United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-841
Issued: September 29, 2011

Case Submitted on the Record

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

JURISDICTION
On February 15, 2011 appellant filed a timely appeal from a January 10, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) denying her claim for an emotional
condition. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty on September 22, 2010.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following issuance of the January 10, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before the Office at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a formal written
request for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

FACTUAL HISTORY
Appellant, then a 58-year-old security screener, filed a September 22, 2010 claim (Form
CA-1) for physical and psychological injuries that occurred on that day. She claimed that she
had a panic attack and suffered from chest pain due to a meeting with her supervisor, Bill Lewis.
Appellant submitted several medical documents and statements to OWCP. A
September 22, 2010 statement titled “manager comments and contributing factors,” signed by
Frank Malewich stated that appellant “complains of chest pains,” that an emergency medical
technician (EMT) was notified, and that appellant “denies further medical attention after EMT’s
evaluations.” The witness statement issued on the same day by Anthony Guiliano, the lead
transportation security officer, stated that appellant “grab[bed] her chest and said call for medical
help, and then said call her husband.” A witness statement from Gladys Crespo, a transportation
security officer, described that on September 22, 2010 “after a few minutes I was in D4, STSO
Bill Lewis walk[ed] in and started talking with [appellant], she seem[ed] very upset ... about
1800 or 1825 she started having like a panic attack and having pain in her chest.” Appellant also
submitted a recovering employer’s limited-duty assignment form dated October 12, 2010 to
OWCP.
In a September 23, 2010 report, Dr. Albert Scublinsky, a psychiatrist, advised that
appellant had visited his office because of her recurrent panic attacks and a relapse of her major
depressive disorder. He noted that appellant had been severely traumatized and Dr. Scublinsky
recommended that she remain out of work for four weeks.3
In a December 10, 2010 letter, OWCP advised appellant that the information she had
submitted was insufficient to establish her claim. It requested that she describe any undue stress
to which she attributed her condition, whether the September 22, 2010 meeting was the only
instance of occurrence, and address her preexisting depressive disorder and whether she took any
medication for it, as well as other sources of stress in her life outside of the workplace. OWCP
also requested she submit a narrative medical report from her attending physician.
Appellant submitted a December 16, 2010 medical report from Dr. Scublinsky, who
diagnosed major depressive disorder and recurrent panic attacks. Dr. Scublinsky stated that
appellant’s condition was the consequence of “very inappropriate and insulting behavior by her
supervisor,” which caused her to develop panic attacks, with symptoms of chest pain, racing
heart beat, dizziness and breathlessness. He noted that appellant had been under his care since
March 2005. Dr. Scublinsky concluded that appellant’s condition “is caused, exacerbated and
worsened by stress and this work incident caused emotional distress and anxiety and precipitated
the symptoms.”
In a January 10, 2011 decision, OWCP denied appellant’s claim for an emotional
condition finding that she failed to establish that the September 22, 2010 meeting constituted a
compensable factor.

3

Other medical documents include an undated attending physician’s report, and a duty status report dated
August 4, 2010.

2

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 her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 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 her frustration from not being permitted to work in a particular environment or to
hold a particular position.4
An employee’s emotional reaction to administrative or personnel matters generally falls
outside the scope of FECA.5 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.6 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities,
such action will be considered a compensable employment factor.7
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship and which working conditions are not deemed factors of
employment and may not be considered. If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.8
Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting her allegations with
probative and reliable evidence.9

4

Lillian Cutler, 28 ECAB 125 (1976).

5

See Andrew J. Sheppard, 53 ECAB 170, 171 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991); see also Matilda R. Wyatt, 52 ECAB 421, 423 (2001).
6

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005).

7

Id.

8

David Apgar, 57 ECAB 137 (2005).

9

Kathleen D. Walker, 42 ECAB 603 (1991).

3

ANALYSIS
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty on September 22, 2010. Appellant did not submit sufficient
factual evidence to establish a compensable incident of employment.
Appellant did not allege that performance of her regular job duties or special assigned
duties caused her alleged emotional condition under Cutler. Rather, she alleged that her
emotional condition resulted from a meeting with her supervisor on September 22, 2010.
Appellant did not provide specific detail regarding any conversation with her supervisor that day.
The Board has held that an administrative or personnel matter may be a factor of employment
where the evidence discloses error or abuse by the manager or supervisor.10 The Board has held
that not every ostensibly abusive or threatening statement uttered in the workplace will give rise
to coverage under FECA.11 The witness statements of record noted only that a supervisor spoke
to appellant, and she sustained a panic attack thereafter. None of the witness statements
provide any detail as to what the discussion entailed. There is no description of what was stated
during appellant’s meeting with Mr. Lewis. Furthermore, appellant did not submit any statement
addressing what transpired on that day. Absent such evidence, the Board cannot find a factual
basis for error or abuse on the part of Mr. Lewis on September 22, 2010.
OWCP notified appellant of this deficiency in her claim, but she failed to submit any
responsive statement. While appellant’s attending physician referred to the exchange as the
supervisor’s “very inappropriate and insulting behavior,” he was not present at the meeting and
his depiction relies on appellant’s representations, which are not of record. Without any other
corroborating evidence describing the incident alleged to have caused her emotional condition,
appellant has failed to establish a compensable factor of employment.
CONCLUSION
Appellant failed to establish that she sustained an emotional condition in the performance
of duty on September 22, 2010.

10

Pamela D. Casey, 57 ECAB 260 (2005).

11

Fred Faber, 52 ECAB 107, 109 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 29, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Warminster, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jason S. Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0170
Issued: August 28, 2018

Case Submitted on the Record

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

JURISDICTION
On October 30, 2017 appellant, through counsel, filed a timely appeal from a May 4, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days elapsed from the last merit decision, dated February 2, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 20, 2003 appellant, then a 39-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 19, 2003 she injured her right knee while in the
performance of duty. She reported feeling a twinge and cramping in her right knee, as well as a
burning sensation. OWCP accepted appellant’s claim for right knee strain and right knee medial
meniscus tear. It also authorized right knee arthroscopic surgery, which she underwent on
March 25, 2004.3 OWCP paid appellant wage-loss compensation for temporary total disability for
the period March 25 through May 3, 2004. Appellant resumed her regular, full-time letter carrier
duties effective May 4, 2004. Between July 2004 and February 2011 there was minimal activity
with respect to her claim.
On October 15, 2014 appellant, through counsel, filed a claim for a schedule award (Form
CA-7). In support of the claim, counsel submitted a July 22, 2014 narrative report from Dr. David
Weiss, an osteopath Board-certified in clinical orthopedic surgery, who provided an impairment
rating of the right lower extremity under the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 Dr. Weiss diagnosed posttraumatic internal derangement to the right knee with a medial meniscus tear, chronic posttraumatic patellofemoral pain syndrome of the right knee, post-traumatic osteoarthritis of the right
knee, status post arthroscopic surgery with a history of partial medial meniscectomy in 2004, and
recurrent injury to the right knee on May 20, 2013, with a lateral meniscus tear.5 He concluded
that appellant reached maximum medical improvement (MMI) on July 22, 2014, and calculated
that her right lower extremity permanent impairment was 13 percent based on a diagnosis of right
knee medial and lateral meniscal tears.
OWCP referred Dr. Weiss’ report to a district medical adviser (DMA) in order to determine
whether he appropriately applied the A.M.A., Guides in calculating appellant’s percentage of
permanent impairment.
In a November 18, 2014 report, the DMA noted that Dr. Weiss rated appellant for a medial
meniscal injury as well as a nonwork-related lateral meniscal injury. He noted that her claim was
accepted for a medial meniscectomy and that she was status post meniscal repair. For this accepted
condition, the DMA found that a final lower extremity impairment was three percent. He also
provided a separate rating for the combined work-related medial meniscal injury and nonworkrelated lateral meniscal injury, finding that the impairment rating for this injury was 12 percent.
The DMA noted that he did not have the magnetic resonance imaging (MRI) scan report for the
3

Dr. Anthony J. Balsamo, a Board-certified orthopedic surgeon, performed a partial medial meniscectomy.

