United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Irving, TX, Employer
__________________________________________

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Appearances:
R. Bobby Devadoss, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1628
Issued: June 8, 2011

Case Submitted on the Record

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

JURISDICTION
On June 4, 2010 appellant, through his attorney, filed a timely appeal from an April 29,
2010 merit decision of the Office of Workers’ Compensation Programs denying his emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On February 17, 2009 appellant, then a 45-year-old customer service supervisor, filed an
occupational disease claim alleging that he sustained depression and anxiety due to factors of his
federal employment. He stopped work on February 29, 2009.
1

5 U.S.C. § 8101 et seq.

In an accompanying February 9, 2009 statement, appellant related that a subordinate,
Henry Mayfield, accused him of inappropriately touching him on August 15, 2008. On
January 9, 2009 a police detective told appellant that the incident was under investigation. When
appellant visited another work location on January 12, 2009, two employees questioned him
about the incident. On January 16, 2009 the employing establishment transferred him to another
location. Appellant overheard city carriers asking if he was “gay.” He related that on
January 22, 2009 he was talking to a city carrier when he “felt my emotions becoming angered
towards him. I could not focus & concentrate on my daily tasks as a supervisor.” Appellant
sought medical attention.
In a January 9, 2009 police incident report, Mr. Mayfield alleged that on either August 15
or 16, 2008, his supervisor grabbed his crotch and told him that he was his “altar-boy.” He
related that he waited to file the report because he tried to complain through the employing
establishment. The police officer spoke with appellant, who told him that Mr. Mayfield had filed
numerous false complaints at work. Appellant denied touching him.
In a summary decision dated February 10, 2009, the Equal Employment Opportunity
(EEO) Commission denied Mr. Mayfield’s complaint that appellant discriminated against him by
denying his request for 144 hours of annual leave. In the decision, it noted that Mr. Mayfield
alleged that coworkers got annual leave over the holidays because they gave appellant sexual
favors. The EEO Commission found that Mr. Mayfield did not prove that the employing
establishment’s denial of his leave request was discriminatory and that he had not shown any
evidence that Mr. Cooper wanted sexual favors.
By letter dated February 26, 2009, the Office requested that the employing establishment
respond to appellant’s allegations. It specifically asked that a knowledgeable supervisor address
the accuracy of the statements and discuss whether it disagreed with the allegations.
In response to the Office’s request for additional information, on March 16, 2009,
appellant related that he had sufficient job training to do his job but needed a second computer to
adequately perform his duties. He worked overtime occasionally. Appellant was waiting for a
copy of the investigative report from management. He asserted that transferring him to another
workstation “without a thorough and impartial investigation created a perception that I was
guilty. This triggered my emotions, anger and thoughts of worthlessness. This whole situation
has created a hostile, intimidating and abusive work environment.”
In a statement dated March 16, 2009, appellant related that on January 9, 2009 a police
detective informed him that Mr. Mayfield had filed an incident report alleging that on August 15,
2008 appellant grabbed his genitals, groped him and tried to kiss him.2 He was “angered and
devastated” about the allegation. On January 12, 2009 appellant traveled downtown to talk with
union representatives about the accusation. Coworkers questioned appellant about the incident.
On January 16, 2009 a manager transferred him to a new work location effective the following
day. Appellant protested the transfer because he believed that it made him appear guilty. When
he arrived at the new station on January 17, 2009, employees discussed Mr. Mayfield’s
allegation and wondered aloud whether appellant was homosexual. Appellant asked the
2

Appellant also submitted medical evidence in support of his contentions.

2

employing establishment for a copy of the investigation report without success. He sought
medical treatment after he became unreasonably angry on January 29, 2009 talking with a city
carrier about route instructions. On February 25, 2009 appellant learned from reading EEO
materials that Mr. Mayfield had previously accused him of additional sexual misconduct. He
denied touching Mr. Mayfield and stated, “I have not been treated as a person who is innocent. I
have been treated as guilty and have not received the documentation needed to address the
alleged offense.”
On March 20, 2009 appellant noted that he had filed an EEO complaint. He asserted that
he was not at work on the date of the alleged incident but instead was out of town at a football
scrimmage. Appellant maintained that the employing establishment did not properly investigate
Mr. Mayfield’s accusation and stated, “The [employing establishment] just found out March 17,
2009 that I was not at work.” He submitted his time and attendance sheet supporting his
contention.
In a March 24, 2009 decision, the employing establishment determined that the
investigation into the allegation of sexual harassment by appellant was inconclusive as there
were no witnesses. It noted that Mr. Mayfield alleged that one incident occurred in the first
week on August 2008 and the second incident occurred on either August 16 or 17, 2008. The
employing establishment indicated that appellant was not at work from August 15 to 17, 2008.
On March 30, 2009 appellant formally requested legal representation by the Department
of Justice. He related that he was falsely accused of assault by Mr. Mayfield on August 15 or 16,
2008 while delivering mail. Appellant noted that he was not at work on either day but was out of
town working at a football scrimmage and provided the name of three individuals who could
verify his whereabouts. He indicated that Mr. Mayfield had filed 36 EEO complaints in his 10
years working with the employing establishment.
By decision dated April 14, 2009, the Office denied appellant’s claim after finding that
the he did not establish an emotional condition in the performance of duty. It found that he had
not alleged any compensable work factors.
On April 29, 2009 appellant requested reconsideration. He maintained that management
could have swiftly verified that he was out of town at the time of the alleged incident by
checking time and attendance records. Appellant alleged that being transferred to another
location created a “perception of guilt.”
In a March 17, 2009 interview, appellant related that he did not go out on a route with
Mr. Mayfield in August 2008. He indicated that Mr. Mayfield had filed prior EEO claims
alleging “various sexual things in the past.” Appellant noted that he had been charged with
assault by the state while in the scope of his federal employment. He maintained that
management was aware that Mr. Mayfield had repeatedly filed EEO complaints accusing him of
sexual harassment. Appellant stated, “The USPS Management has created a hostile, intimidating
and abusive work environment for me by not providing a prompt, thorough and impartial
investigation of a Sexual Harassment complaint in a timely manner.”

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By decision dated September 18, 2009, the Office denied modification of its April 14,
2009 decision.
On April 8, 2010 appellant, through his attorney, requested reconsideration. Counsel
argued that after appellant’s transfer he became afraid of “losing his job because of his inability
to do his supervisory duties due to his fear that if he gave an order to a subordinate who didn’t
like it, a similar incident might occur.” He maintained that appellant’s emotional condition thus
arose from the performance of his work duties.
By decision dated April 29, 2010, the Office denied modification of its September 18,
2009 decision.
On appeal appellant’s attorney contends that appellant sustained an emotional reaction to
his assigned supervisory duties from January 17 to 29, 2009. After being falsely accused by a
subordinate of sexual harassment, appellant was reassigned to a position that required him to
supervise and make decisions that his subordinates might not like. He experienced fear of job
loss because he felt unable to perform his supervisory duties.3
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will

3

Counsel cited a March 31, 2010 medical report as support for his allegations. The record does not contain a
copy of the March 31, 2010 medical report.
4

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

Gregorio E. Conde, 52 ECAB 410 (2001).

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
7

See William H. Fortner, 49 ECAB 324 (1998).

