United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 09-1911
Issued: June 28, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 21, 2009 appellant, through counsel, filed a timely appeal of a November 6, 2008
merit decision of the Office of Workers’ Compensation Programs terminating his compensation
for wage-loss and medical benefits, and the June 18, 2009 nonmerit decision denying his request
for merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation for
wage-loss and medical benefits effective November 6, 2008 on the grounds that he no longer had
any residuals or disability causally related to his accepted employment-related injury; and
(2) whether the Office properly refused to reopen appellant’s case for further review of the
merits pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On May 20, 2004 appellant, then a 36-year-old mail handler, filed a traumatic injury
claim alleging that he sustained an injury in the performance of duty when a power jack fell on
his left foot. The Office accepted the claim for left foot contusion, left ankle strain, left tarsal
tunnel syndrome and lesion of the left plantar nerve. Appellant returned to work on a part-time
basis in June 2005. He sustained a recurrence of disability on August 14, 2006 and was placed
on the periodic rolls. Appellant underwent approved left foot surgery on May 14, 2007.
Appellant was treated by Dr. Alan Bushansky, a podiatrist, and Dr. Carol DeCosta, a
Board-certified physiatrist. On July 31, 2007 Dr. Bushansky opined that appellant was disabled
due to his accepted left foot injury. In a February 21, 2008 report, Dr. DeCosta also opined that
appellant was disabled due to his May 19, 2004 left foot injury. Examination of the left foot
revealed pain on palpation in the first metatarsal area, decreased sensation of the medial cutaneus
nerve and a positive Tinel’s sign at the dorsal aspect of the left foot.
The Office referred appellant to Dr. Andrew Weiss, an orthopedic surgeon, for a second
opinion examination. In a report dated March 11, 2008, Dr. Weiss opined that appellant’s
accepted conditions, which included left ankle sprain, left foot contusion, left tarsal tunnel
syndrome and lesion of plantar nerve, had fully resolved and he was capable of performing his
usual duties with no restrictions. Active range of motion of the ankle and hindfoot were normal
(dorsiflexion -- 20 degrees; plantar flexion -- 40 degrees; subtalar inversion -- 30 degrees and
subtalar eversion -- 20 degrees). Strength was normal in all planes of motion about the ankle and
hindfoot. No calf or ankle atrophy or hypertrophy was noted. Sensation was decreased in the
first web space. Dr. Weiss opined that appellant had reached maximum medical improvement
and required no further medical treatment.
On May 12, 2008 the Office referred appellant, together with a statement of accepted
facts and the medical record, to Dr. Stanley Soren, a Board-certified orthopedic surgeon, to
resolve the conflict in medical opinion evidence between Dr. Weiss and Drs. Bushansky and
DeCosta as to whether he had any residuals or disability causally related to his employment
injury. In a June 10, 2008 report, Dr. Soren provided a complete history of injury and treatment
and concluded that appellant’s accepted conditions had resolved. A physical examination
revealed intact sensation and full range of motion in the left foot and ankle (dorsiflexion -- 20
degrees and plantar flexion -- 40 degrees). There was no ankle instability and trace decreased
sensation in the first dorsal web space of the left foot. The left big toe was tender at the first
metatarsophalangeal joint and metatarsal head. Appellant was unable to passively dorsiflex the
left metatarsophalangeal joint above neutral. The right first metatarsophalangeal joint could
extend (dorsiflex) 30 degrees above neutral. Based on history, Dr. Soren diagnosed contusions
of the left foot, left ankle sprain, left tarsal tunnel syndrome and lesion of plantar nerve. He also
diagnosed status post tarsal tunnel release, left side and status post neurolysis deep peroneal
nerve, left foot. Dr. Soren found evidence of arthritis in the left big toe at the first
metatarsophalangeal joint with clinical inability to passively dorsiflex the joint above neutral.
He stated that there were no objective findings of a tarsal tunnel syndrome, or of any other
accepted condition and that appellant’s symptoms related to the preexisting arthritic changes in
the first metatarsophalangeal joint. Dr. Soren opined that appellant had reached maximum

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medical improvement and that he did not require any further medical treatment due to his
May 2004 injury.
On October 2, 2008 the Office proposed to terminate appellant’s compensation and
medical benefits. It determined that, based on Dr. Soren’s June 10, 2008 report, appellant’s
injury-related disability had ceased and that the accepted conditions had resolved. Appellant was
afforded 30 days within which to submit any additional evidence.
In a May 29, 2008 report, Dr. DeCosta noted appellant’s complaints of pain and
numbness in the left foot and ankle. On examination of the left foot and ankle, he found
decreased sensation in the left ankle, pain on depalpation of the medial longitudinal fascia as
well as in the area of the insertion at the posterior tibial tendon. Range of motion examination
revealed dorsiflexion -- 5 degrees; plantar flexion -- 10 degrees; inversion -- 10 degrees and
eversion -- 7 degrees. Dr. DeCosta opined that appellant was totally disabled. On June 26, 2008
she diagnosed lumbosacral radiculopathy and left foot pain secondary to neuropathy.
Examination findings included pain on palpation of the left foot at the area of the metatarsal
phalangeal joint and positive Tinel’s sign at the medial malleolar area. There was pain on
palpation of the lumbosacral paraspinal area. Dr. DeCosta recommended a magnetic resonance
imaging (MRI) scan of the left foot to evaluate nerve damage and continued physical therapy.
In an August 21, 2008 attending physician’s report, Dr. DeCosta diagnosed lumbosacral
neuropathy and left foot pain due to neuropathy. In an October 2, 2008 work capacity
evaluation, she opined that appellant could return to work with restrictions, which limited him to
a four-hour day. Appellant was also precluded from bending, stooping, pushing, pulling,
squatting, climbing, making repetitive movements with the wrist and elbow, lifting more than 30
pounds and kneeling for more than 20 minutes.
Appellant submitted an October 22, 2008 report from Dr. Carl M. Jean, a Board-certified
surgeon, who stated that appellant continued to have arthralgia and discomfort in his left foot due
to a May 19, 2004 injury. He indicated that “early post[-]traumatic changes may be likely as per
serial x-rays of left ankle.” Otherwise, appellant’s condition was “grossly unchanged.” The
record also contains a May 4, 2007 operative report from Dr. Bushansky describing the left foot
procedure performed on that date.
In an October 6, 2008 statement, appellant disagreed with Dr. Soren’s June 10, 2008
report. He contended that Dr. Soren’s diagnosis of arthritis was incorrect.
By decision dated November 6, 2008, the Office finalized the termination of appellant’s
compensation benefits effective that date. It found that the weight of the evidence rested with
the opinion of Dr. Soren, the impartial medical examiner.
On April 9, 2009 appellant, through counsel, requested reconsideration. In support of his
request, he submitted a note authorizing Thomas Ruther to represent him and copies of
March 18, 2009 nerve conduction and electromyographic (NCS/EMG) studies of the lower
extremities.
By decision dated June 18, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was insufficient to warrant merit review.
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LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.1 After it has been determined that an employee has disability
causally related to his employment, it may not terminate compensation without establishing that
the disability had ceased or that it was no longer related to the employment.2 The Office’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.4 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.5
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.6
ANALYSIS -- ISSUE 1
The Board finds that the Office properly terminated appellant’s compensation and
medical benefits effective November 6, 2008.
The Office correctly determined that a conflict in the medical opinion evidence arose
between attending physicians, Dr. Bushansky and Dr. DeCosta, and the Office referral physician,
Dr. Weiss, as to whether appellant had any continuing residuals or disability causally related to
his accepted May 20, 2004 employment-related injury. Drs. Bushansky and DeCosta opined that
appellant suffered from continuing employment-related residuals and total disability. On the
other hand, Dr. Weiss opined that appellant’s employment-related left foot contusion, left ankle
strain, left tarsal tunnel syndrome and lesion of the left plantar nerve had resolved and that he
could return to work with no restrictions.
Dr. Soren reviewed appellant’s medical history, the history of injury and statement of
accepted facts. In his June 10, 2008 referee report, he provided examination findings, which
revealed intact sensation and full range of motion in the left foot and ankle and no ankle
instability. Dr. Soren found no objective evidence of a tarsal tunnel syndrome, or of any other
1

A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

2

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

3

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

4

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

5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

6

Gloria J. Godfrey, 52 ECAB 486 (2001).

