United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DALLAS VA MEDICAL CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 21-0492
Issued: March 23, 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 February 12, 2021 appellant filed a timely appeal from a January 4, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $74,899.31, compromised to $48,961.60, for
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 4, 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.

which he was without fault, because he concurrently received FECA wage-loss compensation and
Social Security Administration (SSA) age-related retirement benefits for the period June 1, 2006
through July 18, 2020, without an appropriate offset; (2) whether OWCP properly denied waiver
of recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $475.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On December 13, 2005 appellant, then a 63-year-old program support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 30, 2005 he injured his lower back
when lifting boxes while in the performance of duty. He stopped work on December 1, 2005 and
returned to work on December 12, 2005. OWCP accepted the claim for lumbar sprain/strain,
lumbosacral spondylosis without myelopathy, and degeneration of lumbosacral intervertebral disc.
A February 5, 2006 notification of personnel action (PS Form 50) noted appellant’s retirement
plan as “K” Federal Employees Retirement System (FERS) and Federal Insurance Contributions
Act (FICA). OWCP paid him wage-loss compensation on its supplemental rolls from February 5,
2006 through August 30, 2008 and on its periodic compensation rolls as of August 31, 2008.
On November 7, 2019 OWCP forwarded a FERS/SSA benefits calculation worksheet to
the SSA to obtain information necessary for a determination of whether an offset of compensation
benefits was required.
On November 21, 2019 OWCP received from SSA a November 13, 2019 FERS/SSA dual
benefits calculation form, which indicated that appellant had been in receipt of SSA age-related
retirement benefits since June 2006. The form showed appellant’s SSA benefit rates with and
without a FERS offset as follows: beginning June 2006, the SSA rate with FERS was $1,166.00
and without FERS was $788.60; beginning December 2006, the SSA rate with FERS was
$1,205.00 and without FERS was $814.60; beginning December 2007, the SSA rate with FERS
was $1,232.00 and without FERS was $833.20; beginning December 2008, December 2009, and
December 2010, the SSA rate with FERS was $1,304.00 and without FERS was $881.60;
beginning December 2011, the SSA rate with FERS was $1,351.00 and without FERS was
$913.20; beginning December 2012, the SSA rate with FERS was $1,373.00 and without FERS
was $928.70; beginning December 2013, the SSA rate with FERS was $1,394.00 and without
FERS was $942.60; beginning December 2014 and December 2015, the SSA rate with FERS was
$1,418.00 and without FERS was $958.60; beginning December 2016, the SSA rate with FERS
was $1,422.00 and without FERS was $961.50; beginning December 2017, the SSA rate with
FERS was $1,450.00 and without FERS was $980.70; and beginning December 2018, the SSA
with FERS was $1,491.00 and without FERS was $1,008.10.
On December 19, 2019 OWCP again forwarded a FERS/SSA benefits calculation
worksheet to SSA. On January 17, 2020 it received from SSA a January 10, 2020 FERS/SSA dual
benefits calculation form, which indicated that, beginning December 2019, appellant’s SSA rate
with FERS was $1,515.20 and without FERS was $1,024.20.
OWCP completed a FERS offset calculation worksheet on July 29, 2020. It calculated the
overpayment amount by determining the daily FERS offset amount and multiplying th at amount

