United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

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Appearances:
Manuel B. Madrid, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1000
Issued: March 25, 2022

Case Submitted on the Record

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

JURISDICTION
On June 21, 2021 appellant, through counsel, filed a timely appeal from an April 29, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

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

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of his oral argument request, appellant asserted that oral argument should be granted because it would provide
an opportunity to further explain his need for waiver of the overpayment. The Board, in exercising its discretion,
denies appellant’s request for oral argument because arguments on appeal can be adequately addressed in a decision
based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision
and not serve a useful purpose. As such, the oral argument request is denied and this decision is based on the case
record as submitted to the Board.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case. 4
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18,
2020 for which he was without fault because he concurrently received FECA wage -loss
compensation benefits and Social Security Administration (SSA) age-related retirement benefits
without appropriate offset; (2) whether it properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly found that appellant abandoned his request for a prerecoupment
hearing.
FACTUAL HISTORY
On December 7, 2017 appellant, then a 64-year-old maintenance mechanic, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral shoulder conditions
due to factors of his federal employment, including heavy lifting, and repetitive reaching and
pulling. He did not stop work. On May 10, 2019 OWCP accepted the claim for bilateral complete
rotator cuff tears or ruptures of the shoulders, calcific tendinitis of the right shoulder, and
impingement syndrome of the left shoulder.
On October 24, 2019 appellant filed a claim for compensation (Form CA-7) for disability
beginning October 28, 2019. He noted that he had applied for SSA age-related retirement benefits
at age 66 and received SSA benefits beginning on January 1, 2019 in the amount of $2,388.00 a
month. Appellant indicated that he was covered by the Federal Employees Retirement Sy stem
(FERS).
On October 28, 2019 appellant underwent a right shoulder arthroscopic rotator cuff repair,
biceps tenodesis, subacromial decompression, and extensive glenohumeral debridement.
On November 5, 2019 OWCP authorized wage-loss compensation on the supplemental
rolls effective October 28, 2019. It authorized wage-loss compensation on the periodic rolls
effective January 4, 2020.
On November 5, 2019 OWCP forwarded a FERS/SSA dual benefits calculation worksheet
to SSA. On February 19, 2020 the SSA provided OWCP with a February 14, 2020 FERS/SSA
dual benefit calculation form. The form indicated that appellant became entitled to retirement
benefits, effective November 2018, and that there were no federal earnings to offset.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the April 29, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

In a March 3, 2020 letter, OWCP informed SSA that it was aware that appellant was
entitled to retirement benefits effective November 2018. It further noted that he was receiving
SSA retirement benefits and that he was covered under FERS. OWCP requested additional
confirmation from SSA that there was no offset necessary.
On July 20, 2020 OWCP received a completed FERS/SSA dual benefit calculation form
from SSA, which reported that appellant had been in receipt of SSA age -related retirement benefits
since November 2018. SSA reported that: beginning November 2018, appellant’s monthly SSA
rate with FERS was $2,285.90 and without FERS was $1,129.80; beginning December 2018,
appellant’s monthly SSA rate with FERS was $2,349.80 and without FERS was $1,161.40;
beginning January 2019, appellant’s monthly SSA rate with FERS was $2,355.00 and without
FERS was $1,161.40; and beginning December 2019, appellant’s monthly SSA rate with FERS
was $2,392.70 and without FERS was $1,179.90.
OWCP completed a FERS offset calculation f orm on August 12, 2020. It calculated the
amount that it should have offset from appellant’s wage-loss compensation from October 28, 2019
through July 18, 2020. OWCP found that for the period October 28 through November 30, 2019,
the daily offset was $39.35 or $1,337.88 for 34 days, and for the period December 1, 2019 through
July 18, 2020, the daily offset was $39.98, or $9,235.94 for 231 days. It added the amounts for
each period and determined that it should have offset a total of $ 10,573.81 from his wage-loss
compensation.
In an August 12, 2020 letter, OWCP informed appellant that it would begin deducting
$1,119.51, the portion of SSA age-related retirement benefits attributable to his federal service,
from his periodic compensation benefits.
On August 13, 2020 OWCP notified appellant of its preliminary overpayment
determination that he had received an overpayment of compensation in the amount of $10,573.82
because it had failed to reduce his wage-loss compensation benefits for the period October 28,
2019 through July 18, 2020 by the portion of his SSA age-related retirement benefits that were
attributable to federal service. It further advised him of its preliminary determination that he was
without fault in the creation of the overpayment. OWCP provided appellant with an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20). Additionally,
it notified him that, within 30 days of the date of the letter, he could request a telephone conference,
a final decision based on the written evidence, or a prerecoupment hearing. 5
On September 11, 2020 appellant requested a prerecoupment hearing and completed an
overpayment action request form requesting waiver of recovery of the overpayment. He advised
that he had used the compensation on necessary expenditures that he would otherwise not have
been able to afford and could not repay the overpayment without financial hardship. On the Form
OWCP-20 appellant listed total monthly income of $7,497.00 and total monthly expenses of
$6,444.00. He listed real estate assets of $80,000.00 and $90,000.00, with mortgage balances of
$48,700.00 and $53,700.00, respectively, as well as a vacant lot worth $3,000.00. Appellant listed

5

By decision dated September 14, 2020, OWCP affirmed the August 13, 2020 preliminary overpayment findings.
On January 25, 2021 OWCP vacated a September 14, 2020 decision finalizing the preliminary overpayment
determination.

3

other assets totaling $5,200.00 including $500.00 in cash, $1,200.00 in checking, $500.00 in
savings, and stocks and bonds worth $3,000.00.
On March 5, 2021 OWCP’s hearing representative informed appellant of the time and
location of his prerecoupment hearing scheduled for April 15, 2021 at 2:45 p.m. Eastern Standard
Time (EST) regarding OWCP’s August 13, 2020 preliminary finding of the overpayment. It
mailed the notice to appellant’s last known address of record and provided instructions on how to
participate. Appellant did not appear at the hearing or request postponement of the hearing.
By decision dated April 29, 2021, OWCP’s hearing representative, after conducting a
review of the written record, found that appellant failed to attend the scheduled hearing and failed
to request postponement of the hearing. She, therefore, determined that appellant had abandoned
his hearing request. OWCP’s hearing representative further finalized the preliminary overpayment
determination, finding that appellant had received a $10,573.82 overpayment of compensation
from October 28, 2019 through July 18, 2020 because he had concurrently received FECA wageloss compensation and SSA age-related retirement benefits without the appropriate offset. She
also found that appellant was without fault in the creation of the overpayment, but denied waiver
of recovery of the overpayment as appellant’s monthly income of $7,497.00 exceeded his monthly
expenses of $6,444.14 by more than $50.00 and as he had assets of approximately $75,000.00
exceeding the base of $10,300.00 for an individual with a spouse. OWCP’s hearing representative
explained that, because he failed to meet both prongs of a two-prong test of whether recovery of
the overpayment would defeat the purpose of FECA, it was not necessary to consider waiver of
recovery on this basis. She further found appellant had not submitted evidence that he made any
financial decision that changed his position for the worse as a result of the receipt of the overpaid
benefits and, therefore, had not established that recovery of the debt would be against equity and
good conscience.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 6 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 7
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 8 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

4

benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $10,573.82 for the period October 28, 2019 through July 18, 2020
for which he was without fault, because he concurrently received FECA wage -loss compensation
benefits and SSA age-related retirement benefits without appropriate offset.
Appellant began receiving SSA age-related retirement benefits in November 2018. OWCP
paid appellant wage-loss compensation for total disability following his accepted employment
injury beginning October 28, 2019. As noted, a claimant cannot receive FECA compensation for
wage-loss and SSA age-related retirement benefits attributable to federal service for the same
period.10 Accordingly, the Board finds that fact of overpayment has been established.11
To determine the amount of the overpayment, the portion of SSA age-related retirement
benefits attributable to federal service must be calculated. OWCP received documentation from
SSA with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. SSA provided the SSA rates with FERS and without FERS for
specific periods from October 28, 2019 through July 18, 2020. OWCP set forth its calculations of
the amount that should have been offset during the relevant period based on informa tion provided
by SSA for the period October 28, 2019 through July 18, 2020.
The Board has reviewed OWCP’s calculation of dual benefits received by appellant for the
period October 28, 2019 through July 18, 2020 and finds that an overpayment of compensation in
the amount of $10,573.82 was created.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA 13 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of th e overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 14

9

FECA Bulletin No. 97-09 (February 3, 1997). See also N.B., Docket No. 18-0795 (issued January 4, 2019).

