
resonance imaging scan included, a subtle partial thickness articular-sided tear of the distal
anterior supraspinatus tendon measuring approximately one centimeter.
In a July 28, 2009 decision, the Office denied appellant’s claim on the grounds that he did
not submit sufficient factual or medical evidence to establish that he sustained a left shoulder
injury while participating in an approved physical therapy.
LEGAL PRECEDENT
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship. Rationalized medical evidence is
evidence which relates a work incident or factors of employment to a claimant’s condition, with
stated reasons of a physician. The opinion must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship of the diagnosed
condition and the specific employment factors or employment injury.5
It is well established that proceedings under the Federal Employees’ Compensation Act
are not adversarial in nature and, while the claimant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence.6
ANALYSIS
The Office accepted that on January 4, 2006 appellant sustained a lumbar strain and
lateral disc protrusion at L4-5 due to lifting bags. Appellant claimed that in Spring 2008 he
sustained a left shoulder injury as a consequence of a physical therapy program that was
approved for treatment of his January 4, 2006 work injury. Appellant first noticed his left
shoulder symptoms in March 2008 after performing reverse butterflies with 22-pound weights in
both arms during his sessions.7 The Board notes that the evidence of record establishes that in
Spring 2008 he participated in a physical therapy program, authorized by the Office for treatment
of his January 4, 2006 work injury, which included the performance of reverse butterflies with
weights in both arms weighing up to 22 pounds.
While none of the reports from appellant’s attending physicians are completely
rationalized, they are generally consistent in indicating that he sustained a left shoulder injury
during physical therapy.
On May 13, 2008 Dr. Hart, an attending osteopath and Board-certified in physical
medicine and rehabilitation, noted that appellant had developed a tendinitis at the left deltoid
muscle at the upper-third humeral junction while engaging in physical therapy sessions. He
5

Charles W. Downey, 54 ECAB 421 (2003).

6

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

7

On appeal appellant continued to assert that his left shoulder condition was caused by the approved physical
therapy sessions in Spring 2008.

3

stated that this condition was expected to resolve in time on its own.8 In a November 14, 2008
report, Dr. Lee, an attending Board-certified internist, stated that appellant reported that he hurt
his left shoulder in March 2008 while performing reverse butterflies with weights up to 22
pounds in physical therapy. He advised that appellant’s left shoulder had failed physical therapy
and suggested further diagnostic testing. Dr. Lee stated that the physical therapy in March 2008
clearly “was the initial precipitating event.”9 The Board finds that the medical evidence of
record raises an uncontroverted inference between appellant’s claimed left shoulder condition
and the physical therapy sessions. The evidence is sufficient to require the Office to further
develop the medical evidence.10
The case will be remanded to the Office for further evidentiary development regarding
the issue of whether appellant sustained a work-related left shoulder injury during approved
physical therapy sessions in Spring 2008. After such development as the Office deems
necessary, an appropriate decision shall be issued.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained a left shoulder injury as a consequence of physical therapy for his accepted low back
injury.

8

Later medical reports showed that appellant continued to have left shoulder problems through at least mid 2009.

9

The findings of January 9, 2009 magnetic resonance imaging scan testing showed, among other findings, a
subtle partial thickness articular-sided tear of the distal anterior supraspinatus tendon measuring approximately one
centimeter. Dr. Lee suggested that appellant’s trucking industry work, which started in June 2008, might have
further exacerbated the left shoulder injury caused by physical therapy.
10

See Robert A. Redmond, 40 ECAB 796, 801 (1989).

4

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: July 15, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
AVIATION DEPOT, Alameda, CA, Employer
__________________________________________

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Appearances:
Daniel R. Long, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1460
Issued: March 7, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 4, 2010 appellant filed a timely appeal from a November 17, 2009 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim
ISSUES
The issues are: (1) whether the Office properly found that appellant received an
overpayment of $10,150.47 for the period July 1, 2001 to April 11, 2009 due to underdeduction
of a retirement benefit offset; (2) whether the Office properly denied waiver of the overpayment;
and (3) whether the Office abused its discretion in setting the rate of recovery from continuing
compensation at $300.00 every 28 days.
FACTUAL HISTORY
On May 14, 1990 appellant, then a 50-year-old computer systems programmer, sustained
a back injury in the performance of duty. The Office accepted his claim for lumbar sprain and
aggravation of degenerative disc disease and failed back surgery.