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accepted condition. He opined that all of appellant’s accepted conditions had resolved.7 There
was evidence of arthritis in the left big toe, which Dr. Soren opined was related to preexisting
arthritic changes in the first metatarsophalangeal joint. Dr. Soren also opined that appellant had
reached maximum medical improvement and did not require any further medical treatment due
to his May 20, 2004 injury. The Board finds that Dr. Soren’s June 10, 2008 medical report is
comprehensive, well rationalized and based on an accurate factual and medical history.
Therefore, it is entitled to the special weight of the medical opinion evidence afforded an
impartial medical specialist.
Reports submitted in response to the Office’s proposed termination are insufficient to
surmount the weight given to Dr. Soren’s opinion. In May 29, June 26 and August 21, 2008
reports, Dr. DeCosta reiterated her opinion that appellant was totally disabled. These reports
generally repeat information contained in previous reports and are, therefore, insufficient to
overcome the weight of medical evidence afforded the opinion of the impartial medical
examiner, or to create a new conflict. On October 2, 2008 Dr. DeCosta opined that appellant
could return to work with restrictions. This report does not support appellant’s position, but
rather provides support for Dr. Soren’s opinion that appellant is no longer disabled.
In an October 22, 2008 report, Dr. Jean stated that appellant continued to have arthralgia
and discomfort in his left foot due to a May 19, 2004 injury. He did not explain, however, how
appellant’s current condition is causally related to the accepted injury. Medical conclusions
unsupported by rationale are of limited probative value.8 In his May 4, 2007 operative report,
Dr. Bushansky described the left foot procedure he performed on that date. As the report does
not contain an opinion regarding the cause of appellant’s condition, it is of diminished probative
value.9
The Board finds that the weight of medical evidence rests with the well-rationalized
report of the impartial medical examiner. The Board further finds that the Office met its burden
of proof to terminate appellant’s compensation and medical benefits effective November 6, 2008.
On appeal, counsel contends that the Office’s decision is contrary to fact and law. For
reasons stated, the Board finds this argument to be without merit.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,10 the Office regulations provide that the evidence or
7

By history, Dr. Soren diagnosed contusions of the left foot, left ankle sprain, left tarsal tunnel syndrome, lesion
of plantar nerve, status post tarsal tunnel release, left side and status post neurolysis deep peroneal nerve, left foot.
8

Willa M. Frazier, 55 ECAB 379 (2004).

9

Medical evidence which does not offer an opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB
313 (1999).
10

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

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argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.11 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.12 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.13 The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.14
ANALYSIS -- ISSUE 2
Appellant’s April 9, 2009 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
In support of his request for reconsideration, appellant submitted a note authorizing
Thomas Ruther to represent him, as well as copies of March 18, 2009 nerve conduction and
electromyographic (NCS/EMG) studies of the lower extremities. These documents are not
relevant to the issues in this case, namely whether appellant’s accepted conditions had resolved
and whether he was disabled due to the accepted conditions. The Board finds that the documents
submitted by appellant do not constitute relevant and pertinent new evidence not previously
considered by the Office.15 Therefore, the Office properly determined that this evidence did not
constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his April 9, 2009 request for reconsideration.
CONCLUSION
The Board finds that the Office properly terminate appellant’s wage-loss and medical
benefits, effective November 6, 2008, on the grounds that he had no residuals or disability
related to his accepted employment injury. The Board further finds that the Office properly
refused to reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b)(2).

12

Id. at § 10.607(a).

13

Id. at § 10.608(b).

14

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

15

See Susan A. Filkins, 57 ECAB 630 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the June 18, 2009 and November 6, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 28, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE TREASURY,
TREASURY INSPECTOR GENERAL FOR
TAX ADMINISTRATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 11-1032
Issued: December 13, 2011

Case Submitted on the Record

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

JURISDICTION
On March 22, 2011 appellant filed a timely appeal from a December 3, 2010 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 the case.
ISSUE
The issue is whether appellant met his burden to establish that he sustained a traumatic
injury in the performance of duty on October 15, 2010.
FACTUAL HISTORY
On October 18, 2010 appellant, then a 47-year-old special agent, filed a Form CA-1
alleging that his motor vehicle was struck by a speeding vehicle on October 15, 2010 while
1

5 U.S.C. § 8101 et seq.

attempting to make a left turn. He claimed a sprained ankle, hip and neck soreness and limited
jaw movement. Appellant did not incur any time loss from work. The employing establishment
did not controvert the claim.
OWCP informed appellant in an October 27, 2010 letter that additional evidence was
needed to establish his claim. It gave him 30 days to furnish medical reports from a physician
explaining how the October 15, 2010 accident contributed to a diagnosed condition.2 OWCP did
not receive a response.
In a memorandum dated November 5, 2010, the employing establishment explained that
appellant was in the performance of duty, travelling between his duty station and his approved
Health Improvement Program, at the time of the incident.
By decision dated December 3, 2010, OWCP denied appellant’s claim, finding that he
did not submit any medical evidence to demonstrate that the accepted October 15, 2010
employment incident caused a diagnosed jaw, neck, ankle, hip or ankle injury.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of reliable, probative and substantial evidence,3
including that he is an “employee” within the meaning of FECA and that he filed his claim
within the applicable time limitation.4 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
related to the employment injury.5
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 evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
2

In a separate October 27, 2010 letter, OWCP advised appellant that the circumstances of his case indicated that
his injury may have been caused by a responsible third party and that he may be subject to FECA’s subrogation
provisions. See 5 U.S.C. §§ 8131-8192; 20 C.F.R. §§ 10.705-10.719.
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

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

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factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
The evidence of record supports that appellant’s motor vehicle was struck by a speeding
vehicle on October 15, 2010 in the performance of duty. Nonetheless, appellant failed to provide
any medical reports when he filed his traumatic injury claim on October 18, 2010 and after
OWCP advised him in an October 27, 2010 letter to furnish these reports within 30 days. As no
medical evidence was offered to show that the accepted October 15, 2010 employment incident
caused or contributed to a diagnosed jaw, neck, ankle, hip or ankle injury, he failed to establish
his prima facie claim for compensation.8
Appellant contends on appeal that he supplied medical reports to OWCP. As noted, the
evidence of record at the time of the December 3, 2010 decision does not contain any such
documentation.
The Board notes that appellant submitted new evidence on appeal. The Board lacks
jurisdiction to review evidence for the first time on appeal.9 However, appellant may submit
new evidence or argument as part of a formal 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 establish that he sustained a traumatic injury in the
performance of duty on October 15, 2010.