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examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
Office regulations provide that an employer who has reason to disagree with an aspect of
the claimant’s report shall submit a statement to the Office that specifically describes the factual
allegation or argument with which it disagrees and provide evidence or argument to support that
position.9 The applicable regulations further provide that the employer may include supporting
documents such as witness statements, medical reports or records, or any other relevant
information.10 If the employer does not submit a written explanation to support its disagreement,
the Office may accept the claimant’s report of injury as established.11
ANALYSIS
Appellant primarily attributed his emotional condition to the employing establishment’s
investigation into an allegation by a subordinate that he sexually assaulted the employee and his
transfer to a new work location as a result of the accusation. He maintained that following his
transfer subordinates questioned his sexuality and made it difficult for him to perform his work
duties. On January 9, 2009 the subordinate, Mr. Mayfield, informed the police that on August 15
or 16, 2008 appellant inappropriately touched him at work. The police questioned appellant
about the alleged incident on January 9, 2009. On January 16, 2009 the employer transferred
him to a new work location. Appellant protested the transfer as he believed that it made him
appear guilty. He further noted that it was subsequently established that he was not at work on
either August 15 or 16, 2008. Appellant maintained that the employer should have made a more
thorough investigation of the alleged incident prior to transferring him, especially given
Mr. Mayfield’s history of filing numerous EEO complaints. He noted that if it had properly
investigated the allegation it would have learned that he was not at work when the alleged sexual
touching occurred. Appellant also maintained that he unsuccessfully attempted to obtain
information regarding the investigation from the employing establishment. Following the
transfer, subordinates questioned his sexuality.
Investigations and transfers are considered to be an administrative function of the
employer when they are not related to an employee’s day-to-day duties or specially assigned
duties or to a requirement of the employee’s employment.12 While as a general rule an
employee’s reaction to administrative or personnel actions taken by the employing establishment
is not covered, an administrative or personnel action will be considered to be employment related
where the evidence discloses error or abuse on the part of the employing establishment.13
8

M.D., 59 ECAB 211 (2007); Ruth S. Johnson, 46 ECAB 237 (1994).
9

20 C.F.R. § 10.117(a).

10

Id.

11

Id. at 10.117(b); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Occupational Illness, Chapter
2.806.4(d)(1) (October 1995).
12

J.F., 59 ECAB 331 (2008); Thomas O. Potts, 53 ECAB 353 (2002).

13

James E. Norris, 52 ECAB 93 (2001).

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Additionally, harassment and discrimination or a hostile work environment may, if established as
occurring and arising from the performance of work duties, constitute compensable work
factors.14
Appellant submitted a detailed statement identifying the factors of employment that
resulted in his emotional condition. The Office undertook further development of this issue by
requesting information from the employing establishment by letter dated February 26, 2009. The
employing establishment submitted only a March 24, 2009 sexual harassment fact-finding
decision indicating that its investigation into the allegation of sexual misconduct by appellant
was inconclusive. The decision noted that Mr. Mayfield alleged that one incident occurred the
beginning of August 2008 and the second incident on either August 16 or 17, 2008 but that
appellant was not at work from August 15 to 17, 2008 and Mr. Mayfield was not at work on
August 17, 2008. The employing establishment did not, as requested by the Office, provide a
statement from a supervisor responding to appellant’s allegations or address whether it agreed or
disagreed with the contentions raised. It also did not specifically respond to his allegation that he
was inappropriately investigated or transferred and did not explain why its investigation into the
accusation of sexual misconduct by appellant was inconclusive given his absence from work on
most of the days of the alleged misconduct. As discussed, Office regulations provide that an
employer who has reason to disagree with an aspect of the claimant’s report shall submit a
statement to the Office that specifically describes the factual allegation or argument with which it
disagrees and provide evidence or argument to support that position.15 If the employer does not
submit a written explanation to support its disagreement, the Office may accept the claimant’s
report of injury as established.16 The case will, consequently, be remanded to the Office to
request that the employing establishment provide comments from a knowledgeable supervisor on
the accuracy of all statements provided by appellant relative to his claim. If the employing
establishment does not respond to the Office’s request, it may accept appellant’s allegations as
factual in accordance with its regulations.17
Counsel contended that appellant experienced stress because of difficulty supervising
employees subsequent to his transfer. Appellant asserted that on January 12, 2009 two
employees questioned him about his sexual orientation and, on January 16, 2009, city carriers
spoke about whether he was gay. On January 22, 2009 he experienced anger while giving
instructions to a carrier and became unable to concentrate on his supervisory duties. There is no
dispute that, as a supervisor, appellant was responsible for giving instructions to subordinates.
Under Cutler, where a claimed disability results from an employee’s reaction to his regular or
specially assigned duties or to an imposed employment requirement, the disability comes within
coverage of the Act.18 Appellant experienced stress performing his duties as a supervisor in
instructing subordinate employees. He has established a compensable work factor. Following
14

T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

15

Supra note 9.

16

Supra note 11.

17

See Alice F. Harrell, 53 ECAB 713 (2002).

18

See also Robert Bartlett, 51 ECAB 664 (2000); Ernest St. Pierre, 51 ECAB 623 (2000).

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the Office’s further development of the factual evidence regarding his remaining allegations, it
should develop whether the medical evidence establishes that he sustained an emotional
condition arising from the compensable work factor.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 29, 2010 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: June 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 18-1000
Issued: June 24, 2019

Case Submitted on the Record

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

JURISDICTION
On April 16, 2018 appellant filed a timely appeal from a February 21, 2018 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

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its February 21, 2018 decision.
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.

ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective April 13, 2017, based on her capacity to earn wages in the
constructed position of administrative assistant.
FACTUAL HISTORY
On October 23, 2014 appellant, then a 58-year-old shipbuilding specialist, filed a traumatic
injury claim (Form CA-1), alleging that she injured her lower back and right thigh that day when
taking chairs off her desk while in the performance of duty. OWCP accepted the claim for
aggravation of herniated disc at L4-5 and paid her compensation on the periodic rolls. It further
authorized two lumbar spine surgeries, which appellant underwent on March 1, 2010 and
June 23, 2015.
On December 4, 2015 OWCP referred appellant to Dr. Jon Pembroke Kelly, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of
her accepted employment-related conditions. In his January 14, 2016 report, Dr. Kelly reviewed
a statement of accepted facts (SOAF), history of the injury, and the medical evidence of record.
He conducted a physical examination and found that no abnormal pain behaviors were evident
other than incomplete compliance with motor testing of the lower extremities. Appellant walked
slowly with a slightly exaggerated gait with the use of a cane in the left hand. She demonstrated
some cogwheel resistance of both the tibialis anterior and extensor halluces longus strength testing
and was able to demonstrate no more than 3/5 dorsiflexion. Straight leg raise testing revealed 90
degrees without radicular symptoms. X-rays of the lumbar spine showed no scoliotic curvature
and diminished lordosis. Dr. Kelly reported that appellant continued to complain of right leg
weakness despite an appropriate surgery having been performed. He opined that appellant’s
“statements are subjective, but the clinical examination which reveals a weakness in dorsiflexion
of the foot (dependent on full patient participation).” Dr. Kelly determined that appellant had
reached maximum medical improvement and no longer had residuals of her accepted lumbar
conditions. He provided work restrictions of no activities which required bending and stooping at
the waist and lifting no more than 20 pounds from ground to waist level and 25 pounds from waist
to shoulder level.
In an April 7, 2016 report, Dr. M. Hertzel Soumekh, a Board-certified neurosurgeon, noted
that appellant was seen urgently that day because she could not stay seated longer than three or
four hours. She advised that appellant was “reaching the point that she [wa]s not able to return to
modified job duties” and her best option was disability retirement.
OWCP referred appellant to Deborah Raphael, a rehabilitation counselor, for vocational
rehabilitation services. On June 8, 2016 Ms. Raphael identified the position of administrative
assistant, Department of Labor, Dictionary of Occupational Titles (DOT) No. 169.167-010 as