Appellant was placed on the periodic rolls effective September 24, 1990. While on
compensation, he began receiving disability benefits from the Social Security Administration
(SSA) on July 1, 2001. The Office, however, failed to offset the portion of appellant’s social
security benefit that was based upon his federal civilian service.
In an April 9, 2009 fax transmittal from the SSA, Michael Brennan stated that the “period
eligible for FERS [Federal Employee Retirement System] offset is July 2001 [through]
May 2004 and October 2004 through the current month.” He indicated that appellant was
receiving disability benefits from November 1990 through June 2001 and from June through
September 2004. Mr. Brennan provided SSA rates with a FERS offset and without a FERS
offset from July 2001 through December 2008.1
The record contains a FERS and social security dual benefits calculation worksheet
specifying the social security benefits appellant would have received every 28 days without
FERS offset versus the amounts he should have received with FERS offset for the period
July 2001 to April 11, 2009. The worksheet reflects that the Office’s failure to deduct the FERS
offset for the applicable period resulted in an overpayment of $10,150.47.
By notice dated April 9, 2009, the Office advised appellant of its preliminary
determination that he received an overpayment in the amount of $10,150.47 because he was in
receipt of social security benefits attributable to his federal employment at the same time that he
was receiving compensation benefits under the Federal Employees’ Compensation Act. This
constituted a prohibited dual receipt of benefits. The Office stated that, according to the SSA,
with the exception of the period between June 1 through September 30, 2001, appellant had
received social security retirement benefits since July 1, 2001. It found him not at fault in
creating the overpayment. Appellant was afforded 30 days to request a telephone conference,
prerecoupment hearing or a final decision based on the record. The Office also requested
financial information and any additional arguments supporting waiver of the overpayment.
On May 4, 2009 appellant requested a prerecoupment hearing. He stated that repayment
of the overpayment amount would create a financial hardship.
Appellant submitted an overpayment recovery questionnaire dated May 4, 2009. His
monthly income consisted of social security benefits of $1,073.00 and compensation benefits of
$2,609.84, for a total monthly income of $3,682.84. Additional household income included
social security benefits for his wife in the amount of $1,770.00 and benefits from Los Angeles
County for his daughter in the amount of $740.00, for a total monthly household income of
$6,192.84.2 Appellant noted savings in the amount of $10,714.0 and annual stock dividends in
the approximate amount of $50.00. Assets included 34 shares of Wells Fargo stock. Appellant
1

The actual figures provided show SSA rates with FERS/without FERS with effective dates ranging from
July 2001 to December 2008 as follows: July 2001 -- $725.40/$638.50; December 2001 -- $744.50/$655.00;
December 2002 -- $754.80/$664.10; December 2003 -- $770.70/$678.10; October 2004 -- $978.70/$861.10;
December 2004 -- $1005.10/$884.30; December 2005 -- $1046.30/$920.50; December 2006 -- $1080.80/$950.80;
December 2007 -- $1105.60/$972.60; December 2008 -- $1169.70/$1029.00.
2

Appellant indicated that benefits for his daughter would cease effective November 27, 2009, resulting in a
monthly household income of $5,452.84.

2

stated that his home was a liability, rather than an asset, due to the housing crisis in California.
He listed monthly expenses of $5,405.54 as follows: utilities -- $551.28; auto insurance -$68.15; mortgage -- $1,650.00; home equity line of credit -- $468.95; food -- $500.00; clothing -$50.00; pest control -- $89.00; home security -- $41.99; Macy’s -- $50.00; Sears -- $500.00;
Chase -- $500.00; gardener -- $60.00; housekeeper -- $253.00; N. CA conference of Seventh Day
Adventists -- $623.17. Appellant stated that he had no invoices to document his expenses, as
they were shredded and discarded when paid and the bank held his cancelled checks. He noted
that he had additional expenses, which included automobile repairs, gasoline, personal grooming,
veterinary, dental and other medical and pharmacy expenses.
During an August 14, 2009 telephonic hearing, appellant requested waiver of the
overpayment amount based on financial hardship, noting that he and his wife were in their 70’s
and were 100 percent disabled. He stated that the balance of his savings account was now lower
than the $10,000.00 amount previously noted. The hearing representative advised appellant to
submit financial documentation supporting his request for waiver, including verification of his
mortgage, insurance, credit card and home maintenance payments. He provided appellant
60 days to submit additional evidence.
The record contains an undated report of a Saturn multi-point vehicle inspection. The
report was received by the Office on October 28, 2009.
By decision dated November 17, 2009, the Office hearing representative found that
appellant received an overpayment of $10,150.47 for the period July 1, 2001 to April 11, 2009,
with the exception of the period between June 1 through September 30, 2001, due to
underdeduction of a retirement benefit offset. Although appellant was found to be without fault
in the creation of the overpayment, the hearing representative denied waiver of the overpayment
because he failed to provide the supporting financial documentation requested during the
hearing. She noted, however, that based upon the information provided prior to the hearing,
appellant had household income of $5,452.84 and undocumented expenses of approximately
$4,820.00 a month, resulting in approximately $600.00 a month in discretionary income.
Therefore, appellant should be able to afford a monthly payment of $300.00, to be deducted from
his monthly compensation payment. A waiver of charges/compromise of principal worksheet
reflected that the debt would be repaid within 35.4 months, which is less than his life expectancy
of 171.6 months.
On appeal, counsel states that appellant was unable to submit supporting documentation
to the Office until October 2009 because he sustained a heart attack on September 16, 2009. He
also contends that appellant’s life expectancy is shorter than the 12-year figure used by the
hearing examiner.3
3

