United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE INTERIOR, U.S.
PARK POLICE, Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0236
Issued: October 9, 2020

Case Submitted on the Record

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

On November 9, 2019 appellant filed a timely appeal from a September 5, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 20-0236.
On July 24, 2002 appellant, then a 36-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on July 10, 2002 he sustained right Achilles tendinitis when
running on pavement during his physical training class while in the performance of duty. By
decision dated March 19, 2019, OWCP accepted his claim for right heel Achilles tendinitis under
File No. xxxxxx434.
On January 9, 2019 appellant filed a claim for a schedule award (Form CA-7).
In a memorandum to file, OWCP noted that appellant had requested schedule awards under
the current file, OWCP File No. xxxxxx434, and OWCP File No. xxxxxx905.1 It noted that, under

1

On April 30, 2019 OWCP noted that the record included a compact disc (CD) containing a magnetic resonance
imaging (MRI) scan. On May 7, 2019 it noted that the record included a digital video disc (DVD).

OWCP File No. xxxxxx905, he had been referred for a second opinion evaluation to determine
left upper extremity and right lower extremity permanent impairment.2
In a report dated June 12, 2019, Dr. Easton L. Manderson, a Board-certified orthopedic
surgeon, determined that appellant had zero percent right lower extremity permanent impairment
under OWCP File No. xxxxxx434 and seven percent permanent impairment of the left upper
extremity under OWCP File No. xxxxxx905 using the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment.3 He based his impairment rating
on review of a July 15, 2019 MRI scan of the right tibia and fibula, which he related revealed mild
tendinosis and mild peritendinitis of the distal Achilles tendon, and July 15, 2019 x-ray
interpretations of the right calcaneous, which he related showed minimal degenerative changes.
Dr. Manderson also referenced August 15 and September 7, 2006 reports by a podiatrist regarding
appellant’s right lower extremity, and an October 4 2007 MRI scan of appellant’s Achilles tendon.
He detailed medical records4 reviewed for both claims and provided left upper extremity
examination findings. No physical examination findings were provided for the right lower
extremity other than appellant reported no foot complaints.
By decision dated September 5, 2019, OWCP denied appellant’s schedule award claim
finding that the evidence of record was insufficient to establish any right lower extremity
permanent impairment. It explained that Dr. Manderson had concluded that appellant had no
permanent impairment of the right lower extremity, warranting a schedule award.
The Board had duly considered the matter and finds that this case is not in posture for
decision.
The record submitted to the Board is incomplete. As part of the development of appellant’s
request for a schedule award in this claim, as well as development of appellant’s schedule award
development for his left shoulder condition in OWCP File No. xxxxxx905, OWCP referred
appellant to Dr. Manderson. However, the record does not contain the letter referring appellant to
Dr. Manderson, or the accompanying list of questions and statement of accepted facts (SOAF)
provided for the physician’s review. The current record also does not include the diagnostic testing
performed on September 15, 2019, or the diagnostic reports referred to by Dr. Manderson.
Moreover, Dr. Manderson noted that he reviewed more documents than the record transmitted to
the Board contained.
Section 501.2(c) of the Board’s Rules of Procedure5 provides that the Board has
jurisdiction to consider and decide appeals from the final decision of OWCP in any case arising

2
The Board notes that these OWCP files have not been combined. OWCP File No. xxxxxx905 appears to be
related to an April 27, 2005 traumatic injury to appellant’s left shoulder.
3

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

4

Dr. Manderson noted that he reviewed 166 pages for OWCP File No. xxxxxx434. The Board notes that the case
record before the Board contains 96 pages in 23 documents.
5

20 C.F.R. § 501.2(c).

2

under the Federal Employees’ Compensation Act.6 Because the record as transmitted to the Board
is incomplete and would not permit an informed adjudication of the case,7 the Board is unable to
properly consider and decide appellant’s claim. The case, therefore, is remanded to OWCP for
reconstruction and proper assemblage of the record.8 After such further development as deemed
necessary, OWCP shall issue a de novo decision on appellant’s right lower extremity schedule
award claim. Accordingly,
IT IS HEREBY ORDERED THAT the September 5, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 9, 2020
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

6

5 U.S.C. § 8101 et seq.

7

See H.C., Docket No. 19-1976 (issued May 26, 2020); D.H., Docket No. 17-0224 (issued August 16, 2018).

8

Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
FACILITY, El Centro, CA, Employer
__________________________________________

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

Docket No. 08-1995
Issued: April 22, 2009

Case Submitted on the Record

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

JURISDICTION
On July 14, 2008 appellant filed a timely appeal from a June 24, 2008 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 schedule award decision.
ISSUE
The issue is whether appellant has established more than 14 percent right upper extremity
impairment and more than 14 percent left upper extremity impairment for which she received a
schedule award.
FACTUAL HISTORY
This case has previously been before the Board. In a May 22, 2008 decision, the Board
set aside the Office’s September 5, 2007 decision, which denied appellant’s claim for an
increased schedule award beyond 14 percent permanent impairment previously awarded for each
upper extremity.1 The Board found that Dr. Arthur S. Harris, a Board-certified orthopedic
1

Docket No. 08-13 (issued May 22, 2008).

surgeon and Office medical adviser, did not adequately explain how he reached his impairment
rating of 9 percent impairment of the right arm and 12 percent impairment of the left arm. The
Board found that he did not explain his basis for including three percent impairment for lost
range of motion for the left arm. The Board also found that Dr. Harris erroneously based four
percent pain impairment for each arm based on a decreased sensation to the ulnar nerve, when it
should have been based on median nerve distribution in view of the findings of appellant’s
physician, Dr. James R. Moitoza, a Board-certified orthopedic surgeon. The Board further noted
that, while Dr. Harris classified appellant’s impairment of the upper extremity due to sensory
deficit or pain as that of Grade 3 deficit, he applied a percentage deficit for that of a Grade 4
deficit. The Board remanded the case for the Office to request clarification from Dr. Harris. The
facts and the circumstances of the case as set forth in the Board’s prior decision are incorporated
herein by reference.2
Following the Board’s May 22, 2008 decision, the Office requested that Dr. Harris clarify
his May 7, 2007 calculations. It noted that the pain impairment to both the left and right upper
extremities should have been based on the median nerve. The Office requested that Dr. Harris
recalculate the impairment of the right and left upper extremities using the correct maximum
impairment value for the proper peripheral nerve (39 percent for the median nerve below the
midforearm) and correlates the proper sensory deficit percentage range for the classification of
the sensory deficit or pain.
Dr. Moitoza continued to submit additional reports documenting appellant’s continued
treatment. He noted that appellant continued to have some sort of neuropathic pain syndrome
with no evidence of any neurologic deficit in either upper extremity.
In a June 9, 2008 report, Dr. Harris reviewed his May 7, 2007 finding that appellant had 9
percent impairment of the right upper extremity and 12 percent impairment of the left upper
extremity as well as Dr. Moitoza’s subsequent reports and advised he did not wish to change his
previously expressed opinion. He stated it was obvious from Dr. Moitoza’s March 22, 2007
report, as well as his subsequent reports that appellant has chronic problems with bilateral
median nerve neuropathy at the wrists/carpal tunnel syndrome, bilateral cubital tunnel
syndrome/ulnar neuropathy at the elbow and some residual problems from her bilateral first
dorsal compartment release. With regards to impairment resulting from cubital tunnel
syndrome/ulnar neuropathy, Dr. Harris felt appellant’s symptoms were consistent with Grade 3
pain/decreased sensation that interferes with some activity (Table 16-10 page 482 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment) and, when
multiplied by the seven percent maximum impairment value for the ulnar nerve above
midforearm (Table 16-15, page 492 of the A.M.A., Guides), resulted in a four percent
impairment of both the right and left upper extremities. He stated appellant had residual carpal
tunnel symptoms status post right carpal tunnel release on May 3, 2001 and left carpal tunnel
release in April 2001 and opined that, under Chapter 16 at page 495, appellant had five percent
impairment for her bilateral carpal tunnel symptoms consistent with having a satisfactory result
2