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suitable to appellant’s work experience, physical restrictions, and education.3 The administrative
assistant position was identified as sedentary work which involved coordinating office services,
preparing reports, and reviewing and answering correspondence. The physical requirements
included exerting up to 10 pounds of force occasionally. The vocational rehabilitation counselor
indicated that the position was reasonably available within the general labor market of appellant’s
commuting area on a full-time basis as confirmed by the State of California’s Employment
Development Department.
On June 16, 2016 OWCP received a rehabilitation plan and award, including the
administrative assistant position. As of November 15, 2016, it provided 90 days of placement
assistance. Placement was not successful. In a February 16, 2017 memorandum, OWCP stated
that appellant did not obtain employment because she had only minimally participated in the job
search most likely because of complaints of pain and discomfort in her back and lower extremity.4
By letter dated March 13, 2017, OWCP issued a notice of proposed reduction of benefits,
finding that appellant was capable of earning wages as an administrative assistant at the rate of
$600.00 per week. It applied the principles set forth in Albert C. Shadrick,5 as codified in section
10.403 of OWCP’s regulations,6 to determine that appellant’s monthly wage-loss compensation
benefits should be reduced by 30 percent. OWCP advised appellant that, if she disagreed with the
proposed decision, she had 30 days to submit additional evidence or argument regarding her
capacity to earn wages.
In response, appellant submitted a March 14, 2017 narrative statement arguing that she was
incapable of performing the administrative assistant position. She also submitted medical
evidence, including a January 5, 2017 report from Dr. Soumekh who opined that appellant had
“some degree of right femoral nerve injury/neuropathy” and he had “no explanation for that.”

3

The Department of Labor, Dictionary of Occupational Titles’ job description for administrative assistant, DOT
No. 169.167-010, is as follows: Aids executive in staff capacity by coordinating office services, such as personnel,
budget preparation and control, housekeeping, records control, and special management studies. Studies management
methods in order to improve workflow, simplify reporting procedures, or implement cost reductions. Analyzes unit
operating practices, such as performance standards to create new systems or revise established procedures. Analyzes
jobs to delimit position responsibilities for use in wage and salary adjustments, promotions, and evaluation of
workflow. Studies methods of improving work measurements or performance standards. Coordinates collection and
preparation of operating reports, such as time-and-attendance records, terminations, new hires, transfers, budget
expenditures, and statistical records of performance data.
Prepares reports including conclusions and
recommendations for solution of administrative problems. Issues and interprets operating policies. Reviews and
answers correspondence.
4

By decisions dated June 28 and October 19, 2016, OWCP had found that appellant had refused to participate in
an OWCP-approved training program in computer software applications as recommended by her vocational
rehabilitation counselor. By decision dated October 20, 2016, it denied her claim for consequential injuries to her
right buttock, right leg, and right heel, finding that the medical evidence of record was insufficient to establish that
these conditions were causally related to her accepted lumbar conditions. On April 25, 2017 appellant requested
reconsideration of the October 20, 2016 decision. On July 24, 2017 OWCP denied modification of that decision.
5

5 ECAB 376 (1953).

6

20 C.F.R. § 10.403.

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Dr. Soumekh further opined that appellant’s continued complaints of right leg pain, numbness,
and weakness were causally related to her accepted employment injury.
By decision dated April 13, 2017, OWCP finalized the proposed reduction of
compensation benefits, effective April 13, 2017, based on her capacity to earn wages as an
administrative assistant at the rate of $600.00 per week. It found that the physical requirements of
the position did not exceed the medical restrictions provided by Dr. Kelly. On February 2, 2018
appellant requested reconsideration of the April 13, 2017 decision. She submitted additional
medical evidence, including a January 31, 2018 report from Dr. Thomas D. Harpley, a clinical
psychologist, who diagnosed major depressive disorder, recurrent, of moderate severity.
By decision dated February 21, 2018, OWCP denied modification of its April 13, 2017
decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.7
Section 8115(a) of FECA,8 provides in determining compensation for partial disability, the
wage-earning capacity of an employee is determined by his or her actual earnings if his or her
actual earnings fairly and reasonably represent his or her wage-earning capacity. If the actual
earnings do not fairly and reasonably represent wage-earning capacity, or if the employee has no
actual earnings, his or her wage-earning capacity is determined with due regard to the nature of
his or her injury, his or her degree of physical impairment, his or her usual employment, his or her
age, his or her qualifications for other employment, the availability of suitable employment, and
other factors and circumstances which may affect her wage-earning capacity in her disabled
condition.9 Wage-earning capacity is a measure of the employee’s ability to earn wages in the
open labor market under normal employment conditions.10 The job selected for determining wageearning capacity must be a job reasonably available in the general labor market in the commuting
area in which the employee lives.11 In determining an employee’s wage-earning capacity, OWCP
may not select a makeshift or odd-lot position or one not reasonably available on the open labor
market.12
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects her wage-earning capacity. The medical

7

See Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

8

5 U.S.C. § 8115.

9

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

10

See Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

11

Id.

12

See Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984).

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evidence upon which OWCP relies must provide a detailed description of the condition.13
Additionally, the Board has held that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.14
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position, listed in the DOT or otherwise available in the open market,
that fits that employee’s capabilities with regard to her physical limitations, education, age and
prior experience. Once this selection is made, a determination of wage rate and availability in the
open labor market should be made through contact with the state employment service or other
applicable service. Finally, application of the principles set forth in Albert C. Shadrick15 will result
in the percentage of the employee’s loss of wage-earning capacity. The basic rate of compensation
paid under FECA is 66 2/3 percent of the injured employee’s monthly pay.16
In determining an employee’s wage-earning capacity based on a position deemed suitable,
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post-injury or subsequently acquired conditions. Any incapacity to perform the
duties of the selected position resulting from subsequently-acquired conditions is immaterial to the
loss of wage-earning capacity that can be attributed to the accepted employment injury and for
which appellant may receive compensation.17
ANALYSIS
The Board finds that OWCP properly reduced appellant’s wage-loss compensation
benefits, effective April 13, 2017, based on her capacity to earn wages in the constructed position
of administrative assistant.
In Dr. Kelly’s second opinion report dated January 14, 2016, he opined that appellant was
capable of working eight hours per day with restrictions of: sitting up to four hours per day;
standing, reaching, and twisting up to one hour per day; pushing, pulling, and lifting up to
approximately two hours per day; and no bending or stooping.
Ms. Raphael, appellant’s vocational rehabilitation counselor, determined that, appellant
was able to perform the position of an administrative assistant. She provided a job description for
the administrative assistant position, which was identified as sedentary work which involved
coordinating office services, preparing reports, and reviewing and answering correspondence. The
physical requirements included exerting up to 10 pounds of force occasionally. Ms. Raphael
13

See William H. Woods, 51 ECAB 619 (2000).

14

See John D. Jackson, 55 ECAB 465 (2004).

15

Supra note 5.

16

See Karen L. Lonon-Jones, 50 ECAB (1999).

17

See John D. Jackson, supra note 14.

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indicated that he position was reasonably available within the general labor market of appellant’s
commuting area on a full-time basis as confirmed by the State of California’s Employment
Development Department. The Board finds that the administrative assistant position conforms to
work restrictions set forth by Dr. Kelly who addressed appellant’s work capacity and opined that
she was capable of working eight hours per day with some restrictions.
The Board finds that the weight of the evidence of record establishes that appellant had the
requisite physical ability, skill, and experience to perform the position of administrative assistant.
The Board further finds that OWCP considered the proper factors, such as availability of
suitable employment and appellant’s physical limitations, usual employment and age and
employment qualifications, in determining that the position of administrative assistant represented
her wage-earning capacity.18 Therefore, OWCP met its burden of proof to reduce appellant’s
wage-loss compensation, effective April 13, 2017, based on her capacity to earn wages as an
administrative assistant.
Appellant may request modification of the wage-earning capacity determination supported
by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s wage-loss
compensation benefits, effective April 13, 2017, based on her capacity to earn wages in the
constructed position of administrative assistant.