The Board notes that appellant submitted additional evidence on appeal. The Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision. Therefore, this additional
evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995);
James C. Campbell, 5 ECAB 35, 36 n.2 (1952). On appeal, counsel references supporting documents reportedly
submitted after the August 14, 2009 hearing but prior to the Office’s November 17, 2009 decision. The only
document of record submitted by appellant during the applicable time period was the undated vehicle inspection
report received by the Office on October 28, 2009.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Act4 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5 Section 8129(a) of the Act provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.6
Section 8116(d)(2) of the Act7 provides for limitations on the right to receive
compensation and states in pertinent part:
“(d) Notwithstanding the other provisions of this section, an individual receiving
benefits for disability or death under this subchapter who is also receiving benefits
under [S]ubchapter [3] of [C]hapter 84 of this title or benefits under [T]itle [2] of
the [SSA] shall be entitled to all such benefits, except that -- ”
***
“(2) in the case of benefits received on account of age or death under title [2] of
the [SSA,] compensation payable under this subchapter based on the [f]ederal
service of an employee shall be reduced by the amount of any such social security
benefits payable that are attributable to [f]ederal service of that employee covered
by [C]hapter 84 of this title.”8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation beginning
July 1, 2001 due to underdeduction of a retirement benefit offset. The case is not in posture for a
decision, however, as to the amount or period of the overpayment.
The record reflects that appellant received compensation benefits under the Act at the
same time that he received social security benefits attributable to his federal employment. The
portion of his social security benefits that he earned as a federal employee as part of his FERS
retirement and the receipt of benefits under the Act he received concurrently for this period

4

5 U.S.C. §§ 8101-8193

5

Id. at § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8116(d)(2).

8

Id.; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.11(a)(b)
(January 1997); FECA Bulletin No. 97-9 (issued February 3, 1997) (the portion of SSA benefits earned as a federal
employee is part of the FERS retirement package and the receipt of FECA benefits concurrently with federal
retirement is a prohibited dual benefit).

4

constitutes a prohibited dual benefit.9 The Office’s failure to offset appellant’s compensation
benefits by the amount of social security benefits he received attributable to his federal service
resulted in an overpayment of compensation.
The Office found that appellant received an overpayment of $10,150.47 for the period
July 1, 2001 to April 11, 2009. The evidence of record, however, is insufficient to establish
either the period or amount of the overpayment. The Board finds therefore that the case must be
remanded for further development.
On April 9, 2009 SSA stated that appellant’s benefits should have been offset from
July 2001 through May 2004 and from October 2004 through April 2009. It also indicated that
appellant was receiving disability benefits from November 1990 through June 2001 and from
June through September 2004. SSA did not state, however, whether she was receiving dual
benefits through April 2009. Additionally, while the report provided SSA rates with a FERS
offset and without a FERS offset for the period July 2001 through December 2008, it did not
provide information on the period from December 2008 through April 2009.
By decision dated November 17, 2009, the Office hearing representative found that
appellant received an overpayment of $10,150.47 for the period July 1, 2001 to April 11, 2009,
with the exception of the period between June 1 through September 30, 2001, due to
underdeduction of a retirement benefit offset. She relied, in part, on the FERS and social
security dual benefits calculation worksheet. The Office hearing representative did not explain
however, how she determined the amount of the overpayment. Such an explanation is
particularly important in light of the fact that the record prior to the November 17, 2009 decision
does not contain a printout of compensation payments received by appellant from July 1, 2001 to
April 11, 2009.
It is well established that the Office, as part of its adjudicatory function, must make
findings of fact and provide a statement of reasons for the decision reached.10 In an overpayment
situation, it must explain the basis for its finding of overpayment and a clear statement indicating
how the overpayment was calculated.11 In this case, the Office hearing representative failed to
provide such an explanation and the Board is unable to make a determination as to the accuracy
of her findings. The case will therefore be remanded to the Office for proper findings as to the
period and amount of the overpayment in compensation. After such further development as it
deems necessary, the Office shall issue an appropriate decision.
CONCLUSION
The Board finds that appellant received an overpayment of compensation due to
underdeduction of a retirement benefit offset. The Board finds, however, that the case is not in
9