The Office accepted appellant’s claim for bilateral carpal tunnel syndrome, bilateral lesion of the ulnar nerve,
right wrist ganglion cyst and right radial styloid tendinitis and authorized appropriate surgeries. It paid appropriate
benefits and appellant returned to full-time modified-duty work after each surgery. In its May 22, 2008 decision, the
Board found that the record did not show that appellant had a right wrist ganglion cyst.

2

following carpal tunnel release. Dr. Harris further advised that appellant has some loss of ulnar
deviation as a result of her continued problems with chronic de Quervain’s tenosynovitis status
post left de Quervain’s/first dorsal compartment release on December 9, 2005 and had three
percent impairment for loss of motion for her left upper extremity.3 He advised that while a
Grade 3 pain/decreased sensation that interferes with some activity (Table 16-10, page 482) of
the median nerve/sensory function [39] would result in a 24 percent impairment of each upper
extremity, he did not feel appellant was entitled to this impairment. He explained that
Dr. Moitoza’s subsequent evaluations documented appellant’s continued chronic problems with
her bilateral median nerve/median neuropathy and bilateral cubital tunnel/ulnar neuropathy and
that her symptoms wax and wane with time with no evidence of any neurologic deficit in either
upper extremity. Dr. Harris stated that, because appellant’s symptoms wax and wane and there
would be different subjective complaints as well as objective findings depending on the date that
she was seen, he did not wish to change his previous opinion that appellant had 9 percent
impairment in the right arm and 12 percent impairment in the left arm with a date of maximum
medical improvement of December 20, 2006.
By decision dated June 24, 2008, the Office denied appellant’s request for an increased
award for the right and left upper extremities. Based on the Office’s medical adviser’s June 9,
2008 report, it found that appellant was entitled to no greater than the 14 percent right upper
extremity impairment and the 14 percent left upper extremity impairment previously paid.
On appeal, appellant agreed that her condition was chronic, but disagreed with the
Office’s denial of her claim for an increased schedule award.
LEGAL PRECEDENT
A claim for an increased schedule award may be based on new exposure.4 Absent any
new exposure to employment factors, a claim for an increased schedule award may also be based
on medical evidence indicating that the progression of an employment-related condition has
resulted in a greater permanent impairment than previously calculated.5
In determining entitlement to a schedule award, preexisting impairment to the scheduled
member should be included.6 Any previous impairment to the member under consideration is
included in calculating the percentage of loss except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.7

3

In his May 7, 2007 report, Dr. Harris found that under Figure 16-31 at page 469, the A.M.A., Guides (5th ed.
2001), appellant had three percent impairment for loss of wrist ulnar deviation.
4

Linda T. Brown, 51 ECAB 115 (1999).

5

Id.

6

Carol A. Smart, 57 ECAB 340 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (November 1998).

3

The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing regulations9 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. For consistent results and to ensure equal justice, under the law to
all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the Office for evaluating schedule losses.10
The A.M.A., Guides note that carpal tunnel syndrome involves compression of the
median nerve at the volar aspect of the wrist.11 The A.M.A., Guides list the symptoms, signs and
findings of carpal tunnel syndrome as pain and paresthesias in the median nerve distribution,
including sensory autonomic disturbances in the radial 3.5 digits, weakness or atrophy of the
thenar muscles, a positive percussion sign at the wrist, presence of Phalen’s sign and motor and
sensory electroneuromyographic abnormalities.12
In evaluating carpal tunnel syndrome, the A.M.A., Guides provide that, if after an
optimal recovery time following surgical decompression, an individual continues to complain of
pain, paresthesias or difficulties in performing certain activities three possible scenarios can be
present. The first situation is: Positive clinical finding of median nerve dysfunction and
electrical conduction delay(s): The impairment due to residual carpal tunnel syndrome is rated
according to the sensory and/or motor deficits as described earlier.13 In this situation, the
impairment due to residual carpal tunnel syndrome is evaluated by multiplying the grade of
severity of the sensory or motor deficit by the respective maximum upper extremity impairment
value resulting from sensory or motor deficits of each nerve structure involved. When both
sensory and motor functions are involved the impairment values derived for each are
combined.14
In the second scenario: Normal sensibility and opposition strength with abnormal
sensory and/or motor latencies or abnormal electromyogram (EMG) testing of the thenar
muscles: a residual carpal tunnel syndrome is still present and an impairment rating not to
exceed five percent of the upper extremity may be justified. Finally, the A.M.A., Guides
provide: Normal sensibility (two-point discrimination and Semmes-Weinstein monofilament

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

See id. at § 10.404; see also David W. Ferrall, 56 ECAB 362 (2005).

11

A.M.A., Guides 495.

12

Id.

13

Id.

14

Id. at 494, 481.

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testing), opposition strength and nerve conduction studies: there is no objective basis for an
impairment rating.15
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.16
ANALYSIS
By decision dated May 22, 2008, the Board remanded the case for the Office to obtain
clarification from its Office medical adviser, Dr. Harris, regarding appellant’s entitlement to a
schedule award beyond the 14 percent permanent impairment to both upper extremities
previously awarded. The Board found that Dr. Harris did not adequately explain how he reached
his impairment rating of 9 percent impairment of the right arm and 12 percent impairment of the
left arm in his March 22, 2007 report. Specifically, the Board found that Dr. Harris did not
explain his basis for including impairment based on three percent loss of range of motion for the
left upper extremity and his four percent pain impairment to both the left and right upper
extremities were erroneously based on a decreased sensation to the ulnar nerve and should have
been based on median nerve distribution.
In his June 9, 2008 report, Dr. Harris reiterated that appellant has 9 percent impairment of
the right upper extremity and 12 percent impairment of the left upper extremity with a date of
maximum medical improvement of December 20, 2006 as previously found in his earlier report.
The right upper extremity impairment was comprised of four percent cubital tunnel/ulnar
neuropathy at the elbow and five percent carpal tunnel/median neuropathy at the wrists. The left
upper extremity impairment was comprised of four percent cubital tunnel/ulnar neuropathy at the
elbow, five percent carpal tunnel/median neuropathy at the wrists and three percent loss of range
of motion. With regard to appellant’s bilateral carpal tunnel syndrome/median neuropathy, the
Board previously affirmed Dr. Harris’s finding that appellant was entitled to five percent
impairment under option two on page 495 of the A.M.A., Guides as appellant had normal
sensibility and opposition strength with abnormal studies.
Regarding impairment for loss of motion, Dr. Harris stated that appellant had three
percent impairment for loss of motion based on loss of ulnar deviation of the left upper
extremity. He noted that Dr. Moitoza found some loss of ulnar deviation as a result of her
continued problems with chronic de Quervain’s tenosynovitis status post left de Quervain’s/first
dorsal compartment release on December 9, 2005. The Board notes that, under Figure 16-31 at
page 469 of the A.M.A, Guides, 17 degrees of ulnar deviation, noted in Dr. Moitoza’s
December 22, 2006 report, equals three percent impairment.17 Thus, Dr. Harris properly
15

Id. at 495.