4

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

5
Dr. Weiss reported that appellant sustained another work-related injury on May 18, 2013 when she “hit a ditch”
and developed pain in her right knee.

2

latter injury, and that, if OWCP were to accept the rating for the latter injury, he recommended
that OWCP obtain a copy of the MRI scan performed on June 3, 2013 in order to confirm its
findings. He noted that the date of MMI was July 22, 2014, and further noted that appellant’s right
knee condition had stabilized at that time.
By decision dated April 16, 2015, OWCP found that appellant had three percent permanent
impairment of the right lower extremity. It relied upon the DMA’s calculations of her percentage
of impairment, noting that it had only accepted a torn medial meniscus in her claim, and not a
nonwork-related lateral meniscus injury. OWCP found that the DMA’s impairment rating, taking
into account the accepted condition only, was the correct calculation for schedule award purposes.
On April 22, 2015 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. The hearing was held on November 19, 2015. At the hearing, counsel
argued that the medical evidence demonstrated a progression of the accepted meniscus tear into
an accelerated osteoarthritis, as well as a potential contribution to a lateral meniscus tear. He
argued that OWCP should accept additional conditions under appellant’s claim due to the
progression of her disease. Counsel alleged that there was sufficient medical evidence on file in
order to support the acceptance of additional conditions on her claim. The hearing representative
held the record open for 30 days for the submission of additional evidence.
By decision dated February 2, 2016, the hearing representative affirmed OWCP’s April 16,
2015 decision. She found that appellant had not yet provided a medical report sufficiently
explaining the basis for a higher impairment rating than three percent based on her accepted injury.
The hearing representative noted that, at the hearing, counsel argued that appellant’s lateral
meniscus condition should be considered consequential to her accepted right medial meniscus
injury. She further found that the medical evidence of record was insufficient to support
acceptance of a right knee lateral meniscus injury causally related to appellant’s December 19,
2003 employment injury.
On February 2, 2017 appellant, through counsel, requested reconsideration of OWCP’s
February 2, 2016 decision. With the request for reconsideration, counsel argued that OWCP
should have further developed the evidence with regard to causation between her accepted right
medial meniscus injury and her lateral meniscus injury. He noted that the DMA had not addressed
causation in his report, but rather simply noted that the lateral meniscus injury was not presently
accepted.
By decision dated May 4, 2017, OWCP declined appellant’s request for reconsideration
without reviewing the merits of her claim. It found that counsel had not established that OWCP
erroneously applied or interpreted a specific point of law nor did he advance a relevant legal
argument not previously considered by OWCP. As no medical evidence was received in support
of the reconsideration request it determined that counsel’s disagreement of the impairment rating
previously awarded did not suffice as relevant or material evidence on which to grant the
reconsideration request.

3

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.8
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.9 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
OWCP issued a decision dated April 16, 2015 finding that appellant was entitled to a
schedule award for three percent permanent impairment of her right lower extremity, based on the
accepted injury of a right knee medial meniscus tear. A hearing representative upheld this decision
on February 2, 2016, finding that appellant had not submitted sufficient medical evidence to accept
the condition of a lateral meniscus tear consequential to her accepted injury. On February 2, 2017
appellant, through counsel, requested reconsideration of OWCP’s February 2, 2016 decision. As
noted above, the Board does not have jurisdiction over the merits of the schedule award claim.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, or advance a new and relevant legal argument not previously considered. While counsel
argued in the February 2, 2017 request for reconsideration that OWCP should accept or further
develop the issue of whether her lateral medial meniscus tear was a consequential injury to her
accepted right knee medial meniscus tear, this argument had previously been considered in the
hearing representative’s February 2, 2016 decision. As such, appellant is not entitled to a review

6
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

20 C.F.R. § 10.606(b)(3).

10

Id. at § 10.608(a), (b).

4

of the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(3).
The underlying issue is whether appellant has greater than three percent permanent
impairment of the right lower extremity. On reconsideration, counsel did not submit additional
medical evidence demonstrating a greater impairment due to her accepted right knee medial
meniscus tear. He also did not submit any additional medical evidence that would warrant further
merit review with respect to appellant’s claimed right lateral meniscal injury. As such, appellant
is not entitled to a review of the merits of her claim based on the third requirement under section
10.606(b)(3).
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 4, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 28, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Bettye L. Richardson, for the appellant
Office of Solicitor, for the Director

Docket No. 07-405
Issued: June 18, 2007

Oral Argument May 23, 2007

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

JURISDICTION
On November 28, 2006 appellant filed a timely appeal of the November 20, 2006
decision of the Office of Workers’ Compensation Programs, which denied his request for a
hearing and a September 29, 2006 decision of the Office which denied modification of its
previous decisions on the basis that causal relationship was not established. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues in this case are: (1) whether the Office abused its discretion in denying
appellant’s request for an oral hearing in its November 20, 2006 decision; and (2) whether
appellant met his burden of proof to establish that his cerebral vascular accident or “stroke” on
January 13, 1997 was caused or aggravated by his federal employment.
FACTUAL HISTORY
This case is before the Board for the fourth time. On the first appeal, the Board found
that the Office’s September 22, 1998 decision properly denied appellant’s request for an oral

hearing. The Board further found that it did not have jurisdiction to review the last merit
decision of record, an August 7, 1997 Office decision, which denied appellant’s claim for
compensation on the grounds that the medical evidence was insufficient.1 In the second appeal,
the Board found that the Office in its January 4, 2002 decision properly found that appellant’s
June 11, 2000 request for reconsideration was untimely filed and did not establish clear evidence
of error.2 In the third appeal, the Board found that the Office in its November 25, 2005 decision
properly found that appellant’s February 18, 2005 request for reconsideration of an August 7,
1997 merit decision was untimely. However, as the Office did not address appellant’s evidence
and argument that he had timely filed a request for a hearing on August 21, 1997, the Board
remanded the case for the Office to review this argument and evidence and to issue an
appropriate decision. The Office was directed to conduct a merit review if it denied appellant’s
request for a hearing.3 The findings of fact and conclusions of law from the prior decisions are
hereby incorporated by reference.
By decision dated September 29, 2006, the Office advised that it was unable to confirm
that a request for a hearing was made within 30 days of the Office’s last merit decision of
August 7, 1997.4 It denied appellant’s claim for compensation on the grounds that there was no
well-rationalized medical opinion from a qualified physician which established a causal
relationship between the diagnosed medical condition and appellant’s official duties.5
In an October 10, 2006 letter, appellant disagreed with the Office’s September 29, 2006
decision and requested an oral hearing. He argued that the August 21, 1997 letter from attorney
Nelson Cameron was a timely request for an oral hearing of the Office’s last merit decision of
August 7, 1997 and the Office abused its discretion in its September 29, 2006 decision. Copies
of previous Office decisions and correspondence were submitted along with a list entitled “Clear
Evidence of Errors.”
By decision dated November 20, 2006, the Office denied appellant’s request for a hearing
as reconsideration had previously been requested under section 8128 and the Office had issued
its reconsideration decision on September 29, 2006. Appellant was informed that his case had
been considered in relation to the issue involved and that the request was further denied for the
reason that the issue in this case could be addressed by requesting reconsideration from the
Office and submitting evidence not previously considered which establishes that a timely request
for an oral hearing was filed in 1997.

1

Docket No. 99-602 (issued May 11, 2000).

2

Docket No. 02-695 (issued June 18, 2003).