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

See Donald W. Wenzel, 56 ECAB 390 (2005). The Board notes that a case may be accepted in the absence of
rationalized medical opinion evidence in clear-cut traumatic injury claims “where the fact of injury is established
and is clearly competent to cause the condition described (for instance, a worker falls from a scaffold and breaks an
arm)….” Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d)(2)
(September 2011). However, this provision also adds: “The physician’s affirmative statement is sufficient to accept
the claim. Id. As appellant failed to submit any medical evidence, this exception does not apply.
9

20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the December 3, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: December 13, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
NATIONAL AERONAUTICS & SPACE
ADMINISTRATION, DRYDEN FLIGHT
RESEARCH CENTER, Edwards, CA, Employer
__________________________________________

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

Docket No. 06-2072
Issued: January 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 11, 2006 appellant filed a timely appeal of an August 29, 2006 merit
decision of the Office of Workers’ Compensation Programs with respect to a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the Office properly issued a schedule award for a three percent
permanent impairment to his left arm commencing January 5, 2005.
FACTUAL HISTORY
On April 26, 2004 appellant, then a 49-year-old aircraft mechanic, filed an occupational
disease claim (Form CA-2) alleging that he sustained a cervical and left arm injury as a result of
his federal employment. The Office accepted the claim for aggravation of cervical degenerative
disc disease with left radiculopathy.

Appellant submitted an April 27, 2005 report from Dr. Benito Gallardo, Jr., a family
practitioner, who provided a history and results on examination. With respect to permanent
impairment, he identified the diagnosis-related estimates (DRE) for the cervical spine at Table
15-5 of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(fifth edition). Dr. Gallardo opined that appellant had an eight percent whole person impairment
based on this table, with an additional three percent for a mild pain-related impairment that
interfered with daily activities.
An Office medical adviser opined in a November 1, 2005 report that the report from
Dr. Gallardo was not probative on the issue of permanent impairment as the spine was not a
member of the body under the Federal Employees’ Compensation Act. The Office referred the
case for a second opinion examination by Dr. Randy Pollet, an orthopedic surgeon. In a report
dated January 5, 2006, Dr. Pollet provided a history and results on examination. He identified
the C7 nerve root and referred to Table 16-13 of the A.M.A., Guides. For sensory impairment at
C7, Dr. Pollet graded the impairment as Grade 4 and indicated that appellant had a one percent
impairment for sensory deficit or pain. For motor deficit, Dr. Pollet indicated that appellant had
5 percent of the maximum 35 percent, or a 2 percent impairment. The second opinion examiner
concluded that appellant had a three percent left arm impairment.
An Office medical adviser reviewed the evidence and concurred with the three percent
impairment in a February 3, 2006 report. The medical adviser identified Table 15-17, which also
provides maximum impairments for a C7 nerve root impairment affecting the upper extremity.
The medical adviser graded the sensory impairment at 10 percent of the maximum 5 percent, for
a 1 percent impairment. For the motor impairment, the medical adviser graded the impairment at
5 percent of the maximum 35 percent, or 2 percent. The medical adviser also stated that the date
of maximum medical improvement was the date of evaluation by Dr. Pollet, which he
erroneously stated was January 5, 2005.
By decision dated March 15, 2006, the Office issued a schedule award for a three percent
left arm permanent impairment. The period of the award was 9.36 weeks from January 5, 2005.
Appellant requested reconsideration by letter dated August 7, 2006. He argued that
Dr. Gallardo’s report was sufficient to create a conflict in the medical evidence regarding the
degree of permanent impairment. By decision dated August 29, 2006, the Office denied
modification of the prior decision.
LEGAL PRECEDENT
Under section 8107 of the Act1 and section 10.404 of the implementing federal
regulation,2 schedule awards are payable for permanent impairment of specified body members,
functions or organs. The Act, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.404.

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there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the Office, and the Board has concurred in such adoption, as an appropriate standard
for evaluating schedule losses.3
ANALYSIS
Appellant submitted a report from Dr. Gallardo regarding a permanent impairment.
Although appellant argues that this report was in conformity with the A.M.A., Guides,
Dr. Gallardo’s opinion is of little probative value with respect to schedule awards under the Act.
To be entitled to a schedule award, there must be a permanent impairment to a scheduled
member of the body. Neither the Act nor its regulations provide for a schedule award for
impairment to the back or to the body as a whole. Furthermore, the back is specifically excluded
from the definition of “organ” under the Act.4 Dr. Gallardo referred to Table 15-6, which is for
impairments to the cervical spine, and the impairment is expressed as a whole person
impairment. This table is not appropriate for a schedule award determination under the Act.
Dr. Gallardo also referred to an additional three percent for pain, without citing any tables or
otherwise explaining how the pain impairment was calculated. The Board finds his opinion is of
diminished probative value to the issue presented.
The second opinion examiner, Dr. Pollet, found a one percent impairment for sensory
deficit or pain for the C7 nerve root. Under the A.M.A., Guides, Table 16-13 provides a
maximum impairment of 5 percent for C7 nerve root sensory deficit or pain, and 35 percent for
motor deficit.5 The impairments are graded by severity according to Table 16-10 for sensory
deficit and Table 16-11 for motor deficit.6 Dr. Pollet indicated that he would grade the
impairment at five percent of the maximum impairment for sensory and motor deficit, resulting
in one percent for sensory deficit and two percent for motor deficit.
The Office medical adviser concurred with the impairment rating, although he relied on
Table 15-17. This table provides a similar impairment method, as Table 15-17 provides the
same maximum impairments for the C7 nerve root.7 The impairments are graded under
Table 15-15 for sensory deficit and Table 15-16 for motor deficit, and these tables are similar to
the tables used by Dr. Pollet.8 The medical adviser also concluded that appellant had a three
percent left arm impairment, based on one percent for sensory deficit and two percent for motor
deficit.

3

James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287 (1989); Francis John Kilcoyne, 38
ECAB 168 (1986).
4

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

5

A.M.A., Guides 489, Table 16-13.

6

Id. at 482, Table 16-10, and 484, Table 16-11.

7

Id. at 424, Table 15-17.

8

Id. at 424, Tables 15-15 and 15-16.

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Based on the probative medical evidence of record, the Office properly concluded that
appellant had a three percent left arm impairment. The report of Dr. Gallardo is not of sufficient
probative value to create a conflict for the reasons noted above.
The Board notes that the number of weeks of compensation for a schedule award is
determined by the compensation schedule at 5 U.S.C. § 8107(c). The maximum number of weeks
of compensation for the loss of use of the arm is 312, therefore, appellant was entitled to three
percent, or 9.36 weeks.
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from residuals of the employment
injury.9 The medical adviser indicated that this was the date of the examination by Dr. Pollet, but
he inadvertently found that this was January 5, 2005, rather than January 5, 2006. The schedule
award improperly used the January 5, 2005 date as the date of maximum medical improvement.
CONCLUSION
The probative medical evidence of record does not establish more than a three percent
left arm impairment. The case will be remanded to the Office for a proper determination of the
date of maximum medical improvement and the appropriate pay rate for compensation purposes.
After such further development as the Office deems necessary, it should issue an appropriate
decision.

9

Albert Valverde, 36 ECAB 233, 237 (1984).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 29, 2006 is affirmed with respect to the number of weeks
of compensation; it is set aside as to the period of the award and the case remanded for further
action consistent with this decision of the Board.
Issued: January 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 18-1742
Issued: August 15, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On September 20, 2018 appellant filed a timely appeal from an August 29, 2018 decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 18-1742.
This case has previously been before the Board.1 In an October 17, 2017 decision, the
Board affirmed an August 26, 2016 OWCP decision denying appellant’s claim for total disability
due to her accepted February 13, 2014 work injury for the period May 31 to June 22, 2016.
On July 23, 2018 OWCP received appellant’s request for reconsideration. By decision
dated August 29, 2018, it denied her reconsideration request finding that it was untimely filed and
failed to demonstrate clear evidence of error.
The Board finds that appellant’s reconsideration request received on July 23, 2018 was a
timely request for reconsideration. OWCP’s regulations and procedures establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP merit

1
Docket No. 16-1838 (issued October 17, 2017); Order Denying Petition for Reconsideration (issued
April 9, 2018). At the time of the Board’s decision in this case appellant also had appeals pending under Docket Nos.
17-0875 and 17-1160.

