United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
U.S. POSTAL SERVICE, KEARNY POST
OFFICE, Kearny, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1729
Issued: November 3, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 15, 2019 appellant, through counsel, filed a timely appeal from a March 4, 2019
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 21 percent
permanent impairment of his left lower extremity (LLE) and 21 percent permanent impairment of
his right lower extremity (RLE), for which he previously received a schedule award.
FACTUAL HISTORY
On March 9, 2009 appellant, then a 49-year-old mail handler, filed a notice of recurrence
(Form CA-2a) alleging that on March 6, 2009 he sustained a recurrence of disability of his July 25,
2008 employment injury.3 He explained that his original injury was never cured and that the status
of his conditions had remained the same since July 25, 2008.
By letter dated March 23, 2019, OWCP converted appellant’s recurrence claim to an
occupational disease claim (Form CA-2), assigned OWCP File No. xxxxxx581. It accepted the
occupational disease claim for aggravation of left-sided disc herniation at the L4-5 level
superimposed on a preexisting right-sided herniation at the L5-S1 level and aggravation of lumbar
radiculopathy superimposed on a preexisting right-sided L5-S1 disc herniation at the L5-S1 level.
On April 21, 2009 appellant returned to work in a full-time, limited-duty capacity.
On November 18, 2009 appellant underwent authorized back surgery for revision
decompression of L4-5, L5-S1 with left-sided L4-5 and L5-S1 foraminotomies with discectomy,
L4-5.
On January 27, 2016 appellant filed a claim for a schedule award (Form CA-7).
In an October 22, 2015 impairment rating report, Dr. Michael M. Cohen, an osteopath
Board-certified in internal medicine and neurology, noted appellant’s “March 6, 2009”
employment injury and the medical records that he reviewed. He conducted a physical
examination and observed that appellant was unable to perform heel or toe walking. Dr. Cohen
noted paraspinal muscle spasm and tenderness bilaterally at L4-5. He reported that there was
limited ankle dorsiflexion due to drop foot involving the RLE. Dr. Cohen also indicated that
Semmes Weinstein monofilament testing revealed complete anesthesia at 6.65 mgs for the right
lower extremity and diminished sensitivity to 4.56 mgs for the left lower extremity. He diagnosed
aggravation of preexisting lumbar discectomy L4-5, repeated herniated disc at L4-5, herniated disc
at L5-S1, and status post revision decompression at L4-5, L5-S1 with foraminotomy and
discectomy.
Dr. Cohen referenced Table 2 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)4 and The Guides Newsletter, Rating Spinal
3
Appellant has a previously accepted traumatic injury claim under OWCP File No. xxxxxx582 for a July 25, 2008
employment injury that occurred when he hit his back on a railing while jumping off a porch to avoid two dogs who
were chasing him. OWCP accepted that claim for contusion of back and subsequently expanded it to include bilateral
disc herniations at L4-5 superimposed on a preexisting herniation at the L5-S1 level and lumbar radiculopathy.
4

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

2

Nerve Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter) and
determined that appellant had 6 percent LLE permanent impairment due to severe sensory deficits
at L4;5 6 percent LLE permanent impairment due to severe sensory deficit at L5;6 4 percent LLE
permanent impairment due to severe sensory deficit at S1;7 and 13 percent LLE permanent
impairment due to moderate motor strength deficit at L58 for a combined total of 26 percent
permanent LLE impairment. Regarding appellant’s RLE, he calculated that appellant had 8
percent RLE permanent impairment due to very severe sensory deficit at L5;9 5 percent RLE
permanent impairment due to very severe sensory deficit at S1;10 13 percent RLE permanent
impairment due to very severe motor strength deficit at L5;11 and 8 percent RLE permanent
impairment due to moderate motor strength deficit at S1, adjusted to 10 percent,12 for a combined
total of 32 percent RLE permanent impairment. Dr. Cohen reported that appellant had reached
maximum medical improvement (MMI) on October 22, 2015.
On January 29, 2016 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon, serving
as an OWCP district medical adviser (DMA), reviewed Dr. Cohen’s October 22, 2015 report and
disagreed with his impairment rating. He contended that Dr. Cohen’s use of “mild/moderate/
severe” categories was excessive and not consistent with the A.M.A., Guides. Utilizing Proposed
Table 2 of The Guides Newsletter. Dr. Berman determined that appellant had 3 percent LLE
permanent impairment due to moderate sensory deficits and 5 percent LLE permanent impairment
due to mild motor deficit at L5 and 2 percent LLE permanent impairment due to moderate sensory
deficits and 3 percent LLE permanent impairment due to mild motor deficit at S1, when “added
because they are from the same table,” totaled 13 percent permanent LLE impairment. Regarding
appellant’s RLE, he calculated that appellant had 3 percent RLE permanent impairment due to
moderate sensory deficits and 13 percent RLE permanent impairment due to severe motor deficits
at L5 and 2 percent RLE permanent impairment due to moderate sensory deficits and 3 percent
RLE permanent impairment due to mild motor deficit at S1, when “added because they are from
the same table,” totaled 21 percent permanent RLE impairment. Dr. Berman reported that
appellant had reached MMI on October 22, 2015.
In a June 8, 2016 supplemental report, Dr. Cohen expressed his disagreement with the
February 22, 2016 DMA report and alleged that his original impairment rating was correct. He
asserted that, according to the A.M.A., Guides, the Semmes Weinstein Monofilament testing was
5

Dr. Cohen noted grade modifier for functional history (GMFH) of 2 and grade modifier for clinical studies
(GMCS) of 3 for a net adjustment of +3.
6

Dr. Cohen reported grade modifiers of 2 (GMFH) and 3 (GMCS) for a net adjustment of +3.

7

Dr. Cohen noted grade modifiers of 2 (GMFH) and 3 (GMCS) for a net adjustment of +3.

8

Dr. Cohen reported grade modifiers of 2 (GMFH) and 3 (GMCS) for a net adjustment of +3.

9

Dr. Cohen noted grade modifiers of 2 (GMFH) and 3 (GMCS) for a net adjustment of +3.

10

Dr. Cohen reported grade modifiers of 2 (GMFH) and 3 (GMCS) for a net adjustment of +3.

11

Dr. Cohen noted grade modifiers of 2 (GMFH) and 3 (GMCS) for a net adjustment of +3.

12

Dr. Cohen reported grade modifiers of 2 (GMFH) and 3 (GMCS) for a net adjustment of +3.