3

Docket No. 06-767 (issued September 11, 2006).

4

It noted that appellant’s August 21, 1998 letter entitled “Request for Appeal and Oral Hearing and
Reconsideration” was “date-stamped” received in the Office on August 13, 1998.
5

It noted that appellant’s reaction to the identified work factor, the “messes” on the dock he would find when
coming on shift to begin his workday, would ordinarily be considered self-generated.

2

An oral argument before the Board was held in the above matter on May 23, 2007, during
which appellant argued that he timely filed his request for an oral hearing in August 1997 and the
Office abused its discretion in its September 29 and November 20, 2006 decisions.
LEGAL PRECEDENT -- ISSUES 1 & 2
Section 8124(b)(1) of the Federal Employees’ Compensation Act6 provides that before
review under section 8128(a), a claimant for compensation not satisfied with a decision of the
Secretary is entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.7 Section 10.615 of
the federal regulation implementing this section of the Act provides that a claimant shall be
afforded a choice of an oral hearing or a review of the written record.8 The Office’s regulation
provides that the request must be sent within 30 days of the date of the decision, for which a
hearing is sought and also that the claimant must not have previously submitted a reconsideration
request (whether or not it was granted) on the same decision.9 If the request is not made within
30 days or if it is made after a reconsideration request, a claimant is not entitled to a hearing or a
review of the written record as a matter of right.10
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.11 Office’s procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.12
ANALYSIS
In this case, appellant requested a hearing on October 10, 2006. In its November 20,
2006 decision, the Office denied this request on the grounds that he had previously requested
reconsideration under section 8128. The record shows that the Office’s September 29, 2006
decision was based on appellant’s February 18, 2005 reconsideration request, which the Board in
its September 11, 2006 decision, had remanded to the Office for issuance of an appropriate
decision. As previously noted, a claimant is not entitled to a hearing or a review of the written
6

5 U.S.C. §§ 8101-8193.

7

5 U.S.C. § 8124(b)(1).

8

20 C.F.R. § 10.615; Gerard F. Workinger, 56 ECAB ___ (Docket No. 04-1028, issued January 18, 2005).

9

20 C.F.R. § 10.616(a).

10

Claudio Vazquez, 52 ECAB 496 (2001).

11

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

12

Teresa M. Valle, 57 ECAB ___ (Docket No. 06-438, issued April 19, 2006); Claudio Vazquez, supra note 10;
see Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.4(b)(3) (October 1992).

3

record as a matter of right if the request is made after a reconsideration request.13 As appellant
had previously requested reconsideration, the Office properly found that he was not entitled to a
hearing as a matter of right.14
The Office also has the discretionary power to grant a request for a hearing when a
claimant is not entitled to such as a matter of right. In the November 20, 2006 decision, the
Office properly exercised its discretion by stating that it had considered the matter in relation to
the issue involved and denied appellant’s request on the basis that the issue in this case could be
addressed through a reconsideration application. The Board has held that, as the only limitation
on the Office’s authority is reasonableness, abuse of discretion is generally shown through proof
of manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary
to both logic and probable deduction from established facts.15 In the present case, the evidence
of record does not indicate that the Office committed any act in connection with its denial of
appellant’s request for a hearing which could be found to be an abuse of discretion. Here, the
Office informed appellant in its November 20, 2006 decision, that it had considered the matter in
relation to the issue involved and denied his hearing request on the basis that appellant could
further pursue the matter through the reconsideration process. There is no indication that the
Office abused its discretion in this case in denying appellant’s hearing request. Further,
appellant was advised that he could request reconsideration and submit evidence in support of his
argument that he had timely filed a request for an oral hearing in 1997. Thus, the Board finds
that the Office properly denied appellant’s request for a hearing in its November 20, 2006
decision.
Regarding the Office’s September 29, 2006 decision, the Office analyzed the evidence to
determine whether appellant had established his cerebral vascular accident on January 13, 1997
was caused or aggravated by his federal employment. The Board notes that, upon examining the
case record, the case is not in posture for a decision on the merit issue at this time. The Board
finds that the Office did not follow the instructions issued by this Board in its September 11,
2006 decision with respect to consideration of evidence with regard to whether appellant timely
filed a request for a hearing on August 21, 1997 of the Office’s August 7, 1997 merit decision.
The statutory right to a hearing under section 8124(b)(1) follows an initial final decision of the
Office.16 In this case, the record contains evidence and argument regarding appellant’s request
for an oral hearing on August 21, 1997 following the Office’s August 7, 1997 initial merit
decision. This consists of an August 21, 1997 letter from appellant’s attorney, an affidavit from
the attorney’s secretary and a copy of the daily mail log, which are found on pages 1024-26,
1022-23, 960-65 of the record. The Office’s September 29, 2006 decision after remand did not
specifically address this evidence. The Board notes that a claimant who has received a final
adverse decision by the Office may obtain a hearing by writing to the address specified in the

13

Claudio Vazquez, supra note 10.

14

Moreover, the record shows that, with its September 29, 2006 decision, the Office included a copy of
appellant’s appeal rights, which clearly made no mention of a hearing.
15

See Daniel J. Perea, 42 ECAB 214 (1990).

16

Patricia G. Aiken, 57 ECAB ___ (Docket No. 06-75, issued February 17, 2006).

4

decision within 30 days of the date of the decision, for which a hearing is sought.17 The Office’s
procedure manual provides for a preliminary review of a case by an Office hearing representative
to determine whether the hearing request is timely and, if not, whether a discretionary hearing
should be granted; if the Office declines to grant a discretionary hearing, the claimant will be
advised of the reasons.18 In this case, the record shows that appellant submitted evidence and
argument pertaining to an August 21, 1997 request for an oral hearing and no preliminary review
by an Office hearing representative was conducted to determine whether the hearing request was
timely filed. Thus, the Office failed to follow its own procedures and there remains an
outstanding request for an oral hearing that must be considered.
Consequently, on remand, the Office’s Branch of Hearings and Reviews should review
appellant’s evidence and argument pertaining to an August 21, 1997 request for an oral hearing
and determine whether he had timely requested a hearing of the Office’s August 7, 1997 decision
and issue an appropriate decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a hearing in its
November 20, 2006 decision. The Board further finds that the case is not in posture for a
decision on the merits of this case as the Office’s Branch of Hearings and Review did not
address appellant’s evidence and argument that he had timely filed a request for a hearing on
August 21, 1997. Accordingly, the Board will remand the case for the Office to review this
argument and evidence and to undertake any appropriate additional development it deems
necessary.