5 U.S.C. § 8116(d)(2); Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter
2.1000.11(a)(b) (January 1997); FECA Bulletin No. 97-9 (issued February 3, 1997). A.L., 61 ECAB ___ (Docket
No. 09-1529, issued January 13, 2010); Franklin L. Bryan, 56 ECAB 310 (2005).
10

See Robert N. Johnson, 51 ECAB 480 (2000); see also 20 C.F.R. § 10.126.

11

See Jenny M. Drost, 56 ECAB 587 (2005).

5

posture for a decision as to the period and amount of the overpayment. The Board further finds
that the case is not in posture for a decision regarding waiver or recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 17, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and remanded for
further action consistent with this decision.12
Issued: March 7, 2011
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

12

As the Board has set aside the Office’s finding on the duration and amount of the overpayment, the case is not
in posture for a decision regarding waiver or recovery of the overpayment from continuing compensation benefits.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, Washington, DC,
Employer
__________________________________________

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

Docket No. 19-1423
Issued: March 2, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 18, 2019 appellant filed a timely appeal from a May 31, 2019 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.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $4,092.76 for the period October 1, 2010 through February 2, 2019, for which he was
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 31, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

without fault, as he concurrently received FECA benefits and Social Security Administration
(SSA) age-related retirement benefits without an appropriate offset; (2) whether OWCP properly
denied waiver of recovery of the overpayment; and (3) whether OWCP properly required recovery
of the overpayment by deducting $500.00 from appellant’s continuing compensation benefits,
every 28 days.
FACTUAL HISTORY
On September 25, 1997 appellant, then a 49-year-old office services supervisor, filed an
occupational disease claim (Form CA-2) alleging that his February 2, 1997 myocardial infarction
and subsequent coronary bypass surgery were caused or aggravated by factors of his federal
employment. OWCP accepted the claim for myocardial infarction and bypass surgery and
adjustment disorder with anxiety. Appellant stopped work on February 2, 1997 and returned to
work March 24, 1997. His last day in pay status was January 2, 1999. OWCP paid appellant
wage-loss compensation benefits on the periodic rolls commencing April 23, 2000.
In EN1032 forms dated September 24, 2010 and October 8, 2012, appellant denied receipt
of SSA benefits based on an annuity under the Federal Employees Retirement System (FERS).
On September 19, 2011, and in EN1032 forms completed as of 2013, he questioned whether he
received SSA benefits as part of an annuity for federal service and listed the amount of SSA
benefits received during the period.
On January 14, 2019 OWCP received SSA’s FERS/SSA dual benefit calculation
worksheet setting forth appellant’s SSA rate with FERS and the rate without FERS from
October 2010 through December 2018. The SSA rate with FERS/without FERS was reported as:
$410.00/$373.00 for October 2010; $410.00/$373.00 for December 1, 2010; $425.00/$386.00 for
December 2011; $432.00/$393.00 for December 2012; $431.90/$392.90 for August 1, 2013;
$438.90/$398.90 for December 1, 2013; $445.90/$404.90 for December 2014; $447.90/$404.90
for January 2015; $447.90/$404.90 for December 2015; $449.00/$407.00 for December 2016;
$458.00/$415.00 for December 1, 2017; and $471.50/$426.50 for December 1, 2018.
Effective February 3, 2019, OWCP adjusted appellant’s compensation benefits to reflect
the FERS/SSA offset.
In a February 13, 2019 letter, OWCP notified appellant that he had been receiving
prohibited dual benefits from FERS and the SSA. It explained that the SSA age-related retirement
benefits attributable to the federal service of an employee covered under FECA must be adjusted
for the FERS portion of SSA benefits. OWCP indicated that appellant’s compensation had been
adjusted to reflect the appropriate offset and noted his new compensation amount payable each 28
days.
In an April 24, 2019 FERS offset calculation worksheet, OWCP found an overpayment
amount of $74.41 for the period October 1 through November 30, 2010; $445.22 for the period
December 1, 2010 through November 30, 2011; $470.57 for the period December 1, 2011 through
November 30, 2012; $312.43 for the period December 1, 2012 through July 31, 2014; $156.86 for
the period August 1 through November 30, 2013; $481.32 for the period December 1, 2013
through November 30, 2014; $41.90 for the period December 1 through 31, 2014; $473.47 for the