18

See James M. Frasher, 53 ECAB 794 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the February 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 24, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Ayer, MA, Employer
__________________________________________

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

Docket No. 14-432
Issued: July 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 18, 2013 appellant, through his attorney, filed a timely appeal from an
August 22, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained more than a five percent
permanent impairment to the left arm, for which he received a schedule award.
On appeal, counsel contends that the Board should approve appellant’s schedule award as
rated by Dr. Gary Perlmutter, a Board-certified orthopedic surgeon, rather than the lower rating
calculated by an OWCP medical adviser.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, then a 39-year-old correctional officer, sustained a left
rotator cuff strain as a result of lifting a case of milk out of a food cart on December 11, 2010
while in the performance of duty. He was placed on the periodic rolls. Appellant underwent left
shoulder rotator cuff surgery on July 12, 2011. He accepted a temporary alternative-duty
assignment as a telephone monitor and returned to work on March 26, 2012.
On June 5, 2013 appellant, through his attorney, filed a claim for a schedule award. He
submitted a December 11, 2010 computerized tomography (CT) scan of the cervical spine and a
February 24, 2011 magnetic resonance imaging (MRI) scan of the left shoulder, which revealed
partial thickness tears.
Appellant submitted reports dated March 23, 2011 through September 10, 2012 from
Dr. Laurence Higgins, a Board-certified orthopedic surgeon, who diagnosed a high-grade partial
thickness bursal-sided left rotator cuff tear for which surgery was performed on July 12, 2011.
Appellant was released to work on March 26, 2012 without restrictions.
In a May 8, 2012 report, Dr. Perlmutter reviewed appellant’s medical history and
conducted a physical examination. He diagnosed left rotator cuff tear and status post rotator cuff
repair. Dr. Perlmutter advised that appellant had reached maximum medical improvement and
that no further medical treatment or diagnostic studies were indicated. Utilizing the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides), he found that appellant had a six percent permanent impairment of the left
upper extremity. Dr. Perlmutter stated that, although appellant had a high grade partial thickness
rotator cuff tear, surgery required treatment similar to that seen with a full thickness tear because
when high grade partial thickness tears are debrided they become full thickness tears.
Furthermore, a suture anchor was utilized at the time of surgery in order to repair the rotator cuff
which was typically seen with full thickness rotator cuff tears.
Using Table 15-5, page 403,2 the Shoulder Regional Grid: Upper Extremity Impairments
Table, diagnosis of rotator cuff injury, full thickness tear and per criteria of residual loss,
functional with normal motion, a full thickness rotator cuff tear he assigned appellant to class 1
with a mild range default of a five percent upper extremity impairment. Dr. Perlmutter assigned
a grade modifier 2 for Functional History (GMFH) due to pain with normal activity and a
QuickDASH score of 43. He assigned a grade modifier 1 for Physical Examination (GMPE) due
to minimal palpatory findings and mild decrease of range of motion from normal. Dr. Perlmutter
found that a grade modifier for Clinical Studies (GMCS) was not applicable. Utilizing the net
adjustment formula, he adjusted the default value C to grade D, which equaled a six percent
permanent impairment of the left upper extremity.
On June 14, 2013 Dr. Morley Slutsky, an OWCP medical adviser and Board-certified
occupational medicine specialist, reviewed the medical evidence of record. He determined that
appellant had a five percent permanent impairment of the left upper extremity according to the
2

Table 15-5, page 401-05, of the sixth edition of the A.M.A., Guides is entitled: Shoulder Regional Grid: Upper
Extremity Impairments.

2

sixth edition of the A.M.A., Guides. Dr. Slutsky found that appellant reached maximum medical
improvement on September 10, 2012. He stated that the impairing diagnosis was a partial
thickness rotator cuff tear with residual dysfunction in the left shoulder. Dr. Slutsky placed
appellant into class 1. He explained that Dr. Perlmutter had converted a partial thickness rotator
cuff tear into a full thickness tear; however, this was not stated in the operative note. Soft tissue
and synovitis was removed, the partial tear was not first converted to a full tear and then
repaired.
Dr. Slutsky assigned a grade modifier 2 for functional history on the basis that appellant
did not have to perform functional modifications in order to achieve self-care activities. He
assigned a grade modifier 1 for physical examination due to a mild crepitus with motion under
section 15.7, page 464, for measuring range of motion.3 Dr. Slutsky disagreed with
Dr. Perlmutter that a grade modifier for clinical studies was not applicable and assigned a grade
modifier 2 for clinical studies based on a February 24, 2011 MRI scan of the left shoulder which
demonstrated a partial thickness articular surface tear.4 Using the net adjustment formula of
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), Dr. Slutsky found that (2-1) + (1-1) +
(2-1) resulted in a net grade modifier 2, resulting in an impairment class 1, grade E, totaling a
five percent permanent impairment of the left upper extremity.
By decision dated August 22, 2013, OWCP granted appellant a schedule award for five
percent permanent impairment to the left upper extremity, to run for 15.6 weeks for the period
September 10 through December 28, 2012.
LEGAL PRECEDENT
The schedule award provisions of FECA5 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a matter which rests in the sound
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
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 OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.6 For schedule awards after

3

Section 15.7a, page 461-64, of the sixth edition of the A.M.A., Guides is entitled: Clinical Measurements of
Motion.
4

The Board notes that the MRI scan was dated February 24, 2011, not December 24, 2011 as stated in OWCP’s
medical adviser’s report, which constitutes a harmless error.
5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

3

May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides,
published in 2009.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.9 The net adjustment formula is (GMFH - CDX) + (GMPE - DCX) + (GMCS CDX). Evaluators are directed to provide reasons for their impairment rating choices, including
the choices of diagnoses from regional grids and calculations of modifier scores.10
ANALYSIS
OWCP granted appellant a schedule award for a five percent permanent impairment to
the left arm due to the accepted left rotator cuff partial thickness tear. Appellant has the burden
to establish more than a five percent permanent impairment of the left arm due to his
employment-related condition. It is his burden to submit sufficient evidence to establish the
extent of permanent impairment.11
OWCP properly referred the medical evidence of record to its OWCP medical adviser,
Dr. Slutsky, who reviewed the clinical findings of Dr. Perlmutter on June 14, 2013. Dr. Slutsky
determined that appellant had a five percent permanent impairment of the left upper extremity
under the sixth edition of the A.M.A., Guides. He found that the most impairing diagnosis was a
partial thickness rotator cuff tear with residual dysfunction in the left shoulder and placed
appellant into class 1. Dr. Slutsky noted that Dr. Perlmutter rated impairment based on a full
thickness tear; however, this was not stated in the surgical note. Dr. Higgins noted that the soft
tissue and synovitis was removed, the partial thickness tear was exposed. It was not first
converted to a full tear and then repaired. Dr. Slutsky assigned a grade modifier 2 for functional
history (GMFH) on the basis that appellant did not have to perform functional modifications in
order to achieve self-care activities. He assigned a grade modifier 1 for physical examination
(GMPE) due to a mild crepitus with motion under section 15.7, page 464,12 for measuring range
of motion. Dr. Slutsky disagreed with Dr. Perlmutter that a grade modifier for clinical studies
was not applicable and assigned a grade modifier 2 for clinical studies based on a February 24,
2011 MRI scan of the left shoulder which demonstrated a partial thickness articular surface tear.
7

See D.T., Docket No. 12-503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical,
Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides (6th ed., 2009), page 3, section 1.3, International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
9

Id. at 494-531.

10

See R.V., Docket No. 10-1827 (issued April 1, 2011).