2

by the number of days in each period June 1, 2006 through July 18, 2020, resulting in a total
overpayment of $74,899.31. The form indicated that: from June 1 through November 30, 2006,
appellant received an overpayment in the amount of $2,276.84; from December 1, 2006 through
November 30, 2007, appellant received an overpayment in the amount of $4,697.67; from
December 1, 2007 through November 30, 2008, appellant received an overpayment in the amount
of $4,807.07; from December 1, 2008 through November 30, 2011, appellant received an
overpayment in the amount of $15,248.18; from December 1, 2011 through November 30, 2012,
appellant received an overpayment in the amount of $5,282.47; from December 1, 2012 through
November 30, 2013, appellant received an overpayment in the amount of $5,346.25; from
December 1, 2013 through November 30, 2014, appellant received an overpayment in the amount
of $5,431.68; from December 1, 2014 through November 30, 2016, appellant received an
overpayment in the amount of $11,071.04; from December 1, 2016 through November 30, 2017,
appellant received an overpayment in the amount of $5,541.18; from December 1, 2017 through
November 30, 2018, appellant received an overpayment in the amount of $5,647.07; from
December 1, 2018 through November 30, 2019, appellant received an overpayment in the amount
of $5,810.72; and from December 1, 2019 through July 18, 2020, appellant received an
overpayment in the amount of $3,739.15.
On August 20, 2020 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $74,899.31 had been created because it had
failed to reduce appellant’s wage-loss compensation payments for the period June 1, 2006 through
July 18, 2020 to offset his SSA age-related retirement benefits that were attributable to federal
service. It also determined that he was without fault in the creation of the overpayment. OWCP
requested that appellant submit a completed overpayment recovery q uestionnaire (Form OWCP20) to determine a reasonable repayment method and advised him that he could request a waiver
of the overpayment. It further requested that he provide supporting financial documentation,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. Additionally, OWCP further provided an overpayment
action request form and notified appellant that, within 30 days of the date of the letter, he could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing. Appellant did not respond.
By decision dated January 4, 2021, OWCP finalized the August 20, 2020 preliminary
overpayment determination for the period June 1, 2006 through July 18, 2020.3 It found that
appellant had received an overpayment of compensation in the amount of $74,899.31, which was
reduced to $48,961.60 by compromise. OWCP further found that he was not at fault in the creation
of the overpayment, but denied waiver of recovery of the overpayment as he had not submitted
evidence to substantiate that adjustment or recovery of the overpayment would defeat the purpose
of FECA or be against equity and good conscience. It required recovery by deducting $475.00
every 28 days from appellant’s continuing compensation payments.

3

OWCP erroneously noted the overpayment period as June 1, 2006 through July 19, 2020. The overpayment was
calculated through July 18, 2020, as noted in the preliminary overpayment determination.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 4 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.5 When an overpayment of compensation has
been made to an individual because of an error of fact or law, adjustment shall be made under
regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled.6
Section 10.421(d) of FECA implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-based benefits that are attributable to federal
service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit. 8
The determination that the debt has been compromised does not carry the right to a hearing
or to review by the Board. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $74,899.31, compromised to $48,961.60, for which he was
without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period June 1, 2006 through July 18, 2020, without an
appropriate offset.
The evidence of record indicates that, while appellant was receiving wage -loss
compensation benefits under FECA, he also was receiving SSA age-related retirement benefits
based upon his federal service. A claimant cannot receive both compensation for wage-loss
compensation benefits under FECA and SSA age-related retirement benefits attributable to federal
service for the same period. 10 The information provided by SSA established that appellant
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (issued February 3, 1997); see M.S., Docket No. 20-0068 (issued May 14, 2021).

9

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.6
(September 2020).
10

Id.

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received SSA age-related retirement benefits that were attributable to federal service during the
period June 1, 2006 through July 18, 2020. Consequently, the fact of overpayment has been
established. 11
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amounts of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its benefit rates with FERS and without FERS for specific periods
June 2006 through December 2019. OWCP provided its calculations for each relevant period
based on the SSA worksheet and properly determined that appellant received an overpayment of
compensation in the amount of $74,899.31, compromised to $48,961.60.
The Board, thus, finds that appellant received an overpayment of compensation in the
amount of $74,899.31, compromised to $48,961.60, for the period Ju ne 1, 2006 through
July 18, 2020.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 12
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines. 13
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 14 Additionally, recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 15

11

P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020);
A.F., Docket No. 19-0054 (issued June 12, 2019).
12

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see M.C., Docket No. 19-0699 (issued
February 12, 2020).
13

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

14

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Supra note 9 at Chapter 6.400.4a(2) (September 2020).
15

Id. at § 10.437(a)(b).