10

Supra note 8. See J.T., Docket No. 21-0010 (issued September 30, 2021); A.C., Docket No. 18-1550 (issued
February 21, 2019).
11

See S.H., Docket No. 20-1157 (issued December 23, 2020); K.H., Docket No. 18-0171 (issued August 2, 2018).

12

See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

13

Supra note 3.

14

J.T., supra note 10; G.L., Docket No. 19-0297 (issued October 23, 2019).

5

According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs sub stantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant not at fault in the creation of the overpayment, waiver must be
considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 16 It considered his
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA.
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. OWCP found that, after its review
of appellant’s financial documents of record, he had total current monthly income of $7,497.00
and total monthly expenses of $6,444.14, which left more than $1,052.00 of disposable income
with which to repay the debt. As appellant’s monthly income exceeds his ordinary and necessary
living expenses by more than $50.00, the Board finds that he did not need substantially all of his
income for ordinary and necessary living expenses.
As appellant failed to establish that recovery of the overpayment of compensation would
either defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery of the overpayment. 17
LEGAL PRECEDENT -- ISSUE 3
A claimant dissatisfied with a decision on his or her claim is entitled, upon timely request,
to a hearing before an OWCP representative. 18 Unless otherwise directed in writing by the
claimant, the hearing representative will mail a notice of the time, place, and method of the oral
15

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide that assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) and (3) (September 2018).
16

Id. at § 10.436.

17

Supra note 15. With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases
where OWCP seeks recovery from continuing compensation benefits. A.S., Docket No. 20-1314 (issued February 23,
2021); L.L., Docket No. 19-0097 (issued March 20, 2020); A.B., Docket No. 18-0915 (issued October 24, 2018). As
appellant was not in receipt of continuing wage-loss compensation at the time of OWCP’s final overpayment
determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case. See
id.; Miguel A. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
18

Supra note 3 at § 8124(b).

6

hearing to the claimant and to any representative at least 30 days before the scheduled hearing
date.19
A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned
only under very limited circumstances. 20 With respect to abandonment of hearing requests,
Chapter 2.1601(g) of OWCP’s procedures21 and section 10.622(f) of its regulations 22 provide in
relevant part that failure of the claimant to appear at the scheduled hearing, failure to request a
postponement, and failure to request in writing within 10 days after the date set for the hearing that
another hearing be scheduled shall constitute abandonment of the request for a hearing. 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.23
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly determined that appellant abandoned his request for
a prerecoupment hearing.
OWCP’s Branch of Hearings and Review received appellant’s September 11, 2020 request
for a telephonic prerecoupment hearing. In a March 5, 2021 letter, OWCP provided appellant 30
days written notice of the hearing, which was scheduled for April 15, 2021 at 2:45 p.m. EST. It
mailed the March 5, 2021 notice of hearing to appellant’s last known address of record, and it was
not returned as undeliverable. Absent evidence to the contrary, a notice mailed in the ordinary
course of business is presumed to have been received by the intended recipie nt.24 The presumption
is commonly referred to as the “mailbox rule.”25 It arises when the record reflects that the notice
was properly addressed and duly mailed. 26 The current record is devoid of evidence to rebut the
presumption that appellant received OWCP’s March 5, 2021 notice of hearing.
The hearing notice was properly addressed to appellant’s last known address of record.27
Appellant did not call-in as instructed for the April 15, 2021 scheduled telephonic hearing and

19

Supra note 8 at § 10.617(b).

20

R.L., Docket No. 20-0186 (issued September 14, 2020); C.Y., Docket No. 18-0263 (issued September 14, 2018);
Claudia J. Whitten, 52 ECAB 483 (2001).
21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(g) (October 2011).
22

Supra note 9 at § 10.622(f).

23

Id.

24

C.Y., supra note 20; Kenneth E. Harris, 54 ECAB 502 (2003).

25

Id.

26

Id.

27

Id.; K.F., Docket No. 17-1035 (issued August 24, 2017).

7

there is no indication that he requested postponement of the telephonic hearing. 28 Moreover, he
did not submit a written request within the 10 days after the date set for the telephonic hearing and
request that another telephonic hearing be scheduled. Under the circumstances, OWCP’s hearing
representative properly found that appellant abandoned his telephonic hearing request. 29
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$10,573.82 for the period October 28, 2019 through July 18, 2020 for which he was without fault,
because he concurrently received FECA wage-loss compensation benefits and SSA age-related
retirement benefits without appropriate offset. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment and that OWCP properly determined that appellant
abandoned his request for a prerecoupment hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 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

28

20 C.F.R. § 10.622(c).

29

C.Y., supra note 20; M.V., Docket No. 17-1795 (issued March 1, 2018).

8


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

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

Docket No. 21-1049
Issued: February 1, 2022

Case Submitted on the Record

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

JURISDICTION
On June 7, 2021 appellant filed a timely appeal from a May 4, 2021 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days has elapsed
from OWCP’s last merit decision, dated June 9, 2020, to the filing of this appeal, pursuant to the

1

The Board notes that, during the pendency of this appeal, OWCP issued a June 23, 2021 decision, which again
denied appellant’s request for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a). The Board
and OWCP may not simultaneously exercise jurisdiction over the same issue(s). 20 C.F.R. § § 501.2(c)(3), 10.626;
see C.G., Docket No. 20-0784 (issued May 11, 2021); see J.W., Docket No. 19-1688, n.1 (issued March 18, 2020);
J.A., Docket No. 19-0981, n.2 (issued December 30, 2019); Arlonia B. Taylor, 44 ECAB 591 (1993) (Alternate
Member, Groom concurring in part and dissenting in part); Douglas E. Billings, 41 ECAB 880 (1990). Consequently,
OWCP’s March 16, 2020 decision is set aside as null and void.

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case. 3
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
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On April 27, 1988 appellant, then a 27-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she was robbed and raped by an unknown assailant while in the
performance of duty. OWCP accepted the claim for post-traumatic stress disorder, anxiety, and
depression.
On April 16, 2002 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a May 30, 2002 decision, OWCP denied appellant’s claim for a schedule award, finding
that she had not submitted evidence establishing permanent impairment of a scheduled member or
function of the body. It also explained that there was no provision under FECA for payment of a
schedule award due to permanent impairment from a psychological condition. On July 22, 2002
appellant filed an appeal from the May 30, 2002 decision. In a December 17, 2002 decision, the
Board affirmed OWCP’s May 30, 2002 decision. 5 The Board found that under FECA and its
implementing regulations there was no provision entitling a claimant to a schedule award for an
accepted psychiatric condition.
On October 15, 2007 appellant filed another Form CA-7 claim for a schedule award. In a
letter dated November 9, 2007, OWCP again advised appellant that, because her claim was only
accepted for an emotional condition, she was not entitled to a schedule award.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
4

Docket No. 14-1175 (issued October 27, 2014); Docket No. 13-1316 (issued December 12, 2013); Docket No.
11-2102 (issued April 6, 2012), petition for recon. denied, Docket No. 11-2102 (issued July 21, 2012); Docket No.
05-1805 (issued October 2, 2006); Docket No. 02-1971 (issued December 17, 2002).
5

Docket No. 02-1971 (issued December 17, 2002).