17

20 C.F.R. § 10.616(a).

18

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

5

ORDER
IT IS HEREBY ORDERED THAT the November 20, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed. The September 29, 2006 decision of the Office is
set aside and the case remanded to the Office for further proceedings consistent with this opinion
of the Board.
Issued: June 18, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., widow of R.P., Appellant,
and
DEPARTMENT OF THE AIR FORCE,
TYNDALL AIR FORCE BASE, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-2017
Issued: March 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 19, 2014 appellant filed a timely appeal of an August 29, 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 consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $9,636.53 for the period February 17, 2009 through August 24, 2013 for which she
was not at fault; (2) whether OWCP properly denied waiver of recovery of the overpayment;
(3) whether the overpayment should be recovered by deducting $500.00 from appellant’s
ongoing compensation benefits every 28 days; and (4) whether OWCP properly found that she
abandoned her request for a prerecoupment hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 3, 1978 the employee, then a 39-year-old sheet metal mechanic, filed an
occupational disease claim alleging that he developed asthmatic bronchitis due to inhalation of
fumes in the performance of duty. He had retired on disability effective June 2, 1978. OWCP
accepted the employee’s claim for chronic airways obstruction and found that he was totally
disabled on October 8, 1982. It entered him on the periodic rolls on December 21, 1982. The
employee received a schedule award for 18 percent impairment of his lungs on July 29, 1983.
He died on February 16, 2009 and appellant filed a claim for compensation by widow,
Form CA-5.
On February 24, 2009 the employing establishment directed OWCP to transfer the
employee’s health benefits to the Office of Personnel Management (OPM). On February 25,
2009 OWCP directed appellant to contact OPM regarding life insurance, health insurance, or any
retirement benefits. By letter dated March 3, 2009, it stated that it had transferred health benefits
to OPM effective February 16, 2009. In a letter dated June 4, 2009, OPM stated that health
insurance enrollment should be transferred to OPM and stated that the enrollment should be
terminated as the claimant’s survivor was not eligible for a survivor annuity under OPM.
OWCP accepted appellant’s claim for survivor benefits on August 5, 2009. On
August 26, 2009 appellant requested whether she was entitled to health benefits. In a letter dated
June 10, 2013, OWCP informed her that no health benefit deductions had been made since the
March 3, 2009 transfer to OPM. It stated that when appellant’s claim for death benefits was
accepted the health benefits should have been transferred back to OWCP from OPM. OWCP
stated, “health benefits should have then been deducted from the benefits you were receiving as a
widow. Due to a regrettable administrative error, for which we sincerely apologize, this [was
not] done.” OWCP stated that appellant was entitled to health benefits under FECA and asked if
she wished to have retroactive coverage back to the acceptance of her claim. It advised her that a
large overpayment would be created for nondeduction of premiums if she elected retroactive
coverage. OWCP reiterated appellant’s options on June 21, 2013.
On July 1, 2013 appellant elected to receive retroactive health benefits coverage. OWCP
determined that she had received compensation in the amount of $118,764.88 for the period
February 17, 2009 through August 24, 2013 and that she was entitled to receive compensation in
the amount of $109,128.35 resulting in an overpayment of compensation in the amount
of $9,636.53.
In a preliminary determination of overpayment dated November 20, 2013, OWCP found
that appellant received an overpayment of compensation in the amount of $9,636.53 because
health benefits had not been deducted for the period February 17, 2009 through August 24, 2013.
It found that she was without fault in the creation of the overpayment. OWCP directed appellant
to complete an overpayment recovery questionnaire in order to determine waiver or amount of
recovery.
Appellant requested waiver of recovery of the overpayment on November 25, 2013. She
submitted the overpayment recovery questionnaire and indicated that she received social security
benefits of $961.60, compensation benefits of $1,953.10 and earnings of $1,678.00 a month for a

2

total monthly income of $4,592.70. Appellant stated that she supported her 48-year-old son who
required a heart transplant. She listed her expenses as $450.00 for food, $200.00 for clothing,
utilities of $900.00, and student loans of $1,000.00 a month. Appellant also indicated that she
had credit card debt and loans totaling $6,777.60 with total monthly payments of $525.81. She
listed her assets as $63.00.
In a letter dated April 25, 2014, addressed to the employee at appellant’s address of
record, OWCP’s Branch of Hearings and Review scheduled an oral hearing for June 9, 2014 at
1:00 pm. Appellant telephoned OWCP on June 10, 2014 and stated that she was scheduled for
an oral hearing on that date. She stated that she never received the April 25, 2014 letter.
By decision dated August 29, 2014, an OWCP hearing representative stated that appellant
failed to call at the appropriate time for the scheduled telephonic hearing. He found that as,
appellant’s income exceeded her expenses by $2,042.70 a month, waiver of recovery of the
overpayment was not warranted. Additionally, the hearing representative found that a reasonable
repayment plan was $500.00 every 28 days until the overpayment of $9,636.53 was recovered.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA2 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.4
The regulations of OPM, which administers the Federal Employees Health Benefit
program, provide guidelines for registration, enrollment, and continuation of enrollment of
federal employees. In this connection, 5 C.F.R. § 890.502(a)(1) provides:
“[A]n employee or annuitant is responsible for payment of the employee or
annuitant share of the cost of enrollment for every pay period during which the
enrollment continues. An employee or annuitant incurs an indebtedness due the
United States in the amount of the proper employee or annuitant withholding
required for each pay period that health benefit withholdings or direct premium
payments are not made but during which the enrollment continues.”5

2

Id. at §§ 8101-8193.

3

Id. at § 8102(a).

4

Id. at § 8129(a).

5

5 C.F.R. § 890.502(a)(1).

3

In addition, 5 C.F.R. § 890.502(c) provides:
“An agency that withholds less than the proper health benefits contributions from
an individual’s pay, annuity or compensation must submit an amount equal to the
sum of the uncollected contributions and applicable agency contributions required
under section 8906 of Title 5 United States Code, to OPM for deposit in the
Employees’ Health Benefits Fund.”6
The Board has recognized that, when an under withholding of health insurance premiums
is discovered, the entire amount is deemed an overpayment of compensation because OWCP
must pay the full premium to OPM when the error is discovered.7
ANALYSIS -- ISSUE 1
The record establishes that appellant requested health benefits in August 2009. OWCP
informed her in 2013 that reenrollment in health benefits would result in an overpayment.
Appellant opted to reenroll. OWCP explained in preliminary notice of overpayment the amount
and period of the overpayment. Appellant does not dispute the fact or amount of the
overpayment. The Board finds that an overpayment in the amount of $9,636.53 for the period
February 17, 2009 through August 24, 2013 occurred due to the failure to withhold health
insurance premiums.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.8 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b):
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against
equity and good conscience.”
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether
recovery of the overpayment would “defeat the purpose of FECA or would be against equity and
good conscience,” pursuant to the guidelines provided in the implementing federal regulations.

6

Id. at § 890.502(c).

7

T.S., Docket No. 08-1604 (issued March 13, 2009); 5 C.F.R. § 890.502.

8

5 U.S.C. § 8129(a).

4

Section 10.436 of the implementing regulations9 provide that recovery of an overpayment will
defeat the purpose of FECA if recovery would cause hardship by depriving a presently or
formerly entitled beneficiary of income and resources needed for ordinary and necessary living
expenses and outlines the specific financial circumstances under which recovery may be
considered to defeat the purpose of FECA.
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.10
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.11 This information would
also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that
failure to submit the requested information within 30 days of the request shall result in denial of
waiver.12
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in creating the overpayment.
Because she is without fault in the matter of the overpayment, it must adjust later payments only
if adjustment would not defeat the purpose of FECA or be against equity and good conscience.
Appellant provided an overpayment recovery questionnaire which indicated that her monthly
income of $4,592.70 exceeded all of her listed monthly expenses of $3,075.81 by more than
$1,516.00. The Board thus finds that, as her monthly income exceeds her documented
reasonable monthly expenses by $1,516.00, she is not entitled to waiver of recovery of the
overpayment as she does not need substantially all of her income to meet current ordinary and
necessary expenses.13 An individual is deemed to need substantially all of his or her current
income to meet current ordinary and necessary living expenses if monthly income does not
exceed monthly expenses by more than $50.00.14

9

20 C.F.R. § 10.436.

10

Id. at § 10.437.

11

Id. at § 10.438(a).

12

Id. at § 10.438(b).

13

P.G., Docket No. 14-227 (issued January 9, 2015).

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(a) (June 2009).