11

See Annette M. Dent, 44 ECAB 403 (1993).

12

See supra note 3.

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Using the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX),
Dr. Slutsky found that (2-1) + (1-1) + (2-1) resulted in a net grade modifier of 2, resulting in an
impairment class 1, grade E, equaling a five percent permanent impairment of the left upper
extremity.
The Board finds that the medical adviser applied the appropriate tables and grading
schemes of the sixth edition of the A.M.A., Guides to the clinical findings of Dr. Perlmutter.
The medical adviser’s calculations were mathematically accurate. There is no medical evidence
of record utilizing the appropriate tables of the sixth edition of the A.M.A., Guides
demonstrating a greater percentage of permanent impairment. Dr. Slutsky explained that
Dr. Perlmutter’s six percent impairment rating for the left arm was erroneous as it was based on
an inappropriate diagnosis that was not supported by the surgical records. Dr. Perlmutter did not
provide sufficient explanation for why he was departing from Dr. Higgins’ diagnosis of a partial
thickness tear. As the A.M.A., Guides note, the reliability of the diagnosis is essential and must
be consistent with the clinical history and findings at the time of the impairment assessment.13
Dr. Higgins did not provide an impairment rating based on the sixth edition of the
A.M.A., Guides. Therefore, the Board finds that they lack probative value and are insufficient to
establish greater impairment. The CT and MRI scans of record are diagnostic in nature and do
not provide any impairment rating. These reports are of no probative value regarding appellant’s
permanent impairment under the sixth edition of the A.M.A., Guides.14
On appeal, counsel contends that the Board should accept the impairment rating as
calculated by Dr. Perlmutter rather than the lower rating of Dr. Slutsky. For the reasons stated,
the Board finds that Dr. Perlmutter did not provide sufficient reasons for departing from the
diagnosis of a partial rotator cuff tear. Accordingly, the Board finds that appellant has not
established that he is entitled to a schedule award greater than that previously received and the
attorney’s arguments are not substantiated.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained more than a five
percent permanent impairment to the left upper extremity, for which he received a schedule
award.

13

See supra note 3 at 15.2a, page 389-90.

14

See Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where
the A.M.A., Guides are not properly followed).

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ORDER
IT IS HEREBY ORDERED THAT the August 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1785
Issued: January 29, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 26, 2015 appellant, through counsel, filed a timely appeal from a May 22,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish consequential
conditions to his right ankle, left knee, and bilateral hips, and a consequential psychiatric
condition causally related to his May 15, 1981 employment injury.

1

The record contains an August 4, 2015 decision, finding that the case was not in posture for a hearing with
respect to a January 27, 2015 suspension of compensation for failure to participate in vocational testing. OWCP
indicated that benefits had been retroactively reinstated. Appellant did not request review of the August 4, 2015
decision. Thus, it is not before the Board on this appeal. See 20 C.F.R. § 501.3.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 21, 1981 appellant, then a 21-year-old carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a right knee injury in the performance of duty on
May 15, 1981 when he slipped on a wet lawn. OWCP initially accepted the claim for
chondromalacia of the patella, status post lateral release, and partial tear of the lateral meniscus,
right knee. The record indicates that appellant underwent several authorized right knee
surgeries, including partial lateral meniscectomy, patellectomy, chondroplasty and debridement,
manipulations, total knee replacement, and right knee fusion on the following dates: June 19,
1981, November 15, 1982, March 7 and August 6, 1983, February 28 and July 22, 1985,
February 27, 1986, January 14, 1987, July 26, 1988, August 1, 1989, June 16, 1992, August 23,
1994, January 6 and March 27, 1995 (total knee replacement), October 21, 1996 (right knee
fusion).3
Appellant received a schedule award on March 8, 1990 for 56 percent right leg
permanent impairment. A schedule award for an additional 11 percent right leg permanent
impairment was issued on August 31, 2007.
With respect to appellant’s work history, the record indicates that he began with the
employing establishment in 1979 as a clerk, then moved to a letter carrier position and in 1986
was promoted to supervisor, mails and delivery. After a series of details in the labor relations
area, he was promoted in September 1990 to a labor relations assistant and then to a labor
relations specialist. Appellant left the employing establishment in 1997 and, through the
vocation rehabilitation program of OWCP, returned to school for a Bachelor’s degree and a
Master’s degree and returned to work as a high school social studies teacher. He had received
full-time wage-loss compensation intermittently until he began work as a teacher. Appellant’s
earnings were then reduced to reflect actual earnings. He worked full time from August 2000
until August 2012 at which time he began working light duty and became completely disabled in
February 2013. Appellant was paid partial disability through April 6, 2013 and returned to
temporary total disability on April 7, 2013.
In a report dated January 9, 2013, appellant’s attending orthopedic surgeon, Dr. Thomas
Mixa, noted that appellant presented for evaluation of his ongoing degenerative lumbosacral
condition which was causing him difficulties with standing and ambulation. He noted that
appellant had a limb length discrepancy as a result of the knee fusion, wore a shoe lift, and had a
straight right knee making it difficult for him to sit, maneuver, and stand for long periods.
Dr. Mixa opined that with patients who undergo knee fusions, “What happens over time is they
develop arthritis in the other knee and severe lumbosacral degenerative joint disease as well as
hip arthritis due to his gait disturbance and this is taking a toll on his activities.” Dr. Mixa
reported that appellant had multiple medical issues, with lumbosacral degenerative joint disease,
chronic lumbosacral degenerative arthritis with sacroiliitis and sciatica.

3

According to a September 15, 1982 report from Dr. Mark Siegel, a Board-certified orthopedic surgeon,
appellant had injured his right knee in February 1975 while playing soccer. Dr. Siegel indicated appellant had
previous right knee surgeries in 1975 and in January 1981.

2

On April 24, 2013 OWCP provided appellant with a notice of acceptance of additional
condition of aggravation of degeneration disc disease at L5-S1.
OWCP referred appellant for a second opinion examination by Dr. Fred Ferderigos, a
Board-certified orthopedic surgeon, with respect to his continuing disability. In a report dated
October 9, 2013, Dr. Ferderigos opined that appellant remained totally disabled. He reported
that appellant had a right knee fusion that limited his ability to do any walking or standing for
extended periods, and that he started having problems with the right hip as well as low back pain
due to the knee fusion and the abnormal gait. Dr. Ferderigos noted that appellant was not a
candidate for vocational rehabilitation as he has chronic low back pain with degeneration that
would be aggravated in the future with further activities. He further found that with the knee
fusion, any walking or standing would aggravate appellant’s lower back and right hip pain
In a report dated April 18, 2014, Dr. Mixa opined that appellant had developed increasing
hip and back pain as residuals from the knee fusion surgery. He reported that appellant had a
shortened right leg and altered gait and, as a result appellant’s hip arthritis and lumbosacral
degenerative joint disease symptoms, had become incapacitated. Dr. Mixa indicated that x-rays
were pending. He submitted a July 18, 2014 report, finding long-term knee effusion with limb
length discrepancy and suggested future hip arthritis, but at present the hips were stable and
previous x-rays showed no significant arthritis.
On May 7, 2014 OWCP provided appellant with notification of acceptance of the
condition of ankylosis (fused) right knee.
Appellant underwent a functional capacity evaluation (FCE) on September 15, 2014.
Dr. Mixa reported on January 12, 2015 that appellant was to be placed on permanent disability
and that appellant now suffered from left knee degenerative joint disease.
By report dated February 16, 2015, Dr. Mixa noted that appellant had a right knee fusion
after his total knee replacement surgery failed. He opined, “As a result [appellant] has suffered a
severe shortening of the right leg. This has caused a severe altered gait. As a result of the
problems with the right leg appellant has developed degenerative arthritis of the right ankle, or
the aggravation thereof, as well as an aggravation of arthritis of the left knee and aggravation of
arthritis of the hips bilaterally. Also, he has developed aggravation of the lumbosacral
degenerative joint disease or arthritis. The aggravation of the degenerative condition has been an
ongoing process for many years.” Dr. Mixa noted that the altered gait “causes additional stress
on the hips and the left leg such that it would aggravate arthritic conditions as well as present
aggravations of the degenerative process of the lumbar spine.” He explained that when there is
an altered gait over a period of time the individual’s spine is “basically thrown off balance and
his ‘good’ leg has to carry more of the burden. This results in overuse and aggravation of any
underlying condition such as arthritis and degeneration.”
Appellant, through counsel, submitted a March 6, 2015 letter requesting that OWCP
accept the following orthopedic conditions: shortening of the right leg, arthritis of the right
ankle, aggravation of arthritis of the left knee, aggravation of arthritis of the hips bilaterally, and
aggravation of the lumbosacral degenerative disc disease. The Board notes that some of these
conditions had already been accepted, as set forth above. He also requested that the conditions