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
17

Dr. Harris referenced the A.M.A., Guides in his May 7, 2007 report. See supra note 3.

5

accorded three percent impairment for loss of motion based on loss of ulnar deviation of the left
upper extremity.
However, the remainder of Dr. Harris’s impairment evaluation is not well rationalized.
He maintained that appellant was entitled to four percent pain impairment to both the left and
right upper extremities based on decreased sensation to the ulnar nerve and disagreed that she
had a bilateral median nerve sensory impairment based on a Grade 3 pain/decreased sensation
that interferes with some activity. Dr. Harris found that Dr. Moitoza’s reports established that
appellant has chronic problems with bilateral median nerve/median neuropathy and bilateral
cubital tunnel/ulnar neuropathy with no evidence of any neurologic deficit in either upper
extremity. Because appellant has chronic problems, Dr. Harris explained appellant’s symptoms
would wax and wane and there would be different subjective complaints as well as objective
findings depending on when she was seen. However, he failed to adequately explain why
appellant would have bilateral pain impairment rating based on a decreased sensation to the ulnar
nerve as opposed to the median nerve. Dr. Moitoza specifically noted in his March 22, 2007
report, that appellant’s numbness and tingling and dysesthesias and loss of sensation arose from
the median nerve distribution and there were no ulnar nerve symptoms present. Thus,
Dr. Harris’ conclusion that appellant did not have bilateral pain impairment based on decreased
sensation to the median nerve is not well reasoned upon a proper factual basis and requires
further clarification. Moreover, there is no objective evidence to support Dr. Harris’ impairment
findings of bilateral pain impairment based on decreased sensation to the ulnar nerve while
Dr. Moitoza had an opportunity to examine appellant and report findings.
Given the deficiencies in Dr. Harris’s supplemental report, the Office should not have
relied upon his findings in denying appellant’s claim for an increased schedule award. Further
medical development is needed in this matter. Thus, the Board will remand the case to the
Office so that it may obtain an appropriate medical opinion regarding the extent of appellant’s
permanent impairment of her arms.18 Following this and such other development as is deemed
necessary, it shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision. The record is not sufficiently
detailed to establish appellant’s impairment rating in accordance with the applicable provisions
of the A.M.A., Guides, and must be remanded for additional medical development.19

18

See Mae Z. Hackett, 34 ECAB 1421 (1983) (once the Office begins medical development, it has the
responsibility to obtain an evaluation which will resolve the issue involved in the case).
19

The Board notes that appellant disputes some of the conditions which the Office accepted, such as a right wrist
ganglion cyst. A review of the record does not establish that appellant had such a diagnosis. On remand, it should
make sure that its accepted conditions are supported by the record.

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ORDER
IT IS HEREBY ORDERED THAT the June 24, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this decision of the Board.
Issued: April 22, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________

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

Docket No. 07-2226
Issued: May 13, 2008

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 September 4, 2007 appellant filed a timely appeal from a June 13, 2007 merit
decision of the Office of Workers’ Compensation Programs finding that he received an
overpayment of compensation and was not entitled to waiver. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $24,481.07 from June 1, 1998 to June 10, 2006; (2) whether the Office properly
denied waiver of the recovery of the overpayment; and (3) whether the Office properly
determined that it would recover the overpayment by deducting $300.00 from his continuing
compensation payments every four weeks.
FACTUAL HISTORY
On July 5, 1989 appellant, then a 48-year-old welder, filed an occupational disease claim
alleging that he sustained asthmatic bronchitis and asthma causally related to exposure to

welding fumes. The Office accepted the claim for extrinsic asthma and placed him on the
periodic rolls effective May 31, 1990. The Office paid appellant compensation at the augmented
rate of three-fourths of his monthly pay which is applicable to claimants with dependents.
While conducting a periodic review of the file, a claims examiner noted that appellant
reported no dependents from the time his son stopped attending college in May 1998. The
Office calculated that he received $221,792.87 in compensation at the augmented rate of 75
percent for a claimant with dependents from June 1, 1998 to June 10, 2006. He should have
received $197,311.80 at the statutory rate of 66 and 2/3 percent of his monthly pay applicable to
claimants without dependents during this period. The Office subtracted $197,311.80 from
$221,792.87 to find an overpayment of $24,481.07.
On February 2, 2007 the Office notified appellant of its preliminary determination that he
received an overpayment of $24,481.07 for the period June 1, 1998 to June 10, 2006 as he was
incorrectly paid at the augmented rate for a claimant with dependents. The Office advised him
of its preliminary determination that he was without fault in creating the overpayment. The
Office additionally informed appellant that, within 30 days of the letter, he could request a
telephone conference, a final decision based on the written evidence or a prerecoupment hearing.
The Office requested that he submit an overpayment recovery questionnaire and supporting
financial information.
On February 19, 2007 appellant requested a telephone conference. He did not contest
fact or amount of overpayment but contended that he was entitled to waiver of the overpayment.
In a completed overpayment recovery questionnaire dated February 18, 2007, appellant asserted
that he received $115.00 in income from another government entity. He listed expenses of
$670.00 for his rent or mortgage, $300.00 for food, $75.00 for clothing, $110.00 for utilities and
$350.00 for miscellaneous expenses. Appellant further paid $321.00 per month on various loans,
for total monthly expenses of $1,826.00.
At a telephone conference, held on April 19, 2007, appellant related that his income was
$2,118.16 per month and his monthly expenses were $1,826.00 per month. He had $1,100.00 in
his checking account and $5,000.00 in personal property. Appellant did not contest the amount
of the overpayment but noted that he repeatedly informed the Office that he did not have a
dependent.
In a decision dated June 13, 2007, the Office finalized its finding that appellant was
without fault in creating the $24,481.07 overpayment of compensation. The Office determined
that he was not entitled to wavier of the overpayment as his income exceeded his expenses. The
Office found that it would deduct $300.00 from his continuing monthly compensation payments
to recover the overpayment.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act1 provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
1