5

Additionally, the evidence does not demonstrate that repayment of the overpayment
would be against equity and good conscience. Consequently, OWCP properly denied waiver of
recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.321(a)15 provides that if an overpayment of compensation has been made to
one entitled to future payments, proper adjustment shall be made by decreasing subsequent
payments of compensation, “having due regard to the probable extent of future payments, the
rate of compensation, the financial circumstances of the individual, and any other relevant
factors, so as to minimize any resulting hardship upon such individual.”
ANALYSIS -- ISSUE 3
The record reflects that appellant continues to receive benefits from OWCP. The hearing
representative reduced her future compensation benefits by $500.00 every 28 days. He noted
that appellant had monthly gross income of $4,592.70 every month. The record reflects
expenses of $3,075.81 a month as reported by her on the overpayment recovery questionnaire.
Appellant’s income exceeds her expenses by $1,516.89 a month. The hearing representative
found she was capable of repaying the debt with deductions of $500.00 every 28 days from her
continuing compensation benefits. The Board finds that OWCP properly required repayment of
the overpayment by deducting $500.00 from appellant’s ongoing compensation payments every
four weeks.
LEGAL PRECEDENT -- ISSUE 4
With respect to abandonment of hearing requests, section 10.622(f) of OWCP’s
regulations and Chapter 2.1601.6(g) of OWCP’s procedures provide that failure of the claimant
to appear at the scheduled hearing, failure to request a postponement, and failure to request a
new hearing in writing within 10 days after the date of the scheduled hearing shall constitute
abandonment of the request for a hearing.16 Under these circumstances, the Branch of Hearings
and Review will issue a formal decision finding that the claimant has abandoned his or her
request for a hearing and return the case to the district office. In cases involving prerecoupment
hearings, the Branch of Hearings and Review will also issue a final decision on the overpayment,
based on the available evidence, before returning the case to the district office.17
ANALYSIS -- ISSUE 4
In a letter dated April 25, 2014, pursuant to appellant’s request, OWCP advised appellant
of a scheduled telephonic prerecoupment hearing with the hearing representative at a specific
15

20 C.F.R. § 10.321(a).

16

Id. at § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.6(g) (October 2011).
17

See Federal (FECA) Procedure Manual, id.

6

time on June 9, 2014. The evidence establishes that OWCP mailed appropriate notice to
appellant at her last known address. The record also reveals that appellant did not request
postponement, failed to appear for the scheduled hearing, and failed to provide any written
notification for such failure within 10 days of the scheduled date of the hearing. As this meets
the conditions for abandonment of a hearing as specified by OWCP’s regulations and procedure
manual, the Board finds that OWCP properly found that she abandoned her request for a
prerecoupment hearing before the hearing representative and properly issued a final decision on
the overpayment of compensation. The Board finds that it properly found that appellant
abandoned her request for a prerecoupment hearing.
Appellant alleges that she never received the April 25, 2014 letter. The Board has found
that a notice properly addressed and duly mailed to an individual in the ordinary course of
business is presumed to have been received by that individual.18 Thus, the Board finds that
absent any evidence to the contrary appellant received proper notice of the scheduled telephonic
hearing.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $9,636.53 during the period February 17, 2009 through
August 24, 2013 for which she was not at fault. Appellant is not entitled to waiver of recovery
of the overpayment and it should be recovered by withholding $500.00 every 28 days from her
continuing compensation benefits. The Board further finds that she abandoned her request for a
prerecoupment hearing.

18

M.G., Docket No. 14-1917 (issued January 22, 2015).

7

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.V., Appellant
and
DEPARTMENT OF THE AIR FORCE,
OKLAHOMA AIR LOGISTICS CENTER,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-74
Issued: March 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 14, 2014 appellant filed a timely appeal from the April 21, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his
reconsideration request. Since more than 180 days has elapsed between OWCP’s most recent
merit decision on May 9, 2012 and the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of this claim.
ISSUE
The issue is whether appellant’s reconsideration request was timely filed and failed to
establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 26, 2010 appellant, a 65-year-old machine tool operator, filed an
occupational disease claim alleging that his severe hearing loss,2 back pain, and right arm/elbow
pain and swelling were a result of his federal employment.
OWCP denied appellant’s claim in decisions dated May 11, 2010, May 6, December 15,
2011, and May 9, 2012. It accepted that he performed repetitive duties lifting engine parts
weighing approximately 50 pounds, but found that the medical evidence did not establish that
this activity caused an injury. The medical opinions submitted did not provide a complete and
accurate history, including appellant’s activity raising mules and working four to six hours a
week since he retired in 2007. The physicians provided insufficient rationale to support that the
diagnosed cumulative lumbar sprain/strain, cumulative lumbar osteoarthritis, and right elbow
lateral epicondylitis were causally related to the specific work duties to which appellant was last
exposed in March 2007.
Appellant submitted additional evidence on May 21, 2013. He resubmitted a copy of a
January 3, 2011 report from Dr. M. Stephen Wilson, an orthopedic surgeon specializing in injury
evaluation and rehabilitation, who evaluated appellant with respect to injuries sustained to his
right elbow and lumbar spine “as a result of cumulative work-related activities.” Appellant’s job
duties required activity that caused pain in his back and right elbow, including cranking tailstock,
on which he turned a heavy crank for eight hours a day for several days a week, and continuous
lifting of heavy engine parts weighing approximately 50 pounds on a daily basis. He stated that
he began experiencing the pain in March 2007, the month he retired. Dr. Wilson opined that
appellant had sustained an injury to his right elbow and lumbar spine as the result of cumulative
work-related activities. “In my opinion, these injuries arose out of, and are causally connected to
the above-described occupational trauma within a reasonable degree of medical certainty.”
OWCP had previously received Dr. Wilson’s January 3, 2011 report on February 7, 2011
and reviewed that report in its May 6, 2011 decision. It found that he had not provided a
complete and accurate history. Dr. Wilson offered no discussion of appellant’s retirement in
2007 or the physical demands of raising mules. Also, he provided no medical explanation of
how the diagnosed conditions resulted from appellant’s employment since he was last exposed to
work factors in March 2007.
Appellant resubmitted a copy of a January 27, 2012 report from Dr. Don R. Barney, an
osteopath, who noted appellant’s work history and retirement in 2007. The history that appellant
gave him was that of operating a lathe and cranking the tailstock. “The angle that he was in with
his body to move the crank put undue stress on the right side of his body causing pain in his right
elbow and in his lumbar spine.” Dr. Barney noted that appellant repeated this procedure multiple
times during his employment. He explained that, while working on this oversized lathe,
appellant had repeated microtrauma to his elbow and lumbar spine, which caused injury.
Appellant stated that he had pain and discomfort in his back and elbow due to the continual
lifting until his retirement.
2

Appellant has an accepted hearing loss claim for which a schedule award has already been awarded. OWCP
File No. xxxxxx364.

2

OWCP previously received Dr. Barney’s January 27, 2012 report on May 1, 2012 and
addressed that report in its May 9, 2012 decision. It noted that it was a duplicate of a report
dated June 4, 2011, which OWCP had received on November 30, 2011 and reviewed on
December 15, 2011. In its December 15, 2011 decision, OWCP had found Dr. Barney’s report
to be of no probative value since it did not provide a complete factual and medical history, and
did not provide a medical explanation of how the conditions were a result of appellant’s
employment since his last exposure to work factors in March 2007.
On May 21, 2013 OWCP received copies of other reports that also had previously been
submitted and reviewed.
Also on May 21, 2013 appellant submitted a May 8, 2013 statement from a coworker
who was talking to appellant in late March 2007 when the injury occurred. The coworker stated
that appellant was operating the same lathe a few days later and injured his back.
On April 15, 2014 OWCP received an appeal request form indicating with an “X” that
appellant was requesting reconsideration. Appellant submitted a copy of OWCP’s May 9, 2012
decision and a copy of OWCP’s April 8, 2014 correspondence, which noted that he had
submitted a congressional inquiry, but had not exercised his appeal rights.
In a decision dated April 21, 2014, OWCP denied appellant’s reconsideration request. It
found that the request was untimely and did not present clear evidence of error in its most recent
merit decision. OWCP noted that the medical reports received after its May 9, 2012 decision
duplicated reports that were previously received and already taken into consideration.
Appellant argues that he has met all five of the basic elements for his claim, especially
causal relationship. He advised OWCP on more than one occasion that he had a witness to his
injuries. Appellant asks for his claim to be approved. He submitted a witness statement together
with a number of medical reports.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
3