2

On January 8 and 15, 2019 appellant again filed Form CA-7 claims for a schedule award.
In a letter dated January 17, 2019, OWCP informed appellant that, in order to receive a
schedule award, the medical evidence must support a finding that the accepted injury resulted in a
permanent impairment involving total or partial loss of use of a member or function of the body
listed in 5 U.S.C. § 8107 or 20 C.F.R. § 10.404. It informed appellant that no action could be taken
on her claim for a schedule award.
On March 9, 2019 appellant filed another Form CA-7 schedule award claim.
In support of her claim, appellant resubmitted an April 2, 2003 report from Dr. A.J. Morris,
a family physician, who referred to the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment, (A.M.A., Guides)6, and opined that appellant had five
percent permanent impairment due to her accepted PTSD condition.
By decision dated January 23, 2020, OWCP denied appellant’s schedule award claim. It
again found that the evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body pursuant to 5 U.S.C. § 8107.
On February 28, April 3, and May 13, 2020 appellant requested reconsideration. By
decisions dated March 25, April 13, and June 9, 2020, OWCP denied modification of its prior
decisions.
On May 13, 2020 appellant requested reconsideration. By decision dated June 9, 2020,
OWCP denied modification. It again found that the medical evidence of record did not support a
permanent impairment of a scheduled member or function of the body pursuant to 5 U.S.C. § 8107.
On November 23, 2020 appellant again requested reconsideration. By decision dated
November 30, 2020, OWCP denied appellant’s request for reconsideration of the merits of her
claim under 5 U.S.C. § 8128(a).
On April 21, 2021 appellant again requested reconsideration.
By decision dated May 4, 2021, OWCP denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 7

6

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

7

5 U.S.C. § 8128(a); see A.A., Docket No. 20-1564 (issued August 30, 2021); J.C., Docket No. 20-0614 (issued
February 10, 2021); L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previou sly considered by
OWCP.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 9 If it chooses to grant reconsideration, OWCP
reopens and reviews the case on its merits. 10 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 11
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).
The underlying issue in this case is whether appellant has established entitle ment to a
schedule award for her accepted conditions of PTSD, anxiety, and depression. Appellant’s June 7,
2021 timely request for reconsideration neither alleged nor demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Additionally, the Board finds that she did not
advance a relevant legal argument not previously considered by OWCP. Appellant is not entitled
to further review of the merits of her claim based on either the first or second above -noted
requirements under 20 C.F.R. § 10.606(b)(3).12
The Board further finds that appellant has not provided any relevant and pertinent new
evidence in support of her request for reconsideration. As appellant failed to provide relevant and

8

20 C.F.R. § 10.606(b)(3); see D.G., Docket No. 20-1203 (issued April 28, 2021); see also L.G., Docket No.
09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
9

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit 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.
10

20 C.F.R. § 10.608(a); D.J., Docket No. 21-0371 (issued November 24, 2021); see also M.S., 59 ECAB
231 (2007).
11

Id. at § 10.608(b); D.J., id.; E.R., Docket No. 09-1655 (issued March 18, 2010).

12

P.S., Docket No. 20-1090 (issued September 9, 2021); A.G., Docket No. 20-0290 (issued June 24, 2020); C.B.,
Docket No. 18-1108 (issued January 22, 2019).

4

pertinent new evidence, she is not entitled to a merit review based on the third requirement under
20 C.F.R. § 10.606(b)(3).13
The Board accordingly finds that appellant did not meet any of the requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.14
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, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 1, 2022
Washington, DC

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

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

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

13

P.S., id.; see also G.J., Docket No. 20-0071 (issued July 1, 2020); V.Q., Docket No. 19-1309 (issued January 3,
2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).
14

M.O., 21-0459 (issued December 29, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tomah WI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-134
Issued: April 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On October 25, 2012 appellant filed an application for review of an Office of Workers’
Compensation Programs’ (OWCP) decision dated August 6, 2012 which affirmed a decision
denying appellant’s claim for a schedule award.1
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,2 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following an April 20, 2012
decision that denied appellant’s claim for a schedule award, appellant requested a review of the
written record on April 25, 2012. Appellant also submitted additional evidence. This included a
new May 4, 2012 report from Dr. Steven Kirkhorn, a physiatrist, who performed a new
examination and opined that appellant had seven percent permanent impairment of the right leg
in accordance with the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (A.M.A., Guides)3 In his report, Dr. Kirkhorn rated
1

On September 25, 2009 appellant injured her right ankle while using a lift to move a patient. OWCP accepted
right ankle sprain and authorized arthroscopic surgery.
2

41 ECAB 548 (1990).

3

A.M.A., Guides (6th ed. 2008).

appellant’s impairment under the Foot and Ankle Regional Grid, Table 16.2, and provided an
explanation of his calculation referencing the grade modifiers for functional history, clinical
studies and physical examination under Table 16.7 and 16.8.4 He further noted that posttraumatic arthritis was not an accepted condition and was not considered in the impairment
rating. This was received by OWCP on May 14, 2012. In the August 6, 2012 decision, an
OWCP hearing representative denied appellant’s claim for a schedule award and found that
Dr. Kirkhorn’s August 16, 2011 report, which found 18 percent impairment of the right leg, was
insufficient to establish permanent impairment as it considered post-traumatic arthrosis which
was not an accepted condition. OWCP found that the second opinion physician and the medical
adviser’s reports provided rationale supporting that appellant did not have permanent impairment
of the right lower extremity. The hearing representative did not note receipt or consideration of
the May 4, 2012 report from Dr. Kirkhorn.
The Board finds that OWCP, in its August 6, 2012 decision, did not review the May 4,
2012 report from Dr. Kirkhorn that was received by OWCP on May 14, 2012. For this reason,
the case will be remanded to OWCP to enable it to properly consider all the evidence submitted
at the time of the August 6, 2012 decision. Following such further development as OWCP
deems necessary, it shall issue an appropriate merit decision on the claim.
IT IS HEREBY ORDERED THAT the August 6, 2012 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: April 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4

Id. at 517.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, ALBANY GENERAL
MAIL FACILITY, Albany, NY, Employer
__________________________________________

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

Docket No. 06-1639
Issued: June 28, 2007

Case Submitted on the Record

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

JURISDICTION
On July 12, 2006 appellant filed a timely appeal from a schedule award decision of the
Office of Workers’ Compensation Programs dated June 7, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(1), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than an 11.25 percent monaural, left ear, loss of
hearing for which he received a schedule award. On appeal, appellant contends that he is entitled
to a schedule for a binaural loss of hearing.
FACTUAL HISTORY
On March 17, 2000 appellant, then a 54-year-old mechanic, filed an occupational disease
claim, alleging hearing loss caused by exposure to noise at the employing establishment. He
provided the results of an audiogram conducted by the employing establishment on March 8,
2000, showing losses in the right ear of 20, 5, 10 and 40 and losses in the left ear of 25, 20, 25
and 60, respectively, for frequencies of 500, 1,000, 2,000 and 3,000 cycles per second (cps).