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the optimum choice for documenting sensory deficits. Dr. Cohen noted that, according to his
physical examination, which incorporated the Semmes Weinstein Monofilament testing,
appellant’s deficits were graded as being mild, moderate, severe, or very severe.
In reports dated July 25 and September 20, 2016, Dr. Berman indicated that he had
reviewed Dr. Cohen’s June 8, 2016 report and asserted that Dr. Cohen’s calculations were not
consistent with appellant’s preoperative or intraoperative findings.
OWCP found a conflict in the medical opinion evidence and referred appellant for an
impartial medical examination. In a May 8, 2017 report, Dr. Robert Dennis, a Board-certified
orthopedic surgeon serving as an impartial medical examiner, discussed appellant’s history of
injury and reviewed his medical records. He reported that appellant had reached MMI on
November 18, 2015 approximately one year after appellant’s lumbar surgery. Dr. Dennis related
appellant’s current complaints of difficulty walking on uneven surfaces and stairs and drop foot
on both sides. Upon physical examination, he observed that appellant was able to stand on his
toes, had difficulty maintaining one leg stance and with dorsiflexion of his ankle, and had severe
weakness of the extension power of the great toe in both feet. Dr. Dennis reported that sensory
examination of appellant’s bilateral lower extremities revealed no sensory deficit in the L4 nerve
root and diminished sensation in the L5 and S1 nerve roots. He indicated that appellant had
diminished sense of light touch to a moderate degree at L5 and S1 with the sensory deficit being
slightly greater at S1. Dr. Dennis related that manual motor strength testing of the plantarflexion
was minimally diminished, which would be characterized as mild. He explained that he performed
the same exact testing on both legs and found similar findings of both legs.
Utilizing Proposed Table 2 of the A.M.A., Guides and The Guides Newsletter, Dr. Dennis
determined that appellant had five percent RLE permanent impairment due to sensory deficits and
five percent RLE permanent impairment due to motor deficits at L5 and four percent RLE
permanent impairment due to sensory deficits and eight percent RLE permanent impairment due
to motor deficits at S1. He calculated that appellant had a total of 9 percent RLE permanent
impairment due to sensory deficits at L5-S1 and 13 percent RLE permanent impairment due to
motor deficits at L5-S1 for a combined total of 22 percent RLE permanent impairment. Regarding
appellant’s LLE, Dr. Dennis determined that appellant had five percent LLE permanent
impairment due to sensory deficits and five percent LLE permanent impairment due to motor
deficits at L5 and four percent LLE permanent impairment due to sensory deficits, and nine percent
LLE permanent impairment due to motor deficits at S1. Thus, he calculated that appellant had a
combined sensory deficit of 9 percent and a combined motor deficit of 13 percent, which resulted
in a combined total of 22 percent LLE permanent impairment.
On September 11, 2017 Dr. Berman reviewed Dr. Dennis’ May 8, 2017 impartial medical
examination report and agreed with his impairment rating of 22 percent permanent impairment
each of the right and left lower extremities. He reported that the date of MMI was
October 22, 2015.
By decision dated January 22, 2018, OWCP granted appellant a schedule award for 22
percent permanent impairment of each lower extremity. The award ran for 126.72 weeks from
October 22, 2015 to March 27, 2018. OWCP noted that the schedule award was based on the
May 8, 2017 report of Dr. Dennis, the impartial medical examiner.

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In an April 18, 2018 decision, an OWCP hearing representative set aside the January 22,
2018 schedule award decision and remanded the case for OWCP to refer Dr. Dennis’ impartial
medical report to a different DMA as Dr. Berman was part of the original medical conflict and
should not review the impartial medical examiner’s IME’s report.
In a June 22, 2018 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as a DMA indicated that he agreed with Dr. Dennis’ May 8, 2017 impairment rating report,
with the exception that according to Appendix A on page 605, combining appellant’s 9 percent
LLE permanent impairment for sensory deficits and 13 percent LLE permanent impairment for
motor deficits resulted in a combined total of 21 percent LLE permanent impairment. Dr. Dennis
advised that the correct method for combining these impairment ratings for sensory and motor
deficits also resulted in 21 percent RLE permanent impairment.
In June 28, 2018 addendum report, Dr. Dennis indicated that Dr. Katz’ DMA report was
correct in determining that appellant’s final impairment rating was 21 percent permanent
impairment to each lower extremity. He revised his previous impairment rating in order to reflect
the appropriate methodology for combining ratings. Dr. Dennis concluded that appellant had 21
percent LLE permanent impairment and 21 percent RLE permanent impairment due to his
accepted spinal injury.
In a July 23, 2018 report, Dr. Katz noted that he agreed with Dr. Dennis’ impairment rating
of 21 percent permanent impairment of each lower extremity. He reported that the date of MMI
was May 8, 2017, the date of Dr. Dennis’ impartial medical examination.
In a de novo decision dated July 31, 2018, OWCP granted appellant a schedule award for
21 percent permanent impairment of each lower extremity. The award ran for 120.96 weeks from
October 22, 2015 to February 13, 2018. OWCP noted that the schedule award was based on the
May 8, 2017 and June 25, 2018 reports of Dr. Dennis, the impartial medical examiner.
On August 8, 2018 appellant, through counsel, requested a hearing before a representative
of OWCP’s Branch of Hearings and Review, which was held on December 18, 2018.
Appellant submitted an October 3, 2018 report by Dr. Cohen, who related that he had
reviewed Dr. Dennis’ May 8, 2017 and June 28, 2018 impartial medical reports and Dr. Katz’
June 22, 2017 and July 23, 2018 DMA reports. Dr. Cohen reiterated that according to the A.M.A.,
Guides sensory impairment should be graded through sensibility testing such as Semmes
Weinstein Monofilament testing (Table 15-3) and motor strength deficit testing should be graded
on a scale of 0 to 5 according to Table 16-11, page 533. He discussed his disagreement with
Dr. Dennis’ characterization of appellant’s sensory and motor deficits. Dr. Cohen explained that
he disagreed with Dr. Dennis’ finding that appellant only had a moderate sensory deficit in the left
L5 nerve root since Dr. Dennis reported that appellant barely felt the filaments of any number
lower than the stiffest. He also noted his disagreement with Dr. Dennis that appellant had a mild
motor deficit in the left L5 nerve root since appellant’s motor strength testing reflected severe
impairment of the left L5 nerve root. Regarding appellant’s right lower extremity, he further noted
that he would rate appellant with very severe sensory deficit instead of Dr. Dennis’ mild deficit.
Dr. Cohen referenced the tables and calculations from his previous report and concluded that

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appellant had 26 percent permanent impairment of the LLE and 30 percent permanent impairment
of the RLE.13
In a December 11, 2018 statement, appellant related that the spinal nerve impairment that
affected his legs had continued to worsen. He explained that in November 2017 his condition had
worsened to the point that it was difficult to perform his job as a letter carrier so he decided to
retire early.
By decision dated March 4, 2019, an OWCP hearing representative affirmed the July 31,
2018 schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA14 and its implementing regulations15 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 of a member 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 and the Board has concurred in such
adoption.16 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.17
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.18 Furthermore, the
back is specifically excluded from the definition of organ under FECA.19 The sixth edition of the
A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries as
impairments of the extremities. Recognizing that FECA allows ratings for extremities and
precludes ratings for the spine, The Guides Newsletter offers an approach to rating spinal nerve
impairment consistent with sixth edition methodology. For peripheral nerve impairments to the

13

Dr. Cohen revised his calculations for appellant’s motor deficit for the right S1 nerve. He noted that appellant
had moderate motor deficit for a default value of eight percent and a GMFH of 2 and a GMCS of 1 for a net adjustment
of zero.
14

5 U.S.C. § 8107.

15

20 C.F.R. § 10.404.

16

Id. at § 10.404 (a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
18

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB
354 (2004).
19

See id. at § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

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upper or lower extremities resulting from spinal injuries, OWCP procedures indicate that the
July/August 2009 edition of The Guides Newsletter is to be applied.20
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.21 This is called an impartial medical examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.22 When there exists opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.23
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP found a conflict in the medical opinion evidence between appellant’s treating
physician, Dr. Cohen, and its DMA, Dr. Berman, regarding permanent impairment of the lower
extremities due to appellant’s accepted spinal injury. It properly referred appellant and the case
record to Dr. Dennis pursuant to 5 U.S.C. § 8123(a) for an impartial medical examination in order
to resolve the conflict in medical opinion. In his May 8, 2017 report, Dr. Dennis reviewed
appellant’s history of injury, the relevant medical evidence, and provided physical examination
findings. He related that sensory examination revealed no sensory deficits at L4 and diminished
sensation to a moderate degree in the L5 and S1 nerve roots with slightly greater sensory deficit at
S1. Utilizing Proposed Table 2 of the A.M.A., Guides and The Guides Newsletter, Dr. Dennis
determined that appellant had 5 percent RLE permanent impairment due to sensory deficits at L5;
5 percent RLE permanent impairment due to motor deficits at L5; 4 percent RLE permanent
impairment due to sensory deficits at S1; and 8 percent RLE permanent impairment due to motor
deficits at S1 for a combined total of 22 percent RLE permanent impairment. Regarding
appellant’s LLE, he determined that appellant had 5 percent LLE permanent impairment due to
sensory deficits at L5; 5 percent LLE permanent impairment due to motor deficits at L5; 4 percent
LLE permanent impairment due to sensory at S1; and 9 percent LLE permanent impairment due
to motor deficits at S1, which resulted in a combined total of 22 percent LLE permanent
impairment. In a June 28, 2018 addendum report, Dr. Dennis clarified that, according to the
appropriate methodology for combining ratings, appellant had a final impairment rating of 21
percent to each lower extremity.