5 U.S.C. §§ 8101-8193.

2

while in the performance of duty.2 If the disability is total, the United States shall pay the
employee during the disability monthly compensation equal to 66 2/3 percent of his monthly
pay, which is known as his basic compensation for total disability.3 Where the employee has one
or more dependents as defined in the Act, he or she is entitled to have his or her basic
compensation augmented at the rate of 8 1/3 percent, for a total of 75 percent of monthly pay.4
A dependent includes a student, which under 5 U.S.C. § 8101 means an individual under 23
years of age who has not completed four years of education beyond high school and is pursuing a
full-time course of study.5 If a claimant receives augmented compensation during a period
where he has no eligible dependents, the difference between the compensation he was entitled to
receive at the two-thirds compensation rate and the augmented compensation received at the
three-quarters rate constitutes an overpayment of compensation.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $24,481.07 for the period June 1, 1998 to June 10, 2006. He advised the Office that he had no
dependents beginning May 1998.
The Office, however, erroneously paid appellant
compensation at the augmented rate of 75 percent of his monthly pay from June 1, 1998 to
June 10, 2006 instead of at the 66 2/3 rate for employees with no qualifying dependents.
Accordingly, he received an overpayment of compensation.
The Office paid appellant $221,792.87 at the augmented rate for the period June 1, 1998
to June 10, 2006. He should have been paid $197,311.80. Appellant consequently received an
overpayment of $24,481.07, the difference between the compensation to which he was entitled at
the two-thirds rate and the augmented compensation he received at the three-quarters rate.7
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. The Office must then exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of the Act or would be against equity and
good conscience.

2

5 U.S.C. § 8102(a).

3

Id. at § 8105(a).

4

Id. at § 8110(b).

5

Id. at § 8110(a).

6

Diana L. Booth, 52 ECAB 370 (2001).

7

Id.

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According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.8 An individual’s liquid assets
include but are not limited to the case, the value of stocks, bonds, savings accounts, mutual funds
and certificates of deposits.9 Nonliquid assets include but are not limited to the fair market value
of an owner’s equity in property such as a camper, boat, second home and furnishings and
supplies.10
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.11 To establish that a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and
that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.12
ANALYSIS -- ISSUE 2
The Office found that appellant was not at fault in creating the overpayment of
compensation. The overpayment cannot be waived, however, unless recovery would defeat the
purpose of the Act or would be against equity and good conscience. In order to establish that
repayment of the overpayment would defeat the purpose of the Act, appellant must show that he
requires substantially all of his income to meet current ordinary and necessary living expenses
and that his assets do not exceed the resource base as determined by the Office’s procedures.13
The Office determined that appellant did not require substantially all of his income to
meet ordinary and normal living expenses. He asserted that he had monthly income of $2,118.16
per month and monthly expenses of $1,826.00 per month. An individual is deemed to need
substantially all of his monthly income to meet current and ordinary living expenses if monthly
income does not exceed monthly expenses by more than $50.00.14 As appellant’s current income
8

20 C.F.R. § 10.436. Office procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
9

Id.

10

Id.

11

20 C.F.R. § 10.436.

12

Id. at § 10.437(b)(1).

13

Id. at § 10.436.

14

Desiderio Martinez, 55 ECAB 336 (2004).

4

exceeds his currently ordinary and necessary living expenses by $292.16, he does not need
substantially all of his income for ordinary and necessary living expenses.15
Additionally, the evidence does not demonstrate that repayment of the overpayment
would be against equity and good conscience. Appellant submitted no evidence that he relied
upon the incorrect payments to his detriment or that he would experience severe financial
hardship attempting to repay the debt. Consequently, the Office properly denied waiver of the
recovery of the overpayment.
On appeal, appellant does not contest fact or amount of overpayment but contends that he
was without fault in creating the overpayment. Section 10.435(a) provides, however, that an
error by a government entity, including the Office, which resulted in an overpayment does not
relieve a claimant from liability for repayment.16
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where the Office seeks recovery from continuing compensation under the Act.17 Section
10.441(a) of the regulation provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, [the Office] 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.”18
ANALYSIS -- ISSUE 3
The Office reviewed the financial information provided by appellant and denied waiver
based on its determination that his income exceeded his expenses. With respect to recovery of
the overpayment, the Office concluded that $300.00 per month would be deducted from his
continuing compensation. There is no evidence, however, that the Office considered the
financial circumstances so as to minimize hardship as required under section 10.441(a). The
amount deducted from continuing compensation exceeds the monthly amount available to
appellant after monthly expenses based on the information relied upon by the Office. The Office
did not explain how it determined the amount to be recovered each month from continuing
compensation. The Board thus finds that the Office did not follow its regulations in calculating
15

As appellant’s income exceeds his ordinary and necessary living expenses by more than $50.00, it is not
necessary for the Office to consider whether his assets exceed the allowable resource base.
16

20 C.F.R. § 10.435(a); Lawrence J. Dubuque, 55 ECAB 667 (2004).

17

Lorenzo Rodriguez, 51 ECAB 295 (2000).

18

20 C.F.R. § 10.441(a).

5

the amount to be deducted from continuing compensation as it failed to address the relevant
factors to minimize, but not necessarily eliminate, hardship when it decreased his compensation
to recover the overpayment.19 The case will be remanded to the Office for appropriate
consideration of the factors under section 10.441(a).
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $24,481.07 from June 1, 1998 to June 10, 2006. The Board further finds that the Office
properly denied waiver of the recovery of the overpayment. The case will be remanded for
proper consideration of relevant factors as to the amount to be deducted from his continuing
compensation as repayment of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 13, 2007 is affirmed in part and set aside in part and the case
is remanded for further proceedings consistent with this opinion of the Board.
Issued: May 13, 2008
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

19

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Preliminary and Final Decisions, Chapter
6.200.4d(1)(b) (May 2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, JACKSON
INTERNATIONAL AIRPORT, Flowood, MS,
Employer
__________________________________________