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OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 16 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and n o further request
for waiver shall be considered until the requested information is furnished. 17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 18
In its preliminary overpayment determination dated August 20, 2020, OWCP explained the
importance of providing the completed overpayment questionnaire and supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income, expenses, and assets. Appellant, however, did not
respond and failed to provide any financial information. As he did not submit the information
required under section 10.438 of OWCP’s regulations, which was necessary to determine his
eligibility for waiver, OWCP properly denied waiver of recovery of the overpayment. 19 Appellant
did not establish that adjustment or recovery of the overpayment would defeat the purpose of
FECA or be against equity and good conscience20 Therefore, the Board finds that OWCP properly
denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. 21

16

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

17

Id. at § 10.438(b).

18

Id. § 10.436.

19

Supra note 9 M.S.; D.C., Docket No. 19-0118 (issued January 15, 2020); see S.B., Docket No. 16-1795 (issued
March 2, 2017).
20

Id.

21

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

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Section 10.441(a) of OWCP s regulations 22 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”23
Under OWCP’s procedures, the compromise of all or part of the overpayment and any
charges may be made depending upon the individual claimant’s financial circumstances in order
to set a repayment schedule. Such a determination is made at the time the repayment schedule is
established. 24 Compromise is a matter which rests in the discretion of OWCP and is not subject
to review by the Board. 25
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$475.00 every 28 days from appellant’s continuing compensation payments.
OWCP gave due regard to the financial information submitted, as well as the f actors set
forth in 20 C.F.R. § 10.441, including the compromised overpayment amount, and found that this
method of recovery would minimize resulting hardship. 26 When, as in this case, no response is
received to the preliminary overpayment determination, OWCP should set the rate of repayment
at 25 percent of the 28 days net compensation amount. 27 The record reflects that appellant was
earning $1,902.77 for 28 days of net compensation benefits. OWCP calculated that 25 percent of
the 28-day net compensation amount equates to $475.69. The Board finds that OWCP properly
required recovery of the overpayment by deducting $475.00 every 28 days from appellant’s
continuing compensation benefits.
On appeal appellant requests debt forgiveness be considered. As he did not provide a
completed Form OWCP-20 overpayment recovery questionnaire and supporting financial

22

Id. at § 10.441(a).

23

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

24

Supra note 9 at Chapter 6.500.6 (September 2020).

25

Id.; see supra note 9; M.S., Docket No. 20-0068 (issued May 14, 2021).

26

M.S., id.; M.B., Docket No. 20-1578 (issued March 25, 2021).

27

Supra note 9 at Chapter 6.500.8(c)(1) (September 2018); see D.C., Docket No. 19-0118 (issued
January 15, 2020).

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documentation as requested in OWCP’s August 20, 2020 letter, OWCP properly denied waiver of
recovery of the overpayment. 28
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $74,899.31, compromised to $48,961.60, for which he was
without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period June 1, 2006 through July 18, 2020, without an
appropriate offset, and that OWCP properly denied waiver of recovery of the overpayment. The
Board further finds that OWCP properly required recovery of the ov erpayment by deducting
$475.00 from his continuing compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

28

See 20 C.F.R. § 10.438 (in requesting waiver, the overpaid individual has the responsibility for providing
financial information); see also L.K., Docket No. 17-1393 (issued March 20, 2018).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and

U.S. POSTAL SERVICE, ROSELAND POST
OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 13-1902
Issued: April 11, 2014

Case Submitted on the Record

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

JURISDICTION
On August 9, 2013 appellant filed a timely appeal from a February 11, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant sustained more than 10 percent permanent impairment of
the left lower extremity and 10 percent impairment of the right lower extremity, for which she
received schedule awards.