20

Supra note 17 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

21

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
22

20 C.F.R. § 10.321.

23

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

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The Board finds, however, that Dr. Dennis did not adequately explain his opinion in
accordance with the relevant standards. While Dr. Dennis provided physical examination findings,
he failed to provide any discussion of the relevant portion of the A.M.A., Guides and The Guides
Newsletter he used in finding that appellant had no more than 21 percent RLE and LLE permanent
impairment.24 He did not adequately explain how he classified appellant’s sensory or motor
deficits based on severity, did not discuss grade modifiers for functional history or clinical studies,
and did not adjust the impairment based on the net adjustment formula.25
In a situation where OWCP secures an opinion from an impartial medical examiner for the
purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification and/or elaboration, OWCP has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.26 For the
above-described reason, the Board finds that the opinion of Dr. Dennis requires clarification.
Therefore, the case is remanded to OWCP for referral of the case record, a statement of accepted
facts (SOAF), and, if necessary, appellant, to Dr. Dennis for a supplemental report regarding
whether appellant has additional permanent impairment of appellant’s lower extremities due to his
accepted spinal injury. If Dr. Dennis is unable to clarify or elaborate on his original report or if
his supplemental report is also vague, speculative, or lacking in rationale, OWCP must submit the
case record and a detailed SOAF to a second impartial medical specialist for the purpose of
obtaining his rationalized medical opinion on the issue.27 After this and such other further
development as deemed necessary, OWCP shall issue a de novo decision on this matter.
CONCLUSION
The Board finds that this case is not in posture for decision.

24

See L.L., Docket No. 18-0745 (issued February 6, 2019).

25

See A.M.A., Guides 531-33 (6th ed. 2009); see also S.C., Docket No. 17-0019 (issued January 11, 2019).

26

M.D., Docket No. 19-0510 (issued August 6, 2019); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988).

27

S.R., Docket No. 17-1118 (issued April 5, 2018); Harold Travis, 30 ECAB 1071, 1078 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the March 4, 2019 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: November 3, 2020
Washington, DC

Janice B. Askin, Judge
Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate 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
__________________________________________
F.T., Appellant
and
DEPARTMENT OF DEFENSE, FORT IRWIN
COMMISSARY, Fort Irwin, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-705
Issued: October 26, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On January 21, 2011 appellant filed an application for review of an August 6, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying modification of a
May 4, 2009 loss of wage-earning capacity (LEWC) determination. The appeal was docketed as
number 11-705. Having reviewed the case record submitted by OWCP, the Board finds that this
case is not in posture for a decision.
On April 3, 2009 OWCP proposed to reduce appellant’s compensation based upon her
ability to earn wages in the position of information clerk. In a formal wage-earning capacity
decision dated May 4, 2009, OWCP finalized its reduction of benefits.
In a May 25, 2009 notice, appellant requested a hearing and review of the written record
and put forth both procedural and substantive arguments in support of her request. She
submitted medical evidence and a letter dated May 30, 2009 explaining why she believed she
was unable to perform the duties of the constructed position. The record does not contain a
response by OWCP to appellant’s hearing request.
On May 1, 2010 appellant requested reconsideration of the May 4, 2009 decision. By
decision dated August 6, 2010, OWCP denied modification of its May 4, 2009 LWEC
determination, finding that appellant had failed to show a material worsening in her condition or
that the original LWEC decision was erroneous.

The Board finds that OWCP violated the provisions of Federal Employees’
Compensation Act and its own procedures by failing to provide appellant with an opportunity for
a hearing. The statutory right to a hearing under section 8124(b)(1) follows an initial final
decision of the Office.1 A claimant who has received a final adverse decision may obtain a
hearing by writing to the address specified in the decision within 30 days of the date of the
decision for which a hearing is sought.2 OWCP’s procedure manual provides for a preliminary
review of a case by a hearing representative to determine whether the hearing request is timely
and, if not, whether a discretionary hearing should be granted; if OWCP declines to grant a
discretionary hearing, the claimant will be advised of the reasons.3 In this case, the record
contains evidence and argument regarding appellant’s timely request for an oral hearing on
May 25, 2009 following the May 4, 2009 LWEC decision. There is no evidence of record,
however, that an OWCP hearing representative conducted a preliminary review or responded in
any way to the hearing request. Thus, OWCP failed to follow its own procedures, and there
remains an outstanding request for an oral hearing that must be considered.
The Board notes that appellant eventually requested reconsideration nearly one year after
making a hearing request. OWCP’s August 6, 2010 decision denying modification of the
original LWEC determination does not, however, cure the procedural defect in this case, namely,
that she was deprived of her statutory right to an oral hearing.
The Board finds that this case is not in posture for a decision, as there exists an
outstanding request for an oral hearing or review of the written record. The case will be
remanded for a proper response to appellant’s request. Following this and such other
development as deemed necessary, OWCP shall issue an appropriate decision.

1

Patricia G. Aiken, 57 ECAB 441 (2006).

2

20 C.F.R. § 10.616(a).

3

Belinda J. Lewis, 43 ECAB 552, 558 (1992); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

2

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 6, 2010 decision be set aside and the case remanded for further development consistent
with this order of the Board.
Issued: October 26, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Fort Worth, TX,
Employer
__________________________________________

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

Docket No. 15-661
Issued: May 27, 2015

Case Submitted on the Record

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

JURISDICTION
On January 12, 2015 appellant filed a timely appeal from a September 2, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on July 10, 2014.
FACTUAL HISTORY
On July 11, 2014 appellant, then a 43-year-old civil engineering technician, filed a
traumatic injury claim (Form CA-1) alleging that he sustained knee pain as a result of stepping
1

5 U.S.C. § 8101 et seq.

off a truck and falling into a parking lot on July 10, 2014. A supervisor checked a box noting
that appellant was injured within the performance of duty.
By letter dated July 25, 2014, OWCP advised appellant that the evidence of record was
insufficient to support his claim. It noted, “Medical evidence must be submitted by a qualified
physician. Nurse practitioners and physician assistants are not considered qualified physicians
under FECA unless the medical report is countersigned by a physician.” OWCP afforded him 30
days to submit additional evidence.
Appellant submitted a Form CA-16 authorization for examination and/or treatment at
St. David’s Medical Center.2 The form noted that he had fallen out of a moving truck. A family
nurse practitioner signed the side of the form entitled, “attending physician’s report.”
By decision dated September 2, 2014, OWCP denied appellant’s claim. It found that he
did not submit medical evidence in support of his claim. OWCP accepted that appellant was a
federal civilian employee who filed a timely claim and that the evidence supported that the
incident occurred as described.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing 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 injury4 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit sufficient
2

The Board notes that the employing establishment issued a Form CA-16 authorization for medical treatment in
this case. Where an employing establishment properly executes a Form CA-16 which authorizes medical treatment
as a result of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment
regardless of the action taken on the claim. See Tracey P. Spillane, 54 ECAB 608 (2003). The CA-16 of record
however was not properly executed as section 6, the actual authorization section of the form was not completed.
3

Supra note 1.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).