5 U.S.C. § 8128(a).

3

application for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought. OWCP will consider an untimely application only if the
application demonstrates clear evidence of error on the part of OWCP in its most recent merit
decision. The application must establish, on its face, that such decision was erroneous.4
The term “clear evidence of error” is intended to represent a difficult standard.5 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.6
ANALYSIS
The Board has no jurisdiction to review the merits of appellant’s occupational disease
claim. The most recent decision on the merits of his claim was OWCP’s May 9, 2012 decision
denying modification of its prior decision. Appellant had 180 days to appeal the May 9, 2012
decision to the Board, but he did not do so. The Board therefore lacks jurisdiction to review it.
Appellant filed his October 14, 2014 appeal within 180 days of OWCP’s April 21, 2014
nonmerit decision denying reconsideration. The Board may therefore review that decision.
However, the only issue the Board may review is whether the reconsideration request was timely
filed and failed to show clear evidence of error.7
Appellant’s reconsideration request was untimely. OWCP issued its most recent merit
decision on May 9, 2012. As the appeal rights attached to that decision explained, any
reconsideration request had to be received by OWCP within one calendar year, or by
May 9, 2013. The reconsideration request OWCP received on April 15, 2014 was therefore
untimely.
Because appellant’s reconsideration request was untimely, OWCP would reopen his case
only if the request demonstrated clear evidence of error in the May 9, 2012 decision. Appellant’s
request, however, made no argument for error and presented no evidence. He submitted a copy
of OWCP’s May 9, 2012 decision and a copy of OWCP’s April 8, 2014 letter noting that he had
not exercised his appeal rights. Nothing accompanying his request demonstrated clear evidence
of error in OWCP’s most recent merit decision. On its face, then, appellant’s request was
insufficient.
OWCP conducted a limited review of all the medical reports it had received since its
May 9, 2012 decision, as the denial of appellant’s claim rested on a finding that the medical
4

20 C.F.R. § 10.607.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (October 2011).

6

Id. at Chapter 2.1602.5.b.

7

Appellant’s appeal identifies a July 25, 2014 decision, but the record shows that it was not a final decision but
merely an informational letter. 20 C.F.R. § 501.2(c) (the Board has jurisdiction to consider and decide appeals from
final decisions of OWCP in any case arising under FECA).

4

opinion evidence was insufficient to establish the critical element of causal relationship. The
medical reports it received were duplicates of reports previously submitted and previously
considered in denying appellant’s claim. In earlier decisions, OWCP had discussed each of these
reports and explained the reason each was insufficient to establish causal relationship.
The Board thus finds that the reconsideration request received on April 15, 2014 was
untimely and failed to demonstrate clear evidence of error in OWCP’s May 9, 2012 denial of
appellant’s claim. Accordingly, the Board will affirm OWCP’s July 25, 2014 decision denying
his request.
Appellant notes that he had a witness to his injuries, but a witness statement will not
establish that he sustained an injury in the performance of duty. The issue upon which OWCP
denied his claim was causal relationship, which is a medical issue. The evidence needed to
establish causal relationship is rationalized medical opinion evidence, not the statement of a
witness. In prior decisions, OWCP reviewed the medical opinions provided by Dr. Wilson, the
orthopedic surgeon, and Dr. Barney, the osteopath. It explained the reasons those opinions were
not sufficient to establish causal relationship.
Appellant has submitted a number of medical reports on appeal. The Board’s review is
limited to the evidence that was before OWCP at the time of its April 21, 2014 nonmerit decision.8
The Board, therefore, lacks jurisdiction to review new evidence. The Board has conducted a
limited review of the medical evidence OWCP received following its May 9, 2012 merit decision,
and has found that this evidence does not establish, on its face, that the May 9, 2012 decision was
erroneous.
CONCLUSION
The Board finds that appellant’s reconsideration request was untimely filed and failed to
establish clear evidence of error.

8

20 C.F.R. § 501.2(c)(1).

5

ORDER
IT IS HEREBY ORDERED THAT the April 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 20, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, PATRICK HENRY
STATION, Newport News, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-91
Issued: July 22, 2009

Case Submitted on the Record

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

JURISDICTION
On October 15, 2008 appellant, through his representative, filed a timely appeal from the
December 19, 2007 merit decision of the Office of Workers’ Compensation Programs, which
awarded additional schedule compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than the one percent additional
impairment the Office awarded on December 19, 2007; and (2) whether the Office used the
correct pay rate. Appellant’s attorney asks the Board to review both the percentage impairment
and argues that appellant is entitled to a recurrent pay rate.
FACTUAL HISTORY
On June 10, 2003 appellant, then a 43-year-old city letter carrier, filed a claim alleging
that he sustained a right rotator cuff tear in the performance of duty. He first became aware of
the condition in June 2000. The Office accepted appellant’s claim for right rotator cuff tear.

Appellant stopped work on or about December 15, 2001 after undergoing right shoulder
surgery. The Office paid compensation for wage loss. On April 1, 2002 Dr. Loel Z. Payne,
appellant’s orthopedic surgeon, reported that appellant was doing well with his shoulder and was
finished with physical therapy and that April 1, 2002 was his first day back at full duty.
However, appellant continued to have complaints. On July 12, 2002 Dr. Payne stated that
appellant could continue working full duty as along as he did not carry his mailbag on either
shoulder. On March 19, 2004 he indicated that appellant was able to perform regular work with
no restriction other than to avoid carrying his mailbag on his right shoulder. On April 28, 2004
Dr. Payne reported that appellant appeared to have right shoulder subacromial bursitis. Yet, he
completed a duty status report indicating that appellant could perform regular work with no
restrictions whatsoever. On June 11, 2004, however, Dr. Payne referred appellant for diagnostic
testing to rule out a recurrent rotator cuff tear.
On October 1, 2004 the Office issued a schedule award for a seven percent impairment of
the right upper extremity. On April 21, 2006 it issued a schedule award for an additional three
percent impairment.
The Office authorized right shoulder revision surgery. On December 29, 2006 appellant
underwent right shoulder revision open rotator cuff repair and acromioplasty. Dr. Payne kept
appellant off work following surgery. He released appellant to limited duty effective
April 10, 2007.
On July 17, 2007 Dr. Payne evaluated appellant’s impairment. He noted 120 degrees
shoulder flexion, 31 degrees extension, 119 degrees abduction, 23 degrees adduction, 61 degrees
external rotation and 62 degrees internal rotation. He calculated that appellant had a total right
upper extremity impairment of 12 percent.
On September 13, 2007 appellant, who had received schedule awards for a total 10
percent impairment of his right upper extremity, filed a claim for an additional schedule award.
An Office medical adviser reviewed Dr. Payne’s evaluation and determined that appellant
had 11 percent impairment of the right upper extremity.
On December 19, 2007 the Office issued a schedule award for an additional one percent
impairment of the right upper extremity. It paid compensation based on appellant’s pay rate on
December 15, 2001, the date disability began.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of

1

5 U.S.C. § 8107.

2

permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.2
ANALYSIS -- ISSUE 1
According to the July 17, 2007 evaluation by Dr. Payne, the attending orthopedic
surgeon, appellant had 120 degrees right shoulder flexion. That represents four percent
impairment of the upper extremity.3 Appellant’s 31 degrees extension represents one percent
impairment.4 Abduction to 119 degrees represents three percent impairment.5 Adduction to 23
degrees represents one percent impairment.6 Appellant’s 61 degrees external rotation represents
no impairment.7 His 62 degrees internal rotation represents two percent impairment.8
Because the relative upper extremity value of each shoulder functional unit has been
taken into consideration in the impairment pie charts, the impairment values contributed by each
unit of motion are added to determine the impairment of the upper extremity due to abnormal
shoulder motion.9 Appellant therefore has 11 percent total impairment of the right upper
extremity due to loss of shoulder motion, or 1 percent more than he previously received. The
Board will affirm the Office’s December 19, 2007 decision on the issue of percentage
impairment.
LEGAL PRECEDENT -- ISSUE 2
Monetary compensation for disability or impairment due to an employment injury is paid
as a percentage of monthly pay.10 Section 8101(4) of the Act provides that “monthly pay” means
the monthly pay at the time of injury, or the monthly pay at the time disability begins, or the
monthly pay at the time compensable disability recurs if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,
whichever is greater.11

2

20 C.F.R. § 10.404 (1999).

3

A.M.A., Guides 476, Table 16-40 (5th ed. 2001).

