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

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1363
Issued: April 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 7, 2019 appellant, through counsel, filed a timely appeal from a May 7, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the May 7, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,013.76 for the period June 26 through August 4,
2017 because she concurrently received wage-loss compensation and schedule award
compensation for the same extremity; (2) whether OWCP properly found that appellant was at
fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$100.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On November 14, 2013 appellant, then a 53-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she sustained a right leg injury when ascending a step
while in the performance of duty. OWCP assigned the claim File No. xxxxxx401 and it was
accepted for sprain of the right knee and leg. It paid appellant intermittent wage-loss compensation
on the supplemental rolls commencing December 30, 2013.4
In a letter dated April 12, 2016, OWCP informed appellant that she was then receiving
intermittent wage-loss compensation under OWCP File No. xxxxxx401, but had a pending appeal
for a schedule award under OWCP File No. xxxxxx886. It advised her that a schedule award for
one injury may be paid concurrently with compensation for wage loss paid for another injury, as
long as the two injuries did not involve the same part of the body and/or extremity. However, as
appellant’s claims under OWCP File Nos. xxxxxx401 and xxxxxx886 both pertained to her right
lower extremity, she had to elect to receive either her continuing intermittent wage-loss
compensation or the schedule award. On April 19, 2016 appellant responded, indicating that she
opted to receive schedule award compensation.
By decision dated June 29, 2017, OWCP granted appellant a schedule award for 12 percent
permanent impairment of her right lower extremity, under OWCP File No. xxxxxx886. The
decision noted that the period of the award ran from August 8 through December 27, 2016.
On July 10, 2017 under OWCP File No. xxxxxx401, appellant filed a claim for
compensation (Form CA-7) for leave without pay for the period June 26 through July 7, 2017.
By revised decision dated July 18, 2017, under OWCP File No. xxxxxx886, OWCP
granted appellant a schedule award for 12 percent permanent impairment of her right lower
extremity. The revised decision noted that the award ran for 20.16 weeks from June 24 through
November 12, 2017. OWCP indicated that the June 29, 2017 decision had incorrectly paid the
schedule award from August 8, 2016 through December 27, 2017, as appellant had received wageloss compensation under File No. xxxxxx401 through June 23, 2017. It noted that because a
schedule award was not payable concurrently with an award for wage loss for the same extremity,

4
Appellant has a prior claim for an April 23, 2007 traumatic injury, assigned OWCP File No. xxxxxx886, accepted
for closed fracture of the right fibula and a closed trimalleolar fracture of the right ankle. OWCP File No. xxxxxx658
involves a July 8, 2013 occupational disease for post-traumatic osteoarthritis of the right ankle and foot. No wageloss compensation has been paid under OWCP File No. xxxxxx658. OWCP has administratively combined OWCP
File Nos. xxxxxx886, xxxxxx401, and xxxxxx658, with File No. xxxxxx886 serving as the master file.

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the starting date of the schedule award had been adjusted in its revised decision to commence
payment as of June 24, 2017.
On July 24, 2017 appellant filed a Form CA-7 for leave without pay from July 10
through 21, 2017.
In a letter dated July 25, 2017, OWCP noted that appellant’s Form CA-7 claim for
compensation for the period July 10 through 21, 2017 would not be processed, as payment for a
schedule award and leave without pay are not payable concurrently for injury to the same part of
the body.
On August 7, 2017 appellant filed a Form CA-7 for leave without pay from July 24 through
August 4, 2017.
The record reflects that OWCP paid appellant wage-loss compensation for the period
June 26 through August 4, 2017, under OWCP File No. xxxxxx401, by direct deposit on
December 22 and 29, 2017.
On December 12, 2018 OWCP advised appellant of its preliminary determination that she
had received an overpayment of compensation in the amount of $2,013.76 for the period June 26
through August 4, 2017, because she received wage-loss compensation for her accepted right
lower extremity condition during that period under OWCP File No. xxxxxx401 while she was paid
schedule award compensation for the period June 24 through November 12, 2017 for her accepted
right lower extremity condition under OWCP File No. xxxxxx886. It also made a preliminary
determination that she was at fault in the creation of the overpayment, as she had accepted a
payment that she knew, or reasonably should have known, to be incorrect. OWCP advised
appellant that she could submit evidence challenging the fact and amount of the overpayment, and
finding of fault. It informed her that she could submit additional evidence in writing or at
prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days of the
date of the written notice of the overpayment. OWCP requested that appellant complete and return
an enclosed overpayment recovery questionnaire (Form OWCP-20) within 30 days if she was
unable to pay the full amount at that time.
An OWCP worksheet, which detailed the amount of compensation paid due to concurrent
payment of wage-loss compensation and the schedule award for the right lower extremity, noted a
total overpayment of $2,013.76 for the period June 26 through August 4,2017.
On January 2, 2019 appellant requested a prerecoupment hearing with a representative of
OWCP’s Branch of Hearings and Review. She contested the finding of fault and requested waiver
of recovery of the overpayment.
Appellant subsequently submitted an overpayment recovery questionnaire (Form OWCP20), completed on January 7, 2019, in which she listed monthly income of $1,500.00, monthly
expenses of $2,895.00, and assets of $240.00. She explained that she contested the preliminary
finding of fault because her checks were held back for a long time and “accounts were combined,”
which resulted in penalties.
At the prerecoupment hearing, held on April 4, 2019, counsel argued that appellant had not
realized that she had been overpaid and requested that she be found without fault along with
consideration of waiver. Appellant testified regarding her finances, noting that she received
3

monthly income of $3,000.00 including payments from OWCP, a minimum of $700.00 monthly
for housing, $650.00 in monthly utilities, and $700.00 of other expenses.
By decision dated May 7, 2019, a representative of OWCP’s Branch of Hearings and
Review determined that appellant received an overpayment of compensation in the amount of
$2,013.76 for the period June 26 through August 4, 2017 because she concurrently received wageloss compensation and schedule award compensation for accepted right lower extremity
conditions. She found that appellant was at fault in the creation of the overpayment, as the
payments were received by electronic funds transfer (EFT) and would have been accompanied by
payment statements outlining the periods for which compensation was being paid. The hearing
representative further noted that appellant was “well aware of” and “vociferously active” about
her compensation entitlements. She required recovery of the overpayment by deducting $100.00
from her continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 5 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”6
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.7
Under OWCP’s procedures, a schedule award for one injury may be paid concurrently with
compensation for wage loss paid for another injury, only if the two injuries do not involve the
same part of the body and/or extremity. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,013.76.

5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8116(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.4a(5) (February 2013). See also L.D., Docket No. 18-1317 (issued April 17, 2019); E.S., Docket No. 16-1248
(issued May 15, 2017); M.B., Docket No. 12-1344 (issued December 21, 2012).

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Appellant received a schedule award for 12 percent permanent impairment of her right
lower extremity, which represented an increased schedule award of 7 percent under OWCP File
No.xxxxxx886. In its initial decision, OWCP listed the dates of compensation as August 8 through
December 27, 2016. However, as appellant had previously been paid wage-loss compensation for
these dates under OWCP File No. xxxxxx401, it issued a revised decision on July 18, 2017
adjusting the starting date of the schedule award to June 24, 2017. OWCP also paid her wage-loss
compensation for the period June 26 through August 4, 2017 under File No.xxxxxxx401 for
another right lower extremity injury. It found that an overpayment of compensation in the amount
of $2,013.76 resulted, as appellant was not entitled to concurrently receive both wage-loss and
schedule award compensation for the same part of the body.
As appellant was not entitled to concurrent wage-loss and schedule award compensation
for both right lower extremity injuries, the Board finds that OWCP properly determined that an
overpayment of compensation was created. 9
The Board further finds that OWCP properly calculated the amount of the overpayment as
$2,013.76, the amount that appellant received in wage-loss compensation for the period June 26
through August 4, 2017.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides that adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.10 A claimant who is at fault in the creation of the overpayment is not entitled to
waiver.11 On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect. Whether or not an individual was at fault
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. 12
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly found that appellant was at fault in the creation of
the overpayment.
The Board has explained that an employee who receives payment from OWCP in the form
of a direct deposit may not be at fault for the first incorrect deposit into his or her account since
9

See P.J., Docket No. 18-0248 (issued August 14, 2018); Robert Atchison, 41 ECAB 83, 87 (1989).