2

evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
ANALYSIS
Appellant alleged that on July 10, 2014 he sustained a knee injury as a result of stepping
off a truck and falling out of a truck into a parking lot. The Board finds, however, that he did not
submit medical evidence from a qualified physician to establish that a medical condition was
diagnosed in connection with this incident.7
In support of his claim, appellant submitted only a form report entitled, “attending
physician’s report,” which was signed by a family nurse practitioner. Nurse practitioners do not
qualify as physicians under FECA and, therefore, their medical reports do not qualify as
probative medical evidence supportive of a claim for federal workers’ compensation, unless such
medical reports are countersigned by a physician.8 The form report was not countersigned by a
physician; the only signature appearing on this report was from the family nurse practitioner.
Hence, this report does not constitute probative medical evidence. As appellant did not submit
any other medical evidence in support of his claim, he did not establish a firm diagnosis of a
medical condition in connection with the work-related incident of July 10, 2014.
The Board finds that appellant did not submit sufficient medical evidence providing a
diagnosis from a qualified physician. Appellant failed to establish that he had any diagnosed
condition resulting from the July 10, 2014 employment incident.
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 did not meet his burden of proof to establish a traumatic
injury in the performance of duty on July 10, 2014.

6

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

7

Appellant submitted additional evidence on appeal. The Board has no jurisdiction to review new evidence on
appeal; see 20 C.F.R. § 501.2(c).
8

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as
follows: (2) physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. See Merton J. Sills, 39
ECAB 572, 575 (1988).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 2, 2014 is affirmed.
Issued: May 27, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, SHAKER HEIGHTS
POST OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
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)
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)
)

Docket No. 21-1141
Issued: March 10, 2022

Case Submitted on the Record

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

On July 20, 2021 appellant, through counsel, sought an appeal from a purported July 20,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Boards assigned Docket No. 21-1141.
The Board has duly considered the matter and notes that the Board has jurisdiction to the
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act
(FECA).3 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
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

Counsel did not appeal from OWCP’s June 7, 2021 merit decision, which affirmed OWCP’s November 30, 2020
forfeiture decision. He identified only the purported July 20, 2021 decision on the application for review (AB-1
Form). Therefore, the Board will not consider the June 7, 2021 OWCP decision in this appeal. See 20 C.F.R. § 501.3;
see also D.E., Docket No. 21-0531 (issued June 16, 2021).
3

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§501.2(c) and 501.3(a).

the date appellant filed her appeal. 4 While there is correspondence dated July 20, 2021, that letter
is purely informational in nature and does not constitute a final adverse decision of OWCP from
which she may properly appeal.5 As there is no final adverse decision issued by OWCP that
counsel has appealed from over which the Board may properly exercise jurisdiction, the Board
lacks jurisdiction over the appeal. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1141 is dismissed. 6
Issued: March 10, 2022
Washington, DC

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

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

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

Id. at § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the date of
issuance of a decision of OWCP.”
4

5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020).
6

The Board’s decisions and orders are final upon the expiration of 30 days from the date of their issuance. 20
C.F.R. § 501.6(d).

2


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

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)
)
)
)
)
)
)

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

Docket No. 09-1781
Issued: March 4, 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 July 8, 2009 appellant timely appealed the April 8, 2009 merit decision of the Office
of Workers’ Compensation Programs, which affirmed an August 4, 2008 schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant has greater than three percent impairment of both the left
and right lower extremity.
FACTUAL HISTORY
Appellant, a 62-year-old rural letter carrier, has an accepted occupational disease claim
for lumbar sprain and herniated disc at L5-S1, which arose on or about June 2, 2005. On
April 24, 2008 he filed a claim for a schedule award. Appellant submitted an October 18, 2007
report from Dr. Nicholas Diamond, a pain management specialist, who diagnosed L5-S1
herniated nucleus pulposus with left S1 nerve root involvement, left S1 radiculitus, per clinical
impression, chronic lumbosacral strain and sprain, and chronic myofascial pain syndrome.
Dr. Diamond found 24 percent impairment of the left and right lower extremity. Three percent

of the rating was for pain and the other 21 percent was for motor strength deficits involving the
L4, L5 and S1 nerve roots. Dr. Diamond evaluated appellant’s motor strength deficits pursuant
to Table 15-16 and 15-18 at page 424 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment. He found nine percent impairments of the L4 and L5
nerve roots, as well as a five percent impairment of the left S1 nerve root pursuant to the A.M.A.,
Guides. According to Dr. Diamond, appellant had reached maximum medical improvement.
In a statement dated January 23, 2008, appellant’s treating physician, Dr. David J. Miller,
stated that he had reviewed Dr. Diamond’s report and agreed with his finding of 24 percent
bilateral lower extremity impairment.
On May 8, 2008 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and district
medical adviser (DMA), reviewed the record, including Dr. Diamond’s October 18, 2007 report.
He disagreed with Dr. Diamond’s finding of motor strength deficits at L4, L5 and S1.
Dr. Berman opined that based upon his review of the records he did not believe appellant had
any motor strength deficits. Instead, he found three percent impairment based on a Grade 3
sensory deficit involving the S1 nerve root, bilaterally. Dr. Berman also disagreed with
Dr. Diamond’s additional three percent rating for pain.
By decision dated August 4, 2008, the Office granted a schedule award for three percent
impairment of the left and right lower extremities. The award covered a period of 17.28 weeks
beginning May 6, 2007. The Branch of Hearings and Review affirmed the schedule award in a
decision dated April 8, 2009.1
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.2 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.3 Effective February 1, 2001,
schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).4
ANALYSIS
As argued by appellant on appeal, the Board finds that there is an unresolved conflict in
medical opinion between the DMA and Dr. Diamond and, therefore, the case shall be set aside
and remanded for referral to an impartial medical examiner. The Act provides that if there is
1

A hearing was held on December 17, 2008.

2

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2)
(2006).
3

20 C.F.R. § 10.404 (2009).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

2

disagreement between the physician making the examination for the Office and the employee’s
physician, the Office shall appoint a third physician who shall make an examination.5
Dr. Diamond found 21 percent impairment of the left and right lower extremity for motor
strength deficits involving the L4, L5 and S1 nerve roots and 3 percent impairment due to pain,
pursuant to Table 15-16 and 15-18 of the A.M.A., Guides. Dr. Miller agreed with
Dr. Diamond’s assessment. Dr. Berman disagreed with Dr. Diamond’s finding of motor strength
deficits at L4, L5 and S1 and an additional impairment for pain, instead, he found three percent
impairment based on a Grade 3 sensory deficit involving the S1 nerve root, bilaterally. Because
of the unresolved conflict in medical opinion between Dr. Berman and Dr. Diamond the case
will be remanded to the Office for referral to an impartial medical examiner. After such further
development of the case record as the Office deems necessary, a de novo decision shall by
issued.
CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2009 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: March 4, 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

5

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

3


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

)
)
)
)
)
)
)
)

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

Docket No. 10-2002
Issued: May 12, 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 August 3, 2010 appellant filed a timely appeal from a June 8, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established intermittent employment-related disability
from January 5 to December 27, 2008.
FACTUAL HISTORY
The case has been before the Board on prior appeals. By decision dated December 1,
2004, the Board set aside an April 22, 2004 Office decision regarding a recurrence of disability