4

Id.

5

Id. at 477, Table 16-43.

6

Id.

7

Id. at 479, Table 16-46.

8

Id.

9

Id. at 479.

10

See 5 U.S.C. §§ 8105, 8106, 8107.

11

Id. at § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

3

ANALYSIS -- ISSUE 2
Appellant’s attorney argues the Office used the rate of pay when disability began in 2001,
notwithstanding a recurrence of temporary total disability due to the 2006 revision surgery. A
recurrence of temporary total disability is not alone determinative of whether appellant may
receive a later and presumably greater pay rate. The record must also show that the recurrence of
compensable disability began more than six months after appellant resumed regular full-time
employment with the United States. So the question is whether appellant ever resumed regular
full-time employment with the United States, and if so, whether he did so more than six months
before his December 29, 2006 revision surgery.
Dr. Payne reported that, following his initial surgery on December 14, 2001, appellant’s
first day back at full duty was April 1, 2002. Appellant was finished with physical therapy and
was doing well with his right shoulder, but restrictions would follow. That July, Dr. Payne stated
that appellant could continue working full duty as along as he did not carry his mailbag on either
shoulder. Then in March 2004 he indicated that appellant’s only restriction was to avoid
carrying his mailbag on his right shoulder. However, on April 28, 2004 Dr. Payne reported that
appellant could perform regular work with no restrictions whatsoever.
So the medical record, at least, indicates that appellant may have resumed regular fulltime employment with the United States on April 1, 2002 and was released to resume regular
full-time employment with the United States on April 28, 2004. Whether that employment did
resume as a matter of fact is not particularly clear from the record and the Office does not seem
to have addressed the matter. The Board will therefore set aside the Office’s December 19, 2007
decision on the issue of pay rate and will remand the case for further development and an
appropriate final decision on whether appellant is entitled to a recurrent pay rate due to his
authorized revision surgery on December 29, 2006.
CONCLUSION
The Board finds that appellant has no more than the one percent additional impairment
the Office awarded on December 19, 2007. The Board also finds that further development is
warranted on whether the Office used the correct pay rate.

4

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this opinion.
Issued: July 22, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, BURLINGTON POST
OFFICE, Burlington, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-0944
Issued: March 23, 2022

Case Submitted on the Record

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

On June 1, 2021 appellant filed a timely appeal from a January 13, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as 21-0944.
On February 4, 2016 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries on January 20, 2016 when she fell down
steps while delivering mail. OWCP accepted the claim for contusion of right hip, contusion of left
hip, left side lumbago with sciatica, left hip trochanteric bursitis, and lumbar intervertebral disc
displacement. It authorized lumbar spinal decompression surgery, which occurred on
December 15, 2016. OWCP paid appellant wage-loss compensation intermittently on the
supplemental rolls and on the periodic rolls from May 28, 2016 until January 4, 2019.
In a report dated June 17, 2019, Dr. Mark Dumonski, a Board-certified orthopedic surgeon,
diagnosed left sacroiliac joint dysfunction and status post L3-4 decompression and fusion. He
opined that appellant had 30 percent permanent impairment of her back, which was based upon 25
percent permanent impairment for L3-4 fusion and 5 percent permanent impairment of the left
sacroiliac joint.
On September 3, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

On September 18, 2019 OWCP referred appellant to Dr. Chason S. Hayes, a Boardcertified orthopedic surgeon, for a permanent impairment rating. In a report dated October 11,
2019, Dr. Hayes diagnosed lumbar radiculopathy. He found appellant was at maximum medical
improvement (MMI). Using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), he found that appellant had an eight
percent permanent impairment of the lumbar spine. In an addendum dated November 5, 2019,
Dr. Hayes noted that he had been requested to recalculate appellant’s permanent impairment based
upon her peripheral nerve impairment. He concluded that under this method, as appellant had no
motor or sensory deficits she had zero percent permanent impairment.
In a report dated December 10, 2019, Dr. Arthur Harris, a Board-certified orthopedic
surgeon serving as the district medical adviser (DMA), noted his disagreement with Dr. Hayes’
October 11, 2019 impairment rating for lumbar spine impairment as this permanent impairment
rating was not based on The Guides Newsletter Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition (July/August 2009) (The Guides Newsletter) for rating spinal nerve impairments.
He explained that appellant did not have any neurologic deficit causing sensory or motor loss,
therefore she had a Class 0 placement using Table 2 of The Guides Newsletter resulting in zero
percent lower extremity permanent impairment, due to her lumbar radiculopathy.
By decision dated December 30, 2019, OWCP denied appellant’s claim for a schedule
award as the medical evidence of record was insufficient to support an impairment to a member or
function of the body.
In a report dated November 20, 2020, Dr. Dumonski diagnosed left sacroiliac joint
dysfunction. He explained that appellant’s 30 percent permanent impairment rating was based
upon her sacroiliac joint dysfunction, which caused pain to extend into her left leg.
On January 5, 2021 OWCP received appellant’s request for reconsideration of the
December 30, 2019 decision.
By decision dated January 13, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
The Board finds that OWCP did not make findings regarding the evidence appellant
submitted in support of the reconsideration request. 1 OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirement of FECA a nd its implementing
regulations.2 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
1
See R.C., Order Remanding Case, Docket No. 20-1671 (issued May 6, 2021); J.K., Order Remanding Case,
Docket No. 20-0556 (issued August 13, 2020); C.D., Order Remanding Case, Docket No. 20-0450 (issued August 13,
2020); T.B., Order Remanding Case, Docket No. 20-0426 (issued July 27, 2020).
2

See M.G., Docket No. 21-0893 (issued December 27, 2021); Order Remanding Case, W.D., Docket No. 20-0859
(issued November 20, 2020); Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); Order
Remanding Case, T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607(b).

2

a finding of fact and make an award for or against payment of compensation. 3 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 4 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.5
In the January 13, 2021decision, OWCP did not reference or consider the November 20,
2020 medical report of Dr. Dumonski that appellant submitted in support of her request for
reconsideration. It failed to analyze this evidence. OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirements of FECA and its
implementing regulations. 6 Section 8124(a) of FECA provides that OWCP shall determine and
make a finding of fact and make an award for or against payment of compensation. 7 Its regulations
at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of
fact and a statement of reasons. 8 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it. 9
The Board will therefore set aside OWCP’s January 13, 2021 decision and remand the case
for an appropriate decision on appellant’s reconsideration request, which considers the evidence
submitted. Accordingly,

3

5 U.S.C. § 8124(a).

4

20 C.F.R. § 10.126.

5

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).
6

See C.G., supra note 2; T.P., supra note 2; see also 20 C.F.R. § 10.607(b).

7

5 U.S.C. § 8124(a).

8

20 C.F.R. § 10.126.

9

Supra note 5.