10

5 U.S.C. § 8129(b).

11

See B.R., Docket No. 18-0339 (issued January 24, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018);
Gregg B. Manston, 45 ECAB 344, 354 (1994); Robert W. O Brien, 36 ECAB 541, 547 (1985).
12

V.H., Docket No. 18-1124 (issued January 16, 2019); P.H., Docket No. 13-0642 (issued August 12, 2013).

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the acceptance of the overpayment, at the time of receipt of the direct deposit, lacks requisite
knowledge. The Board has also held in cases involving a series of incorrect payments, where the
requisite knowledge is established by a letter or telephone call from OWCP, or simply with the
passage of time and a greater opportunity for discovery, the claimant will be at fault for accepting
the payments subsequently deposited. 13 The Board has previously also held that receiving one or
two erroneous direct deposit payments does not necessarily create the requisite knowledge to find
that a claimant was at fault in the creation of the overpayment. 14 The Board has recognized that,
in the case of EFTs, an employee would not receive notification of the date and amount of payment
until after the deposit was made and the overpayment created. 15 Because fault is defined by what
the claimant knew or should have known at the time of acceptance, one of the consequences of
EFTs is that the claimant lacks the requisite knowledge at the time of the incorrect payment.16
Under the circumstances of this case, the Board finds that there is no sufficient
documentation or other evidence to demonstrate that appellant had knowledge at the time she
received the closely timed December 22 and 29, 2017 direct deposits from OWCP that the
payments were incorrect, or that a reasonable period of time passed during which she could have
reviewed bank statements or been informed of the incorrect payment. The Board thus finds that
appellant was without fault in in the creation of the overpayment.
The Board will, therefore, reverse OWCP’s finding of fault and remand the case for
consideration of whether appellant is entitled to a waiver of recovery of the overpayment. A
finding of no fault, however, does not mean that the claimant may keep the money, only that
OWCP must consider eligibility for waiver for this period and the case must be remanded for it to
determine whether appellant is entitled to waiver for this period. After such further development
as OWCP may deem necessary, it shall issue a de novo decision on the issue of waiver of recovery
of the overpayment.17
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,013.76 for the period June 26 through August 4, 2017. The
Board further finds that OWCP improperly determined that appellant was at fault in the creation
of the overpayment of compensation.

13

K.F., Docket No. 19-1016 (issued February 14, 2020); see Tammy Craven, 57 ECAB 689 (2006).

14

K.K., Docket No. 19-0978 (issued October 21, 2019); see D.B., Docket No. 16-0258 (issued February 1, 2016);
W.P., 59 ECAB 514 (2008).
15

L.L., Docket No. 19-1690 (issued February 25, 2020); see J.H., Docket No. 15-0195 (issued March 17, 2015).

16

L.L., id.; George A. Hirsch, 47 ECAB 520 (1996).

17

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the May 7, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and reversed in part and the case is remanded for
further action consistent with this decision of the Board.
Issued: April 10, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 18-1602
Issued: February 22, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 20, 2018 appellant filed a timely appeal from a June 28, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision, dated December 18, 2017, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion when it denied appellant’s May 4, 2018
request for an oral hearing before an OWCP hearing representative as untimely filed under
5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 20, 2017 appellant, then a 47-year-old inventory management specialist, filed an
occupational disease claim (Form CA-2) for severe nasal and ocular allergies, which she attributed
to workplace exposure to dust mites and other environmental allergens. She identified May 10,
2017 as the date she first became aware of her claimed condition and realized that it was caused
or aggravated by her employment. Appellant continued to perform her regular duties, but was
moved to a work area without carpet on or about May 19, 2017.
In a June 29, 2017 development letter, OWCP advised appellant to submit additional
factual information and medical evidence in support of her claim for FECA benefits. It afforded
her 30 days to submit the requested information.
In a May 10, 2017 letter, Dr. Michael J. Prematta, a Board-certified internist and
allergist/immunologist, advised that appellant had severe nasal and ocular allergies that were
worsened by dust mites, along with several other environmental allergens. He further noted that
her symptoms had been much worse since she had carpeting in her office space at work.
Dr. Prematta recommended that appellant work in an area without carpeting.
In a June 7, 2017 follow-up report, Dr. Prematta noted that appellant had a history
consistent with allergic rhinitis. Appellant’s skin test was also positive for dust mites.
Dr. Prematta advised that appellant noticed a worsening of symptoms around carpeting, and once
she avoided the carpeting she was much better. He recommended limiting exposure to carpeted
areas.
By decision dated December 18, 2017, OWCP denied appellant’s occupational disease
claim. It found that the medical reports submitted in support of her claim did not provide medical
rationale explaining how her allergic rhinitis was causally related to her specific duties as an
inventory management specialist.
On May 4, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.2 On May 29, 2018 she requested reconsideration before OWCP.3
By decision dated June 28, 2018, OWCP’s hearing representative determined that
appellant was not entitled to a hearing as a matter of right because her request for hearing was
postmarked May 4, 2018, which was more than 30 days after OWCP’s December 18, 2017
decision. She determined that the matter could be equally well addressed by appellant requesting
reconsideration and providing new evidence to establish that she sustained an employment-related
condition.

2

Although appellant’s hearing request was signed and dated January 18, 2018, the request was postmarked
May 4, 2018.
3
Appellant’s request for reconsideration was also signed and dated January 18, 2018, but postmarked
May 22, 2018.

2

LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on his [or her] claim before a representative of
the Secretary.”4
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”5 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which the hearing is sought.6 However, OWCP has discretion to grant or
deny a request that is made after this 30-day period.7 In such a case, it will determine whether to
grant a discretionary hearing and, if not, will so advise the claimant with reasons.8
ANALYSIS
The Board finds that OWCP did not abuse its discretion when it denied appellant’s May 4,
2018 hearing request before an OWCP hearing representative as untimely filed pursuant to
5 U.S.C. § 8124(b).
Appellant had 30 days from OWCP’s December 18, 2017 merit decision to request a
hearing before OWCP’s Branch of Hearings and Review. She requested an oral hearing by appeal
request form dated January 18, 2018, and postmarked May 4, 2018. As the postmark date was
more than 30 days after OWCP’s December 18, 2017 decision, appellant was not entitled to an
oral hearing as a matter of right.9 Section 8124(b)(1) is unequivocal on the time limitation for
requesting a hearing.10
The Board finds that OWCP properly exercised its discretion in denying appellant’s request
for a hearing by determining that the issue in the case could be addressed equally well by
requesting reconsideration and submitting new evidence relevant to the issue of causal

4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

7

G.W., Docket No. 10-0782 (issued April 23, 2010); James Smith, 53 ECAB 188, 191-92 (2001).

8

James Smith, id.