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

Docket No. 11-59
Issued: July 19, 2011

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 12, 2010 appellant filed a timely appeal from a September 3, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) that denied her request for
reconsideration. As more than 180 days elapsed from the last merit decision of February 3, 2010
to the filing of this appeal, pursuant to the Federal Employee’s Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board only has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
without further merit review of the claim under 5 U.S.C. § 8128(a).
On appeal, appellant’s attorney argues that OWCP’s decision is contrary to fact and law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 14, 2007 appellant, then a 37-year-old transportation security screener, filed a
traumatic injury claim alleging that on May 11, 2007 she sustained neck and shoulder conditions
from lifting an overweight bag. By letter dated July 20, 2007, OWCP accepted her claim for
sprain of shoulder and upper arm, other specified sites. It paid compensation and medical
benefits. On April 1, 2008 OWCP also accepted appellant’s claim for sprain of the neck. On
May 14, 2009 it expanded her claim to include acceptance of permanent aggravation,
degenerative disc disease.
On December 4, 2009 appellant filed a claim for a schedule award. In support of her
claim, she submitted a medical report dated December 1, 2009 by Dr. Rahul Vohra, appellant’s
treating Board-certified physiatrist with a subspecialty certification in pain medicine. Dr. Vohra
indicated that he examined appellant and concluded that from his perspective appellant was at
maximum medical improvement, and that, according to the American Medical Association,
Guides to the Evaluation of Permanent Impairment, appellant would receive an impairment of
six percent to the whole person. Appellant also submitted a medical report by Jack Moriarity,
M.D., wherein he indicated that he reviewed appellant’s cervical myelogram of April 18, 2008,
and that appellant did not have clear structural or electrophysiologic source for her symptoms.
OWCP referred appellant to its medical adviser and in a note dated January 13, 2010, he
concluded that appellant had no impairment under the OWCP Guidelines and had a zero percent
impairment to her right and left upper extremities.2
By decision dated February 3, 2010, the Office denied appellant’s claim for a schedule
award.
In an undated report dated May 13, 2010, Dr. Vohra advised that he treated appellant for
neck pain and bilateral arm pain starting May 29, 2008. Appellant’s myelogram/postmyelogram
computerized tomography revealed some foraminal stenosis at C5-6 on the right as well as some
mild foraminal stenosis at C6-7 on the right. She underwent physical therapy and injections as
well as chiropractic treatment for her neck. Dr. Vohra noted that appellant was released from his
care on December 1, 2009.
On August 13, 2010 appellant requested reconsideration of the February 3, 2010
decision.
In a July 30, 2010 report, Dr. William N. Grant, a Board-certified internist, noted that he
did not examine appellant but only spoke with her on the telephone. He noted that, while
appellant had magnetic resonance imaging scan studies on her cervical spine, the results of these
studies were not available for his review. Dr. Grant reviewed appellant’s history and her current
complaints. He noted that appellant had reached maximum medical improvement. For results of
physical examination, Dr. Grant listed a normal range of motion right shoulder as per patient.
He listed appellant’s diagnosis as “cervical spine and right shoulder.” Dr. Grant listed
appellant’s right shoulder peripheral neuropathy CDX 2 as per Table 15-20 on page 434 of the
2

The Board notes that neither Dr. Vohra nor OWCP’s medical adviser referenced which edition of the A.M.A.,
Guides he used. In fact, OWCP’s medical adviser made no reference to the A.M.A., Guides.

2

A.M.A., Guides (6th ed. 2009). He listed a GMFX grade modifier of 3 because of a QuickDash
score of 77 and pain/symptoms with less than normal activity and a GMPE grade 2 modifier as
per Table 158 on page 408, for a net adjustment of 1. Dr. Grant then concluded that appellant
had a 23 percent upper extremity impairment under the sixth edition of the A.M.A., Guides
based on her history, physical examination.
Other documents submitted after the February 3, 2010 decision include a request for an
injection for myelogram in the right side received on June 2, 2010 and a copy of Dr. Moriarity’s
progress note dated April 21, 2008.
By decision dated September 3, 2010, denied appellant’s request for reconsideration
without conducting a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of the Federal
Employees’ Compensation Act,3 its regulations provide that the evidence or argument submitted
by a claimant must: (1) show that OWCP erroneously applied or interpreted a specific point of
law; (2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute
relevant and pertinent new evidence not previously considered by OWCP.4 To be entitled to a
merit review of an OWCP decision denying or terminating a benefit, a claimant also must file his
or her application for review within one year of the date of that decision.5 When a claimant fails
to meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
OWCP accepted appellant’s claim for sprain of shoulder and upper arms, sprain of neck
and permanent aggravation of degenerative disc disease. In a February 3, 2010 decision, it
denied her claim for a schedule award. OWCP gave weight to the opinion of its medical adviser
over that of Dr. Vohra, explaining that Dr. Vohra had incorrectly applied the A.M.A., Guides
while the medical adviser had correctly applied the A.M.A., Guides. The only issue is whether
OWCP properly denied appellant’s reconsideration request.
On reconsideration, appellant resubmitted a report by Dr. Moriarity that was previously
of record. The Board has held that submission of evidence or argument which repeats or
duplicates that already in the case record does not constitute a basis for reopening a case.7 With
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

20 C.F.R. § 10.608(b).

7

S.J., Docket No. 10-1318 (issued February 3, 2011); Edward W. Malaniak, 51 ECAB 279 (2000).

3

regard to the new report by Dr. Vohra, the Board notes that this report does not address
appellant’s impairment for schedule award purposes. The Board has held that the submission of
evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case.8 For the same reason, the Board notes that the request for an injection
is not relevant to the schedule award issue and, accordingly, does not merit a reopening of
appellant’s case for merit review.
The Board further finds that the opinion of Dr. Grant is not sufficient to reopen
appellant’s case. Dr. Grant gave an opinion with regard to appellant’s impairment rating.
However, he never examined appellant or reviewed appellant’s medical records. Dr. Grant based
his opinion solely on a telephone conversation he had with appellant. It is not apparent that he
had knowledge with regard to appellant’s accepted conditions, as he listed the diagnosis as
“cervical spine and right shoulder” but did address findings relevant to her cervical spine or
shoulder. Accordingly, Dr. Grant’s report does not constitute relevant and pertinent new
evidence not previously considered by the Office.9
Because appellant did not show that the Office erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered or submit
relevant and pertinent new evidence not previously considered by the Office, it did not abuse its
discretion in denying her request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review of the claim under 5 U.S.C. § 8128(a).

8

D.B., Docket No. 10-2036 (issued May 13, 2011); Edward Mathew Diekemper, 31 ECAB 224, 225 (1979).

9

See J.D., Docket No. 10-959 (issued December 7, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 3, 2010 is affirmed.
Issued: July 19, 2011
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
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Canton, OH, Employer
__________________________________________

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

Docket No. 09-1626
Issued: March 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 10, 2009 appellant filed a timely appeal from an April 8, 2009 nonmerit decision
of the Office of Workers’ Compensation Programs denying his hearing request. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s hearing request.
FACTUAL HISTORY
On September 23, 2003 appellant, a 66-year-old mail carrier, filed an occupational
disease claim (Form CA-2) for tennis elbow and left shoulder pain. He first became aware of his
condition and that it was caused by his employment on September 16, 2003.
Appellant underwent medical treatment and submitted evidence supporting his claim. By
decision dated October 1, 2003, the Office accepted his claim for left shoulder epicondylitis and
left shoulder strain.

Appellant underwent medical treatment and submitted additional medical evidence
supporting his claim.
By letter dated March 18, 2009, the Office acknowledged appellant’s representative and
advised him that appellant’s claim was currently open for conservative medical care and was
accepted for left lateral epicondylitis and left shoulder strain.
On March 20, 2009 appellant, through his attorney, requested an oral hearing.
Appellant’s representative indicated he was seeking review of the Office’s March 18, 2009
decision.
By decision dated April 8, 2009, the Office denied appellant’s hearing request finding
that the record contained no final decision dated March 18, 2009.
LEGAL PRECEDENT
A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for
an oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted in writing, within 30 days of the date
of the decision for which a hearing is sought. If the request is not made within 30 days or if it is
made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.1 The Board has held that the Office, in its broad discretionary
authority in the administration of the Federal Employees’ Compensation Act,2 has the power to
hold hearings in certain circumstances where no legal provision was made for such hearings and
that the Office must exercise this discretionary authority in deciding whether to grant a hearing.3
The Office’s procedures, which require the Office to exercise its discretion to grant or deny a
hearing when the request is untimely or made after reconsideration, are a proper interpretation of
the Act and Board precedent.4
ANALYSIS
Under the Act, a hearing request may only be granted following a final decision.5 The
Office’s March 18, 2009 letter, though, was merely informational in nature and referenced
findings of the Office’s October 1, 2003 decision, which had accepted appellant’s claim. As
there was no final decision of record issued within 30 days prior appellant’s request for a
hearing to March 18, 2009, the Office properly denied appellant’s hearing request. While on
appeal appellant stated that he was appealing a decision of the Office dated February 12, 2009,
the Board notes there is no decision or document of record dated February 12, 2009.
1

Claudio Vazquez, 52 ECAB 496 (2001).