3

of anxiety and depression be accepted as consequential injuries, based on an enclosed
February 25, 2015 report from Dr. Wendy E. Coughlin, a clinical psychologist. In the report,
Dr. Coughlin reported that appellant had been previously diagnosed with anxiety disorder and
depressive disorder. She discussed the results of testing and a diagnostic interview.
Dr. Coughlin reported that appellant was obsessively focused on past medical assessments that
confirmed his physical disability, and his fears about the future coupled with his physical
limitations, had given rise to depressive disorder.
By letter dated April 9, 2015, OWCP requested that appellant submit additional evidence
in support of his request for the acceptance of additional conditions. As to orthopedic
conditions, it noted deficiencies in the record including questioning the basis for Dr. Mixa’s
arthritis diagnoses as no diagnostic testing had occurred since 2007. OWCP also noted that the
October 9, 2013 second opinion report described intact reflexes at the right ankle, reflexes on the
left were 2+ and symmetrical, motor activity on the right ankle was 5/5, and motor activity on
the left knee and ankle was 5/5. It set forth the definition of the terms causal relationship and
aggravation and noted that rationalized medical evidence was needed to establish his claim.
Regarding the request for acceptance of the psychiatric condition, OWCP requested information
and evidence with respect to prior psychiatric treatment. No further response was received from
appellant.
By decision dated May 22, 2015, OWCP found the evidence was insufficient to expand
the accepted conditions in the case.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.4 With respect to
consequential injuries, it is an accepted principle of workers’ compensation law that, when the
primary injury is shown to have arisen out of and in the course of employment, every natural
consequence that flows from the injury is deemed to arise out of the employment, unless it is the
result of an independent intervening cause which is attributable to the employee’s own
intentional conduct.5 The basic rule is that a subsequent injury, whether an aggravation of the
original injury or a new and distinct injury, is compensable if it is the direct and natural result of
a compensable primary injury.6
A claimant bears the burden of proof to establish a claim for a consequential injury.7 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
4

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

5

Albert F. Ranieri, 55 ECAB 598 (2004).

6

See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

7

J.A., Docket No. 12-603 (issued October 10, 2012).

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condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.8 Medical
rationale is a medically sound explanation for the opinion offered.9
ANALYSIS
In the present case, appellant seeks to expand the accepted conditions from his May 15,
1981 employment injury. Currently, the accepted conditions are: right knee chondromalacia of
the patella; partial tear of the lateral meniscus; right knee; right knee ankyloses; and aggravation
of L5-S1 degenerative disc disease.
Dr. Mixa provided a February 16, 2015 report opining that appellant had additional
conditions resulting from his 1996 right knee fusion. In this regard, the Board notes that
Dr. Mixa indicated that appellant had a leg length discrepancy after the surgery,10 but there
remain questions regarding the arthritis diagnoses for the right ankle, left knee, and bilateral hips
and any causal relationship between these conditions and the employment injury. Dr. Mixa has
opined that an altered gait, resulting from the accepted limb length discrepancy, resulted in
aggravation of right ankle, left knee, and bilateral hip arthritis. However, as OWCP noted in its
April 9, 2015 letter, no diagnostic testing reports had been submitted to the record since 2007.
Dr. Mixa specifically indicated in his July 18, 2014 report that x-rays did not show hip arthritis.
The record contains no explanation as to the basis for the diagnosis of hip arthritis, or right ankle
and left knee arthritis, in his February 16, 2015 report.
In addition, Dr. Mixa did not adequately explain how the altered gait caused or
aggravated arthritic conditions. A physician must clearly explain from a medical and
physiological point of view how an altered gait results in a consequential injury.11 Dr. Mixa
refers to additional stress on the left leg, or good leg, from the altered gait, but fails to explain
how such stress on the left leg affected the right ankle, or the hips. As to the left knee arthritis,
even if the diagnosis were established, there must be some explanation as to the nature and
extent and any aggravation. The explanation should be clear as to how the knee was affected and
whether the aggravation was temporary or permanent. OWCP scheduled a second opinion
examination with Dr. Fred Ferderigos. The medical opinion of Dr. Ferderigos of October 9,
2013, was primarily to identify appellant’s disability status due to the accepted condition of postright knee fusion. He noted severe lumbar pain with degenerative changes of the lumbar spine
aggravated by the work injury of May 15, 1981 and the resultant right knee fusion. Following
this second opinion examination OWCP accepted the consequential condition of degenerative
disc disease. The second opinion report confirms that appellant had begun to have problems
with the right hip due to the knee fusion, but the report does not provide a firm medical diagnosis
8

Id.

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).
10

OWCP subsequently accepted an unequal leg length.

11

See, e.g., M.P., Docket No. 14-1289 (issued September 26, 2014).

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or provide rationale as to why and how the right hip condition was related to the May 15, 1981
injury. Moreover, Dr. Ferderigos conducted a physical examination which documented intact
reflexes and 5/5 motor activity on the right ankle and 5/5 motor activity on the left knee. These
findings are not supportive of consequential conditions beyond those previously accepted by
OWCP.
As to any additional psychiatric conditions, the evidence is insufficient to establish a
consequential injury. Appellant did not respond to the April 9, 2015 request for additional
evidence or information relating to prior psychiatric treatment. Furthermore, Dr. Coughlin’s
report fails to provide a rationalized medical opinion setting forth a diagnosis casually related to
the employment injury.
It is appellant’s burden of proof to establish any additional diagnosed conditions as
employment related.12 The Board finds that appellant failed to meet his burden of proof to
establish any additional conditions resulting from his May 15, 1981 employment injury.
On appeal, appellant’s counsel argues that Dr. Mixa’s report is sufficient to establish
consequential injuries. For the reasons discussed above, the Board finds that the evidence is
deficient and fails to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds appellant did not meet his burden of proof to establish consequential
conditions to his right knee, left ankle, and bilateral hips and a consequential psychiatric
condition casually related to his May 15, 1981 employment injury.

12

See Jaja K. Asaramo, 55 ECAB 104 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 22, 2015 is affirmed.
Issued: January 29, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Yazoo City, MS,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0749
Issued: May 25, 2021

Case Submitted on the Record

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

On April 9, 2021 appellant filed an appeal from a September 16, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0749.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.2
The 180th day following the September 16, 2020 decision was March 15, 2021. As
appellant did not file an appeal with the Board until April 9, 2021, more than 180 days after the
September 16, 2020 OWCP decision, the Board finds that the appeal docketed as No. 21-0749 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

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

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0749 is dismissed.
Issued: May 25, 2021
Washington, DC

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

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

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

3

Id. at § 501.6(d).