9

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis of
the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4a (October 2011).
10

5 U.S.C. § 8124(b)(1); see William F. Osborne, 46 ECAB 198 (1994).

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relationship.11 The Board has held that the only limitation on OWCP’s authority is reasonableness,
and an abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deduction
from established facts.12 In this case, the record does not indicate that OWCP abused its discretion
in its denial of appellant’s untimely request for an oral hearing. Accordingly, the Board finds that
OWCP properly denied her request for a hearing as untimely filed under 5 U.S.C. § 8124(b).13
CONCLUSION
The Board finds that OWCP did not abuse its discretion when it denied appellant’s May 4,
2018 hearing request before an OWCP hearing representative as untimely filed pursuant to
5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 22, 2019
Washington, DC

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

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

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

11

M.H., Docket No. 15-0774 (issued June 19, 2015).

12

M.G., Docket No. 17-1831 (issued February 6, 2018) (citing Daniel J. Perea, 42 ECAB 214, 221 (1990)).

13

Id.; R.P., Docket No. 16-0554 (issued May 17, 2016).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, PRINCESS BAY
STATION, Staten Island, NY, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1201
Issued: December 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 3, 2009 appellant, through her representative, filed a timely appeal from the
March 25, 2009 merit decision of the Office of Workers’ Compensation Programs, which denied
an increase in her schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant has more than a seven percent impairment of her right
lower extremity.
FACTUAL HISTORY
On January 10, 1994 appellant, then a 28-year-old clerk, sustained an injury in the
performance of duty when she slipped on ice and fell. The Office accepted her claim for internal
derangement of the right knee, torn lateral meniscus and synovitis. Appellant underwent partial
lateral meniscectomies.

Appellant filed a claim for a schedule award. On June 14, 2007 Dr. Arthur L. Eisenstein,
an orthopedic surgeon, reported full knee extension and flexion to 125 degrees. There was no
instability to varus or valgus stress. Crepitus was present. Dr. Eisenstein diagnosed traumatic
arthritis of the right knee. He felt that appellant had a 30 percent scheduled loss of the right
lower extremity “based on the patient’s inability to function as a postal worker and persistent
symptomatology.”
An Office medical adviser reviewed Dr. Eisenstein’s findings and calculated that
appellant had a seven percent impairment of the right lower extremity. He assigned two percent
for a torn lateral meniscus and meniscectomy and he assigned five percent for “crepitus on
exam[ination] and operative findings of chondromalacia of the patella and medial femoral
condyle.” The Office medical adviser added: “If [Dr. Eisenstein] gave x-ray measurements of
the joint space further impairment could be calculated.”
In a decision dated December 24, 2008, the Office issued a schedule award for a seven
percent impairment of the right lower extremity.
Appellant requested reconsideration and submitted the report of an x-ray examination
conducted on August 13, 2008. The report stated: “The joint space within the right
patellofemoral articulation measures three millimeters in the region of the medial as well as
lateral aspect.”
In a decision dated March 25, 2009, the Office reviewed the merits of appellant’s case
and denied modification of its prior decision. It found that the additional evidence did not
support an increase in her schedule award.
On appeal, appellant’s representative argues that a three millimeter joint space is not
considered normal. Citing Table 17-31, page 544 of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (5th ed. 2001), he asks the Board to modify
appellant’s schedule award to reflect the increase she is due based on the loss of joint space
documented in the x-ray studies.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.2

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

2

ANALYSIS
Appellant does not take issue with the seven percent rating she received. Knee flexion to
125, reported by Dr. Eisenstein, her orthopedic surgeon, represents no impairment according to
Table 17-10, page 537 of the A.M.A., Guides. Table 17-33, page 546, supports that a partial
lateral meniscectomy is a two percent impairment of the lower extremity, as the Office medical
adviser reported. According to the footnote at Table 17-31, page 544: “In an individual with a
history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical
examination, but without joint space narrowing on x-rays, a … five percent lower extremity
impairment is given.”3 The record establishes that appellant has seven percent impairment of the
right lower extremity as impairment due to arthritis may be combined with a diagnosis-based
estimate under the cross-usage chart at Table 17.2.
The issue on appeal is whether the later x-ray measurement warrants an increased award.
Appellant’s representative argues that a four millimeter joint space is considered a normal
cartilage interval under Table 17-31 and that a three millimeter joint space warrants a seven
percent additional impairment to the right lower extremity. The Board has carefully considered
this argument and notes that Table 17-31 does not support this contention. The joint he circled
for the Board’s benefit is the knee joint, or the space between the femoral condyles and the tibial
plateau. However, the joint addressed by the August 13, 2008 x-ray report is the patellofemoral
joint, or the space between the patella and the femoral condyles. Table 17-31 provides a three
millimeter cartilage interval in the patellofemoral joint represents no impairment to the right
lower extremity. The x-ray measurement submitted does not support an increase in impairment
to appellant’s knee. The Board will affirm the Office’s March 25, 2009 decision.
CONCLUSION
The Board finds that appellant has no more than a seven percent impairment of her right
lower extremity.

3

A.M.A., Guides 544 (note to Table 17-31).

3

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Ann Arbor, MI, Employer
__________________________________________

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

Docket No. 08-2262
Issued: September 14, 2009

Case Submitted on the Record

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

JURISDICTION
On August 8, 2008 appellant filed a timely appeal from a January 24, 2008 decision of
the Office of Workers’ Compensation Programs that terminated his compensation and a June 5,
2008 decision which denied his request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation and medical benefits effective September 11, 2007; and (2) whether the Office
properly denied appellant’s request for an oral hearing as untimely pursuant to 5 U.S.C. § 8124.
FACTUAL HISTORY
On January 27, 2006 appellant, then a 43-year-old licensed practical nurse, filed a
traumatic injury claim alleging that on January 17, 2006 he injured his back while lifting a heavy
patient. The Office accepted the claim for lumbosacral strain. Appellant stopped work on

January 18, 2006 and received wage-loss compensation. He was treated by Dr. D. Bradford
Baker, Board-certified in physical medicine, who noted that appellant was disabled for work.
By letter dated April 5, 2006, the Office referred appellant for a second opinion
examination with Dr. Michael J. Geoghegan, a Board-certified orthopedic surgeon. On April 26,
2006 Dr. Geoghegan reviewed appellant’s history of injury and medical treatment. He advised
that a functional capacity evaluation was performed on April 24, 2006. Dr. Georghegan noted
that appellant’s back condition was “aggravated by any pending, lifting or standing” but did not
feel that this was permanent in nature. He found that appellant was capable of returning to a
modified job. Dr. Geoghegan advised that due to appellant’s recurring lower back problems he
was going to have work restrictions which included no lifting more than 20 pounds and no
excessive bending. He recommended that appellant be reevaluated in six to eight weeks. In an
April 24, 2006 work capacity evaluation form, Dr. Geoghegan noted that appellant was capable
of working eight hours per day with restrictions for at least the next three months. The
restrictions included 10 to 15 minutes of sitting, no twisting, bending, stooping, pushing, pulling
or lifting.
In progress notes dated April 10 to May 30, 2006, Dr. Barker diagnosed a bulging lumbar
disc, sacroiliitis, lumbosacral strain and depression. A physical examination on April 10, 2006
revealed moderate back spasms. On May 4, 2006 Dr. Barker reported moderate myofascial
tightness in the thoralumbar paraspinals and reiterated that appellant was disabled from work
until May 30, 2006. On May 30, 2006 he noted that appellant did not feel capable of returning to
even light-duty work. Examination that day revealed moderate lumbar spasms at L1-4 and
severe spasms at L5-S1. Dr. Barker advised that appellant remained disabled as he was unable to
tolerate sit/stand work.
The Office found a conflict in medical opinion between Dr. Barker and Dr. Geoghegan as
to appellant’s capacity for work.1 On July 19, 2006 it referred appellant, together with a
statement of accepted facts and the medical record to Dr. B.S. Bohra, a Board-certified
orthopedic surgeon, selected as the impartial medical specialist.
In an August 29, 2006 report, Dr. Bohra reviewed appellant’s history of injury and
medical treatment. He provided findings on examination of the lumbar spine, noting a
discrepancy on straight leg raising. On review of the lumbar x-rays, Dr. Bohra noted normal
alignment with no evidence of degenerative disease and a normal lordotic curve. He found no
evidence of a herniated disc or nerve root compression. Dr. Bohra concluded that there was no
mechanical lumbosacral spine abnormalities and that appellant was capable of performing his
usual job duties. A physical examination of the lumbosacral spine revealed no erector spinae
muscles spasms, negative sitting straight leg testing, negative Fabre test and subjective
complaints of tenderness and pin in the L4-S1 region. Range of motion included 40 degrees
forward flexion with pain, 60 degrees left and right rotation with pain, 70 degrees bilateral
straight leg testing in a sitting position. Dr. Bohra noted that there was no objective evidence of
a dislocation, herniated disc or fracture of the spine and there was no instability of the
lumbosacral spinal column. He determined that appellant had “nonorganic symptoms of back
1