Appellant reported ringing in his ears and fluctuating hearing loss. The test was administered by
Millie Velez, who provided an assessment of moderate bilateral high frequency hearing loss. He
also submitted information related to noise monitoring and an Occupational Safety and Health
Administration (OSHA) noise violation at the employing establishment in January 2000.
The Office referred appellant for a second opinion with Dr. Edward C. Brandow, Jr., a
Board-certified otolaryngologist, and Marilyn Franstov, an audiologist. In the statement of
accepted facts, the Office noted that appellant performed maintenance and preventive
maintenance of mail processing equipment and building equipment. The Office noted that he
was not exposed to noise levels above permissible OSHA limits.
Based on an audiogram conducted by Ms. Franstov on June 16, 2000, Dr. Brandow found
losses of 10, 5, 5 and 45 decibels (dB) in the right ear and 15, 10, 10 and 55 decibels in the left
ear. Because these losses averaged less than 25 decibels per ear, he reported a binaural hearing
loss of 0 percent. Dr. Brandow indicated that appellant had bilateral high-tone sensorineural
hearing loss. He stated that the configuration of the audiogram was consistent with acoustic
trauma but that it was “difficult to state a causal relationship when there [was] no audiogram for
comparison.” Dr. Brandow also indicated that he believed appellant’s tinnitus was related to
noise exposure at the employing establishment.
By decision dated August 3, 2000, the Office accepted appellant’s claim for hearing loss
due to employment-related noise exposure. It applied the standards of the American Medical
Association Guides to the Evaluation of Permanent Impairment (fourth edition) and found that
appellant’s hearing loss was not severe enough to be ratable and, therefore, he was not entitled to
compensation. The Office also denied the claim for additional medical benefits because it found
that hearing aids would not benefit him.
On December 2, 2004 appellant filed a claim for a schedule award. On January 31, 2005
the Office requested additional medical information from appellant and his doctor. Appellant
provided an electronically signed otolaryngology progress report from physician’s assistant
David Kerr, dated July 9, 2004. The report indicated that an audiogram done that day “was
normal or boarder-line normal to about 2 kHz [kilohertz] where it drops off to about 60 dB at 3
kHz, 4 kHz, 6 kHz and 8 kHz.” Appellant also provided an electronically signed progress report
from Mr. Kerr dated July 18, 2005. The 2005 report indicated that the audiogram results were
unchanged from the 2004 audiogram. All three of these records indicated that appellant
complained of tinnitus.
On May 28, 2006 the Office medical consultant, Dr. Ira Rothfeld, a Board-certified
otolaryngologist, reviewed the statement of accepted facts and the audiograms and calculated
appellant’s hearing loss. He found that July 9, 2004 was the date of maximum medical
improvement. Based on the data from the 2004 audiogram and the procedures in the A.M.A.,
Guides, Dr. Rothfeld found 0 percent hearing loss in the right ear, 11.25 percent hearing loss in
the left ear and binaural hearing loss of 1.88 percent. He opined that, based on his review of the
record, appellant’s hearing loss was related to his employment. Dr. Rothfeld noted the 2004

2

audiogram as showing losses of 15, 10, 10 and 151 in the right ear and 20, 20, 25 and 65 in the
left ear for frequencies of 500, 1,000, 2,000 and 3,000 cps.
By decision dated June 7, 2006, the Office granted appellant a schedule award for an
11.25 percent monaural, left ear, hearing loss for 5.85 weeks of compensation for the period
July 9 to August 18, 2004.2
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss is to be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.7 Then, the fence of 25 decibels is deducted because,
as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.8 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the

1

The Board notes that his number appears to be a typo as the last 15 decibels should read 55.

2

Although the June 7, 2006 award of compensation granted appellant a schedule award for an 11.25 percent
monaural, right ear, hearing loss, based on Dr. Rothfeld’s computations, this should be for the left ear.
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.404.

5

Id.

6

A.M.A., Guides 226-51 (5th ed. 2001).

7

Id.

8

Id.

9

Id.

3

amount of the binaural hearing loss.10 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.11
ANALYSIS
Although Mr. Kerr, a physician’s assistant, interpreted the July 9, 2004 audiogram,
physicians’ assistants are not physicians under the Act and their opinions have no probative
medical value.12 The Office properly referred the record to the Office medical consultant,
Dr. Rothfeld, for his opinion and application of the Office’s protocols for computing the
percentage of hearing loss.
In reviewing appellant’s July 9, 2004 audiogram, Dr. Rothfeld noted that the frequency
levels recorded at 500, 1,000, 2,000 and 3,000 cps for the right ear reveal decibel losses of 15,
10, 10 and 55, respectively, for a total of 90 decibels. When divided by 4, the result is an
average hearing loss of 22.5 decibels. The average loss of 22.5 is reduced by the “fence” of 25
decibels to equal 0, which when multiplied by the established factor of 1.5, results in a 0 percent
monaural hearing loss for the right ear. Testing for the left ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cps revealed decibel losses of 20, 20, 25 and 65, respectively, for a total
of 130 decibels. When the above-noted formula is utilized, the result is an 11.25 percent
monaural hearing loss for the left ear. Consequently, the evidence of record does not establish
that appellant has greater than a 0 percent right ear loss and an 11.25 percent left ear loss.
Under the Act, the maximum award for monaural hearing loss is 52 weeks of
compensation.13 The 11.25 percent loss of hearing in the left ear entitled appellant to an 11.25
percent of 52 weeks or 5.85 weeks of compensation. The Office correctly determined
appellant’s schedule award to be 5.85 weeks of pay. He is entitled to no more under the Act.
CONCLUSION
Appellant has not demonstrated that he has more hearing loss than 11.25 percent in his
left ear, for which he received a schedule award.

10

Id.

11

Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
12

5 U.S.C. § 8101(2); see Ricky S. Storms, 52 ECAB 349 (2001).

13

5 U.S.C. § 8107(c)(13)(A).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 7, 2006 is affirmed.
Issued: June 28, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 13-1264
Issued: December 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 30, 2013 appellant filed a timely appeal from a November 9, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) that denied her claim for an additional
schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the decision.
ISSUE
The issue is whether appellant has left upper extremity impairment greater than
19 percent and right upper extremity impairment greater than 9 percent.
On appeal, appellant asserts that she was given improper notice of the appointment for an
OWCP second-opinion evaluation and that the report of OWCP referral physician contained
errors.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a July 12, 2012 decision, the Board
found that appellant was not entitled to augmented compensation for her granddaughter. The
Board further found that OWCP did not follow the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (hereinafter)2
in developing the medical evidence before granting a schedule award on November 1, 2011.3
The Board remanded the case to OWCP for a proper impairment analysis of her upper
extremities under the A.M.A., Guides. On remand, OWCP was directed to combine her three
files to be followed by further development of the medical record in accordance with the
A.M.A., Guides.4 The facts of the previous Board decision are incorporated herein by reference.
By report dated May 31, 2012, Dr. Eric E. Wegener, an attending physician, noted
appellant’s complaint of left ring finger trigger. Physical examination demonstrated clicking,
popping, locking and crepitus over the left ring finger. Dr. Wegener recommended surgical
release. On July 24, 2012 OWCP combined appellant’s file numbers xxxxxx181, xxxxxx756
and xxxxxx096, with the former becoming the master file. On September 12, 2012 Dr. Wegener
requested approval for hand surgery.
In August 2012, OWCP informed appellant that a second opinion would be obtained. On
September 20, 2012 it informed her that an appointment was scheduled on October 4, 2012 with
Dr. Byron Thomas Jeffcoat, a Board-certified orthopedic surgeon. In correspondence dated
September 28, 2012, appellant noted that she would attend the scheduled examination and
requested a copy of her case record and the statement of accepted facts.
In an October 4, 2012 report, Dr. Jeffcoat noted his review of the medical record,
including appellant’s surgical history. On physical examination, he noted full range of motion of
the shoulders and full external and internal rotation of the elbows and wrists. Phalen’s and
Tinel’s tests were negative bilaterally at the elbow and wrist. Appellant had 85 degrees of
flexion at the metacarpophalangeal joints of all digits of the left and right hand and 90 degrees of
flexion of the proximal interphalangeal joints of both hands. The distal interphalangeal joints
were held at extension. Dr. Jeffcoat indicated that appellant had full extension of all digits in her
2

A.M.A., Guides (6th ed. 2008).