decision.2 A right to reconsideration within one year also accompanies any subsequent merit
decision on the issues, including a merit decision of the Board.3
The Board notes that the last merit decision was the Board’s October 17, 2017 decision
and appellant’s request for reconsideration was received by OWCP on July 23, 2018. As the
request was received within one year of the October 17, 2017 decision, it was timely filed.
Because appellant filed a timely reconsideration request, the case will be remanded to
OWCP for application of the standard for reviewing timely requests for reconsideration.4 The
clear evidence of error standard utilized by OWCP in its August 29, 2018 decision is appropriate
only for untimely reconsideration requests. After such further development as the OWCP deems
necessary, it should issue an appropriate decision. Accordingly,
IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: August 15, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

2

20 C.F.R. § 10.607(a); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5
(February 2016).
3

See R.L., Docket No. 18-0496 (issued January 9, 2019); Federal (FECA) Procedure Manual, id. at Chapter
2.1602.4(a) (February 2016).
4

See 20 C.F.R. § 10.606(b)(3).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cheyenne, WY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0394
Issued: June 1, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 12, 2016 appellant filed a timely appeal from a November 16, 2016 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 to consider the merits of this case.
ISSUE
The issue is whether appellant has established more than 23 percent permanent
impairment of the right upper extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On January 20, 2016 appellant, then a 62-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 19, 2016 he strained his right shoulder when he
lifted his arm to service a box. OWCP accepted the claim for right shoulder rotator cuff tear and
authorized right arthroscopic surgery, which occurred on February 23, 2016. Appellant received
compensation benefits on the supplemental rolls from March 5 to June 10, 2016.
1

5 U.S.C. § 8101 et seq.

In an August 2, 2016 report, Dr. James E. Rafferty, a treating physician Board-certified in
preventive medicine/occupational-environmental medicine, noted that appellant was employed
as a city mail carrier and that arthroscopic surgery was performed on February 23, 2016 for right
shoulder rotator cuff repair. He provided examination findings and his review of the medical
record. Dr. Rafferty provided a permanent impairment rating based upon the accepted right
rotator cuff tear and opined that appellant had reached maximum medical improvement on
June 9, 2016. Using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment2 (hereinafter A.M.A., Guides), and citing to tables and
figures, Dr. Rafferty calculated four percent permanent impairment of the right upper extremity.
On August 26, 2016 appellant filed a claim for a schedule award (Form CA-7).
On October 31, 2016 OWCP’s district medical adviser reviewed Dr. Rafferty’s report and
the medical records. He noted that appellant had previously received a schedule award for 23
percent permanent impairment of the right upper extremity.3 The district medical adviser found
that the date of maximum medical improvement was August 2, 2016, the date of Dr. Rafferty’s
report. He used the diagnosis-based impairment (DBI) rating method of the A.M.A., Guides and
found a grade modifier of 1 for functional history4 as appellant’s right shoulder was still
symptomatic, and a grade modifier of 4 for clinical studies based on surgery and a magnetic
resonance imaging scan.5 No grade modifier was assigned for physical examination as the
district medical adviser found Dr. Rafferty’s ROM measurements were invalid for an impairment
calculation.6 He then determined that appellant had grade E, five percent permanent impairment
of his right upper extremity due to right shoulder partial thickness rotator cuff tear.7
In a November 8, 2016 addendum, the district medical adviser noted that appellant had
previously been granted a schedule award for 12 percent permanent impairment of the right
shoulder, but he did not know why the remaining 11 percent right upper extremity permanent
impairment award had been granted. He also noted that DBI was the preferred rating method.
By decision dated November 16, 2016, OWCP noted that appellant had previously been
granted a schedule award for 23 percent permanent impairment of the right upper extremity. It
found the medical evidence did not warrant an additional schedule award.

2

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

3

The record contains a May 2, 2005 impairment rating by Dr. Pete Kuhn, a Board-certified orthopedic surgeon,
under OWCP File No. xxxxxx252. Using the fifth edition of the A.M.A., Guides, he provided a permanent
impairment rating using range of motion (ROM) findings to find that appellant had 12 percent permanent
impairment of the right upper extremity.
4

A.M.A., Guides 406, Table 15-7.

5

Id. at 408, Table 15-8.

6

Id. at 408, Table 15-9.

7

Id. at 402, Table 15-5.

2

LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.8 Section 8107
of FECA 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.9 FECA, 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. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.10
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).11 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.12
ANALYSIS
The issue on appeal is whether appellant established more than 23 percent permanent
impairment of the right upper extremity, for which he previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board notes that the record on appeal is incomplete as it does not contain OWCP’s
previous decision granting appellant 23 percent permanent impairment for the right upper
extremity referenced by the district medical adviser or all of the medical evidence used to
calculate this permanent impairment rating. The only evidence pertaining to the prior schedule
award is a May 2, 2005 report by Dr. Kuhn. OWCP procedures provide that cases should be
8

See 20 C.F.R. §§ 1.1-1.4.

9

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
10

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5(a) (February 2013).
12

Isidoro Rivera, 12 ECAB 348 (1961).

3

doubled when a new injury is reported for an employee who previously filed an injury claim for
a similar condition and further indicates that the cases should be doubled as soon as the need to
do so becomes apparent.13 The Board is therefore unable to determine the basis of the previous
schedule award, and whether appellant has established entitlement to an additional award. On
remand, OWCP should combine the present case record, OWCP File No. xxxxxx516, with
OWCP File Nos. xxxxxx252.
The Board will set aside the November 16, 2016 decision. Following consolidation of
the records, and such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the November 16, 2016 Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: June 1, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

Supra note 11 at Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1) (February 2000); See T.M.,
Docket Nos. 09-1090 & 09-2226 (issued March 8, 2010).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
U.S. COAST GUARD, Curtis Bay, MD, Employer )
__________________________________________ )
G.P., Appellant

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

Docket No. 14-1005
Issued: November 4, 2014

Case Submitted on the Record

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

JURISDICTION
On March 27, 2014 appellant filed a timely appeal from a November 21, 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 the claim.
ISSUE
The issue is whether OWCP properly modified a March 28, 1996 wage-earning capacity
determination and terminated compensation for wage-loss and medical benefits effective
November 18, 2012.
FACTUAL HISTORY
OWCP accepted that on February 19, 1991 appellant, then a 26-year-old full-time marine
machinery mechanic helper, sustained a back contusion, thoracic strain, lumbar strain and
1

5 U.S.C. § 8101 et seq.

lumbosacral strain when he fell backward onto a pallet. He stopped work on February 22, 1991,
returned to work in a light-duty position on June 6, 1991, then again stopped work. Appellant
received compensation on the daily rolls from July 19, 1991 to March 3, 1995 and then on the
periodic rolls.2
Appellant was first followed by Dr. James C. Murphy, III, an attending Board-certified
orthopedic surgeon, who noted a history of a severe back injury sustained in an August 3, 1988
slip and fall prior to the February 19, 1991 injury. In June 25, 1991 reports, Dr. Murphy noted
L4-5 and L5-S1 disc degeneration with a slight right-sided L4-5 disc herniation demonstrated by
a June 5, 1991 magnetic resonance imaging (MRI) scan. January 28, 1992 imaging studies
showed spina bifida occulta at S1 and disc bulges at L4-5 and L5-S1. Dr. Murphy found
appellant disabled for work for an indefinite period due to lumbar pain with bilateral
radiculopathy.3
In reports from February 2, 1993 to May 16, 1994, Dr. Murphy opined that appellant’s
condition had improved such that he could return to light-duty work. As the medical evidence
indicated that appellant could return to work in some capacity, on July 20, 1994, OWCP referred
him for vocational rehabilitation services. A functional capacity evaluation4 showed that he
could perform full-time medium-duty work, with lifting up to 60 pounds, no forward bending
and limited stair climbing. As the employing establishment could not accommodate appellant’s
physical restrictions, the vocational rehabilitation counselor implemented a private sector
reemployment plan. In December 1995, appellant obtained employment with a private sector
delivery service. He began work on January 28, 1996, working 20 hours a week with a weekly
salary of $177.48. Appellant performed the position successfully through March 28, 1996 and
continuing.
By decision dated March 28, 1996, OWCP determined that the position of driver/courier
represented appellant’s wage-earning capacity and reduced his wage-loss compensation effective
January 28, 1996 based on his actual earnings with the private sector delivery company.5
In an August 10, 1999 report, Dr. Murphy noted appellant’s continuing lumbar symptoms
with left-sided radiculopathy.