Appellant submitted additional progress reports from Dr. Baker through November 26, 2007 reiterating that he
remained disabled for work.

2

pain, numbness and radiculopathy, but has no organic disease to ascribe for these symptoms.”
Dr. Bohra noted that appellant had prior back injuries which resulted in being off work for long
periods of time in each incident.
On January 17, 2007 the Office found that a new conflict in medical opinion arose
between Dr. Bohra and Dr. Geoghegan as to whether appellant continued to have residuals of his
accepted employment injury.2 It noted that Dr. Geoghegan reported that appellant continued to
have employment-related residuals and work restrictions, while Dr. Bohra opined that there were
no employment-related residuals of the lumbar spine and that appellant was capable of returning
to full-time work without restrictions.
On April 24, 2007 the Office referred appellant to Dr. Robert Levine, a Board-certified
orthopedic surgeon, on whether appellant had residuals of his accepted back condition and work
restrictions. On May 15, 2007 Dr. Levine reviewed appellant’s employment history and medical
treatment noting that appellant was returned to work with restrictions but no job was found
within his restrictions. He presented findings on examination and noted that x-rays revealed that
disc spaces were well maintained. Dr. Levine advised that there were no objective residuals of
appellant’s accepted lumbosacral strain. He reported that x-ray interpretations showed a normal
lumbar spine. Dr. Levine noted that appellant “complained about pain with extension and, in
fact, he guarded extension of his spine.” He reported symmetrical reflexes, no decreased
sensation, no muscle atrophy and negative straight leg raising. Based upon his review of the
medical record and physical examination, appellant had no objective orthopedic abnormalities
which accounted for his complaints of pain. Dr. Levine agreed with Dr. Bohra that appellant’s
pain complaints were nonorganic in origin. As to the bulging disc seen on a magnetic resonance
imaging scan, he stated that this is a sign of normal aging. Dr. Levine opined that appellant
problems were psychological in nature and he required treatment for his history of depression
and chronic pain complaints. With respect to appellant’s capacity for work, he stated that
appellant had no restrictions from an orthopedic standpoint, but that the medication taken by
appellant prevented him from performing his usual duties as a practical nurse.
On September 19, 2007 the Office referred appellant for a second opinion evaluation with
Dr. Saul Z. Forman, a Board-certified psychiatrist.
On November 2, 2007 Dr. Forman reviewed the medical record, statement of accepted
facts and set forth findings on examination. He diagnosed chronic pain syndrome and depression
due to appellant’s accepted employment injury. Dr. Forman also determined that these
conditions were permanent and that appellant was capable of performing his full duties. In a
November 11, 2007 work capacity evaluation form (OWCP-5a), he indicated that appellant was
capable of working his usual job duties for eight hours per day due to his mental health
condition.
2

The Board notes that the Office incorrectly found the conflict in medical opinion between Drs. Bohra and
Geoghegan, two Office referral physicians. However, an Office referral physician cannot create a conflict on behalf
of the claimant in a situation where the claimant did not use the referral physician as a treating physician. See
LeAnne E. Maynard, 43 ECAB 482 (1992); see also Delphia Y. Jackson, 55 ECAB 373 (2004) (a conflict under 5
U.S.C. § 8123 cannot exist unless there is a conflict between an attending physician and an Office physician). See
infra note 12 and accompanying text.

3

On December 20, 2007 the Office issued a notice of proposed termination of
compensation. It notified appellant that the weight of the medical evidence was represented by
Dr. Levine, the impartial medical examiner, and established that residuals of the January 17,
2006 employment injury had ceased. It noted that it had initially referred him to Dr. Bohra to
resolve a conflict in the medical opinion evidence between Dr. Barker and Dr. Geoghegan
regarding his work capability. Dr. Bohra concluded that appellant no longer had any residuals of
his accepted employment. Thus, the Office determined that Dr. Bohra’s opinion, created a new
conflict in the medical opinion evidence which was between Dr. Barker and Dr. Bohra as to
whether appellant continued to have any residuals or disability due to his accepted employment
injury. Based upon Dr. Forman’s opinion, appellant’s claim was accepted for a pain disorder
with associated psychological factors.
In a letter dated January 14, 2008, appellant disagreed with the proposal to terminate his
benefits contending that he had residuals of his back. He contended that his severe back spasms
were objective evidence of his continuing residuals and disability from his accepted employment
injury. Appellant also disagreed with Dr. Forman’s conclusion that he was capable of working
with his pain disorder.
By decision dated January 24, 2008, the Office terminated appellant’s compensation
benefits for his lumbosacral strain effective that date. It noted that medical benefits for his
accepted pain disorder were not affected.
Following the termination of appellant’s benefits, the Office received additional progress
reports from Dr. Barker dated through March 4, 2008. Dr. Barker diagnosed lumbosacral strain,
bulging lumbar disc, depression and sacroiliitis. He noted that appellant had returned to work
and a physical examination revealed very severe muscle spasms in the lower back.
In an appeal request form dated February 18, 2008 and postmarked March 5, 2008,
appellant requested an oral hearing before an Office hearing representative.
In a March 27, 2008 report, Dr. Barker noted that appellant had very severe muscle
spasms, which constituted objective evidence of continuing residuals of his accepted lumbosacral
strain. He noted that the muscle spasms lead to intense pain and that appellant also had a bulging
lumbar disc. Dr. Barker reiterated his finding in notes dated through May 23, 2008.
By decision dated June 5, 2008, the Office denied appellant’s hearing request as
untimely. It determined that his claim could be addressed through the reconsideration process.3
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
3

The Board notes that, following the June 5, 2008 decision, the Office received additional evidence. However,
the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); J.T., 59 ECAB ___ (Docket No. 071898, issued January 7, 2008); G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007). Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

4

employee has disability causally related to her federal employment, it may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
The Federal Employees’ Compensation Act9 provides that, if there is disagreement
between the physician making the examination for the Office and the employee’s physician, the
Office shall appoint a third physician who shall make an examination.10 In cases where the
Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.11
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for lumbosacral strain. It initially found a conflict
of medical opinion arose between Dr. Barker, appellant’s attending physician, who supported
total disability for work, and Dr. Geoghegan, an Office referral physician, who found that he was
capable of working time with restrictions. The Office properly referred appellant to Dr. Bohra, a
Board-certified orthopedic surgeon, for an impartial medical examination to resolve the conflict.
On August 29, 2006 Dr. Bohra addressed appellant’s history of injury and medical
treatment. He advised that there were no mechanical lumbosacral spine abnormalities and that
appellant was capable of performing his usual job duties. Dr. Bohra found no evidence of a
herniated disc or spinal compression of any nerve root. He noted that there was no objective
evidence of a dislocation, herniated disc or fracture of the spine and there was no instability of
the lumbosacral spinal column. Dr. Bohra determined that appellant had nonorganic symptoms
of back pain, numbness and radiculopathy, but no organic disease to ascribe for his symptoms.
4

S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L.
Stewart, 54 ECAB 824 (2003).
5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Del K. Rykert, 40 ECAB 284 (1988).