3

On February 20, 1997 appellant, a nurse, claimed a traumatic injury to her elbows adjudicated by OWCP under
file number xxxxxx181. A May 21, 2004 occupational disease claim was adjudicated under file number xxxxxx756
and accepted for right shoulder sprain/supraspinatus tear. On May 6, 2005 appellant had arthroscopic
decompression of a right rotator cuff tear. On August 29, 2005 she received a schedule award for seven percent
impairment of the left arm due to the accepted left lateral epicondylitis. Under file number xxxxxx096, OWCP
accepted an August 2006 claim for bilateral carpal tunnel syndrome and bilateral trigger finger. Appellant returned
to modified duty on December 26, 2006. In a March 14, 2007 decision, OWCP found that her actual earnings in the
modified job represented her wage-earning capacity with no loss. On June 30, 2008 appellant underwent a left
index finger release and returned to modified duty. On March 10, 2009 she was granted a schedule award for two
percent right arm impairment due to her right shoulder condition. In a November 1, 2011 decision, OWCP noted
appellant’s previous schedule awards and issued awards for an additional 7 percent right arm impairment and 12
percent left arm impairment.
4

Docket No. 12-448 (issued July 12, 2012).

2

hands, that wrist extension was normal bilaterally and that maximum medical improvement was
reached six weeks after each surgery.
Dr. Jeffcoat advised that, in accordance with the sixth edition of the A.M.A., Guides,
under Table 15-2, Digital Regional Grid, appellant had a Class 0 impairment due to trigger digits
because she had no residual findings and, therefore, a zero impairment. With regard to
appellant’s right upper extremity, he noted that in 2006 electrodiagnostic testing showed mild
carpal tunnel syndrome which indicated that, under Table 15-23, Entrapment/Compression
Neuropathy Impairment, she had no impairment. With regard to left carpal tunnel syndrome,
Dr. Jeffcoat indicated that previous electrodiagnostic testing revealed severe carpal tunnel
syndrome and that, under Table 15-23, appellant had a grade 3 modifier for test results and for
physical findings and a grade 2 modifier for history. He applied an appropriate rating process
and concluded that she had seven percent left upper extremity impairment due to carpal tunnel
syndrome.
In an October 31, 2012 report, Dr. H.P. Hogshead, a Board-certified orthopedic surgeon
and OWCP medical adviser, reviewed the record.5 He indicated that Dr. Jeffcoat found very
little agreement with prior examiners and, while his report was brief, it appeared to be authentic
and factual. Dr. Hogshead agreed with Dr. Jeffcoat’s conclusion that appellant had no
impairment of the right upper extremity and a seven percent on the left. He concluded that she
had no additional upper extremity impairment.
On November 7, 2012 OWCP authorized additional hand surgery.
By decision dated November 9, 2012, OWCP noted that appellant had previously
received upper extremity schedule awards totaling 9 percent on the right side and 19 percent on
the left. It found that she was not entitled to an additional schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
5

Supra note 3.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

3

and Health (ICF).9 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).11
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.12 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale
for the percentage of impairment specified.14
ANALYSIS
The Board finds that appellant has no greater than 9 percent impairment of her arm right
or 19 percent of the left arm, for which she has received schedule awards. The accepted
conditions are left lateral epicondylitis, right shoulder sprain/supraspinatus tear, bilateral carpal
tunnel syndrome and bilateral trigger finger.
The Board notes that neither Dr. Wegener nor Dr. Jeffcoat found that appellant had
impairment due to a shoulder or elbow condition. Both physicians agreed that, in accordance
with Table 15-23, Entrapment/Compression Neuropathy Impairment,15 she had a seven percent
impairment of the left upper extremity due to carpal tunnel syndrome. There is, therefore, no
contemporaneous medical evidence of record to support that appellant had any additional upper
extremity impairment due to a shoulder or elbow condition in 2012 or greater than a seven
percent left upper extremity impairment due to carpal tunnel syndrome.
9

A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 385-419.

11

Id. at 411.

12

Id. at 449.

13

Id. at 448-50.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
15

A.M.A., Guides, supra note 2 at 449.

4

Regarding the accepted right carpal tunnel syndrome, Dr. Wegener advised that appellant
had five percent impairment. He indicated that she had modifiers 2 for test findings and history
and 1/2 for physical examination. Dr. Wegener, however, did not explain why he chose these
modifiers. His finding regarding right carpal tunnel syndrome is, therefore, of diminished
probative value. Dr. Jeffcoat found that appellant had no impairment, noting that presurgery
testing indicated only mild carpal tunnel syndrome and she reported that she was doing well.
Dr. Hogshead, the medical adviser, agreed with Dr. Jeffcoat’s conclusion. The record supports
that appellant had no additional impairment due to right carpal tunnel syndrome.
Regarding the impairments for the accepted bilateral trigger fingers, Dr. Wegener
selected range of motion measurements. The A.M.A., Guides provides that, under specific
circumstances, range of motion may be selected as an alternative approach in rating upper
extremity impairment and cautions that an impairment rating that is calculated using range of
motion stands alone and may not be combined with a diagnosis-based impairment.16 However,
section 15.7a indicates that range of motion should be measured after a warm up, that the
maximum range of motion should be measured at least three times and that the maximum
measurement is used to determine range of motion measurement.17 There is no indication that
the digital range of motion measurements for each joint reported by Dr. Wegener followed the
procedure outlined in the A.M.A., Guides. As such, his opinion is of reduced probative value.
Dr. Jeffcoat advised that appellant had no digital impairment, finding full digital range of motion
on physical examination. He concluded that, under Table 15-2, Digital Regional Grid, appellant
had a Class 0 impairment.
Appellant was previously granted additional awards for 7 percent right upper extremity
impairment and an additional 12 percent impairment on the left. These awards were based on
impairments related to diagnoses of bilateral carpal tunnel syndrome and trigger fingers and were
in addition to the August 29, 2005 schedule award for a seven percent impairment of the left arm
due to lateral epicondylitis and a schedule award for a two percent impairment on March 10,
2009 due to her accepted right shoulder condition. Benefits payable under section 8107(c) of
FECA shall be reduced by the period of compensation paid under the schedule for an earlier
injury if compensation in both cases is for impairment of the same member or function or
different parts of the same member or function and that latter impairment in whole or in part
would duplicate compensation payable for the preexisting impairment.18
There is no additional evidence in conformance with the sixth edition of the A.M.A.,
Guides, that supports that appellant has upper extremity impairments greater than 19 percent on
the left side or 9 percent on the right. As to the reported left ring finger trigger diagnosed by
Dr. Wegener and for which additional surgery was authorized, this evidence reflects that this

16

Id. at 390.

17

Id. at 464.

18

20 C.F.R. § 10.404(c)(1-2) (2011).

5

finger had not reached maximum medical improvement. It is well established that a schedule
award cannot be paid until a claimant has reached maximum medical improvement.19
As to appellant’s argument on appeal that she was provided insufficient notice for the
second-opinion evaluation, the record indicates that in August 2012 OWCP informed her that an
examination would be scheduled. OWCP informed her on September 20, 2012 that an
examination had been scheduled on October 4, 2012 with Dr. Jeffcoat. In correspondence dated
September 28, 2012, appellant informed OWCP that she would attend the scheduled appointment
and requested copies of her case record, the statement of accepted facts and questions provided
Dr. Jeffcoat. Given this and her appearance at the scheduled examination, the record does not
reflect that improper notice was given for the evaluation.
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 no greater than 19 percent impairment of the left upper
extremity and no greater than 9 percent impairment on the right.