2

5 U.S.C. §§ 8101-8193.

3

Marilyn F. Wilson, 52 ECAB 347 (2001).

4

Herbert C. Holly, 33 ECAB 140, 142 (1981).

5

5 U.S.C. § 8124.

2

The Board finds that the Office properly denied appellant’s hearing request as there is no
adverse decision of record from which to request a hearing.
CONCLUSION
The Board finds that the Office properly denied appellant’s hearing request.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 8, 2009 decision is affirmed.
Issued: March 3, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Langston, AL, Employer
__________________________________________

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

Docket No. 18-1717
Issued: May 10, 2019

Case Submitted on the Record

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

JURISDICTION
On September 11, 2018 appellant filed a timely appeal from May 10 and August 9, 2018
merit decisions 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 her burden of proof to expand the acceptance of her
claim to include additional left hip conditions causally related to or consequential to the accepted
June 19, 2017 employment injury.
FACTUAL HISTORY
On June 21, 2017 appellant, then a 56-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 19, 2017 she sustained a right foot injury when she slipped and
1

5 U.S.C. § 8101 et seq.

fell down steps while in the performance of duty. OWCP accepted the claim for nondisplaced
fracture of the fifth metatarsal bone, right foot, and closed fracture. It paid appellant wage-loss
compensation on the supplemental rolls for the period August 5 to 28, 2017.
In a June 21, 2017 report, Dr. Matthew J. De Orio, a Board-certified orthopedic surgeon,
noted the history of appellant’s June 19, 2017 employment injury. He reported examination and
x-ray findings and provided an assessment of right fifth metatarsal avulsion fracture, closed, mildly
comminuted, and mildly displaced. Dr. De Orio recommended closed treatment of the injury with
the use of a walking boot. He held appellant off work for six weeks.
In an October 11, 2017 report, Dr. De Orio noted that appellant had returned to work three
to four days a week and had transitioned into a regular shoe from a postoperative shoe. He noted
that she complained of hip pain from when she was wearing the walking boot. Dr. De Orio
recommended follow-up with a specialist if appellant’s hip pain was not relieved. In a
December 15, 2017 report, he indicated that x-rays of the right foot were essentially normal. An
assessment of right healed fifth metatarsal base fracture and left hip flexor tendinitis were
provided. With regard to the left hip, Dr. De Orio indicated that the x-rays of the left hip were
normal and that there was no significant degenerative change. He also advised that it was difficult
to determine whether or not the left hip tendinitis was caused by the same injury as appellant’s
right foot. Physical therapy was recommended for appellant’s left hip condition. Copies of the
December 15, 2017 x-rays of the right foot and left hip were provided.
In a December 20, 2017 report, Dr. Brett Franklin, a Board-certified orthopedic surgeon,
noted examination findings of the left hip and reviewed a left hip x-ray which showed no acute
injuries, but degenerative changes at L5 and S1 with no significant impingement signs. An
impression of left hip pain consistent with intra-articular pathology was provided.
A December 26, 2017 left hip arthrogram revealed a partial thickness tear of the gluteus
minimus tendon and a tear of the superior labrum.
On January 29, 2018 appellant requested that the acceptance of her claim be expanded to
include her left hip conditions.
In a March 28, 2018 development letter, OWCP advised appellant that additional medical
evidence was necessary to expand the acceptance of her claim to include additional left hip
conditions as consequential to her accepted injury. It afforded her 30 days to submit additional
medical evidence.
In response, OWCP received an April 9, 2018 treatment note from Dr. Franklin which
diagnosed left hip pain and nontraumatic left hip labral tear.
By decision dated May 10, 2018, OWCP denied appellant’s request for expansion of the
acceptance of the claim “to include a consequential injury.” It found that the medical evidence of
record was insufficient to establish that the left hip conditions were causally related to the accepted
June 19, 2017 employment injury.
On June 11, 2018 appellant requested reconsideration. In a June 7, 2018 letter, she advised
that she experienced left hip pain during the time she was treated for her broken foot utilizing a
2

walking boot and that the pain continued after she stopped its use. Appellant indicated that both
her husband and her supervisor had noticed a change in her gait.
In an June 8, 2018 statement, C.S., a coworker, indicated that appellant had favored her
left side after she returned to work following her injury. She indicated that appellant had problems
with her hip since the fall and that she had noticed a change in her gait.
By decision dated August 9, 2018, OWCP denied modification of the May 10, 2018
decision as the evidence submitted was insufficient to establish appellant’s claim. It found that
“the medical evidence does not demonstrate that the weakness or impairment caused by
[appellant’s] accepted work-related injury or illness led to an aggravation of the original injury or
to a new injury as required for coverage under FECA.”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any specific condition or disability for which compensation is claimed is causally related
to the employment injury.2 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
Where an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent

2
J.B., Docket No. 18-0522 (issued January 16, 2019); see also J.T., Docket No. 17-0578 (issued
December 6, 2017).
3

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
4

F.L., Docket No. 17-1613 (issued August 15, 2018).

5

J.B., supra note 2; I.J., 59 ECAB 408 (2008).

3

intervening cause attributable to the claimant’s own conduct.6 Thus, a subsequent injury, be it an
aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and
natural result of a compensable primary injury.7 A claimant bears the burden of proof to establish
a claim for a consequential injury. As part of this burden, the claimant must present rationalized
medical opinion evidence.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include additional left hip conditions causally related or consequential to the
accepted June 19, 2017 employment injury.
Following her June 19, 2017 employment injury, appellant began treating with Dr. De Orio
for her right foot condition, on June 21, 2017 he recommended use of a walking boot. In his
October 11, 2017 report, Dr. De Orio related that she complained of left hip pain which she
associated with wearing the walking boot. Pain and/or discomfort is only considered a symptom,
not a medical diagnosis.9 In a December 15, 2017 report, Dr. De Orio reported that the left hip xray was essentially normal. While he provided an assessment of left hip flexor tendinitis, he failed
to offer a specific opinion as to whether the diagnosed condition was caused by or consequential
to the accepted right foot condition and the walking boot he had prescribed. Rather, Dr. De Orio
opined that it was difficult to determine whether or not the left hip tendinitis was caused by the
same injury as appellant’s right foot. The Board has held that medical evidence which does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship.10
Dr. Franklin treated appellant’s left hip conditions, but was not aware of the history of her
June 19, 2017 employment injury or of the fact that she wore a walking boot for treatment of her
right foot condition. In a December 20, 2017 report, he reported a left hip x-ray which showed
degenerative changes at L5 and S1 with no acute injuries or significant impingement signs. In his
April 9, 2018 treatment note, Dr. Franklin diagnosed left hip pain and nontraumatic left hip labral
tear. Despite the fact he was not aware of the June 19, 2017 employment injury, he indicated that
the left hip labral tear was nontraumatic in nature, thus essentially negating a causal relationship.