1

5 U.S.C. § 8101 et seq.

commencing March 9, 2002.2 In a decision dated May 2, 2008, the Board affirmed an
August 14, 2007 Office decision, denying wage-loss compensation from August 21 to
November 25, 2006, as appellant had received a schedule award during this period.3 By decision
dated December 16, 2008, the Board found appellant was entitled to wage-loss compensation
from April 15 to June 6, 2003, as the medical evidence contained a rationalized medical opinion
on disability for this period.4 By decision dated April 1, 2010, the Board found appellant had not
established an employment-related disability from June 7, 2003 to November 6, 2004.5 The
history of the case as provided in the Board’s prior decisions is incorporated herein by reference.
On March 6, 2009 appellant submitted a claim for compensation (Form CA-7) dated
February 23, 2009, for intermittent dates from January 5 to December 27, 2008. A time analysis
(Form CA-7a) provided specific hours totaling 278.21 for the period claimed.
As to the medical evidence of record, there are reports from Dr. Katherine Young, a
family practitioner, and Dr. David Krencik, an osteopath, regarding treatment in 2008. In a
report dated March 12, 2008, Dr. Young stated that appellant continued to have pain from RSD
in her right leg and needed to miss time intermittently when the condition flared up. Dr. Young
listed specific dates from January 5 to March 3, 2008 that appellant had missed work. In a report
dated June 6, 2008, Dr. Krencik provided results on examination and stated that appellant had
good days and bad days. In a September 12, 2008 report, he stated that appellant was stable on
her current medication.
In a report dated February 18, 2009, Dr. Young stated that appellant had chronic pain
from RSD that was progressively worsening. She stated that she was attaching “a list of missed
dates from work as well as hours due to the work-related injury.” The record contains a list of
dates and hours missed from January 5 to December 27, 2008. In a March 30, 2009 report,
Dr. Young stated that appellant would tend to miss time intermittently and the list of dates she
had provided “is compatible with her disease and with her management of it.”
By decision dated November 20, 2009, the Office denied the claim for intermittent
disability from January 5 to December 27, 2008. It found the medical evidence was insufficient
to establish the claim.
Appellant requested a telephonic hearing before an Office hearing representative, which
was held on March 19, 2010. At the hearing appellant stated that some days she was unable to
work due to pain, weakness and muscle spasms in her foot.
2

Docket No. 04-1583 (issued December 1, 2004). The record indicated that the Office had accepted an acute
right foot contusion on June 11, 2001. Appellant also filed an occupational illness claim on October 11, 2002 for a
right foot condition, which has been accepted for lesions of plantar nerve, right foot dorsal aspect injury and reflex
sympathetic dystrophy (RSD) of the right foot.
3

Docket No. 07-2308 (issued May 2, 2008). Appellant received a schedule award for a 38 percent right leg
permanent impairment on August 9, 2006. The period of the award was March 20, 2006 to April 24, 2008.
4

Docket No. 08-671 (issued December 16, 2008).

5

Docket No. 09-1840 (issued April 1, 2010).

2

By decision dated June 8, 2010, the hearing representative affirmed the November 20,
2009 Office decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act6 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.7 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.8
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.9 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.10 The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.11
ANALYSIS
The claim at issue in this case is for intermittent dates of disability from January 5 to
December 27, 2008. Appellant received a schedule award on August 9, 2006 for a 38 percent
permanent impairment to the right leg, covering the period March 20, 2006 to April 24, 2008.
As the Board explained in its May 2, 2008 decision, a claimant is not entitled to dual
compensation benefits for the same injury, and may not receive compensation for wage loss and
a schedule award covering the same period of time.12 Since appellant received a schedule award
through April 24, 2008, she would not be entitled to compensation for the claimed dates from
January 5 to April 24, 2008.
6

5 U.S.C. §§ 8101-8193.

7

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

8

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
9

See Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Id.

11

Id.

12

See Eugenia L. Smith, 41 ECAB 409, 412 (1990); see also 5 U.S.C. § 8116.

3

With respect to the period April 25 to December 27, 2008, the medical evidence does not
contain a rationalized medical opinion establishing an employment-related disability on the dates
claimed. Dr. Young provided a list of dates in 2008 that appellant had “missed” work. Her only
explanation for these dates is a general statement that appellant had pain and would
intermittently miss time from work due to her work injury. As the Board explained in its April 1,
2010 decision, this type of general listing of missed days at work is of little probative value.13
There are no results on examination, discussion of appellant’s condition on the dates claimed or a
rationalized opinion as to an employment-related disability for the specific dates claimed. It is
not enough for a physician to simply confirm that appellant reported being unable to work on
certain dates. Appellant has the burden of proof to establish an employment-related disability for
the dates claimed, and the Board finds that she did not meet her burden of proof for the dates
claimed from April 25 to December 27, 2008.
CONCLUSION
The Board finds that appellant did not establish intermittent employment-related
disability from January 5 to December 27, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 8, 2010 is affirmed.
Issued: May 12, 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
13

In that decision, the Board noted that Dr. Young had provided a list of “missed workdays” in 2003 and 2004,
briefly stating that the missed days were due to continuing problems with foot RSD. The Board found this was not
sufficient to establish disability for the dates claimed.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
GENERAL SERVICES ADMINISTRATION,
)
U.S. COURT HOUSE, Hyattsville, MD, Employer )
__________________________________________ )
L.B., Appellant

Appearances:
Paul H. Felser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1202
Issued: February 6, 2013

Case Submitted on the Record

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

JURISDICTION
On May 15, 2012 appellant, through counsel, filed a timely appeal from a March 28,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) that found an
overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $67,221.63 because she concurrently received Social Security Act (SSA) benefits for
the period January 1, 1994 to March 12, 2011 while receiving FECA benefits; (2) whether
OWCP properly denied waiver of the overpayment; and (3) whether OWCP properly required
repayment of the overpayment by deducting $300.00 every 28 days from appellant’s continuing
compensation.

1

5 U.S.C. §§ 8101-8193.

On appeal appellant’s attorney asserts that the overpayment should be waived as she
detrimentally relied on the funds received. Therefore, recovery would be against equity and
good conscience and defeat the purpose of FECA.
FACTUAL HISTORY
On November 4, 1992 OWCP accepted that appellant, then a 63-year-old custodial
worker, sustained a low back strain on September 2, 1992 while removing debris outside of the
employing establishment. The claim was accepted for a mild bulging disc at L3-4. Appellant
worked light duty until June 17, 1993. She retired on October 1, 1994.
By letter dated June 19, 1995, OWCP informed appellant that she must elect either civil
service annuity benefits or FECA benefits. It advised her that, if she elected FECA benefits,
these would be reduced by SSA benefits paid on the basis of age and attributable to her federal
employment. Appellant elected FECA benefits, effective June 28, 1995. She was placed on the
periodic compensation rolls.2
The record includes OWCP 1032 forms signed by appellant on October 29, 1994,
November 24, 1997, December 27, 2005, January 11, 2007, January 8, 2008, January 7, 2009,
and March 6, 2010. Appellant advised that she was not receiving SSA benefits or payments. On
1032 forms signed on November 18, 1996, December 20, 2004 and January 16, 2011, appellant
stated that she was receiving benefits from SSA, as part of an annuity for federal service.3
In February 2011, OWCP developed the issue of whether appellant was receiving dual
benefits from FECA and SSA. On February 24, 2011 SSA provided information regarding
receipt of appellant’s SSA benefits with and without federal retirement (FERS) benefits from
January 1994 through December 2010. On March 11, 2011 OWCP reduced appellant’s FECA
benefits to reflect the contribution to her SSA benefits.
On March 15, 2011 OWCP issued a preliminary finding that a $67,221.63 overpayment
of compensation had been created. It found that the overpayment occurred because that portion
of appellant’s SSA benefits received from January 1, 1994 to March 12, 2011 based on credits
earned by an employee covered under FERS was a prohibited dual benefit. OWCP found
appellant without fault.
Appellant requested a prerecoupment hearing and provided an overpayment
questionnaire. She had a monthly income of $1,557.00 and monthly expenses of $971.00. By
decision dated August 29, 2011, an OWCP hearing representative vacated the preliminary
overpayment finding and remanded the case to OWCP to review the 1032 forms, to be followed
by a de novo overpayment determination.