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
C.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Louis, MO, Employer
_________________________________________

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

Docket No. 06-1844
Issued: February 14, 2007

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 August 8, 2006 appellant filed a timely appeal from a June 29, 2006 decision which
denied modification of the Office’s May 9, 2006 decision regarding appellant’s schedule award
for the right lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant sustained more than a one percent permanent impairment
of his right lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On November 30, 1995 appellant, then a 53-year-old police sergeant, filed a traumatic
injury claim for a dislocated right knee in the performance of duty. He stopped work on
December 1, 1995. The Office accepted appellant’s claim for a right patellar tendon rupture and

authorized surgery consisting of open repair of the right patellar tendon with internal fixation
which occurred on December 1, 1995.1 Appellant received appropriate compensation benefits.
In a July 9, 2001 report, Dr. Robert Cutrell, Board-certified in internal medicine, opined
that appellant had osteoarthritis of the knee. He checked the box “yes” in response to whether he
believed appellant’s condition was caused or aggravated by an employment activity and noted
that osteoarthritis was commonly associated with injuries to the affected joint. Dr. Cutrell
indicated that appellant experienced more pain than before. He indicated that appellant had
reached maximum medical improvement and should be able to fully return to work.
On July 23, 2001 appellant requested a schedule award.
By letter dated August 15, 2001, the Office advised appellant to submit medical evidence
in support of his claim based upon the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides).
In a November 20, 2001 report, Dr. Eric Benz, a Board-certified orthopedic surgeon,
noted appellant’s history of injury and treatment and conducted a physical examination. He
noted that appellant had a well-healed eight inch scar, no swelling in the knee or leg, and no
atrophy. Dr. Benz advised that appellant’s range of motion was 0 to 125 degrees versus 0 to 135
degrees on the left and indicated that appellant’s x-rays showed very early degenerative changes.
He opined that appellant had reached maximal medical improvement and had a seven percent
impairment of the left lower extremity.2
In a March 22, 2003 report, an Office medical adviser noted that Dr. Benz did not refer to
the A.M.A., Guides. He utilized the A.M.A., Guides and explained that appellant was not
entitled to impairment due to decreased range of motion of the right knee as his range of motion
did not demonstrate any impairment. The Office medical adviser noted that appellant had 25
percent sensory deficit for continued mild knee pain under Grade 4 in Table 16-10.3 He
explained that the maximum lower extremity impairment for pain in the distribution of the
femoral nerve would warrant two percent impairment and he referred to Table 17-37.4 The
Office medical adviser determined that appellant had 1 percent impairment (25 percent of 2
percent) to the lower extremity for pain and had reached maximum medical improvement on
November 20, 2001.
By letter dated November 19, 2003, the Office requested that the employing
establishment update appellant’s pay rate information.

1

The Office also accepted appellant’s claim for a recurrence of disability on June 15, 1997 and authorized
surgery on June 19, 1997.
2

It appears that he meant the right lower extremity.

3

A.M.A., Guides 482.

4

Id. at 552.

2

On October 11, 2005 the Office granted appellant a schedule award for one percent
permanent impairment of the right foot. The award covered the period November 20 to
December 10, 2001.
On November 7, 2005 appellant requested a telephonic hearing.5 By letter dated
March 23, 2006, he alleged that his right knee was not getting any better. Appellant explained
that he recently received an injection for pain and swelling and that his physician recommended
a knee replacement. He also advised the Office that he had retired.6
In a February 13, 2006 report, Dr. Jeffrey Whiting, a Board-certified orthopedic surgeon,
noted that appellant had complaints of right knee pain, swelling and crunching as well as crepitus
with activity. He advised that appellant had a well-healed surgical scar, active extension and
good strength to resistance and no evidence of instability. Dr. Whiting noted that x-rays showed
tricompartmental osteoarthritis with joint space narrowing in the medial space. He also noted
that appellant desired a total knee arthroplasty because his quality of life was limited with knee
pain; however, he agreed to try another injection first.
By decision dated May 9, 2006, the Office hearing representative affirmed the
October 11, 2005 schedule award. The Office hearing representative determined that the Office
incorrectly utilized the pay rate in effect on the date of injury for determining appellant’s
compensation. The case was remanded for appropriate development to determine appellant’s
pay rate on June 15, 1997, the date of his recurrence of disability, to see if it was greater than on
the date he was injured, and if so, to adjust the amount of pain in his schedule award
accordingly.7
By letter dated June 1, 2006, appellant requested reconsideration. In support of his
request, he submitted copies of previously submitted medical reports. Appellant included new
evidence which did not provide any impairment rating.
In a June 11, 2006 report, the Office medical adviser noted that appellant reached
maximum medical improvement on November 20, 2001 and that he was not entitled to an
additional award. He explained that appellant had already received an award of one percent for
Grade 4 pain in the distribution of the femoral nerve pursuant to Table 16-10 and 16-15.8
Furthermore, he advised that appellant had normal range of motion of the right knee. The Office
medical adviser indicated that no award could be given for decreased cartilage interval as there
were no radiographs to review.
By decision dated June 20, 2006, the Office denied modification of its May 9, 2000
decision.
5

The hearing was scheduled for March 13, 2006. Appellant subsequently missed the hearing, his request to
reschedule was denied and it was changed to an examination of the written record.
6

7
8

The record reflects that appellant retired on February 29, 2004.
An adjustment was made on June 8, 2006.
A.M.A., Guides 482, 492.

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LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act9 and its
implementing regulation10 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, the Act 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 regulation as the appropriate standard for evaluating schedule losses.11
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.12 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.13
ANALYSIS
In support of his claim for a schedule award, appellant submitted a November 20, 2001
report from Dr. Benz who noted appellant’s history of injury and treatment and conducted a
physical examination. Dr. Benz noted that appellant had a well-healed eight inch scar, no
swelling in the knee or leg and no atrophy. He advised that appellant’s range of motion was 0 to
125 degrees versus 0 to 135 degrees on the left. Appellant’s x-rays showed very early
degenerative changes.
Dr. Benz opined that appellant had reached maximal medical
improvement and had a seven percent impairment of the right leg. However, he did not explain
how he made the impairment rating as there was no reference to the A.M.A. Guides. Dr. Benz
did not discuss how he arrived at his conclusion or refer to any tables or pages of the A.M.A.
Guides in determining the extent of the impairment.14 The Board finds that, as Dr. Benz did not
include an impairment rating under the A.M.A. Guides, the Office properly relied upon the
findings of the Office medical adviser.

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

A.M.A., Guides (5th ed. 2001).

12

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
13

Bernard A. Babcock, Jr., 52 ECAB 143 (2000); see also Paul A. Toms, 28 ECAB 403 (1987).

14

See James R. Hill, 57 ECAB ___ (Docket No. 05-1899, issued May 12, 2006) (schedule awards are to be based
on the A.M.A., Guides; an estimate of permanent impairment is irrelevant and of diminished probative value where
it is not based on the A.M.A., Guides).

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The Office medical adviser relied upon the findings on examination made by Dr. Benz.
He applied the fifth edition of the A.M.A. Guides, to determine that appellant had no impairment
for loss of range of motion of the right knee as the examination revealed a full range of motion.15
The Office medical adviser noted that appellant had a 25 percent sensory deficit for continued
mild knee pain to Grade 4 pursuant to Table 16-10.16 The Office medical adviser explained that
the maximum lower extremity impairment allowed for pain in the distribution of the femoral
nerve was two percent at Table 17-37.17 Thus, he determined that appellant had to a one percent
impairment to the lower extremity for pain and had reached maximum medical improvement on
November 20, 2001.18 In a June 11, 2006 report, the Office medical adviser reiterated that
appellant did not have greater impairment. Appellant received an award of one percent for
Grade 4 pain in the distribution of the femoral nerve pursuant to Tables 16-10 and 17-37.19 The
Office medical adviser reiterated that appellant had a normal range of motion and that no award
could be given for decreased cartilage interval absent proper radiographs to review.
There is no probative medical evidence of record establishing that appellant has more
than a one percent impairment of the right leg for which he received a schedule award.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained more than a one percent permanent impairment of his right lower extremity, for which
he received a schedule award.