2

Appellant was terminated from the employing establishment on July 19, 1991 for allegedly making false
statements on his employment application.
3

In a September 8, 1992 report, Dr. William J. Meyer, an attending Board-certified neurosurgeon, diagnosed L5
and S1 radiculopathies confirmed by electrodiagnostic and imaging studies. On October 22, 1992 OWCP obtained a
second opinion from Dr. Myles D. Brager, a Board-certified orthopedic surgeon, who opined that appellant
sustained a soft tissue injury that would not prevent him from returning to full duty.
4

On June 20, 1994 OWCP obtained anther second opinion from Dr. Louis S. Halikman, a Board-certified
orthopedic surgeon, who recommended a functional capacity evaluation as appellant’s presentation was inconsistent.
5

On June 16, 1997 OWCP obtained a second opinion from Dr. Miraz A. Baiz, a Board-certified orthopedic
surgeon, who recommended a functional capacity evaluation as appellant had residual left-sided lumbar
radiculopathy.

2

From March 6, 2000 through December 14, 2011, appellant submitted periodic affidavits
of earnings and employment (Form EN-1032) listing earnings of $100.00 a week interspersed
with long periods of unemployment. During this period, OWCP issued compensation based on
constructed earnings of $100.00 a week.
In a February 24, 2012 report, Dr. Gurtej Singh, an attending physician Board-certified in
physiatry and pain management, noted a history of the accepted 1991 injury but also that his
complaints arose spontaneously. On examination, he found limited lumbar motion and
bilaterally positive facet loading tests. Dr. Singh diagnosed low back pain, lumbosacral
spondylosis and muscle spasm. He prescribed medication. Dr. Singh submitted periodic reports
dated March 30, 2012 noting appellant’s continued lumbar symptoms with bilateral
radiculopathy.
On August 1, 2012 OWCP obtained a second opinion from Dr. Stuart J. Gordon, a
Board-certified orthopedic surgeon, who reviewed a statement of accepted facts and the medical
record. On examination, Dr. Gordon found tenderness to deep lumbar palpation and limited
lumbar motion. He diagnosed “low back pain and spondylosis or degenerative disease.”
Dr. Gordon opined that the accepted February 19, 1991 injury had resolved without residuals and
that appellant’s ongoing symptoms were due to idiopathic degenerative disc disease. He opined
that appellant could return to full duty in his date-of-injury position. Dr. Gordon noted that
appellant required no further medical treatment or therapy related to the accepted injury.
By notice dated September 19, 2012, OWCP advised appellant that it proposed to modify
its March 28, 1996 loss of wage-earning capacity determination by terminating his wage-loss and
medical compensation benefits on the grounds that the accepted injury ceased without residuals.
It noted that Dr. Gordon’s opinion represented the weight of the medical evidence. Appellant
was afforded 30 days to present evidence or argument establishing that the accepted February 19,
1991 lumbar injury remained active and disabling.
In response, appellant submitted reports from Dr. Singh dated from February 24 to
October 15, 2012 noting appellant’s continuing lumbar pain with radiculopathy. In an
October 15, 2012 report, Dr. Singh noted that there was a gap in appellant’s treatment from 1999
until he began following appellant in 2012. He opined that appellant’s symptoms remained
related to the February 1991 injury.
By decision dated November 7, 2012, OWCP modified its March 28, 1996 decision by
terminating appellant’s entitlement to wage-loss and medical compensation benefits effective
November 28, 2012 on the grounds that the accepted lumbar injury had ceased without residuals.
It accorded Dr. Gordon the weight of the medical evidence in finding a material change in
appellant’s condition such that he no longer had a loss of wage-earning capacity.
In a November 14, 2013 letter, appellant requested modification of the November 7, 2012
wage-earning capacity determination and reconsideration of the termination of his medical
benefits. He asserted that he remained under continuous treatment since the 1999 injury, that
Dr. Singh’s reports established continuing disability for work and that Dr. Gordon did not
perform a physical examination. Appellant submitted additional medical evidence.

3

In a January 28, 2013 report, Dr. Murphy noted examining appellant for the first time
since 1999 and that appellant’s complaints were “basically the same” but “slightly worse” than at
his last visit. On examination, he found bilaterally positive straight leg raising tests. Dr. Murphy
obtained x-rays showing some narrowing at L4-5. He diagnosed “[k]nown degenerative disc
disease and probable facet arthritis lower lumbar spine.”
A September 19, 2013 MRI scan showed lumbar spondylosis at L4-5 with mild central
stenosis and a small disc protrusion with annular fissure and neural foraminal stenosis from L2 to
S1 with clinically correlated radiculopathies.
In an October 23, 2013 report, Dr. Andrew D. Egger, an attending Board-certified
physiatrist, provided a history of injury and treatment. On examination, he found diminished
light touch sensation in the L4 and S1 distributions in the left foot, bilaterally positive straight
leg, Faber, Fadir, posterior shear, sacral shear and pelvic rock signs. Dr. Egger diagnosed low
back pain, lumbar disc displacement, lumbar disc degeneration and lumbar spondylosis without
myelopathy. He opined that although he could not “prove or disprove injury to the lumbar
spine” based on imaging studies, it was a “reasonable history of events.” Dr. Egger commented
that appellant continued to have positive radiologic findings, with marked narrowing at L5-S1
indicating a prior traumatic injury.
Appellant also submitted a November 4, 2013 report from a physician’s assistant.
By decision dated November 21, 2013, OWCP denied modification of its November 6,
2012 wage-earning capacity determination on the grounds that the evidence submitted did not
establish that the original determination was in error, that appellant had been vocationally
rehabilitated or that the accepted lumbar injury had worsened such that he could no longer
perform the driver/courier position. It noted that appellant’s physicians continued to attribute
appellant’s disability to idiopathic degenerative conditions and not the accepted February 19,
1991 injury. OWCP also noted that Dr. Egger was incorrect in assuming that appellant’s
benefits were terminated due to “normalization of imaging.”
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 OWCP’s procedure manual
provides that, “[i]f a formal loss of wage-earning capacity decision has been issued, the rating
should be left in place unless the claimant requests resumption of compensation for total wage
6

See Sharon C. Clement, 55 ECAB 552 (2004).

7

Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45 ECAB 211 (1993).