2

period January 1 through November 30, 2015; $518.84 for the period December 1, 2015 through
November 30, 2016; $505.38 for the period December 1, 2016 through November 20, 2017;
$517.42 for the period December 1, 2017 through November 30, 2018; and $94.95 for the period
December 1, 2018 through February 2, 2019, for a total overpayment of $4,092.76 for the period
October 1, 2010 through February 2, 2019.
On April 25, 2019 OWCP issued a preliminary determination that appellant was overpaid
compensation in the amount of $4,092.76 for the period October 1, 2010 through February 2, 2019
because his FECA benefits were not reduced by the FERS portion of his SSA age-related
retirement benefits. It found that he was without fault in the creation of the overpayment as there
was no evidence of record to establish that he knew or should have known “the proper course of
action to be followed.” OWCP provided appellant with an overpayment action request form and
an overpayment recovery questionnaire (Form OWCP-20). Additionally, it notified him that,
within 30 days of the date of the letter, he could request a telephone conference, a final decision
based on the written evidence, or a prerecoupment hearing.
On May 3, 2019 OWCP received an overpayment action request form, dated April 29,
2019, in which appellant requested that OWCP make a decision based on the written evidence
regarding possible waiver of recovery of the overpayment. Appellant requested waiver of recovery
of the overpayment as he was found to be without fault in the creation of the overpayment. He
submitted a letter outlining his actions which he believed should have precluded the overpayment.
On the front page of the overpayment recovery questionnaire, appellant wrote “I believe this form
is irrelevant.”
By decision dated May 31, 2019, OWCP finalized its preliminary overpayment
determination finding that appellant had received an overpayment of compensation in the amount
of $4,092.76 for the period October 1, 2010 through February 2, 2019, because it failed to offset
his compensation payments by the portion of his SSA age-related retirement benefits that were
attributable to his federal service. It determined that he was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment of compensation based on the
lack of financial information provided. OWCP found that it would recover the overpayment by
deducting $500.00, every 28 days, from appellant’s continuing compensation payments beginning
May 26, 2019.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

3

Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$4,092.76 for the period October 1, 2010 through February 2, 2019, for which he was without
fault, as he concurrently received FECA benefits and SSA age-related retirement benefits without
an appropriate offset.
OWCP found that an overpayment of compensation was created for the period October 1,
2010 through February 2, 2019. The overpayment was based on the evidence received from SSA
with respect to age-related retirement benefits paid to appellant. A claimant cannot receive both
FECA compensation for wage loss and SSA age-related retirement benefits attributable to federal
service for the same period.7
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS, and without FERS for specific periods
commencing October 1, 2010 through December 1, 2018. OWCP provided its calculations for
each relevant period based on an SSA worksheet and in its preliminary and final overpayment
determinations. No contrary evidence was provided and appellant has not contested that an
overpayment occurred.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period October 1, 2010 through February 2, 2019 and finds that an overpayment of compensation
in the amount of $4,092.76 was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or

5

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
6

FECA Bulletin No. 97-09 (February 3, 1997); see also E.M., Docket No. 19-0857 (issued December 31, 2019);
N.B., Docket No. 18-0795 (issued January 4, 2019).
7
5 U.S.C. § 8116(d)(2); see L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued
May 17, 2019).