6

A.M., Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson
& Lex K. Larson, The Law of Workers’ Compensation 10-1 (2006).
7

J.B., supra note 2; Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

8

F.L., supra note 4; Charles W. Downey, 54 ECAB 421 (2003).

9

Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012); see A.C.,
Docket No. 16-1587 (issued December 27, 2016).
10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4

As Dr. Franklin’s medical reports lacked both a proper history and a rationalized opinion
supporting causal relationship, these reports were of limited probative value.11
OWCP also received a December 15, 2017 x-ray of the left hip and a December 26, 2017
left hip arthrogram. However, diagnostic studies are of lack probative value as they do not address
whether the employment injury caused the diagnosed conditions.12
Appellant’s statements as well as the statement of her coworker pertaining to her left hip
pain and altered gait are insufficient to establish causal relationship as lay persons are not
competent to render medical opinions.13 As noted, causal relationship is a medical question that
requires rationalized medical opinion evidence to resolve the issue.14 Appellant’s personal belief
that her prescribed walking boot either caused or contributed to her condition is insufficient, by
itself, to establish causal relationship.15
The Board finds that appellant has not met her burden of proof because the medical opinion
evidence of record is insufficient to establish the critical element of causal relationship between
appellant’s additional diagnosed conditions and the accepted employment injury.16
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include additional left hip conditions causally related or consequential to the
accepted June 19, 2017 employment injury.

11

See S.G., Docket No. 18-1373 (issued February 12, 2019).

12

See K.S., Docket No. 18-1781 (issued April 8, 2019); G.S., Docket No. 18-1696 (issued March 26, 2019).

13

See J.A., Docket No. 18-0882 (issued December 31, 2018); James A. Long, 10 ECAB 538 (1989).

14

Supra note 5.

15

M.B., Docket No. 18-0906 (issued November 21, 2018); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

16
See J.A., supra note 13; T.F., Docket No. 17-0645 (issued August 15, 2018); G.M., Docket No. 16-1764 (issued
March 16, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the August 9 and May 10, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 10, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, DALLAS
PERFORMANCE CLUSTER, Coppell, TX,
Employer
__________________________________________

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

Docket No. 16-0988
Issued: September 6, 2016

Case Submitted on the Record

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

JURISDICTION
On April 8, 2016 appellant filed a timely appeal from December 2 and 17, 2015 merit
decisions 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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective September 24, 2015 because he forfeited his entitlement to compensation beginning
September 24, 2015 pursuant to 5 U.S.C. § 8148(a); (2) whether it properly found that he
received an overpayment of compensation in the amount of $1,008.51 from September 24 to
October 17, 2015 based on the forfeiture; and (3) whether OWCP properly found that appellant
was at fault in creating the $1,008.51 overpayment, thereby precluding waiver of recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 16, 2009 appellant, then a 37-year-old mail processor, sustained injury to
his left foot when a chair suddenly moved backward as he was attempting to sit in it. OWCP
accepted that he sustained a left foot contusion and paid compensation for periods of total
disability.
Appellant returned to full-time work for the employing establishment on
July 14, 2010.
The record contains an order signed on September 24, 2015 by a judge for the U.S.
District Court for the Northern District of Texas accepting appellant’s guilty plea under 18
U.S.C. § 1920 to one count of False Statements to Obtain Federal Employees’ Compensation.
The record also contains copies of the plea agreement, factual resume, and indictment. The plea
agreement acknowledges that appellant knowingly and intentionally obtained FECA benefit
payments on a fraudulent basis by filing false claims for travel mileage reimbursement related to
medical appointments.
In a November 2, 2015 letter, OWCP advised appellant of its preliminary determination
that he had received an overpayment of compensation in the amount of $1,008.51 for the period
September 24 to October 17, 2015 because he received compensation for this period after he
plead guilty under 18 U.S.C. § 1920 to one count of False Statements to Obtain Federal
Employees’ Compensation.2 OWCP also made a preliminary determination that appellant was at
fault in the creation of the overpayment because he accepted a payment he knew or reasonably
should have known was incorrect, thereby precluding waiver of recovery of the overpayment. It
provided appellant 30 days to submit evidence and argument challenging the proposed actions.3
Appellant did not respond within the allotted period.
In a decision dated December 2, 2015, OWCP determined that appellant forfeited his
entitlement to compensation beginning September 24, 2015.4 It noted that he had pled guilty to
18 U.S.C. § 1920, False Statements to Obtain Federal Employees’ Compensation. OWCP
indicated that, as a result of his conviction, and in accordance with 5 U.S.C. § 8148(a) and 20
C.F.R. § 10.17, appellant was not entitled to receive further benefits under FECA. It noted that it
would pay for any authorized medical treatment appellant received prior to the date of the
conviction, but no further medical treatment would be paid beyond that date. Compensation
benefits, including schedule award benefits, were terminated September 24, 2015, the date of
appellant’s conviction.
By decision dated December 17, 2015, OWCP finalized the overpayment of
compensation in the amount of $1,008.51 from September 24 to October 17, 2015 based on the
2

OWCP previously determined that appellant received a $1,838.99 overpayment in 2010 and a $2,478.87
overpayment in 2014. These prior overpayments are not the subject of the present appeal.
3

The record contains a manual adjustment form, completed by an OWCP claims examiner on October 19, 2015,
showing that appellant received $1,008.51 in compensation for the period September 24 to October 17, 2015.
4

OWCP inadvertently listed the date of termination for appellant’s compensation as August 25, 2015, but a
review of the content and context of the December 2, 2015 decision shows that OWCP intended the termination to
begin September 24, 2015.

2

forfeiture of his compensation under 18 U.S.C. § 1920. It also found that he was at fault in
creating the $1,008.51 overpayment because he accepted a payment he knew or reasonably
should have known was incorrect, thereby precluding waiver of recovery.
LEGAL PRECEDENT -- ISSUE 1
Public Law No. 103-333, enacted on September 30, 1994, amended FECA by adding 5
U.S.C. § 8148, which provides for the termination of benefits payable to beneficiaries who have
been convicted of defrauding the program. Section 8148(a) specifically states that any individual
convicted of a violation of 18 U.S.C. § 1920 or any other federal or state criminal statute relating
to fraud in the application for or receipt of any benefit under FECA, shall forfeit, as of the date of
such conviction, any entitlement to any benefit to which such individual would otherwise be
entitled under FECA for any injury occurring on or before the date of such conviction. Such
forfeiture shall be in addition to any action the Secretary may take under section 81065
(forfeiture) or section 81296 (recovery of overpayments) of FECA.7
Section 10.17 of OWCP’s implementing regulations provides that when a claimant pleads
guilty to federal or state criminal charges of fraud in connection with receipt of Federal
Government benefits, the claimant’s entitlement to further compensation benefits will terminate
effective the date the guilty plea is accepted. Termination of entitlement under this section is not
affected by any subsequent change in or recurrence of the beneficiary’s medical condition.8
OWCP’s procedures state that in support of termination or suspension of compensation
the record must contain copies of the indictment or information, the plea agreement, if any, the
document containing the guilty verdict and/or the court’s docket sheet. Further, this evidence
must establish that the individual was convicted and the conviction is related to the claim for or
receipt of compensation benefits under FECA.9 The termination is effective on the date of the
verdict or on the date the guilty plea is accepted and guilt adjudicated.10 Because of the criminal
basis for the termination, no pretermination notice is required before a final decision is issued.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s compensation benefits
effective September 24, 2015 because he was convicted in federal court under a statute relating
to fraud in the application for or receipt of compensation benefits under FECA. On
5

5 U.S.C. § 8106.

6

Id. at § 8129.