19

D.S., Docket No. 08-885 (issued March 17, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the November 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE INTERIOR,
GEOLOGICAL SURVEY, JEAN LAFITTE
NATIONAL HISTORICAL PARK &
PRESERVE, Marrero, LA, Employer
__________________________________________

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

Docket No. 16-1038
Issued: December 23, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 20, 2016 appellant filed a timely appeal from a March 15, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant was an employee of the United States under 5 U.S.C.
§ 8101(1) at the time of the alleged July 30, 2015 incident.

1

The Board notes that appellant submitted additional evidence for the first time on appeal. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision, and
therefore this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1). Dennis E. Maddy, 47
ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 2, 2016 appellant, then a 22-year-old student contractor, filed a traumatic
injury claim (Form CA-1). He stated that on July 30, 2015 he was walking to a sample site and a
big black wasp stung him multiple times.
By letter dated February 5, 2016, OWCP informed appellant that he needed to submit
evidence in support of his claim and provided him 30 days to submit this evidence. On the same
date, it asked the employing establishment to provide information addressing whether he was a
contractor or an employee. OWCP noted in the request to the employing establishment that not
every contractor rendering service to the Federal Government was necessarily an “employee.”
Therefore, it specifically requested that the employing establishment address questions about
appellant’s status as a contractor: whether the employing establishment had any right to control
or direct how his work was to be performed; whether the employing establishment was required
to furnish tools or equipment; the period of time the work relationship was to exist; the manner
in which payment for the employing establishment’s services was determined; and whether the
activity in which the employing establishment was engaged was a regular and continuing activity
of the employing establishment.
On February 23, 2016 appellant provided a statement and a partial response to OWCP’s
queries. He indicated that on July 30, 2015 he was working in the national park with two
employees of the employing establishment’s Wetland and Aquatic Research Center, collecting
leaf litter traps. Appellant stated that, as he neared the traps, he was stung by a black wasp. He
indicated that he felt a hot stabbing sensation on his right triceps, and then his left triceps, and
that the wasp stung him a third and final time on his upper lip. Appellant noted that his arms and
lips began to swell. He explained the delay in filing his claim by noting that he did not have a
registered profile or access to government computer. Appellant noted that he was treated at the
medical center approximately 30 minutes after the sting. He indicated that he was a student
contractor, that he started the assignment on July 7, 2015, and reported to his supervisor for all of
his tasks. Appellant noted that all his tools and equipment were provided by the employing
establishment. He stated that the length of his contract was two years, but noted that the
employing establishment had the right to discharge him at any time despite the length of his
contract. Appellant indicated that his supervisor explained how all the work he did was to be
performed, where all the samples must be placed, and how all the data was to be recorded. He
noted that his salary was determined by the government and his timesheets had to be submitted
every two weeks. Appellant noted that he worked five days a week from 8:00 a.m. to 4:00 p.m.
He stated that he was not required to take an oath of office. Appellant submitted bills from his
treatment on July 30, 2015.
The employing establishment also responded to OWCP’s queries on February 23, 2016.
It submitted the procurement order for services (Form 347), which noted that appellant was a
student service contractor with a period of performance from July 7 to September 30, 2015, and
listed his technical liaison. Appellant’s estimated hours of work were not to exceed 40 hours per
week. He was paid $14.71 per hour, and he was to submit biweekly invoices. The order
indicated that as appellant was a self-employed contractor, he was exempt from Fair Labor
Standards Act and Service Contract Act. Accordingly, appellant was to be paid a basic hourly
rate with no overtime premium. He was to be paid only for hours worked and would not be paid
for any nonwork days. Appellant’s job assignment included assisting in acquiring biological and
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environmental data, in maintaining seed bank experiments, in establishing and maintaining field
experiments, in processing field samples, providing monthly progress reports, and in operating,
and maintaining government equipment. The order indicated that appellant was responsible for
transportation to and from his principal duty station, however, for travel to and from the duty
station to field sites, including overnight travel, he would be reimbursed at the appropriate
government per diem rate.
By decision dated March 15, 2016, OWCP denied appellant’s claim for compensation as
he had not established that he was an employee for the purpose of coverage under FECA.
LEGAL PRECEDENT
FECA provides that the United States shall pay compensation as specified by this
subchapter for the disability or death of an employee resulting from personal injury sustained
while in the performance of his duty.3 A claimant seeking compensation under FECA has the
burden of proof to establish the essential elements of his or her claim by the weight of the
reliable, probative and substantial evidence, including that the claimant was an employee within
the meaning of FECA.4
For purposes of determining entitlement to compensation benefits under FECA, an
employee is defined, in relevant part, as:
“(A) a civil officer or employee in any branch of the [g]overnment of the United
States, including an officer or employee of an instrumentality wholly owned by
the United States;
“(B) an individual rendering personal service to the United States similar to the
service of a civil officer or employee of the United States, without pay or for
nominal pay, when a statute authorizes the acceptance or use of the service or
authorizes payment of travel or other expenses of the individual....5”
With regard to whether a claimant is a federal employee for purposes of FECA, the Board
has noted that such a determination must be made considering the particular facts and
circumstances surrounding his or her employment.6 Included among the many factors to be
considered are the right of control of the work activities, the right to hire and fire, the nature of
the work performed, the method of payment for the work, the length of time of the job and the
intention of the parties.7 Other factors to be considered include whether the claimant has been
rendering service similar to the service of a federal employee and whether the employing
establishment was authorized by statute to accept such services.8 The statute does not require
3

5 U.S.C. § 8102(a).

4

Barbara L. Riggs, 50 ECAB 133, 137 (1998).

5

5 U.S.C. § 8101(1).

6

Donald L. Dayment, Docket No. 01-1846 (issued January 21, 2003).

7

Larry E. Young, 52 ECAB 264 (2001).

8

Sandra Davis, 50 ECAB 450 (1999).

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that any written form of agreement be entered into by the employing establishment and the
individual providing services prior to acceptance of personal services by the employing
establishment.9 With regards to the party who paid the wages, the implication that a claimant
was a federal employee cannot be drawn solely from the fact that his or her salary was derived
from a fund to which the Federal Government contributed.10
OWCP’s procedures indicates that, when there is a question as to whether appellant is an
employee or an independent contractor, the claims examiner should request statements from the
employee and the reporting employing establishment to indicate, inter alia, whether the
employing establishment is required to furnish any tools or equipment; the period of time the
work relationship is to exist; whether the reporting employing establishment has the right to
control or direct how the work is to be performed with full explanation; the manner in which
payment for the employing establishment services is determined; and whether the activity in
which the employing establishment is engaged is a regular and continuing activity of the
reporting employing establishment.11
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant has alleged he was a student contractor, but that his status should be considered
that of a federal employee. He noted that he did not furnish his own tools, that the employing
establishment had the right to discharge him at any time, and that the employing establishment
controlled how his work was performed.
In response to very specific questions regarding appellant’s status as a federal employee
the employing establishment submitted only the procurement order for services (Form 347),
which noted that he was only paid for hours worked, he was not paid for any nonwork days such
as holidays, and was not paid annual leave or sick leave. Appellant did not receive a regular
paycheck. Rather, he was to submit biweekly invoices in order to receive payment for his
services. The order for services also indicated that appellant had a limited period for which he
was hired, i.e., from July 7 to September 30, 2015.
The Board finds that the response by the employing establishment does not address all of
the factors necessary to determine whether appellant was an independent contractor or an
employee of the employing establishment.
Under FECA, although it is the burden of an employee to establish his or her claim,
OWCP also has a responsibility in the development of the factual evidence, particularly when
such evidence is of the character normally obtained from the employing establishment or other

9

Jane Doe, 49 ECAB 646, 649 (1998).