4

loss. In this instance the CE [claims examiner] will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity.”8 The burden of proof
is on the party attempting to show a modification of the wage-earning capacity determination.9
With respect to termination of benefits, once OWCP has accepted a claim and pays
compensation, it bears the burden to justify modification or termination of benefits.10 Having
determined that an employee has a disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing either that the disability has ceased
or that it is no longer related to the employment.11 The right to medical benefits for an accepted
condition is not limited to the period of entitlement to compensation for disability. To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition, which require further medical treatment.12
ANALYSIS
OWCP accepted that appellant sustained a back contusion, thoracic strain, lumbar strain
and lumbosacral strain as the result of a February 19, 1991 work injury. Following a vocational
rehabilitation effort, appellant obtained private sector employment as a driver/courier as of
January 28, 1996, working 20 hours a week. OWCP based its March 28, 1996 wage-earning
capacity determination on this part-time position. It modified the original determination on
November 7, 2012, finding that appellant had no loss of wage-earning capacity as the accepted
injury had resolved without residuals. The issue is whether appellant established that the
November 7, 2012 decision should be modified.
The Board finds that the original March 28, 1996 wage-earning capacity determination
was procedurally erroneous because OWCP based its finding on a part-time position. As of
March 28, 1996, the factors OWCP considered in evaluating whether actual earnings fairly and
reasonably represented a claimant’s wage-earning capacity included determining if the position
was temporary, make shift or part time.13 At the time of the accepted February 19, 1991 lumbar
injury, appellant was employed as a full-time marine machinery mechanic helper. The
driver/courier position he performed from January 28 to March 28, 1996 was part time, with a
20-hour a week schedule. OWCP did not set forth its reasoning for basing its wage-earning
capacity determination on a part-time position when appellant worked full time as of the date of
injury. There is no evidence that OWCP investigated the nature of the position to determine if it
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Harley Sims, Jr., 56 ECAB 320 (2005).
9

Selden H. Swartz, 55 ECAB 272, 278 (2004).

10

Bernadine P. Taylor, 54 ECAB 342 (2003).

11

Id.

12

Furman G. Peake, 41 ECAB 361 (1990).

13

Debra R. McClendon, Docket No. 96-1692 (issued May 14, 1998); Mary Jo Colvert, 45 ECAB 575 (1994).
OWCP has since amended its procedure manual regarding the criteria for determining whether a position properly
represents a claimant’s wage-earning capacity. See supra note 8 at Chapter 2.815.5(c) (June 2013).

5

was made part time in order to meet his particular needs or was otherwise not available in the
open labor market. The Board notes that, on affidavits of earnings and employment from
March 6, 2000 through December 14, 2011, appellant did not report earning more than $100.00 a
week, indicating that he remained a part-time employee. Additionally, OWCP did not obtain a
position description for the driver/courier job. The Board finds that, under these circumstances,
OWCP abused its discretion in determining that appellant’s actual earnings in part-time
reemployment fairly and reasonably represented his wage-earning capacity. Accordingly, the
November 7, 2012 decision is set aside regarding the loss of wage-earning capacity
determination.14 Upon return of the record, OWCP will determine whether, prior to
November 18, 2012, there were any periods for which appellant did not receive appropriate
wage-loss compensation and issue an appropriate decision.15
However, the Board further finds that OWCP properly terminated appellant’s wage-loss
and medical benefits effective November 18, 2012 on the grounds that the medical evidence did
not establish any continuing residuals or disability on and after November 18, 2012 due to the
accepted February 19, 1991 lumbar injury.16
OWCP accorded the weight of the medical evidence to Dr. Gordon, a Board-certified
orthopedic surgeon and second opinion physician, who opined on August 1, 2012 that appellant
no longer required treatment or therapy related to the accepted February 2, 1991 injury and that
he could return to his regular duties. He explained that, based on a clinical examination,
statement of accepted facts and the complete medical record, appellant’s ongoing symptoms
were unrelated to the accepted lumbar contusion and strains. The Board finds that Dr. Gordon’s
opinion was sufficiently rationalized to establish that appellant did not have injury-related
residuals or disability on and after November 18, 2012.
Appellant submitted reports from several attending physicians. Dr. Murphy, a Boardcertified orthopedic surgeon, had treated appellant for lumbar spasm and bilateral lumbar
radiculopathies through August 10, 1999 but noted little change as of a January 28, 2013
examination. He did not opine that any residuals of the accepted injury required additional
treatment. Dr. Egger, an attending Board-certified physiatrist, posited on October 23, 2013 that
marked narrowing at L5-S1 indicated a possible traumatic injury. Dr. Singh, a Board-certified
physiatrist and pain management specialist, submitted reports from February 24 to October 15,
2012 opining that appellant required continued medication and management due to bilateral
14

N.C., Docket No. 14-370 (issued May 5, 2014).

15

If a reduction of benefits based upon actual earnings is not properly determined to fairly and reasonably
represent the employee’s wage-earning capacity, an informal reduction of benefits utilizing the formula in Albert C.
Shadrick, 5 ECAB 376 (1953) is proper rather than a formal loss of wage-earning capacity determination.
L.D., Docket No.12-81 (issued June 25, 2012); D.C., Docket No. 09-1460 (issued April 19, 2010).
16

Having issued a formal wage-earning capacity determination on March 28, 1996, such decision typically
remains in place unless it is modified. See Katherine T. Kreger, supra note 7. As explained, infra, however, this
wage-earning capacity decision was procedurally flawed. Furthermore, in certain situations, if the medical evidence
is sufficient to meet OWCP’s burden of proof to terminate benefits, the same evidence may also negate a loss of
wage-earning capacity such that a separate evaluation of the existing wage-earning capacity determination is
unnecessary. See A.P., Docket No. 08-1822 (issued August 5, 2009). The Board finds that, as explained infra, the
medical evidence from Dr. Gordon discharges that burden.

6

lumbar radiculopathy attributable in part to the February 2, 1991 injury. However, these
physicians did not explain how and why appellant’s symptoms on and after November 18, 2012
were related to the accepted injury or required ongoing treatment. Their opinions are therefore
insufficient to establish a continuing entitlement to medical benefits.17
Appellant also provided a November 4, 2013 report from a physician’s assistant. As
physician’s assistants are not considered physicians under FECA, their medical opinions are of
no probative medical value. Vickey C. Randall, 51 ECAB 357 (2000). Appellant also submitted
copies of Dr. Singh’s reports previously of record.
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 OWCP improperly denied modification of the November 7, 2012
wage-earning capacity determination. The Board further finds that OWCP properly terminated
appellant’s wage-loss and medical benefits effective November 18, 2012.

17

D.L., Docket No. 11-1840 (issued April 9, 2012).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 21, 2014 is set aside in part regarding modification of
the wage-earning capacity determination and affirmed in part regarding the termination of
appellant’s wage-loss compensation and medical benefits.
Issued: November 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


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

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

Docket No. 18-0225
Issued: August 5, 2019

Case Submitted on the Record

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

JURISDICTION
On November 11, 2017 appellant filed a timely appeal from a May 16, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether has appellant met her burden of proof to establish a left knee injury
causally related to the accepted September 15, 2016 employment incident.
FACTUAL HISTORY
On September 29, 2016 appellant, then a 39-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on September 15, 2016 she sprained her left knee when
dismounting her truck to deliver mail while in the performance of duty. She stopped work on
September 19, 2016 and returned to work on September 22, 2016. On the reverse side of the claim
1