1

5 U.S.C. § 8101 et seq.

2

Appellant also has another appeal, No. 13-1975, that is proceeding separately to adjudication before the Board.

On appeal, appellant asserts that the opinion of her attending physician establishes a
greater percentage of impairment than that awarded. She also contends that OWCP did not
properly consider the medical evidence.
FACTUAL HISTORY
OWCP accepted that on December 20, 2002 appellant, then a 45-year-old mail
processing clerk, sustained medial meniscal tears of both knees and traumatic arthropathy of both
lower legs when she kneeled on a floor to change a post office box lock.3 On the date of injury,
emergency room physicians diagnosed patellar tendinitis and degenerative joint disease.4
On January 8, 2009 Dr. Samuel J. Chmell, an attending Board-certified orthopedic
surgeon, diagnosed an aggravation of osteoarthritis of both hips. He obtained an April 22, 2009
magnetic resonance imaging (MRI) scan of both ankles showing mild post-traumatic edema, an
April 23, 2009 MRI scan of both hips that was within normal limits and an April 23, 2009 MRI
scan of both knees showing mild bilateral tricompartmental arthritis with no meniscal tears.5
On August 8, 2011 appellant claimed a schedule award. In a November 3, 2011 letter,
OWCP advised appellant of the evidence needed to establish her claim for a schedule award due
to accepted bilateral meniscal tears and traumatic arthropathy of both lower legs. OWCP
directed appellant to submit a report from her attending physician opining that her condition had
reached maximum medical improvement and providing an impairment rating according to the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, A.M.A., Guides).
In a September 16, 2011 letter, Dr. Chmell stated that the December 20, 2002 injury
caused chronic “effusion, tenderness, crepitus and diminished range of motion” of both knees.
He noted that imaging studies showed chondromalacia, traumatic arthritis and torn medial
menisci in both knees. In reports through May 3, 2012, Dr. Chmell diagnosed traumatic
arthopathy of both lower legs and bilateral ankle and foot derangement. He found appellant
totally disabled for work.
Dr. Chmell submitted a November 25, 2011 impairment rating finding 52 percent
impairment of each lower extremity according to the A.M.A., Guides. For the right knee, he
found a 10 percent impairment according to Table 16-236 due to range of motion limited to 5 to

3

OWCP initially denied the claim by decision dated September 28, 2011 on the grounds that causal relationship
was not established.
4

A January 2, 2003 left knee x-ray showed minimal spur formation and an intact joint space. December 16, 2003
bilateral hip x-rays were negative for arthritis.
5

February 8, 2010 electromyography (EMG) and nerve conduction velocity (NCV) studies showed isolated
findings of right peroneal nerve injury. November 22, 2010 EMG and NCV studies of both lower extremities
showed no evidence of radiculopathy.
6

Table 16-23, page 549 of the sixth edition of the A.M.A., Guides is entitled “Knee Motion Impairments.”

2

100 degrees, 10 percent impairment according to Table 16-67 and Table 16-78 for physical
findings including knee tenderness, effusion, crepitus and a limp, 25 percent impairment
according to Table 16-39 for imaging studies showing osteophytes and cartilage damage, and 7
percent impairment for right ankle motion limited to 0 to 20 degrees according to Table 16-22.10
Dr. Chmell added these impairments to equal 52 percent. He noted the same percentages of
impairment for the left knee for identical findings, other than knee extension limited to 105
degrees.
On December 20, 2011 OWCP referred the medical record to an OWCP medical adviser
for an impairment rating of the left and right lower extremities according to the sixth edition of
the A.M.A., Guides. It noted that, under File No. xxxxxx862, accepted for aggravation of
bilateral hip osteoarthritis and bilateral hip strains, appellant received a schedule award for 10
percent impairment of each lower extremity on February 3, 2009.11
In a January 17, 2012 report, an OWCP medical adviser noted that Dr. Chmell did not
correctly apply the A.M.A., Guides, as he included both restricted motion and a diagnosis-based
impairment. He noted that an April 2009 MRI scan of both knees showed no meniscal tears and
mild tricompartmental arthritis. The medical adviser opined that the arthritis was due to
appellant’s morbid obesity, as she weighed 240 pounds and stood 5’3. He stated that there was
“no basis for any additional lower extremity” impairment beyond the 10 percent awarded.
By decision dated June 27, 2012, OWCP denied appellant’s claim for an increased
schedule award on the grounds that the medical evidence did not establish more than 10 percent
impairment of each lower extremity, for which she received a prior schedule award.
On July 22, 2012 appellant requested an oral hearing, held November 27, 2012. At the
hearing, she contended that the medical evidence substantiated permanent impairments to all
extremities. Following the hearing, appellant provided a December 23, 2012 statement asserting
that OWCP did not fully consider the medical evidence. She submitted additional medical
evidence.
In June 21, August 9, September 27 and December 6, 2012 reports, Dr. Chmell noted
pain, swelling and diminished reflexes in both lower extremities. He repeated prior diagnoses.