10

S.D., Docket No. 13-0090 (issued August 22, 2013); David Nivens, 46 ECAB 926, 934 (1995); Darlene Menke,
43 ECAB 173, 178 (1991); Carl R. Clover, 41 ECB 624, 632 (1990) and cases cited therein.
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Civil Employee, Chapter 2.802.6(a) (June 1995).

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government source.12 Therefore, this case should be remanded to OWCP for further
development of the factual evidence regarding the question of whether appellant was an
employee within the meaning of FECA at the time of his injury. 20 C.F.R. § 10.118(a) provides
that the employing establishment is responsible for submitting to OWCP all relevant and
probative factual and medical evidence in its possession or which it may acquire through
investigation or other means.13
After such development as it deems necessary, OWCP should issue a de novo decision
regarding appellant’s employment status and the validity of his claim for benefits in accordance
with the relevant standards for such determinations.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant was an
employee of the United States under 5 U.S.C. § 8101(1) at the time of the alleged July 30, 2015
incident.

12

Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988). See S.D.,
Docket No. 13-0090 (issued August 22, 2013).
13

20 C.F.R. § 10.118(a) (2012).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 15, 2016 is set aside and the case is remanded for further
proceedings consistent with this opinion.
Issued: December 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Bruce A. Brumley, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-520
Issued: May 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 January 8, 2015 appellant, through counsel, filed a timely appeal from a July 17, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has established that OWCP’s September 14, 2006 loss of
wage-earning capacity (LWEC) determination should be modified.
On appeal, counsel contends that the rationalized medical opinion of Dr. Peter V. Bieri,
an otolaryngologist, is sufficient to establish that appellant’s accepted medical condition had
materially worsened and that she was unable to work.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a February 20, 2013 decision, the
Board set aside a September 14, 2006 LWEC determination and remanded the case for further
development of the medical evidence. The Board found that the medical opinion of
Dr. Joseph W. Huston, a Board-certified orthopedic surgeon and OWCP referral physician, was
vague and speculative as to whether appellant had any residuals resulting from her accepted
employment injuries. The Board instructed OWCP to obtain a supplemental report from
Dr. Huston. The relevant facts are set forth below.
On May 17, 2004 appellant, then a 33-year-old packer/warehouseman, filed an
occupational disease claim alleging that she sustained injuries to her cervical and thoracic spines
due to repetitive, overhead lifting at work. OWCP accepted the claim for aggravation of cervical
and thoracic sprains/strains bilaterally.
In a September 14, 2006 decision, OWCP determined that a modified
packer/warehouseman position fairly and reasonably represented appellant’s wage-earning
capacity with no wage loss.
On September 14, 2010 appellant filed a recurrence and stopped work on that day
alleging that her accepted injuries had worsened. OWCP interpreted her claim as a request to
modify the September 14, 2006 LWEC determination.
In a December 7, 2010 decision, OWCP denied modification of the September 14, 2006
LWEC decision. It found that appellant had not submitted any evidence to establish that the
original LWEC determination was erroneous, that she was otherwise retrained or vocationally
rehabilitated, or that there was a material change in her accepted medical conditions.
In an August 2, 2011 medical report, Dr. Huston provided a history of the accepted
employment injuries and provided physical examination findings. He diagnosed chronic
myofascial pain syndrome in the cervical and thoracic regions. Dr. Huston opined that the
diagnosed conditions preexisted appellant’s employment injury, but were no doubt aggravated by
her repetitive lifting work activities. He stated that her history of complaints suggested that there
might be some permanent aggravation. Dr. Huston stated, however, that there was no concrete
evidence of this, such as a magnetic resonance imaging (MRI) scan or nerve testing.
On March 4, 2013 pursuant to the Board’s remand instructions, OWCP requested that
Dr. Huston provide a supplemental report. It advised him that he was authorized to perform
further noninvasive testing or consultation, if necessary. OWCP noted Dr. Huston’s August 2,
2011 findings and specifically requested that he explain how the accepted employment condition
was causally related to his diagnosed condition and whether the diagnosed condition from
September 14, 2010 to the present represented a worsening of the accepted condition. It also
requested that he clarify and provide an opinion as to whether appellant’s work factors did in fact
result in a permanent aggravation of any condition. OWCP stated that Dr. Huston could perform
an MRI scan and nerve testing if needed to provide a rationalized opinion.
2

Docket No. 12-1594 (issued February 20, 2013).

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In an April 24, 2013 letter, Dr. Huston reviewed his prior August 2, 2011 report and the
statement of accepted facts. He noted appellant’s job as a packer and warehouse worker and
stated that when he last saw her on August 2, 2011 she was no longer working. Dr. Huston
stated that he had no first-hand information about her present status since that time. At his last
evaluation, he diagnosed chronic myofascial pain syndrome involving the cervical and thoracic
regions and found that appellant’s physical problems were no doubt aggravated by her repetitive
lifting work activities and that these activities possibly caused permanent aggravation.
Dr. Huston also previously found no concrete physical evidence to show a permanent physical
worsening of her problem. The need for ongoing treatment was due to the underlying chronic
and preexisting condition. Dr. Huston reviewed the records of Dr. Mark S. Newth, a Boardcertified osteopath, which indicated that he had been seeing appellant for these same problems
since 1999 and that he had given her many manipulations for back pain, which included the
neck, upper back, and interscapular areas. Dr. Newth’s June 16, 2003 note indicated a diagnosis
of somatic dysfunction in the cervical, thoracic, and lumbar areas. Dr. Huston noted that a
July 13, 2010 electromyogram/nerve conduction study (EMG/NCS) of the bilateral upper
extremities was normal.
Regarding OWCP’s first query, Dr. Huston related that it was very difficult to state
definitively whether the activities at work caused any worsening of appellant’s preexisting
problems. He was sure that the work activities aggravated the symptoms of the underlying
condition, but he had no concrete evidence to know that the underlying muscle damage was
made worse. Dr. Huston stated that certainly the symptoms appellant had in her position at the
employing establishment apparently caused her to stop work. They were not initially caused by
this job and were present for several years before she quit work. In response to OWCP’s second
query, Dr. Huston stated that he could not be sure or definite that there was permanent
aggravation of appellant’s preexisting problem which she had been treating for several years.
In a May 17, 2013 decision, OWCP denied modification of the December 7, 2010
decision. It found that the evidence submitted did not establish an error in the original LWEC
determination, that appellant had been vocationally rehabilitated, or a worsening of her accepted
condition such that she could no longer work.
By letter dated May 7, 2014, appellant, through her attorney, requested reconsideration
and submitted medical evidence. In a May 5, 2014 report, Dr. Bieri reviewed the medical
record. He agreed with the finding of Dr. Sushmita Veloor, a Board-certified physiatrist, that
appellant’s employment-related chronic cervical and thoracic strain had worsened to include
myofascial pain syndrome and that her myofascial symptoms were related to the accepted
condition. Dr. Bieri advised that medical objective findings supported a material worsening of
the accepted condition. On examination, he found back spasms which could be produced upon
palpation. Dr. Bieri stated that appellant could not artificially produce back spasm. Based on his
review of the records and her history, Dr. Bieri advised that these spasms increased in nature
resulting in a permanent worsening condition. He stated that the chronicity was the rationality
for permanency. Dr. Bieri noted that Dr. Veloor’s treatment was consistent with appellant’s
accepted condition with provision of trigger point treatments to the affected areas. He related
that the trigger points could also be an example of objective findings to support his opinion that
the accepted condition worsened in the fall of 2010. Dr. Bieri agreed with Dr. Veloor’s
October 23, 2010 restrictions, which included pulling and pushing at a maximum of 10 pounds,