2

In December 2004, she moved to Georgia.

3

On the forms signed December 20, 2004, December 27, 2005, January 11, 2007, January 8, 2008, January 7,
2009, March 6, 2010 and January 16, 2011, appellant indicated that she was receiving disability retirement benefits
from the Office of Personnel Management.

2

On September 6, 2011 OWCP issued a preliminary finding that a $67,221.63
overpayment of compensation was created because a portion of appellant’s SSA benefits was
based on credits earned while an employee under FERS. This portion of her SSA benefit was a
prohibited dual benefit. OWCP reviewed the 1032 forms submitted and found that appellant was
at fault in the creation of the overpayment because she responded on 1032 forms that she did not
receive SSA benefits. In the election letter sent to her in June 1995, she was told that FECA
benefits would be reduced by SSA benefits paid on the basis of age and attributable to federal
service. OWCP determined that appellant accepted payments that she knew or reasonably
should have known to be incorrect.
Appellant’s attorney requested a prerecoupment hearing. On December 3, 2011 she
submitted an OWCP 1032 form indicating that she was receiving SSA benefits. Appellant did
not attend the hearing held on January 9, 2012. Counsel asserted that recovery of the
overpayment would punish appellant for OWCP’s mistake in not offsetting her SSA benefits.
He noted that she was over 80 years old and argued detrimental reliance on the funds received
from OWCP. The hearing representative informed the attorney that a new overpayment
questionnaire was needed and one was sent to appellant that day.
In correspondence dated March 1, 2012, appellant’s attorney argued that appellant was
not at fault, and that the overpayment should be reduced substantially or waived in its entirety.
He asserted that, in accordance with section 6.300.9 of OWCP procedures, a regulatory
limitation of 10 years existed for the initiation of any offset effort, and that it was OWCP’s
responsibility to review appellant’s claim since she became 62 in 1991, and in 1996 reported on
a 1032 form that she was receiving SSA benefits.4
By decision dated March 28, 2012, an OWCP hearing representative affirmed the
overpayment of compensation in the amount of $67,221.63 for the period January 1, 1994
through March 12, 2011. Appellant received prohibited dual benefits under FECA and SSA.
She found appellant without fault and denied waiver. The hearing representative noted that
appellant did not complete a current overpayment questionnaire, even though her attorney was
advised at the hearing to submit updated financial information, and the overpayment
questionnaire was forwarded to appellant and her attorney. The hearing representative relied on
the information provided in the April 2011 questionnaire in which appellant reported monthly
income of $1,557.00 and expenses of $971.00, leaving an excess of $586.00. She found that this
did not establish financial hardship. Under the applicable regulations, appellant had excess
income that would not allow waiver of recovery. The hearing representative further noted that
appellant submitted no evidence to show that, in reliance of her compensation benefits, she
relinquished a valuable right or changed her position for the worse. She set recovery of the
overpayment at a rate of $300.00 each compensation period. All charges were waived as the
period of indebtedness exceeded appellant’s life expectancy.

4

The attorney also referenced OWCP procedures regarding fault.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102 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 duty.5
Section 8116(d) of FECA requires that compensation benefits to be reduced by the
portion of SSA benefits based on age or death that are attributable to federal service and that, if
an employee receives SSA benefits based on federal service, his or her compensation benefits
shall be reduced by the amount of SSA benefits to his or her federal service.6
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.7 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
OWCP will then deduct the hypothetical benefit from the actual benefit to determine the amount
of benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of compensation payable.8
ANALYSIS -- ISSUE 1
Appellant received FECA wage-loss compensation beginning in 1993 and received SSA
benefits from January 1, 1994 to March 12, 2011. The portion of the SSA benefits she earned as
a federal employee as part of her FERS retirement package, and the receipt of benefits under
FECA and federal retirement benefits concurrently is a prohibited dual benefit.9 The SSA
notified OWCP of the applicable SSA rates for appellant and their effective dates. Based on
these rates, OWCP determined the prohibited dual benefit appellant received from January 1,
1994 to March 12, 2011, created an overpayment of compensation in the amount of $67,221.63.
Appellant’s attorney contended that section 6.300.9 of OWCP procedure manual provides
a regulatory limitation of 10 years for collection of an overpayment. The Board notes that
section 6.300.9 refers to dual benefits received under FECA and retirement benefits from OPM
and is not relevant to the receipt of dual FECA and SSA benefits.
5

5 U.S.C. § 8102(a).

6

5 U.S.C. § 8116(d). See G.B., Docket No. 11-1568 (issued February 15, 2012); see also Janet K. George
(Angelos George), 54 ECAB 201 (2002).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995);
Chapter 2.1000.1.11(b) (February 1995); see also R.C., Docket No. 09-2131 (issued April 2, 2010).
8

FECA Bulletin No. 97-9 (issued February 3, 1997).

9

Id.

4

The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period January 1, 1994 to March 12, 2011. OWCP properly determined that she received
dual benefits totaling $67,221.63 for this period, thus creating an overpayment in compensation
in that amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”10 Waiver of an overpayment is not permitted unless the claimant is “without
fault” in creating the overpayment.11
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom OWCP seeks recovery needs substantially all of his or her current income (including
compensation benefits) to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed a specified amount as determined by OWCP from data
furnished by the Bureau of Labor Statistics. A higher amount is specified for a beneficiary with
one or more dependents.12 Recovery of an overpayment is considered to be against equity and
good conscience when any individual who received an overpayment would experience severe
financial hardship in attempting to repay the debt.13 Recovery of an overpayment is also
considered to be against equity and good conscience when any individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes
his or her position for the worse.14
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.15
ANALYSIS -- ISSUE 2
OWCP’s hearing representative found appellant without fault in the creation of the
overpayment. Waiver must be considered and repayment is still required unless adjustment or
10

5 U.S.C. § 8129.

11

Steven R. Cofrancesco, 57 ECAB 662 (2006).

12

20 C.F.R. § 10.436.

13

Id. at § 10.437(a).

14

Id. at § 10.437(b).

15

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

5

recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.16 The Board finds that OWCP did not abuse its discretion by refusing to waive
recovery of the overpayment of compensation.
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown both that she needs substantially all of her current income to
meet ordinary and necessary living expenses. OWCP procedures provide that an individual is
deemed to need substantially all of his or her current income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00, i.e., the amount of monthly funds available for debt repayment is the difference between
current income and adjusted living expenses plus $50.00.17 Following the January 9, 2012
hearing, OWCP forwarded an overpayment questionnaire to appellant for completion regarding
her current income and expenses. Appellant did not return the questionnaire. The hearing
representative therefore relied on the questionnaire submitted in April 2011. Appellant reported
monthly income of $1,557.00 and monthly expenses of $971.00, yielding an excess of $586.00.
OWCP properly found that appellant’s documented monthly income exceeded her
monthly ordinary and necessary expenses by $586.00. As appellant’s reported income exceeded
her reported ordinary expenses by more than $50.00, she has not shown that she needs
substantially all of her current income to meet current ordinary and necessary living expenses.
She has not met the first prong of the two-prong test of whether recovery of the overpayment
would defeat the purpose of FECA.18 It was therefore not necessary for OWCP to consider the
second prong of the test, i.e., whether appellant’s assets exceed the allowable resource base.
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt.19 Counsel contends on appeal that recovery of the overpayment
would create a financial hardship and be against equity and good conscience because she
detrimentally relied on the additional funds. Recovery of an overpayment is also considered to
be against equity and good conscience when any individual, in reliance on such payments or on
notice that such payments would be made, gives up a valuable right or changes his or her
position for the worse.20 OWCP procedures provide that 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

16

Supra note 11.