5 U.S.C. § 8101 et seq.

form the employing establishment controverted the claim, contending that appellant had waited
four days before reporting her injury.
Appellant was treated by Dr. Luis H. Lugo, a Board-certified internist, on September 19,
2016, for severe left knee pain. Dr. Lugo excused her from work and noted that she could return
to normal activities on September 22, 2016.
On September 20, 2016 appellant was treated by Dr. M.A. Hajianpour, a Board-certified
orthopedist, who diagnosed sprain of the medial collateral ligament of the left knee. In a
September 20, 2016 status/progress report of illness/injury, Dr. Hajianpour noted that appellant
could return to sedentary work, with modified duties on September 22, 2016, with no squatting,
kneeling, twisting, climbing stairs, or use of ladders. In a September 27, 2016 duty status report
(Form CA-17), he diagnosed sprain of the left collateral ligament and noted that appellant could
return to part-time sedentary work on September 27, 2016.
Appellant submitted an authorization for examination and/or treatment (Form CA-16),
dated September 21, 2016, signed by D.D., supervisor of customer service and an authorizing
official, who noted an injury date of September 16, 2016 for appellant’s knee sprain. D.D. noted
that there was doubt as to whether the employee’s condition had been caused by an injury sustained
in the performance of duty or otherwise related to the employment. He authorized a physician to
examine the employee using nonsurgical diagnostic studies and advise whether the condition was
due to the alleged injury.
In a development letter dated October 11, 2016, OWCP advised appellant of the type of
evidence needed to establish her claim, particularly requesting that she submit a physician’s
reasoned opinion addressing the relationship between her claimed condition and the claimed
employment incident. It also requested that she respond to a questionnaire to substantiate the
factual elements of her claim. OWCP afforded appellant 30 days to submit the requested evidence.
In a statement dated October 18, 2016, appellant reported that her injury occurred when
she was stepping out of her truck and twisted her knee. She believed it was a minor injury and
continued to work. Appellant noted that the knee pain became severe, her knee swelled and she
then sought medical treatment. She did not sustain any other injury during this period. Appellant
noted filing her claim on September 21, 2016 and asserted that the employing establishment held
her forms until September 29, 2016 when they advised that her claim form was incomplete. She
noted never having a left knee injury prior to her September 15, 2016 incident.
Appellant submitted a September 20, 2016 report from Dr. Hajianpour who treated her for
bilateral knee pain. Dr. Hajianpour denied a history of specific trauma and noted that she
experienced pain in both knees for the past few months. He noted findings on examination of
appellant’s knees. Dr. Hajianpour diagnosed sprain of the medial collateral ligament of the left
knee and right knee pain. He noted x-rays of the knees revealed medial joint space narrowing.
Dr. Hajianpour recommended appellant lose weight, apply ice to the knees, use a universal knee
brace, attend physical therapy, and attend a nutritional consultation.
Dr. Hajianpour reexamined appellant on September 27, 2016 for improving bilateral knee
pain. He noted that appellant she to him that the injury was determined to be work related.
Dr. Hajianpour noted findings of tenderness of the medial collateral ligament, appellant had a limp,
2

and her left knee was swollen, intact neurovascularly, with improving right knee pain. He
diagnosed sprain of the medial collateral ligament of the left knee and right knee pain. Appellant
reported performing home exercises and taking anti-inflammatory medications. Dr. Hajianpour
returned appellant to light duty, performing sedentary work with instructions to avoid prolonged
walking. He also referred her for physical therapy.
By decision dated November 14, 2016, OWCP denied appellant’s claim finding that the
medical evidence of record was insufficient to establish that the claimed medical condition was
causally related to the accepted employment incident.
On November 30, 2016 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a September 27, 2016 report from Dr. Hajianpour. She submitted part
B of a Form CA-16 in which Dr. Hajianpour noted that she “twisted knee delivering mail + stepped
out of truck + twisted.” He noted findings of sprain of the medial collateral ligament of left knee
and diagnosed left knee sprain. Dr. Hajianpour noted by checking a box marked “yes” that
appellant’s condition was caused or aggravated by an employment activity. He indicated that she
was able to resume light-duty, performing sedentary work.
By decision dated May 16, 2017, an OWCP hearing representative affirmed the
November 14, 2016 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,3 that an injury 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.4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
2

Id.

3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

L.T., Docket No. 18-1603 (issued February 21, 2019); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

G.D., Docket No. 19-0265 (issued May 20, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6
R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).

3

employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8 An employee may establish that an injury
occurred in the performance of duty as alleged, but fail to establish that the disability or specific
condition for which compensation is being claimed is causally related to the injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left knee injury
causally related to the accepted September 15, 2016 employment incident.
Appellant submitted a September 27, 2016 report from Dr. Hajianpour who treated her for
improving bilateral knee pain. Dr. Hajianpour noted that she related that her knee injury was
determined to be work related. He noted findings of tenderness of the medial collateral ligament
and swelling of the left knee. Dr. Hajianpour diagnosed sprain of the medial collateral ligament
of the left knee and right knee pain and returned appellant to light-duty, sedentary work. However,
he merely repeated the history of injury as reported by appellant without providing his own opinion
regarding whether her condition was work related. The Board has held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition is of no probative value
on the issue of causal relationship.13 This report, therefore, is insufficient to establish appellant’s
claim.
On September 20, 2016 Dr. Hajianpour treated appellant for bilateral knee pain. Appellant
denied any history of specific trauma and noted experiencing pain in both knees for the past few
months. Dr. Hajianpour noted that x-rays of the knees revealed medial joint space narrowing. He
diagnosed sprain of the medial collateral ligament of the left knee and right knee pain. The Board
finds that Dr. Hajianpour’s note is insufficient to establish the claim as he did not address whether
7

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8
A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008), Bonnie A. Contreras, supra note 6.
9

Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

11

M.S., Docket No. 19-0189 (issued May 14, 2019).

12

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

13

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

4

appellant’s employment incident was sufficient to have caused or aggravated a diagnosed medical
condition.14
Appellant also submitted a September 20, 2016 referral form from Dr. Hajianpour, who
diagnosed sprain of the medial collateral ligament of the left knee. In a September 20, 2016
progress report, Dr. Hajianpour noted that appellant could return to modified sedentary duties on
September 22, 2016. Similarly, in a September 27, 2016 duty status report (Form CA-17), he
diagnosed sprain of the left collateral ligament and noted that appellant could return to part-time,
sedentary work on September 27, 2016. Likewise, in a September 19, 2016 report, Dr. Lugo
treated appellant for severe knee pain and took her off work until September 22, 2016. However,
in these reports, neither Dr. Hajianpour nor Dr. Lugo specifically addressed whether appellant’s
employment incident was sufficient to have caused or aggravated a diagnosed medical condition.15
Therefore, these reports are insufficient to meet appellant’s burden of proof.
Appellant submitted an authorization for examination and/or treatment (Form CA-16),
dated September 21, 2016, signed by D.D., supervisor of customer service who authorized a
physician to examine the employee using nonsurgical diagnostic studies and advise whether the
condition was due to the alleged injury. In the attached attending physician’s report (Part B of the
Form CA-16), Dr. Hajianpour noted that appellant “twisted knee delivering mail + stepped out of
truck + twisted.” He noted findings of sprain of the medial collateral ligament of left knee and
diagnosed left knee sprain. Dr. Hajianpour noted by checking a box marked “yes” that appellant’s
condition was caused or aggravated by an employment activity. He indicated that she was able to
resume light-duty, sedentary work. The Board has held that when a physician’s opinion on causal
relationship consists only of checking “yes” to a form question, without explanation or rationale,
that opinion is of diminished probative value and is insufficient to establish a claim.16
On appeal appellant reiterated the factual elements of her claim. As explained above,
OWCP accepted that the September 15, 2016 employment incident occurred as alleged. However,
the medical evidence of record is insufficient establish that appellant has a diagnosed medical
condition causally related to her accepted work incident.17
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.

14

Id.

15

Id.

16

Sedi L. Graham, 57 ECAB 494 (2006); D.D., 57 ECAB 734 (2006).