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and no reaching based on appellant’s back spasms and related pain in the thoracic and cervical
regions. He also agreed with his finding that appellant should be allowed to lay down every hour
as needed for at least 10 minutes and that she could not lift at all above the shoulder. Dr. Bieri
related that she was only able to perform part-time work, no more than four hours a day. As
appellant was not capable of performing full-time work, it was very unlikely that she would be
able to perform substantial and gainful work.
Dr. Bieri stated that her increased restrictions were established by objective findings of
back spasms and trigger points, and they were permanent and directly related to her accepted
condition. He believed that the chronicity of her back spasms and trigger points, and increased
restrictions and pain were a permanent worsening and recurrence of the accepted condition
dating back to the fall of 2010. Dr. Bieri noted that, while appellant may need palliative care,
she had reached maximum medical improvement. He related that back spasms frequently
developed from chronic strains of the cervical and thoracic regions and it was medically
reasonable to expect this progression of the accepted condition. It was also reasonable to expect
the development of myofascial syndrome from the accepted condition given the chronic nature
of this injury. Dr. Bieri advised that the chronic nature of the accepted condition resulted in
increased pain, back spasms, and trigger points. This chronicity was permanent and a material
change in the accepted condition.
In a July 17, 2014 decision, OWCP denied modification of the September 14, 2006
LWEC decision. It found that appellant met none of the criteria for modification.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3
OWCP procedures at Chapter 2.1501 contain provisions regarding the modification of a
formal LWEC.4 The relevant part provides that a formal LWEC will be modified when: (1) the
original rating was in error; (2) the claimant’s medical condition has changed; or (3) the claimant
has been vocationally rehabilitated.5 OWCP procedures further provide that the party seeking
modification of a formal loss of wage-earning capacity decision has the burden to prove that one
of these criteria has been met.6

3

Katherine T. Kreger, 55 ECAB 633 (2004).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
5

Id. at Chapter 2.1501.3(a) (June 2013).

6

Id. at Chapter 2.1501.4 (June 2013).

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Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationalize explaining the opinion.7
ANALYSIS
The Board finds that this case is not in posture for a decision as to whether appellant has
established that OWCP’s September 14 2006 loss of LWEC determination should be modified.
The Board previously remanded this case based upon a finding that the second opinion
physician, Dr. Huston, had not provided a probative medical opinion regarding whether appellant
had any residuals of her accepted employment-related aggravation of cervical and thoracic
sprains/strains bilaterally. Following the Board’s remand, OWCP requested a supplemental
report from Dr. Huston. Dr. Huston was asked to explain how the accepted aggravation of
cervical and thoracic strain was causally related to his diagnosis of chronic myofascial pain
syndrome and whether the diagnosed condition from September 14, 2010 to the present
represented a worsening of the accepted condition. He was also asked to clarify and provide an
opinion as to whether appellant’s work factors resulted in a permanent aggravation of any
condition. In his April 24, 2013 letter, Dr. Huston failed to offer sufficient answers to OWCP’s
questions.
Regarding OWCP’s first query, he opined that he was sure that appellant’s work
activities aggravated the symptoms of her underlying preexisting chronic myofascial pain
syndrome, but he also opined that he could not provide a definitive opinion on this issue because
he had no concrete evidence to show that the underlying muscle damage worsened. Dr. Huston’s
opinion is vague and speculative as he fails to provide an unequivocal opinion on the cause of
appellant’s current condition. The Board has held that medical opinions which are speculative or
equivocal are of diminished probative value.8 Dr. Huston did not definitely state whether
appellant’s preexisting condition was caused or aggravated by the accepted employment injury.
Further, the Board notes that he was authorized to perform any testing he deemed to be necessary
in order to render a rationalized opinion. Dr. Huston stated that appellant had symptoms of
preexisting myofascial pain syndrome at work which caused her to stop work. However, the
Board has held that the fact that a condition arises while appellant was at work does not establish
that work caused the condition.9 Dr. Huston did not explain how his diagnosis of chronic
myofascial pain syndrome was causally related to the accepted aggravation of cervical and
thoracic sprain/strain and whether appellant’s current condition represented a worsening of the

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the
condition is probably related, most likely related or could be related are speculative and diminish the probative value
of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or
equivocal are of diminished probative value).
9

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

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accepted condition.10 Regarding OWCP’s second query, Dr. Huston noted that he was also
unable to provide a definitive opinion as to whether appellant had permanent aggravation of her
preexisting chronic myofascial pain syndrome. His opinion is vague and speculative and, thus is
of diminished probative value.11
The Board previously determined that Dr. Huston’s August 2, 2011 report did not
provide a clear opinion regarding whether appellant had any residuals of her accepted
employment-related condition. On remand, OWCP requested that Dr. Huston provide a
supplemental report on this matter. Given that Dr. Huston’s supplemental report dated April 24,
2013, does not adequately elaborate on his original report by providing a rationalized medical
opinion explaining how appellant’s accepted cervical and thoracic sprains/strains bilaterally had
materially worsened such that she was unable to perform the duties of her modified position, the
Board finds that OWCP did not fulfill its obligation to assist in the development of medical
evidence as directed by the Board on the prior appeal. OWCP must submit the case record and a
detailed statement of accepted facts to a second referral physician for the purpose of obtaining a
rationalized medical opinion on the issue of whether appellant has a change in her employmentrelated medical condition that has rendered her totally disabled for work. After this and such
other development of the medical evidence as it deems necessary, OWCP shall issue a de novo
decision.
Before OWCP and on appeal before the Board, appellant’s attorney contended that
Dr. Bieri’s May 5, 2014 report was sufficient to establish that appellant’s accepted medical
condition had materially worsened and that she was unable to work. In his report, Dr. Bieri
agreed with the opinion of Dr. Veloor that appellant’s employment-related chronic cervical and
thoracic strain had materially worsened to include myofascial pain syndrome and resulted in
increased restrictions dating back to the fall of 2010 based on his objective examination findings
of muscle spasms, trigger points, and myofascial symptoms. The Board previously reviewed
Dr. Veloor’s opinion and determined that it was insufficiently rationalized to establish a material
worsening of appellant’s accepted employment-related condition.
Dr. Bieri explained that back spasms frequently developed from chronic strains of the
cervical and thoracic regions and concluded that it was medically reasonable to expect this
progression of the accepted condition. He further concluded that it was reasonable to expect the
development of myofascial syndrome from the accepted condition given the chronic nature of
this injury. Dr. Bieri did not sufficiently explain the process through which myofascial pain
syndrome was caused or contributed to by the accepted cervical and thoracic conditions. His
opinion on causal relationship is of limited probative value in that he did not provide adequate
medical rationale in support of his conclusion.12 Further, Dr. Bieri did not provide an opinion
explaining how appellant’s disability for full-time work was caused by the accepted employment
injuries. The Board has held that medical evidence offering no opinion regarding the cause of an
10

F.T., Docket No. 09-919 (issued December 7, 2009); Elizabeth H. Kramm, 57 ECAB 117, 124 (2005);
Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
11

See cases cited, supra note 8.

12

L.H., Docket No. 09-1779 (issued June 15, 2010); William C. Thomas, 45 ECAB 591 (1994).

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employee’s condition is of limited probative value on the issue of causal relationship.13 For the
stated reasons, Dr. Bieri’s report does not establish a material change in the accepted workrelated condition. Thus, appellant did not meet her burden of proof with this submission.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether OWCP’s
September 14, 2006 LWEC decision should be modified as further development is needed.
ORDER
IT IS HEREBY ORDERED THAT the July 17, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for action consistent with this
decision of the Board.
Issued: May 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

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004).

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