7

Table 16-6, page 516 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment -Lower Extremity Impairments.”
8

Table 16-7, page 517 of the sixth edition of the A.M.A., Guides is entitled “Physical Examination Adjustment -Lower Extremity Impairments.”
9

Table 16-3, pages 509-511 of the sixth edition of the A.M.A., Guides is entitled “Knee Regional Grid -- Lower
Extremity Impairments.”
10

Table 16-22, page 549 of the sixth edition of the A.M.A., Guides is entitled “Ankle Motion Impairments.”

11

Appellant appealed the February 3, 2009 schedule award under File No. xxxxxx862 to the Board. By decision
and order issued May 21, 2010, the Board affirmed the February 3, 2009 schedule award for 10 percent impairment
of each lower extremity due to limited bilateral hip motion. Docket No. 09-2007.

3

August 6, 2012 EMG and NCV studies showed bilateral L5 radiculopathy and polyneuropathy of
both lower extremities.
By decision dated and finalized February 11, 2013, an OWCP hearing representative
affirmed OWCP’s June 27, 2012 decision, finding that appellant had not established more than
10 percent permanent impairment of each lower extremity. The hearing representative found
that Dr. Chmell misapplied the A.M.A., Guides, whereas OWCP’s medical adviser provided a
well-rationalized opinion explaining that appellant did not establish an increased percentage of
permanent impairment.
LEGAL PRECEDENT
The schedule award provisions of FECA12 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.13 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.14
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).15 Under the sixth edition, 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).16 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
OWCP accepted that appellant sustained bilateral meniscal tears and bilateral traumatic
arthropathy of the lower legs. Appellant claimed a schedule award on August 8, 2011. Under
File No. xxxxxx862, she received a February 3, 2009 schedule award for a 10 percent
impairment of each lower extremity due to restricted bilateral hip motion.

12

5 U.S.C. §§ 8101-8193.

13

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
15

A.M.A., Guides (6th ed. 2008), page 3, Section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
16

A.M.A., Guides 494-531 (6th ed. 2008).