17

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Waiver of Recovery, Chapter 6.200.a(1)(b)
(June 2009).
18

Supra note 13.

19

20 C.F.R. § 10.437(a).

20

Id. at § 10.437; see W.P., 59 ECAB 514 (2008).

6

payment.21 An individual must show that he or she made a decision he or she otherwise would
not have made in reliance on the overpaid amount and that this decision resulted in a loss.22
Appellant does not qualify for waiver under the principle of detrimental reliance because
she submitted no evidence to establish that she gave up a valuable right or changed her position
for the worse in reliance on the prohibited payments. Appellant has not shown that if required to
repay the overpayment, she would be in a worse position after repayment than if she had never
received the overpayment at all. OWCP properly found that she was not entitled to waiver on
the grounds that recovery would be against equity and good conscience.23
As appellant failed to establish that recovery of the overpayment in compensation would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery.
LEGAL PRECEDENT -- ISSUE 3
OWCP’s implementing regulations provide that, if an overpayment of compensation has
been made to an individual entitled to further payments and 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.24
ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the relevant factors noted above in
setting a rate of recovery of $300.00 per compensation period. The record indicates that
appellant’s monthly income exceeds her reported monthly expenses by $586.00 per month. In
setting the rate of recovery, OWCP gave due consideration of her age and waived all interest on
the overpayment amount and related charges. It did not abuse its discretion in finding that
appellant should repay the overpayment at the rate of $300.00 per compensation period.

21

Federal (FECA) Procedure Manual, supra note 17 at Chapter 2.600.b(3) (June 2009).

22

Id. at § 10.437(b)(2) (2011); see Wayne G. Rogers, 54 ECAB 482 (2003).

23

Federal (FECA) Procedure Manual, supra note 17.

24

20 C.F.R. § 10.441(a).

7

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $67,221.63. OWCP properly denied waiver and required recovery of the overpayment by
deducting $300.00 every 28 days from her continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, MILL NECK POST
OFFICE, Mill Neck, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0575
Issued: March 22, 2022

Case Submitted on the Record

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

On March 7, 2022 appellant filed an appeal from a January 13, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0575.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the January 13, 2021 decision was July 12, 2021. As appellant
did not file an appeal with the Board until March 7, 2022, more than 180 days after the
January 13, 2021 OWCP decision, the Board finds that the appeal docketed as No. 2 2 -05 75 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained her failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances. Because there is no final adverse decision issued by OWCP
1

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

2

Id. at § 501.3(e).

within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 22-0575, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0575 is dismissed.
Issued: March 22, 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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 13-2170
Issued: February 26, 2014

Case Submitted on the Record

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

JURISDICTION
On September 27, 2013 appellant filed a timely appeal of the August 30, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) which denied his claim for a traumatic
injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty.
FACTUAL HISTORY
On July 7, 2013 appellant then a 32-year-old firefighter, filed a traumatic injury claim
alleging that, on July 5, 2013, while pulling brush during chipping operations, his right knee was
punctured by a white thorn bush. He did not stop work. On the Form CA-1 appellant’s
1

5 U.S.C. §§ 8101-8193.

supervisor, Robert Benik, noted that appellant was injured in the performance of duty on
July 5, 2013. He further advised that he was notified on July 6, 2013 of the injury and appellant
did not lose any time from work. In a witness statement, J. Guadalupe Torres, a coworker
reported that appellant was pulling brush to get it chipped and he hit his right knee with a branch.
Appellant submitted a doctor’s first report of occupation injury or illness dated July 7,
2013 which noted his treatment for a right knee injury. He reported puncturing his right knee
with a thorn bush while removing brush and shrubs. Dr. Byong J. Pak, a Board-certified
emergency room physician, noted subjective complaints of right knee pain and tenderness over
the right patella. The x-ray of the right knee was negative. He diagnosed contusion of the right
knee and noted that appellant could return to light duty on July 7, 2013. Also submitted was a
slip prepared by a nonspecific health care provider who noted that appellant could return to
work. Appellant submitted a firefighter time report from June 26 to July 6, 2013.
By letter dated July 18, 2013, OWCP advised appellant of the type of factual and medical
evidence needed to establish his claim and requested that he submit such evidence, particularly
requesting that he submit a physician’s reasoned opinion addressing the relationship of his
claimed condition and specific employment factors.
Appellant submitted a doctor’s first report of occupational injury or illness dated July 24,
2013 which noted appellant’s treatment for chest pain.
In a decision dated August 30, 2013, OWCP denied his claim on the grounds that the
evidence was not sufficient to establish that his knee condition was causally related to the
established work event.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury. 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.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.3

2

Gary J. Watling, 52 ECAB 357 (2001).

3

T.H., 59 ECAB 388 (2008).

2

Although causal relationship generally requires a rationalized medical opinion,4 OWCP
may accept a case without a medical report when one or more of the following criteria, as set
forth in the OWCP procedure manual,5 are satisfied:
“c. When No Medical Report is Required. If all of the following criteria are
satisfied, a claim may be accepted without a medical report:
(1) The condition reported is a minor one which can be identified
on visual inspection by a lay person (e.g., burn, laceration, insect
sting or animal bite);
(2) The injury was witnessed or reported promptly, and no dispute
exists as to the fact of injury; and
(3) No time was lost from work due to disability.”
ANALYSIS
As OWCP found in its August 30, 2012 decision, the evidence of record supports the fact
that on July 5, 2013 appellant was pulling brush including a thorn bush during a chipping
operation in the performance of duty at the time, place and in the manner alleged.
The case therefore rests on whether pulling brush and thorn bushes during a chipping
operation on July 5, 2013 caused the contusion of the right knee.6 OWCP denied appellant’s
claim stating that the evidence of record did not support a medical condition resulting from the
alleged employment incident. As noted above, although causal relationship generally requires a
rationalized medical opinion, OWCP may accept a case without a medical report when all of the
following criteria, as set forth in OWCP’s procedure manual,7 are satisfied: “(1) the condition
reported is a minor one which can be identified on visual inspection by a lay person (e.g., burn,
laceration, insect sting or animal bite); (2) the injury was witnessed or reported promptly, and no
dispute exists as to the fact of injury; and (3) no time was lost from work due to disability.”
In the present case, the condition reported, a puncture and contusion to the right knee,
meets the first criterion as a minor condition that could be identified on visual inspection and
occur while removing bush and thorn bushes during a chipping operation. Appellant’s coworker
and witness, Mr. Torres, reported that appellant was pulling brush during a chipping operation
and he hit his right knee with a branch. There was no indication that the puncture and contusion
4

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3c(1-3)
(January 2013); see also Timothy D. Douglas, 49 ECAB 558 (1998).
6

The claim file contains medical information concerning an episode of chest pain on a different date from the
claimed knee injury. While this information is present in the file, there is no complaint of chest pain in this claim
and it has no bearing on the knee complaint.
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013);
see also Timothy D. Douglas, supra note 5.