7

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007).

8

Kathryn E. Demarsh, 56 ECAB 677 (2005); James F. Weikel, 54 ECAB 660 (2003).

9

5 U.S.C. §§ 8101-8193, 8123(a)

10

Id. at § 8123(a); Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008); F.R., 58 ECAB ___
(Docket No. 05-15, issued July 10, 2007).
11

V.G., 59 ECAB ___ (Docket No. 07-2179, issued July 14, 2008).

5

Dr. Barker submitted treatment notes which listed the diagnosis of lumbar disc,
sacroiliitis, lumbosacral strain, lumbar muscle spasms, severe lower back pain, depression and
the inability to bend forward. He advised that appellant was totally disabled from work. An
October 31, 2006 note indicated that appellant was capable of working with restrictions, but the
evidence reflects that appellant did not return to work.
On January 17, 2007 the Office found that a new conflict in medical opinion arose
between Dr. Geoghegan, an Office referral physician, and Dr. Bohra, the impartial medical
specialist, as to whether appellant continued to have any residuals due to his accepted
employment injury. Section 8123(a) of the Act provides that, if there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.12 A conflict under
5 U.S.C. § 8123 cannot exist unless there is a conflict between an attending physician and an
Office physician.13 The Board notes that Dr. Geoghegan was not an attending physician and
cannot create a conflict with Dr. Bohra. However, this is harmless error as there was a conflict
between Dr. Barker, appellant’s attending physician, who advised that appellant continued to be
disabled due to residuals of his January 17, 2006 employment injury, and Dr. Bohra, who
concluded that appellant no longer had any residuals due to his accepted employment injury. As
there was a conflict in the medical opinion evidence between appellant’s treating physician,
Dr. Barker, and an Office referral physician, Dr. Bohra, the Office properly referred appellant for
a second impartial examination with Dr. Levine.14
On May 15, 2007 Dr. Levine noted that there were no objective residuals of appellant’s
accepted lumbosacral strain on physical examination. He reported that x-ray interpretations
showed a normal lumbar spine. Dr. Levine reported symmetrical reflexes, no decreased
sensation, no muscle atrophy and negative straight leg raising. Based upon his review of the
medical record and physical examination, appellant had no objective orthopedic abnormalities to
account for his complaints of pain. Dr. Levine stated that he agreed with Dr. Bohra that
appellant’s pain complaints were nonorganic in origin. As to the bulging disc seen on a
magnetic resonance imaging scan, he stated that it was a sign of normal aging noting that it did
not warrant surgical treatment.
The Board finds that Dr. Levine’s May 15, 2007 opinion is based on a proper factual and
medical background and is entitled to special weight. Based on his review of the case record,
statement of accepted facts, physical examination and findings on objective examination,
Dr. Levine found that appellant did not have any residuals ongoing or disability causally related
to his accepted lumbosacral strain. He noted that appellant’s pain complaints were nonorganic in
origin and there was no objective evidence supporting any continued disability or residuals as a
result of the accepted degenerative lumbar disease had been aggravated by the January 17, 2006
employment injury. For this reason, Dr. Levine report constitutes the special weight of the
medical opinion evidence afforded an impartial medical specialist. The Board, therefore, finds
12

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009).

13

Delphia Y. Jackson, supra note 2.

14

See R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008).

6

that the Office met its burden of proof to terminate appellant’s compensation benefits on
January 24, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant is entitled to a hearing before an
Office representative when a request is made within 30 days after issuance of and Office’s final
decision.15 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.16 The Office has
discretion, however, to grant or deny a request that is made after this 30-day period.17 In such a
case, the Office will determine whether a discretionary hearing should be granted or, if not, will
so advise the claimant with reasons.18
ANALYSIS -- ISSUE 2
Appellant’s request for a hearing dated February 18, 2008, was postmarked on
March 5, 2008. Therefore it was made more than 30 days after the issuance of the Office’s
January 24, 2008 decision. Appellant is not entitled to an oral hearing as a matter of right. The
Board finds that the Office properly found that appellant was not entitled to an oral hearing as a
matter of right because his request was not made within 30 days of the Office’s January 24, 2008
decision.
The Office has the discretionary authority to grant an oral hearing when a claimant is not
entitled to an oral hearing as a matter of right properly exercised its discretion by stating that it
had considered the matter in relation to the issue involved and it could be addressed through a
reconsideration application. The Board has held that as the only limitation on the Office’s
authority is reasonableness, abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both
logic and probable deduction from established facts.19 The Office did not abuse its discretion in
denying appellant’s request for an oral hearing.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s benefits
effective January 24, 2008. Further, the Board finds that the Office properly denied appellant’s
request for an oral hearing as untimely pursuant to 5 U.S.C. § 8124.

15

5 U.S.C. § 8124(b)(2). See A.B., 58 ECAB ___ (Docket No. 07-387, issued June 4, 2007).

16

20 C.F.R. § 10.616(b).

17

Hubert Jones, Jr., 57 ECAB 467 (2006).

18

Teresa M. Valle, 57 ECAB 542 (2006).

19

Id.; Daniel J. Perea, 42 ECAB 214 (1990).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 5 and January 24, 2008 are affirmed.
Issued: September 14, 2009
Washington, DC

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

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

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

8


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

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0820
Issued: December 22, 2021

Case Submitted on the Record

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

JURISDICTION
On May 6, 2021 appellant, through counsel, filed a timely appeal from a November 9, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from the last merit decision on this issue, dated October 11, 2019, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 15, 2015 appellant, then a 52-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he sustained head and neck injuries when his postal
vehicle was rear ended while in the performance of duty. OWCP accepted his claim for sprain of
ligaments of the cervical spine. It paid appellant wage-loss compensation on the supplemental
rolls for intermittent disability, including attendance at medical and physical therapy appointments,
from February 22 through September 19, 2016. On June 22, 2016 appellant was released to return
to work with no restrictions.
On November 13, 2017 appellant underwent an anterior cervical partial corpectomy, C5C7, discectomy, bilateral foraminotomies, fusion, and titanium plate instrumentation performed
by Dr. Nizam Razack, a neurosurgeon.
On January 19, 2018 appellant filed a claim for compensation (Form CA-7) for intermittent
disability from work commencing January 6, 2018.
In a note dated January 19, 2018, a certified physician assistant recommended that
appellant return to work with restrictions as of February 1, 2018.
On February 5, 2018 appellant accepted a modified letter carrier assignment with the
employing establishment effective February 1, 2018.
In a report dated March 23, 2018, Dr. Mohammed Qureshi, a neurologist, followed up with
appellant regarding neck pain after a November 13, 2017 cervical fusion procedure. He diagnosed
cervicalgia, cervical spondylosis, and myalgia.
By decision dated April 11, 2018, OWCP denied appellant’s claim for compensation for
disability from work for the period commencing January 6, 2018.
In a letter dated April 18, 2018, Dr. Razack noted that appellant was involved in an
automobile incident on December 15, 2015. He stated that on November 13, 2017 appellant
underwent an anterior cervical partial corpectomy at C5-C6 and C6-C7, discectomy, bilateral
foraminotomies, and fusion with titanium plate instrumentation. Dr. Razack opined that the
treatment rendered to appellant was related to the incident of December 15, 2015, noting that
OWCP had accepted a diagnosis of sprain of ligaments of the cervical spine. He stated that this
was a placeholder diagnosis before appellant underwent magnetic resonance imaging (MRI) scans
and that his diagnoses after imaging were brachial neuritis and/or radiculitis due to displacement
of the cervical intervertebral disc; displacement of the cervical intervertebral disc without
myelopathy; and cervical spondylosis. Dr. Razack noted that appellant was on a non-work status
from December 15, 2015 through the present.