7

Id. at § 8148; see F.C., 59 ECAB 666 (2007).

8

20 C.F.R. § 10.17.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.17c(2) (February 2013).

10

Id. at Chapter 2.1400.17(d) (February 2013).

11

Id. at Chapter 2.1400.4(a)(6) (February 2013).

3

September 24, 2015 a judge for the U.S. District Court for the Northern District of Texas
accepted appellant’s guilty plea to one count of violating 18 U.S.C. § 1920 (False Statements to
Obtain Federal Employees’ Compensation) when he knowingly and intentionally obtained FECA
benefit payments on a fraudulent basis by filing false claims for travel mileage reimbursement.
Under section 8148(a) of FECA, a claimant who is convicted of fraud in obtaining compensation
benefits under 18 U.S.C. § 1920 or any other federal or state criminal statute relating to fraud in
the application for or receipt of any benefit under FECA is permanently barred from receiving
any compensation under FECA.12 The record contains copies of the indictment, plea agreement,
factual resume, and court judgment. The Board finds that this evidence establishes that appellant
was convicted of fraud in obtaining FECA compensation benefits.13 OWCP procedures provide
that the termination is effective on the date the guilty plea is accepted and guilt adjudicated.14
The Board finds that OWCP properly terminated appellant’s compensation benefits that day,
September 24, 2015.15
LEGAL PRECEDENT -- ISSUE 2
Section 8148 of FECA states that any individual convicted of a violation of 18 U.S.C.
§ 1920 or any other federal or state criminal statute relating to fraud in the application for or
receipt of any benefit under FECA, shall forfeit, as of the date of such conviction, any
entitlement to any benefit such individual would otherwise be entitled to under FECA for any
injury occurring on or before the date of such conviction. Such forfeiture shall be in addition to
any action the Secretary may take under section 8106 (forfeiture) or section 8129 (recovery of
overpayments) of FECA.16
ANALYSIS -- ISSUE 2
On September 24, 2015 a judge accepted appellant’s guilty plea to one count of violating
18 U.S.C. § 1920, a federal criminal statute, when he knowingly and intentionally obtained
FECA benefit payments on a fraudulent basis by filing false claims for travel mileage
reimbursement. As stated, under section 8148(a) of FECA any individual convicted of 18 U.S.C.
§ 1920 or any other federal or state criminal statute relating to fraud in the application for or
receipt of benefits under FECA will have his or her compensation forfeited, as of the date of such
conviction. Because appellant pled guilty to violating a federal criminal statue, he forfeited any
compensation as of September 24, 2015, the date his guilty plea was accepted and guilt
adjudicated.
The record reveals that appellant received wage-loss compensation benefits from
September 24 to October 17, 2015 under his own claim assigned File No. xxxxxx255 after his
12

5 U.S.C. § 8148(a).

13

See supra note 9.

14

See supra note 10.

15

See John L. Hoss, Jr., 54 ECAB 239 (2002); Bob R. Gilley, 51 ECAB 377 (2000).

16

See supra note 7.

4

conviction on September 24, 2015 for theft under 18 U.S.C. § 1920. OWCP determined that
during the stated period he received gross compensation in the amount of $1,008.51. The record
contains documentation of OWCP’s calculations and there is no contrary evidence. In Alan L.
Trindle, Sr.,17 the Board found that gross compensation represented the amount of overpayment
from forfeiture of compensation. OWCP explained the basis of the overpayment and appellant
does not dispute that he received compensation payments from September 24 to October 17,
2015 following his fraud conviction. The Board finds that he received an overpayment of
compensation in the amount of $1,008.51.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA provides that, when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is when an incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or be against equity and good conscience.18 No waiver of
payment is possible if appellant is with fault in helping to create the overpayment.19
Section 10.433(a) of OWCP’s implementing regulations provides that an individual is
with fault in the creation of an overpayment who: (1) made an incorrect statement as to a
material fact which the individual knew or should have known to be incorrect; (2) failed to
furnish information which the individual knew or should have known to be material; or (3) with
respect to the overpaid individual only, accepted a payment which the individual knew or should
have been expected to know was incorrect.20
ANALYSIS -- ISSUE 3
OWCP applied the third standard to determine that appellant was at fault in creating the
overpayment. The Board finds that the record establishes that he knew or should have known
that he accepted incorrect compensation payments by filing false claims for travel mileage
reimbursement.
When appellant pled guilty to violating 18 U.S.C. § 1920, he admitted that he knowingly
and intentionally received FECA compensation benefits which he knew she was not entitled.
The plea agreement noted that he agreed to the factual resume of his case. This plea of guilt is
sufficient to establish that appellant knew that he had accepted incorrect FECA payments.
Appellant knew or should have known that his continued receipt of FECA benefits after his
September 24, 2015 conviction was incorrect. Even if the overpayment resulted from negligence
on the part of OWCP in continuing to issue appellant wage-loss checks after he was convicted of
fraudulently obtaining FECA benefits, this did not excuse him from accepting continued
17

53 ECAB 487 (2002).

18

5 U.S.C. § 8129(b).

19

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

20

20 C.F.R. § 10.433(a); Kenneth E. Rush, 51 ECAB 116, 118 (1999).

5

payments which he knew or should have known to be incorrect.21 As appellant accepted
compensation benefits from OWCP, which covered the period September 24 to October 17,
2015, the Board finds that he was at fault in creating the $1,008.51 overpayment for this period
and is not entitled to waiver.22
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation effective
September 24, 2015 because he forfeited his entitlement to compensation beginning
September 24, 2015 pursuant to 5 U.S.C. § 8148(a). The Board further finds that OWCP
properly found that appellant received an overpayment of compensation in the amount of
$1,008.51 from September 24 to October 17, 2015 based on the forfeiture of compensation and
properly found that he was at fault in the creation of the $1,008.51 overpayment, thereby
precluding waiver of recovery.
ORDER
IT IS HEREBY ORDERED THAT the December 17 and 2, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 6, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

Diana L. Booth, 52 ECAB 370 (2001).

22

See K.R., Docket No. 14-434 (issued October 7, 2014).

6