3

was considered a serious condition as appellant did not lose any time from work. The first
criterion is therefore satisfied.
The second criterion is also satisfied. Appellant reported his injury to his supervisor on
July 6, 2013, the day after the accident and filed the CA-1 on July 7, 2013. Additionally, his
supervisor, signed the Form CA-1 and indicated that appellant was injured on July 5, 2013
during the performance of duty and received medical care the same day. Appellant’s coworker,
Mr. Torres, witnessed the incident and reported that appellant was pulling brush and hit his right
knee with a branch. No dispute exists as to these facts.
Appellant’s supervisor further noted on the Form CA-1 that appellant did not stop work
due to the July 5, 2013 employment injury. As the record indicates that appellant did not stop
work and has not claimed disability due to this incident, the third criterion is also met. A
medical report addressing causal relationship is therefore not necessary in the circumstances of
this case. Accordingly, the Board finds that the record establishes that an injury occurred in the
performance of duty.8
The case must be remanded for OWCP to make appropriate findings with regard to
appellant’s entitlement to medical benefits. Following this and such other development as it
considers necessary, OWCP shall issue a de novo decision on appellant’s entitlement to benefits
under FECA.
CONCLUSION
The Board finds that the record establishes that an injury occurred in the performance of
duty on July 5, 2013.

8

Pearlene Morton, 52 ECAB 493 (2001).

4

ORDER
IT IS HEREBY ORDERED THAT the August 30, 2013 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further development
consistent with this opinion.9
Issued: February 26, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9

The Board notes that appellant’s appeal to the Board was accompanied by new evidence. The Board’s
jurisdiction on appeal is limited to a review of the evidence which was in the case record before OWCP at the time
of its final decision; see 20 C.F.R. § 501.2(c). Therefore, the Board is precluded from reviewing this evidence.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Atlanta, GA,
Employer
__________________________________________

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Appearances:
Belinda Garrett, for the appellant
Office of Solicitor, for the Director

Docket No. 14-139
Issued: July 22, 2014

Case Submitted on the Record

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

JURISDICTION
On October 22, 2013 appellant, through his representative, filed a timely appeal from the
September 19, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying his reconsideration request. The most recent merit decision of OWCP was
October 4, 2010. As that decision was more than 180 days from the date of this appeal and
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request on the
grounds that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 19, 2009 appellant, then a 50-year-old mail handler (tram driver), sustained a
traumatic injury in the performance of duty when a box of mail fell from an overhead belt and
struck him on the head. He did not return to work. OWCP accepted appellant’s claim for a
variety of conditions.2
In a decision dated May 24, 2010, OWCP denied authorization for dental treatment.
Appellant was conversing with his wife on May 22, 2009 and when he stood up from his chair,
he suddenly dropped. His wife heard him fall and found him face down, rigid, with some jerking
movement of his left shoulder and upper extremity. Appellant was unconsious for about two
minutes and then gradually woke up as if from a very deep sleep, seeming confused. The fall
had lacerated his lips and damaged his teeth. OWCP denied appellant’s claim finding that the
medical evidence did not support the May 22, 2009 incident which was a direct and natural result
of what happened at work on April 19, 2009. Appellant requested a hearing.
On October 4, 2010 an OWCP hearing representative affirmed, finding that appellant had
not met his burden to establish that the need for dental treatment arose as a consequence of the
April 19, 2009 work injury. Medical evidence, including the opinion of appellant’s surgeon,
indicated that the employment injury did not result in a seizure or seizure disorder.
On November 13, 2012 appellant requested reconsideration for the repair of his teeth. He
noted that he suffered a massive seizure six weeks after the blow to his head that broke his neck.
Appellant noted that his claim was now accepted for traumatic brain injury/postconcussion
syndrome, “which can cause seizures and is directly related to the injury on April 19, 2009.”
OWCP received a February 15, 2013 report from Dr. Rhonda G. Taubin, a Boardcertified physiatrist, who noted that a heavy box of mail dropped onto appellant’s head in
April 2009 and he was later diagnosed with a C1-2 fracture, which required surgical fixation. In
June of that same year, appellant experienced a seizure. He fell forward, knocking out two of his
teeth and hitting his head once again. Appellant was currently taking medication for seizure
control and has had no further seizures since then. Dr. Taubin offered the following: “It is my
medical opinion that the seizure suffered and resultant facial injury and loss of teeth is related to
his workplace injury, as he has no medical documentation related to seizure history.”
In a decision dated September 19, 2013, OWCP denied appellant’s reconsideration
request. It found his request untimely and further found that it did not present clear evidence of
error in its October 4, 2010 decision denying authorization for dental treatment. OWCP noted
that new medical information did not rely on contemporaneous diagnostic testing but rather on
appellant’s unsupported assertion that he had suffered a seizure. It pointed to the attending
surgeon’s rationale in February 2010 that he had suffered no seizure activity whatsoever.

2

The accepted conditions included scalp laceration, neck sprain, contusion, closed fracture of cervical vertebrae
without spinal cord injury, displacement of cervical intervertebral disc without myelopathy, concussion,
postconcussion syndrome (resolved as of April 30, 2012), major depression and generalized anxiety disorder.

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of OWCP’s decision for
which review is sought. If submitted by mail, the application will be deemed timely if
postmarked by the U.S. Postal Service within the time period allowed. If there is no such
postmark or it is not legible, other evidence such as (but not limited to) certified mail receipts,
certificate of service and affidavits, may be used to establish the mailing date.4
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.5
The term “clear evidence of error” is intended to represent a difficult standard.6 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.7
ANALYSIS
The most recent merit decision denying authorization for dental treatment was OWCP’s
hearing representative’s October 4, 2010 decision finding that appellant had not met his burden
to establish that the need for dental treatment arose as a consequence of his April 19, 2009 work
injury. Appellant had one calendar year or until October 4, 2011, to request reconsideration of
this decision. His November 13, 2012 reconsideration request is therefore over a year too late.
Appellant’s request is untimely.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607(a).

5

Id. at § 10.607(b).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

7

Id. at Chapter 2.1602.3.d(1).

3

Nevertheless, OWCP will grant reconsideration and reopen the case for review if
appellant can establish clear evidence of error in its hearing representative’s October 4, 2010
decision. The request itself is insufficient. The issue of causal relationship is a medical issue,
one that must be addressed by rationalized medical opinion evidence.8 Appellant’s belief is
simply immaterial.
OWCP did receive a February 15, 2013 report from Dr. Taubin, a physiatrist. It was her
opinion that the seizure appellant suffered in 2009, which resulted in facial injury and loss of
teeth, was related to his April 2009 work injury.
On the face of it, this opinion does not show that the October 4, 2010 decision to deny
authorization for dental treatment was clearly erroneous. As OWCP’s hearing representative
discussed, there were medical reasons to doubt that appellant had suffered a seizure. It was the
opinion of the attending surgeon that appellant had, in fact, suffered no seizure whatsoever.
Dr. Taubin’s assumption that appellant did suffer a seizure and her opinion that this was
related to the April 2009 work injury, at best creates a disagreement between his physicians.
Even if one were to disregard whether appellant based her opinion on a proper factual and
medical history and whether she supported her opinion with sound medical reasoning, the
appearance in the case record of a medical opinion supporting causal relationship does not, in the
presence of medical opinion evidence to the contrary, show that the denial of authorization for
dental treatment was clearly erroneous. The term “clear evidence of error” is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that
OWCP made a mistake. For example, a claimant provides proof that a schedule award was
miscalculated, such as a marriage certificate showing that the claimant had a dependent but the
award was not paid at the augmented rate. Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued would have created a conflict in
medical opinion requiring further development, is not clear evidence of error.9 Her opinion does
not meet the difficult standard of proof for an untimely request.
Accordingly, the Board finds that appellant did not met his burden to establish that his
untimely reconsideration request presented clear evidence of error in OWCP’s October 4, 2010
decision. The Board will therefore affirm OWCP’s September 19, 2013 decision denying his
request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s reconsideration request.

8

Mary J. Briggs, 37 ECAB 578 (1986).

9

Dean D. Beats, 43 ECAB 1153 (1992); Leana N. Travis, 43 ECAB 227 (1991). Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (March 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5