4

recovery would defeat the purpose of FECA or would be against equity and good conscience.8
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.9
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.10 Additionally, recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.11
OWCP regulations provide that the individual who received the overpayment is responsible
for providing information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment would defeat the
purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.12 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery of the overpayment, and
no further request for waiver shall be considered until the requested information is furnished.13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The fact that OWCP may have been negligent in the creation of the overpayment does not
entitle appellant to waiver of recovery of the overpayment.14 As OWCP found appellant without
fault in the creation of the overpayment, waiver must be considered, and repayment is still required
unless recovery of the overpayment would defeat the purpose of FECA or be against equity and

8

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.F., Docket No. 19-0054 (issued
June 12, 2019).
9

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

10

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
11

Id. at § 10.437(a)(b).

12

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

13

Id. at § 10.438(b).

14

See L.D., Docket No. 19-0606 (issued November 21, 2019); R.B., Docket No. 15-0808 (issued October 26, 2015).

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good conscience.15 Appellant, however, did not provide the requisite financial documentation to
OWCP.16
In its preliminary determination dated April 25, 2019, OWCP clearly explained the
importance of providing the completed Form OWCP-20 and supporting financial documentation.
It advised appellant that it would deny waiver of recovery if he failed to furnish the requested
financial information within 30 days. Appellant, however, deemed the Form OWCP-20
“irrelevant” and he did not provide the necessary financial documentation supporting his income
and expenses. As a result, OWCP did not have the necessary financial information to determine
if recovery of the overpayment would defeat the purpose of FECA or if recovery would be against
equity and good conscience.17 It was, therefore, required to deny waiver of recovery of the
overpayment.18
On appeal appellant argues that recovery of the overpayment should have been waived
because he was not at fault in the creation of the overpayment. As explained above, the Board
finds that OWCP properly denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or his attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the financial circumstances of the
individual, and any other relevant factors, so as to minimize any hardship.19
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$500.00 every 28 days from appellant’s continuing compensation payments.
OWCP provided appellant a Form OWCP-20 with the April 25, 2019 preliminary
determination. Appellant did not complete the overpayment recovery questionnaire or provide the
necessary financial information to support his income and expenses prior to the final May 31, 2019
overpayment decision. The overpaid individual is responsible for providing information about
income, expenses, and assets as specified by OWCP.20 When an individual fails to provide
requested financial information, OWCP should follow minimum collection guidelines designed to
15

5 U.S.C. § 8129.

16

20 C.F.R. § 10.438.

17

See E.M., supra note 6.

18

Id. at § 10.438; see L.D., supra note 14.

19

Id. at § 10.441(a); see A.F., supra note 8; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

20

Supra note 16.

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collect the debt promptly and in full.21 As appellant did not submit the financial documentation to
OWCP as requested, the Board finds that there is no evidence of record to establish that OWCP
erred in directing recovery of the $4,092.76 overpayment at the rate of $500.00 every 28 days from
appellant’s continuing compensation payments.22
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$4,092.76 for the period October 1, 2010 through February 2, 2019, for which he was without
fault, as he concurrently received FECA benefits and SSA age-related retirement benefits without
an appropriate offset. The Board further finds that OWCP properly denied waiver of recovery of
the overpayment and properly required recovery of the overpayment by deducting $500.00 every
28 days from his continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 2, 2020
Washington, DC

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

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

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

21

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual supra note 10 at Chapter 6.500.2 (September 2018).
22

See E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued March 2, 2017).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Brownsville, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1922
Issued: March 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On September 19, 2012 appellant filed a timely appeal of a June 14, 2012 schedule award
decision of the Office of Workers’ Compensation Programs (OWCP).1 The Board assigned
Docket No. 12-1922.
The Board has duly considered the matter and concludes that the case is not in posture for
decision. The record indicates that on June 14, 2012 OWCP issued a decision which granted
appellant a schedule award for six percent binaural hearing loss. However, the record does not
contain a copy of the June 14, 2012 schedule award decision. Accordingly, the Board cannot
conduct a full and fair adjudication of appellant’s claim as the record is incomplete. The Board
finds, therefore, that the appeal docketed as 12-1922 is not in posture for a decision. The
June 14, 2012 OWCP decision must be set aside and the case remanded to OWCP for
reconstruction and proper assemblage of the record, to be followed by issuance of an appropriate
merit decision pursuant to 5 U.S.C. § 8128(b)(1) to protect appellant’s right to appeal to the
Board.

1

The Board notes that appellant’s appeal request form indicated that he was appealing an April 26, 2012 OWCP
decision. The record does not contain a final adverse decision issued by OWCP on that date.

IT IS HEREBY ORDERED THAT the June 14, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this order of the Board.
Issued: March 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

2