3

IT IS HEREBY ORDERED THAT the January 13, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0702
Issued: July 15, 2016

Case Submitted on the Record

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

JURISDICTION
On February 26, 2016 appellant filed a timely appeal from a January 28, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish permanent impairment
causally related to the December 8, 1987 employment injury.
FACTUAL HISTORY
On December 14, 1987 appellant, then a 35-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 8, 1987 he experienced severe back pain when he
lifted heavy bags and bundles of mail, and placed mail in mailboxes. He began to work full-time
1

5 U.S.C. § 8101 et seq.

light duty. OWCP accepted appellant’s claim for degeneration of lumbar or lumbosacral
intervertebral disc and lumbosacral sprain. It paid leave buyback compensation. Appellant
continued to receive medical treatment. The record does not contain evidence of medical
treatment from January 3, 2011 to December 30, 2014.
On January 9, 2015 appellant filed a claim for a schedule award (Form CA-7). He
submitted a December 30, 2014 narrative report from Dr. Frank Seinsheimer, III, a Boardcertified orthopedic surgeon specializing in hand surgery, who related that appellant continued to
have constant low back pain since a 1987 work-related injury.
Upon examination,
Dr. Seinsheimer observed that appellant’s thoracic spine, lumbar spine, costovertebral angles,
posterior superior iliac spines, and sciatic notches were nontender. He reported that appellant’s
hips had full, painless range of motion. Straight leg raise testing was negative at 60 degrees
bilaterally and muscle strength was normal. Trendelenburg’s test was negative. Dr. Seinsheimer
reported that new x-rays of the lumbar spine showed slight decreased height at L3-4 with grade 1
retrolisthesis at L3-4. He also noted some calcification just posterior to his intervertebral space.
Dr. Seinsheimer diagnosed chronic lumbar pain.
In a letter dated March 16, 2015, OWCP advised appellant that the evidence submitted
was insufficient to establish his schedule award claim. It requested that he provide a medical
report from his treating physician addressing whether he reached maximum medical
improvement and whether his accepted conditions caused permanent impairment pursuant to the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). Appellant was afforded 30 days to submit this evidence.
On June 22, 2015 appellant returned the development letter with handwritten notations.
He indicated that his diagnosis was degenerative disease, lumbar sprain, and chronic lumbar
pain. Appellant also noted an impairment rating of five percent of the whole body.
In a decision dated August 27, 2015, OWCP denied appellant’s claim for a schedule
award. It found that the medical evidence of record failed to establish that he sustained
permanent impairment under the sixth edition of the A.M.A., Guides causally related to the
December 8, 1987 employment injury.
On November 10, 2015 OWCP received appellant’s request for reconsideration.
Appellant noted that he was enclosing a September 17, 2015 medical report by Dr. Seinsheimer
that contained the information OWCP requested and constituted competent medical evidence.
Appellant submitted a September 17, 2015 medical report from Dr. Seinsheimer who
related that appellant had received medical treatment since 1987 for degenerative disc disease
and chronic lumbar strain. Dr. Seinsheimer explained that appellant’s condition had reached
maximum medical improvement many years ago. He opined that according to the sixth edition
of the A.M.A., Guides, appellant had five percent whole body impairment for his chronic lumbar
sprain. Dr. Seinsheimer indicated that appellant’s permanent impairment was due to his
persistent low back pain.
By decision dated January 28, 2016, OWCP denied modification of the August 27, 2015
decision. It determined that Dr. Seinsheimer’s September 17, 2015 medical report failed to

2

establish that appellant sustained a compensable permanent impairment as a result of his
December 8, 1987 employment injury.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage of 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 the appropriate standards for evaluating schedule
losses.3
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.4 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.5
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.6 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables as outlined in The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment (July/August 2009 edition) of the sixth
edition.7

2

Id.

3

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

4

W.D., Docket No. 10-274 (issued September 3, 2010); Richard R. LeMay, 56 ECAB 341 (2005); Pamela J.
Darling, 49 ECAB 286 (1998).
5

K.H., Docket No. 09-341 (issued December 30, 2009); Thomas J. Engelhart, 50 ECAB 319 (1999).

6

Rozella L. Skinner, 37 ECAB 398 (1986).

7

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010); The Guides Newsletter is included as Exhibit 4.

3

ANALYSIS
OWCP accepted that appellant sustained degeneration of his lumbosacral intervertebral
disc and a lumbosacral sprain as a result of a December 8, 1987 employment injury. Appellant
worked full-time light duty. On January 9, 2015 appellant filed a claim for a schedule award.
In support of his claim, appellant submitted several reports from Dr. Seinsheimer. In
December 30, 2014 and September 17, 2015 reports, Dr. Seinsheimer related that appellant
continued to have constant low back pain since a 1987 work-related injury and received medical
treatment for degenerative disc disease and chronic lumbar pain. Upon examination, he
observed that appellant’s thoracic spine, lumbar spine, costovertebral angles, posterior superior
iliac spines, and sciatic notches were nontender. Straight leg raise testing was negative at 60
degrees bilaterally and Trendelenburg’s test was negative. Dr. Seinsheimer reported that new xrays of the lumbar spine showed slight decreased height at L3-4 with grade 1 retrolisthesis at
L3-4.
He also noted some calcification just posterior to his intervertebral space.
Dr. Seinsheimer diagnosed chronic lumbar pain. He explained that appellant’s condition had
reached maximum medical improvement many years ago. Dr. Seinsheimer opined that
according to the sixth edition of the A.M.A., Guides, appellant had five percent whole body
impairment8 for his chronic lumbar sprain and persistent low back pain from which he suffered.
Under OWCP procedures, medical evidence to support a schedule award should include a
report that shows that the claimant has reached a date of MMI, describe the impairment in
sufficient detail for the claims examiner to visualize the character and degree of disability, and
give a percentage of impairment under the A.M.A., Guides.9
Although Dr. Seinsheimer noted that appellant had reached maximum medical
improvement and opined that he had five percent whole body impairment according to the sixth
edition of the A.M.A., Guides, he did not reference the appropriate tables for rating impairment
for a spinal injury. As noted above, the sixth edition of the A.M.A., Guides does not provide for
a schedule award for injury to the spine.10 However, impairment of a scheduled member of the
upper or lower extremities is payable under FECA, if it originates from the spine.11 The
approach of rating impairment of the upper or lower extremities caused by a spinal injury is
provided in section 3.700 of OWCP procedures, which memorializes proposed tables as outlined
in a July/August 2009, The Guides Newsletter.12 The Board notes that Dr. Seinsheimer did not
reference or provide an evaluation in accordance with the July/August 2009, The Guides
Newsletter. He did not rate appellant’s impairment pursuant to The Guides Newsletter, and his

8

The Board notes that there is no statutory basis for the payment of a schedule award for whole body impairment
under FECA. See S.R., Docket No. 14-1103 (issued September 4, 2014); N.M., 58 ECAB 273 (2007).
9

See J.M., Docket No. 16-0224 (issued May 20, 2016).

10

Supra note 4.

11

Supra note 5.

12

Supra note 7.

4

rating is therefore insufficient to establish that appellant is entitled to a schedule award due to his
accepted lumbar injury.
Appellant bears the burden to prove permanent impairment for a schedule award based
upon the proper rating practices.13 As he has not submitted probative medical opinion evidence
from a physician addressing how his impairment correlated to the appropriate edition of the
A.M.A., Guides nor did the evidence of record explain the causal relationship between these
findings and his permanent impairment, the Board finds that appellant did not meet his burden of
proof to establish his claim to a schedule award.
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 permanent impairment causally related
to his December 8, 1987 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2016 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: July 15, 2016
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
13

Veronica Williams, 56 ECAB 357 (2005).

5