17

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form 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 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left knee injury
causally related to the accepted September 15, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 16, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 5, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Amarillo, TX, Employer
__________________________________________

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Appearances:
Kathy Davis, for the appellant
Office of Solicitor, for the Director

Docket No. 13-132
Issued: June 6, 2013

Case Submitted on the Record

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

JURISDICTION
On October 25, 2012 appellant, through his representative, filed a timely appeal from a
September 24, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
finding an overpayment of compensation for which he was at fault.1 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 overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $4,030.50 because OWCP did not deduct premiums for health benefits from May 31,
2010 to July 2, 2011; and (2) whether OWCP properly found that he was at fault in the creation
of the overpayment.
1

The record also contains an October 23, 2012 loss of wage-earning capacity determination based on appellant’s
actual earnings. Appellant did not appeal this decision and it is not before the Board at this time. See 20 C.F.R.
§§ 501.2(c) and 501.3(a).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 26, 1998 appellant, then a 46-year-old city carrier, filed a traumatic injury
claim alleging that he injured the arch of his left foot on that date in the performance of duty.
OWCP accepted the claim for left foot sprain and plantar fascial fibromatosis of the left foot.
By decision dated April 15, 2003, OWCP reduced appellant’s compensation to zero
based on its finding that his actual earnings as a rehabilitation city carrier fairly and reasonably
represented his wage-earning capacity.3
OWCP paid appellant compensation for total disability beginning May 27, 2010 because
there was no longer work available for him at the employing establishment. It did not deduct
premiums for health insurance.
On May 31, 2010 the employing establishment advised that it had transferred appellant’s
health benefit plan enrollment, code 312, to OWCP on May 31, 2010. On July 19, 2011 it
completed a Federal Employees Health Benefits form transferring his health benefits effective
May 31, 2010 to OWCP. By letter dated July 19, 2010, OWCP advised appellant that it was
placing him on the periodic rolls. It noted deductions for life insurance but omitted any
reference to his health benefits on the form. Beginning July 3, 3011, OWCP began deducting
premiums for health insurance from his compensation.
On August 2, 2011 OWCP notified appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $4,030.50 because it failed to deduct
premiums for health benefits from May 31, 2010 to July 2, 2011. It further advised him of its
finding that he was without fault in the creation of the overpayment and requested that he submit
financial information in support of any request for waiver of recovery of the overpayment.
On August 16, 2011 appellant submitted a completed overpayment recovery
questionnaire and requested a prerecoupment hearing before an OWCP hearing representative.
Following a telephone conference, in a decision dated September 9, 2011, OWCP found that
appellant received a $4,030.50 overpayment of compensation and that he was at fault in its
creation. Appellant appealed to the Board.
On May 9, 2012 the Board set aside the September 9, 2011 decision.4 It found that
appellant had timely requested a prerecoupment hearing but that OWCP had issued its
September 9, 2011 decision without providing him with a hearing. The Board remanded the case
to schedule a hearing before an OWCP hearing representative.

3

In decisions dated April 8 and November 30, 2003, OWCP found that appellant received a $12,781.97
overpayment of compensation because he returned to work on August 24, 2000 but received compensation for total
disability until January 27, 2001.
4

Order Remanding Case, Docket No. 12-48 (issued May 9, 2012).

2

A telephone hearing was held on July 6, 2012.5 At the hearing, appellant contended that
he was not at fault and provided financial information.
By decision dated September 24, 2012, an OWCP hearing representative determined that
appellant received an overpayment from May 31, 2010 to July 2, 2011 of $4,030.50 because
OWCP failed to deduct premiums for health benefits from his compensation. She determined
that he was not without fault in creating the overpayment because health benefit statements he
received in 2000 indicated that premiums were being deducted from his compensation. The
hearing representative found that the benefit statement appellant received beginning May 27,
2010 would have shown no premiums were deducted and he reasonably should have known that
he was overpaid. She advised that he could submit the full amount to repay the overpayment.
On appeal appellant, through his representative, noted that on August 2, 2011 OWCP
notified him that he was not at fault but in September 9, 2011 found that subsequently he was at
fault. He noted that he did not remember the contents of benefit statements from 10 years prior.
Appellant maintained that he was not at fault in creating the overpayment.
LEGAL PRECEDENT -- ISSUE 1
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employee Health Benefits Program. The regulation of the Office of Personnel
Management (OPM), which administers the Federal Employee Health Benefits Program,
provides guidelines for the registration, enrollment and continuation of enrollment for federal
employees. In this connection, 5 C.F.R. § 890.502(b)(1) provides:
“An employee or annuitant is responsible for payment of the employee’s share of
the cost of enrollment for every pay period during which the enrollment
continues. In each pay period for which health benefits withholdings or direct
premium payments are not made but during which the enrollment of an employee
or annuitant continues, he or she incurs an indebtedness to the United States in the
amount of the proper employee withholding required for that pay period.”6
In addition, 5 C.F.R. § 890.502(c)(1) provides:
“An agency that withholds less than or none of the proper health benefits
contributions for an individual’s pay, annuity or compensation must submit an
amount equal to the sum of the uncollected deductions and any applicable agency
contributions required under section 8906 of the title, 5 United States Code, to
OPM for deposit in the Employees’ Health Benefits Fund.”7

5

OWCP issued a decision dated May 22, 2010 on the overpayment without providing a prerecoupment hearing.
It subsequently provided the telephone hearing and issued a September 24, 2012 decision which supersedes the
May 22, 2010 decision.
6

5 C.F.R. § 890.502(b)(1).

7

Id. at § 890.502(d).

3

Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.8 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.9 The Board has recognized that, when an underwithholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.10
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $4,030.50 from May 31, 2010 to July 2, 2011. The record supports that, for the stated period,
OWCP did not make deductions from his FECA benefits for his enrollment in FEHB code 312.
OWCP established that the premium for health insurance code 312 during this period was
$4,030.50. There is no evidence that appellant waived coverage. When an underwithholding of
this premium is discovered, the entire amount is deemed an overpayment in compensation
because OWCP must pay the full amount of the premium to OPM when the error is discovered.11
The Board finds, therefore, that OWCP should have deduced health benefit premiums as
appellant had selected enrollment and premiums were not deducted. This omission created an
overpayment in compensation of $4,030.50. Appellant has not challenged fact or amount of
overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA12 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of OWCP’s implementing regulations13
provides that in determining whether a claimant is at fault, OWCP will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or

8

Id. at § 890.502(b)(1).

9

Id. at § 890.502(d).

10

James Lloyd Otte, 48 ECAB 334 (1997).

11

Id.; see also Keith H. Mapes, 56 ECAB 130 (2004).

12

5 U.S.C. § 8129(b).

13

20 C.F.R. § 10.433.

4

“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
Section 10.433(b) of OWCP’s regulations provide in relevant part:
“Whether or not [OWCP] determines that an individual was at fault with respect
to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”14
ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in the creation
of the overpayment. It must establish that, at the time he received the compensation in question,
he knew or should have known that the payment was incorrect.15 The Board finds that OWCP
has not established that appellant accepted a payment that he knew or should have known was
incorrect. In concluding that he was at fault, the hearing representative noted that he had
received benefit statements in 2000 showing a deduction for health benefits. She determined that
any benefit statements received from May 27, 2010 onward would fail to show a deduction for
health premiums, which she found was sufficient to put appellant on notice that his
compensation payment was incorrect. However, the record does not contain any health benefit
statements covering the period of the overpayment. Further, OWCP’s procedures state that a
claimant is always without fault if an overpayment results from the underdeduction of health or
life insurance premiums.16 The Board thus finds that, under the circumstances, the evidence is
insufficient to establish that appellant knew or should have known that he received an
overpayment for the period May 31, 2010 through July 2, 2011.17 Consequently, the case will be
remanded to OWCP to consider waiver of recovery of the overpayment of compensation.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $4,030.50 because OWCP did not deduct premiums for health benefits from May 31, 2010 to
July 2, 2011. The Board further finds that appellant is not at fault in creating the overpayment
and that the case must be remanded to OWCP to consider waiver of recovery of the
overpayment.

14

Id. at § 10.433(b).

15

See A.L., Docket No. 09-1529 (issued January 13, 2010); Tammy Craven, 57 ECAB 689 (2006).

16

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.5(b)(1)(c) (June 2009).
17

See J.B., Docket No. 11-2005 (issued July 23, 2012); R.B., Docket No. 10-747 (issued December 3, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: June 6, 2013
Washington, DC

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

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

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

6