2

On May 2, 2018 Dr. Qureshi diagnosed myalgia, muscle spasm, and cervicalgia. He
administered trigger point injections at the right and left trapezius and bilaterally about the cervical
paraspinal area.
In a duty status report (Form CA-17) dated May 4, 2018, an urgent care provider indicated
that appellant was not advised to resume work due to a diagnosis of lumbar strain.
In a report dated May 30, 2018, Dr. Christopher McCarthy, Board-certified in emergency
medicine, examined appellant for complaints of lumbar pain related to an incident at work on
May 3, 2018. He diagnosed lumbar radiculopathy and lumbalgia. In a follow-up report dated
June 14, 2018, Dr. McCarty diagnosed lumbar radiculopathy, herniated discs at L2-L3, L3-L4, L4L5, and L5-S1, and facetogenic low back pain/facet joint arthritis.
On March 22, 2019 appellant, through counsel, requested reconsideration. He resubmitted
Dr. Razack’s April 18, 2018 letter and November 13, 2017 operative report.
By decision dated October 11, 2019, OWCP denied modification of its April 11, 2018
decision.
On October 11, 2020 appellant, through counsel, requested reconsideration of the
October 11, 2019 decision.
OWCP subsequently received a September 4, 2020 report, wherein Dr. Robert Reppy, an
osteopathic physician specializing in family medicine, examined appellant for complaints of neck
pain. Dr. Reppy noted that appellant was in a motor vehicle incident on December 15, 2015 in
which appellant had climbed into his postal vehicle and was rear-ended by another car traveling at
over 50 miles per hour. Appellant’s upper torso shot forward and his head impacted the steering
wheel. He returned to work in 2018, but after three months at work, he experienced sudden low
back pain when carrying a 30-pound package and twisting after lifting it. For the next two years,
Dr. Reppy was only able to work part time. He noted diagnostic studies including a January 6,
2018 cervical x-ray that demonstrated post-surgical hardware at C5-C6 and C6-C7. On physical
examination Dr. Reppy noted cervical rotation at 50 degrees bilaterally, side bending at 20 degrees
bilaterally, normal flexion and 20 degrees of extension. He diagnosed status post cervical fusion
at C5-C6 and C6-C7 and anterolisthesis at C4 on C5.
By decision dated November 9, 2020, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 3

3

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).

3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s October 11, 2020 timely request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that it did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of his claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
In support of his reconsideration request, appellant submitted a September 4, 2020 report
from Dr. Reppy which generally addressed appellant’s November 13, 2017 cervical procedures,
but did not address specific dates of disability related to the accepted December 15, 2015
employment injury. 8 The underlying issue in this case is whether appellant has established
disability from work commencing January 6, 2018 causally related to the accepted December 15,
2015 employment injury. The Board has held that the submission of evidence or argument, which
does not address the particular issue involved does not constitute a basis for reope ning a case.9 As

4

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
6

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).
8

See A.W., Docket No. 18-0589 (issued May 14, 2019).

9

A.J., Docket No. 20-0926 (issued January 26, 2021); Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew
Diekemper, 31 ECAB 224 (1979).

4

appellant failed to provide relevant and pertinent new evidence, he is not entitled to a merit review
based on the third requirement under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 9, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Oakdale, LA, Employer
__________________________________________

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

Docket No. 19-1976
Issued: January 25, 2022

Case Submitted on the Record

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

JURISDICTION
On September 27, 2019 appellant filed a timely appeal from a June 25, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $11,199.31 for the period November 1, 2017 through March 30, 2019, for which he was
without fault because he concurrently received FECA wage-loss compensation and Social Security
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 25, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

Administration (SSA) age-related retirement benefits without an appropriate offset; (2) whether
OWCP properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly
required recovery of the overpayment by deducting $200.00 from appellant’s continuing
compensation payments, every 28 days.
FACTUAL HISTORY
On July 15, 1998 appellant, then a 46-year-old federal employee, filed a traumatic injury
claim (Form CA-1) alleging that he was injured while in the performance of d uty. On July 29,
1998 OWCP accepted the claim for lumbar sprain and displacement of the lumbar intervertebral
disc without myelopathy. It paid appellant wage-loss compensation on the periodic rolls
commencing June 16, 2002.
On December 10, 2018 OWCP provided SSA with a Federal Employees’ Retirement
System (FERS)/SSA dual benefits form. It listed the computation period as November 26, 2013
and continuing.
On January 11, 2019 SSA completed the dual benefits form, which reported appellant’s
SSA age-related retirement benefit rates with a FERS offset and without a FERS offset from
November 2017 through December 2018. Beginning November 2017, the SSA rate with FERS
was $1,573.00 and without FERS was $929.80. Beginning December 2017, the SSA rate with
FERS was $1,604.40 and without FERS was $948.30. Beginning December 2018, the SSA rate
with FERS was $1,649.30 and without FERS was $974.80. SSA indicated that prior to
November 2017 appellant received disability benefits.
In a letter dated April 12, 2019, OWCP informed appellant that it determined that he had
been receiving SSA age-related retirement benefits and FECA wage-loss compensation at the same
time, without an appropriate offset, resulting in a dual prohibited benefit. It explained that his
FECA benefits would be adjusted based on the FERS portion of his SSA benefits attributable to
his federal service.
An April 16, 2019 manual adjustment form and FERS offset overpayment calculation
worksheet noted each alleged period of overpayment and provided calculations which resulted in
a total overpayment to appellant of $11,199.31 during the period November 1, 2017 through
March 30, 2019.
An April 16, 2019 periodic disability rolls payment plate for appellant’s compensation
from March 31 to April 17, 2019 indicated that appellant’s FERS/SSA offset was deducted from
his compensation. In a letter dated April 16, 2019, OWCP informed appellant that his FECA
compensation would be offset by $662.62 due to his receipt of FERS/SSA dual benefits.
In a preliminary overpayment determination dated May 21, 2019, OWCP informed
appellant that he had received an overpayment of compensation in the amount of $11,199.31 for
the period November 1, 2017 through March 30, 2019 because it failed to offset his compensation
payments by the portion of his SSA age-related retirement benefits that were attributable to federal
service. It determined that he was without fault in the creation of the overpayment. OWCP
requested that appellant submit a completed overpayment recovery questionnaire (Form OWCP-

2

20) to determine a fair repayment method and advised him that he could request waiver of recovery
of the overpayment. It also requested that he provide supporting financial docum entation,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support his reported income and expenses. OWCP advised appellant that it would deny
waiver of recovery if he failed to furnish the requested financial information within 30 days. It
further notified appellant that within 30 days of the date of the letter he could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing. No
response was received from appellant.
By decision dated June 25, 2019, OWCP finalized the May 21, 2019 preliminary
determination that appellant had received an overpayment of compensation in the amount of
$11,199.31 for the period November 1, 2017 through March 30, 2019 because it had failed to
offset his compensation payments by the portion of his SSA age-related retirement benefits that
were attributable to his federal service. It further found that he was without fault in the creation
of the overpayment because he could not have reasonably known that an improper payment
occurred. However, OWCP denied waiver of recovery of the overpayment because the evidence
of record was insufficient to establish that recovery would defeat the purpose of FECA or would
be against equity and good conscience. It required recovery of the overpayment by deducting
$200.00 from appellant’s continuing wage-loss compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 5 FECA Bulletin No. 97-09 provides that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 6

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

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

FECA Bulletin No. 97-09 (February 3, 1997); see also E.M., Docket No. 19-0857 (issued December 31, 2019);
N.B., Docket No. 18-0795 (issued January 4, 2019).