15

Dr. Benz reported knee flexion of 125 degrees. Table 17-10 at page 537 of the A.M.A., Guides states that no
impairment rating is warranted unless flexion is less than 110 degrees.
16

A.M.A., Guides 482.

17

Id. at 552.

18

This is consistent with the procedure set forth in Table 16-10 at page 482 of the A.M.A., Guides by which the
severity of the sensory deficit, 25 percent, is multiplied by the maximum impairment value for pain for the
implicated nerve, 2 percent. This equals one half of one percent. This is rounded to one percent.
19

A.M.A., Guides 482, 492.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 29 and May 9, 2006 are affirmed.
Issued: February 14, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE NAVY,
MARINE CORPS RECRUIT DEPOT,
Parris lsland, SC, Employer
__________________________________________

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

Docket No. 15-195
Issued: March 17, 2015

Case Submitted on the Record

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

JURISDICTION
On November 4, 2014 appellant filed a timely appeal from the September 15, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUES
The issues presented on appeal are: (1) whether appellant received a $1,651.15
overpayment of compensation; and (2) whether he was at fault in creating the overpayment,
thereby rendering him ineligible for consideration of waiver of recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 5, 2010 appellant, a 46-year-old electrician (high voltage), sustained a
traumatic injury in the performance of duty when an outrigger was set down on his foot. OWCP
accepted his claim for a crushing injury of the right foot, reflex sympathetic dystrophy of the
right foot, and localized primary osteoarthritis (talonavicular) of the right foot, and ankle.
Appellant received compensation for temporary total disability on the periodic rolls.
When OWCP placed him on the periodic rolls by direct deposit, it provided the following
guidance to avoid overpayments:
“To minimize the possibility of an overpayment of compensation, notify this
office immediately when you go back to work. If you receive your compensation
payments via paper check, the payment shows the period for which payment is
made. If you have worked for any portion of this period, return the payment to
this office, even if you have already advised the OWCP that you are working. For
payments sent by electronic funds transfer (EFT), a notification of the date and
amount of payment appears on the statement from your financial institution. If
you have worked for any portion of the period for which a deposit was made,
advise OWCP immediately so that the overpayment can be collected.” (Emphasis
deleted.)
The employing establishment confirmed that appellant returned to full-time duty on
October 1, 2013. OWCP nonetheless issued a payment of compensation on October 19, 2013 for
the period September 22 to October 19, 2013.
On November 4, 2013 OWCP made a preliminary determination that appellant received a
$1,651.15 overpayment of compensation for the period October 1 through 19, 2013 because he
returned to work on October 1, 2013 and received compensation for total disability through
October 19, 2013. It found that he was at fault in creating this overpayment because he accepted
a payment that he knew or should have known was incorrect. OWCP explained how it
calculated the amount of the overpayment. As appellant had received a check for $2,433.27 in
net compensation over a 28-day period, it divided the net compensation by 28 and multiplied by
19, the number of days he was overpaid.
In a decision dated September 5, 2014, an OWCP hearing representative finalized the
overpayment determination. The decision held that, since appellant returned to work on
October 1, 2013, he was not entitled to the compensation he received for the period October 1 to
19, 2013. It further held that he was at fault in creating the overpayment because he was aware
or reasonably should have been aware that he was not entitled to wage-loss compensation after
returning to full-time work. As appellant was at fault, he was not eligible for waiver of recovery
of the overpayment. As he was no longer receiving compensation from OWCP, the hearing
representative found that appellant should forward a check for the full amount of the debt.

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LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.3
Compensation for wage loss due to disability is available only for any periods during
which an employee’s work-related medical condition prevents him from earning the wages
earned before the work-related injury.4
When an overpayment has been made to an individual 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.5
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim and paid wage-loss compensation for his incapacity,
because of his February 5, 2010 employment injury. Appellant returned to full-time work on
October 1, 2013. As of that date, the accepted employment injury no longer caused wage loss,
and he was no longer entitled to wage-loss compensation.
After appellant returned to work, OWCP made an automatic payment that covered a
period after the injury-related wage loss ceased. It issued a payment of compensation on
October 19, 2013 by direct deposit covering the period September 22 to October 19, 2013. The
direct deposit of this compensation created an overpayment of compensation from October 1 to
19, 2013, as appellant was not entitled to compensation for total disability after returning to
work.
OWCP explained in its preliminary determination how it calculated the amount of the
overpayment. The Board will therefore affirm OWCP’s September 15, 2014 decision on the
issues of fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he received
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

Id. at § 10.500(a); see, e.g., Tammi L. Wright, 51 ECAB 463 (2000) (where the record established that the
employee returned to work at the employing establishment for four hours per day from August 7, 1996 to January 8,
1997, but she received compensation for total disability for that same period, the Board found that the employee
received an overpayment of compensation).
5

Id. at § 8129(a).

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from OWCP are proper. The recipient must show good faith and exercise a high degree of care
in reporting events which may affect entitlement to or the amount of benefits. A recipient who
has done any of the following will be found to be at fault with respect to creating an
overpayment: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).6
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he is being overpaid.7
ANALYSIS -- ISSUE 2
OWCP found appellant at fault in creating the overpayment of compensation because he
accepted a payment which he knew or should have known to be incorrect. However, OWCP
failed to provide any explanation of how he was at fault in creating the overpayment when it was
OWCP that directly deposited the incorrect payment into his account without prior notice of the
amount or period covered.
OWCP made appellant aware what he could do to avoid the creation of an overpayment
if he received an incorrect paper check. Such payments showed the period for which the
payment was made. If appellant worked for any portion of that period, he was to return the
check to OWCP.
In the case of EFTs, however, the notification of the date and amount of payment would
appear on the statement from appellant’s financial institution. In other words appellant would
receive notification only after the deposit was made and the overpayment created. In such a
case, OWCP’s instructions to appellant were simply to “advise OWCP immediately.” It did not
tell him what he could do to avoid the creation of an overpayment when an incorrect payment
was sent by EFT.
The Board fully addressed this issue in the case of Tammy Craven.8 The Board explained
that an employee who receives payments from OWCP in the form of a direct deposit may not be
at fault for the first incorrect deposit into her account because she may lack the requisite
knowledge at the time of acceptance, which is necessarily the time of deposit.
As OWCP did not address how appellant was at fault in creating the overpayment when it
was OWCP that directly deposited the incorrect payment into his account, the Board will set
aside OWCP’s September 15, 2014 decision on the issue of fault and will remand the case for
6

20 C.F.R. § 10.433(a).

7

Id. at § 10.433(b).

8

Docket No. 05-249 (issued June 20, 2005), order granting petition for recon. and reaffirming prior decision
(issued July 24, 2006).

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further consideration. Giving due regard to the case of Tammy Craven, OWCP and shall issue a
merit decision on whether appellant was at fault in creating the overpayment that occurred when
OWCP directly deposited an incorrect payment into his account on October 19, 2013.
CONCLUSION
The Board finds that appellant received a $1,651.15 overpayment of compensation. The
Board further finds that this case is not in posture for decision on whether he was at fault in
creating the overpayment. Further action is warranted.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed on the issues of fact and amount of overpayment
and is set aside on the issue of fault. The case is remanded for further action.
Issued: March 17, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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