3

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $11,199.31 for the period November 1, 2017 through March 30,
2019 because he concurrently received FECA wage-loss compensation and SSA age-related
retirement benefits without an appropriate offset.
In its June 25, 2019 decision, OWCP found that an overpayment of compensation was
created for the period November 1, 2017 through March 30, 2019. The overpayment was based
on the evidence received from SSA with respect to age-related retirement benefits paid to
appellant. A claimant cannot receive both FECA wage-loss compensation and SSA age-related
retirement benefits attributable to federal service for the same period. 7 The information provided
by SSA indicated that appellant received SSA age-related retirement benefits that were attributable
to federal service during the period November 1, 2017 through March 30, 2019. Therefore OWCP
properly established fact of overpayment.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided their benefit rates with FERS and without FERS for specific periods
commencing November 1, 2017 through March 30, 2019. OWCP provided its calculations for
each relevant period based on a FERS offset overpayment calculation worksheet and in its May 21,
2019 preliminary overpayment determination. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period November 1, 2017 through March 30, 2019 and finds that an overpayment of compensation
in the amount of $11,199.31 was created. 8
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”9 Section 10.438 of OWCP regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of FECA or be against equity and good conscience.

7

5 U.S.C. § 8116(d)(2); see L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued
May 17, 2019).
8

C.M., Docket No. 19-1451 (issued March 4, 2020).

9

5 U.S.C. § 8129.

4

Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.10
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP’s regulations.11
Section 10.436 provides that recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics. 12 An individual is
deemed to need substantially all of his or her current income to meet current ordinary and necessary
living expenses if monthly income does not exceed monthly expenses by more than $50.00. 13
OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for
each additional dependent. 14 An individual’s liquid assets include, but are not limited to, cash and
the value of stocks, bonds, saving accounts, mutual funds, and certificates of deposit. Nonliquid
assets include, but are not limited to, the fair market value of an owner’s equity in property such
as a camper, boat, second home, furnishings/supplies, vehicle(s) above the two allowed per
immediate family, retirement account balances (such as Thrift Savings Plan or 401(k)), jewelry,
and artwork. 15
Section 10.438 of OWCP’s regulations provides that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $11,199.31
overpayment of compensation.
10

20 C.F.R. § 10.438.

11

Id. at §§ 10.434-10.437.

12

Id. at § 10.436.

13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4a(3) (September 2018).
14

Id. at Chapter 6.400.4a(2).

15

Id. at Chapter 6.400.4b(3)(a)(b).

16

20 C.F.R. § 10.438.

5

As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 17 Appellant did not
provide the financial information to OWCP which it had requested. 18
In its preliminary determination dated May 21, 2019, OWCP explained the importance of
providing the completed overpayment recovery questionnaire (Form OWCP-20) and financial
information. It advised appellant that it would deny waiver of recovery if he failed to furnish the
requested financial information within 30 days. Appellant has not submitted a completed
overpayment recovery questionnaire or otherwise submitted financial information regarding
monthly income and expenses. As a result, OWCP did not have the necessary financial
information to determine if recovery of the overpayment would defeat the purpose of FECA or if
recovery would be against equity and good conscience. 19
Consequently, as appellant did not submit the financial information required under section
10.438 of OWCP’s regulations, the Board finds that OWCP properly denied waiver of recovery
of the overpayment. 20
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 21 Section
10.441(a) of the regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”22

17

See N.C., Docket No. 18-1070 (issued January 9, 2019); C.Y., Docket No. 18-0263 (issued September 14, 2018).

18

Under 20 C.F.R. § 10.438(b), failure to submit the requested information within 30 days of the request for
information about income, expenses, and assets shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. See A.F., Docket No. 19-0054 (issued
June 12, 2019).
19

See S.M., Docket No. 17-1802 (issued August 20, 2018).

20

Supra note 18.

21

20 C.F.R. § 10.441(a).

22

Id.

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ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$200.00 from appellant’s continuing compensation payments every 28 days.
As noted, appellant did not complete the Form OWCP-20, nor did he submit financial
information as requested. The overpaid individual is responsible for providing information about
income, expenses, and assets as specified by OWCP. 23 When an individual fails to provide
requested financial information, OWCP should follow minimum collection guidelines designed to
collect the debt promptly and in full. 24 As appellant failed to timely submit information to OWCP
as requested, the Board finds that there is no evidence of record to demonstrate that it erred in
directing recovery of the $11,199.31 overpayment of compensation at the rate of $200.00 from his
continuing compensation payments. 25
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$11,199.31 for the periods November 1, 2017 through March 30, 2019 for which he was without
fault because he concurrently received SSA age-related retirement and FECA wage-loss
compensation without an appropriate offset. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment and properly required recovery of the overpayment by
deducting $200.00 days from appellant’s continuing compensation payments every 28 days.

23

20 C.F.R. § 10.437(a)(b).

24

T.J., Docket No. 19-1242 (issued January 13, 2020).

25

Id.

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ORDER
IT IS HEREBY ORDERED THAT the June 25, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 13-1061
Issued: July 29, 2013

Case Submitted on the Record

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

JURISDICTION
On March 28, 2013 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) decision dated March 14, 2013. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has a ratable hearing loss warranting a schedule award.
FACTUAL HISTORY
On November 19, 2012 appellant, a retired 59-year-old planner/estimator, filed an
occupational disease claim (Form CA-2) alleging bilateral hearing loss caused by factors of his
federal employment. He was exposed to noise from 1968 to 1990 while working as a welder.
1

5 U.S.C. § 8101 et seq.

Appellant was exposed to noises from grinders, cranes, motors, ventilators, carbon arc,
sandblasting and needle guns. He worked from 1990 to 2002 as planner/estimator. Appellant’s
office was located near to ship fitter shop and pipe shop, motors, grinders and cranes. Earplugs
and eye protection were provided. Appellant submitted results of audiograms dated 1968 to
May 29, 2002 which showed varying degrees of hearing loss.
In order to determine whether appellant sustained hearing loss from his federal
employment, OWCP referred him for a second opinion examination to Dr. Gerald G. Randolph,
a Board-certified otolaryngologist. In a November 29, 2012 report, Dr. Randolph stated that
appellant had a bilateral sensorineural hearing loss due to a combination of past noise exposure
and the aging process. He noted that the extent of appellant’s hearing loss exceeded that which
would normally be predicted on the basis of presbycusis. An audiogram dated November 19,
2012, with an attached calibration certificate, recorded levels of 10, 20, 45 and 60 decibels on the
left at 500, 1,000, 2,000 and 3,000 Hertz (Hz), respectively and 10, 10, 30 and 45 decibels on the
right. Based on the audiogram results, appellant had a ratable hearing loss of 0 percent in the
right ear, 13.125 percent in the left ear, or a binaural hearing loss of 2.19 percent, pursuant to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (sixth
edition) (A.M.A., Guides). He stated that appellant’s workplace exposure was of sufficient
intensity and duration to have caused or aggravated the hearing loss. Dr. Randolph noted that
appellant underwent an audiogram on May 29, 2002 which showed a ratable hearing loss of zero
percent in the right ear and zero percent in the left ear.
In a supplemental February 8, 2013 report, Dr. Randolph noted that appellant had retired
from federal employment in 2002. He stated that an industrial audiogram dated May 29, 2002
revealed a bilateral high frequency sensorineural hearing loss with an audiometric configuration
entirely compatible with hearing loss due to noise exposure. Appellant had a ratable hearing loss
of zero percent in both ears based on the May 29, 2002 audiogram. Dr. Randolph stated,
however, that the bilateral hearing loss was severe enough to recommend hearing aids. He stated
that since 2002 appellant’s hearing had degenerated due to factors other than his federal
employment, resulting in a binaural hearing loss of 2.19 percent based on the November 19,
2012 audiogram.
In a March 12, 2013 report, Dr. Lois J. Weaver, a Board-certified internist and OWCP
medical adviser, reviewed appellant’s medical record and the statement of accepted facts. She
stated that the May 29, 2002 audiogram represented the bilateral high frequency pattern of
sensorineural hearing loss most probably attributable to federal employment, from which he
retired on May 31, 2002. Dr. Weaver used the May 31, 2002 audiogram because it was obtained
closest to the date of federal retirement and because hearing loss due to noise exposure occurred
at the time of noise exposure and generally did not progress at a later date. The May 29, 2002
otologic and audiologic testing revealed: for the left ear at the frequency levels of 500, 1,000,
2,000 and 3,000 Hz losses of 5, 5, 25 and 55 decibels. The decibel losses were totaled at 90
decibels and were divided by 4 to obtain the average hearing loss of 22.5 decibels. This average
loss was then reduced by 25 decibels to total zero percent left monaural loss. Testing for the
right ear revealed decibel losses of 5, 10, 15 and 25 respectively. The decibel losses were totaled
at 55 decibels and were divided by 4 to obtain the average hearing loss of 13.75 decibels. This
average loss was then reduced by 25 decibels, resulting in a total zero percent right monaural

2

loss. Dr. Weaver concluded that appellant had no ratable hearing loss under the sixth edition of
the A.M.A., Guides. She recommended that hearing aids be authorized.
By decision dated March 6, 2013, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss.
By decision dated March 14, 2013, OWCP denied appellant’s claim for a schedule award.
It found that the medical evidence did not establish a ratable hearing loss.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged.6 Then, the fence of 25 decibels is deducted. The
remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing
loss.7 The binaural loss is determined by calculating the loss in each ear using the formula for
monaural loss; the lesser loss is multiplied by five, then added to the greater loss, and the total is
divided by six to arrive at the amount of the binaural hearing loss.8 The Board has concurred in
OWCP’s adoption of this standard for evaluating hearing loss.9

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

4

Id.

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4.b (January 2010).

6

Id.

7

Id.

8

Id.

9

See Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket
No. 01-1570 (issued August 13, 2002).

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ANALYSIS
OWCP accepted that appellant sustained a bilateral hearing loss due to noise exposure
from his federal employment.10 The issue is whether he sustained a ratable impairment in
accordance with the A.M.A., Guides, warranting a schedule award. Dr. Randolph provided an
audiological evaluation and a November 19, 2012 audiogram which showed a 2.19 percent
binaural hearing loss. However, in rating the extent of noise-induced hearing loss due to
occupational exposure Dr. Weaver, OWCP’s medical adviser, reviewed a May 29, 2002
audiogram taken prior to appellant’s retirement on May 31, 2002. She noted that, of the
audiograms of record, the May 29, 2002 audiogram was the best representation of the extent of
loss due to appellant’s noise exposure in his federal employment. The Board notes that, under
the Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Progression,
Chapter 3.700.4(b)(3),11 noise-induced hearing loss does not typically progress after exposure to
noise ceases; a claim with an audiogram showing less than a 25-decibel loss soon after exposure
ceases and a second audiogram showing a ratable loss may be denied if OWCP’s medical adviser
provides a well-reasoned opinion.
The May 29, 2002 audiogram showed hearing levels of 5, 10, 15 and 25 decibels on the
right at 500, 1,000, 2,000 and 3,000 Hz, to find an average of 13.75. The average of 13.75
decibels, reduced by 25 decibels (the first 25 decibels were discounted as discussed above), to
total 0 decibels. With regard to the left ear, the audiogram showed hearing levels of 5, 5, 25 and
55 decibels on the left at 500, 1,000, 2,000 and 3,000 Hz, to find an average of 22.5. The
average of 22.5 decibels, reduced by 25 decibels (the first 25 decibels were discounted as
discussed above), equals 0 decibels. Based on this test Dr. Weaver determined that appellant did
not sustain a ratable hearing loss.12 The Board finds that she properly applied the A.M.A.,
Guides to the May 29, 2002 audiogram to determine that appellant did not sustain a ratable
hearing loss for schedule award purposes.13
The Board further finds that Dr. Weaver, OWCP’s medical adviser, provided sufficient
rationale for selecting the May 29, 2002 audiogram over other available audiograms.
Dr. Weaver reviewed the otologic and audiologic testing performed on appellant and found that
the May 29, 2002 audiogram represented the bilateral high frequency pattern of sensorineural
hearing loss most probably attributable to federal employment, from which appellant retired on
May 31, 2002, as opposed to the November 19, 2012 audiogram. She explained that hearing loss
due to noise exposure occurs at the time of noise exposure and generally does not get worse at a
later date. The Board further notes that Dr. Randolph stated in his November 19, 2012 report
and his February 8, 2013 supplemental report that since 2002 appellant’s hearing had
degenerated due to age-related factors other than his federal employment. Based on the above
factors, Dr. Weaver found no basis on which to attribute appellant’s hearing loss after May 31,
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); Frantz Ghassan, 57 ECAB 349 (2006).
11

Supra note 5 at Chapter 3.700.4(b)(3) (January 2010).

12

A.M.A., Guides 249-51.

13

See S.G., 58 ECAB 383 (2007).

4

2002 to his employment. The Board finds that Dr. Weaver provided sound medical reasoning
for selecting the May 29, 2002 audiogram as best representing appellant’s employment-related
hearing loss. It was a complete audiogram performed two days prior to appellant’s retirement.
Additionally the subsequent audiogram of November 19, 2012 showed deterioration in
appellant’s hearing postretirement, which is not typical of hearing loss due to noise exposure.14
Although appellant submitted results from audiometric testing performed from 1968 to
April 2001, these audiograms are insufficient to satisfy his burden of proof as they do not
comply with the requirements set forth by OWCP. These tests lack speech testing and bone
conduction scores and were not prepared or certified as accurate by a physician as defined by
FECA. None of the audiograms were accompanied by a physician’s opinion addressing how his
employment-related noise exposure caused or aggravated any hearing loss. OWCP is not
required to rely on this evidence in determining the degree of appellant’s hearing loss because it
does not constitute competent medical evidence and, therefore, is insufficient to satisfy
appellant’s burden of proof.15 Dr. Weaver, OWCP’s medical adviser, provided a reasoned
opinion explaining why appellant’s binaural hearing loss was not due to the noise in appellant’s
employment, following his retirement but rather was due to age-related factors. The Board finds
that her report represents the weight of the evidence.
OWCP’s medical adviser properly applied the applicable standards of the A.M.A.,
Guides, to determine that appellant did not have a work-related, ratable, bilateral hearing loss.
The March 14, 2013 decision is affirmed.
CONCLUSION
The Board finds that appellant has not established a ratable, bilateral hearing loss
entitling him to a schedule award.

14

See Marco A. Padilla, 51 ECAB 2020 (1999) (where OWCP’s medical adviser provided sufficient rationale for
selecting an audiogram on the grounds that it was more representative of appellant’s employment-related hearing
loss than were those submitted prior to retirement and those that were incomplete and undated).
15

Joshua A. Holmes, 42 ECAB 231, 236 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the March 14, 2013 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 29, 2013
Washington, DC

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

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

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

6