4

In support of her claim, appellant submitted reports from Dr. Chmell, an attending Boardcertified orthopedic surgeon, diagnosing bilateral ankle and foot derangement and osteoarthritis
of both hips and knees. Dr. Chmell provided a November 25, 2011 impairment rating finding 52
percent of each lower extremity due to limited knee and ankle motion, physical findings on
examination, and imaging studies showing cartilage degeneration and arthritis. He referenced
specific tables in the sixth edition of the A.M.A., Guides in calculating the percentage of
impairment. An OWCP medical adviser reviewed the medical record and Dr. Chmell’s
impairment rating on January 17, 2012. He contended that Dr. Chmell misapplied the A.M.A.,
Guides and that the record did not demonstrate more than the 10 percent impairment of each
lower extremity previously awarded. The Board finds, however, that the case is not in posture
for a decision.
The medical adviser explained that an April 2009 MRI scan of both knees showed no
meniscal tears and opined that appellant’s condition was due to her morbid obesity. However,
this opinion is of diminished probative value as the basis of his opinion of no additional
impairment for the knee region is based on his finding that appellant has no bilateral meniscal
tears, a condition accepted by OWCP. The Board notes that it is the function of the medical
expert to give an opinion only on medical questions, not to find facts.17 Therefore, the case will
be remanded for further medical development. OWCP shall obtain an appropriate medical
opinion regarding appellant’s lower extremity permanent impairment with appropriate reference
to specific tables and grading schemes of the A.M.A., Guides, for any impairment found.
Following this and any other development deemed necessary, OWCP shall issue an appropriate
decision in the case.
On appeal, appellant contends that OWCP did not fully consider the medical evidence
and that Dr. Chmell found her entitled to an increased schedule award. As stated, the case is not
in posture for a decision. The case will be remanded to OWCP for additional development.
CONCLUSION
The Board finds that the case is not in posture for a decision.

17

C.C., Docket No. 13-446 (issued May 15, 2013). See Jeannine E. Swanson, 45 ECAB 325 (1994); Barbara
Bush, 38 ECAB 710 (1987) (a medical expert should only determine the medical question certified to him;
determination of the legal standards in regards to such medical questions is outside the scope of his or her expertise);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.8(c) (September 2010) (OWCP’s medical adviser has no authority to decide the facts in a case, as this is a
function of the claims examiner).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 11, 2013 is set aside. The case is remanded to OWCP
for further development in accordance with this decision.
Issued: April 11, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
U.S. POSTAL SERVICE, SHARED SERVICES
CENTER, Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0986
Issued: December 19, 2018

Case Submitted on the Record

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

JURISDICTION
On April 16, 2018 appellant, through counsel, filed a timely appeal from a November 28,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established more than 12 percent permanent impairment
of his left upper extremity for which he previously received schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.3 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 May 5, 2005 appellant, then a 55-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on May 3, 2005 he injured his left upper arm while in the performance of duty.
OWCP accepted the claim for left shoulder/arm sprain, left shoulder primary osteoarthritis, left
bicipital tenosynovitis, and other affection of the left shoulder region.
On April 4, 2007 appellant underwent authorized left shoulder arthroscopy, subacromial
decompression, distal clavicle excision, minor anterior labral debridement, and biceps tenotomy.
In a report dated June 29, 2012, Dr. Andrew J. Gelman, an osteopathic physician Boardcertified in orthopedic surgery, provided physical examination findings relative to appellant’s
shoulders.4 He related that appellant’s shoulders exhibited restricted mobility in all planes, both
left and right sided. On the left active forward flexion was 110 degrees, with abduction to 85
degrees, and internal rotation to the left rear pocket.
In a January 6, 2015 report, Dr. Nicholas P. Diamond, an osteopathic physician, used the
diagnosed-based impairment (DBI) method for rating impairments. He determined that, under
Table 15-5 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),5 the combined impairments resulted in a combined value of 35
percent left upper extremity permanent impairment. Dr. Diamond also determined that appellant
had 24 percent right upper extremity permanent impairment.
On April 12, 2015 appellant filed a claim for a schedule award (Form CA-7).
In a June 2, 2015 report, Dr. Arnold T. Berman, OWCP’s district medical adviser (DMA),
Board-certified in orthopedic surgery, determined that appellant had 12 percent permanent of
impairment of the left upper extremity based on Dr. Diamond’s January 6, 2015 findings and
report, in combination with other medical evaluations.

3

Docket No. 16-0323 (issued April 10, 2017).

4

Appellant was referred to Dr. Gelman for an impartial evaluation in OWCP File No. xxxxxx920 to resolve whether
appellant had bilateral brachial plexopathy, or other bilateral conditions causally related to his occupational disease
claim.
5

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

2

By decision dated June 23, 2015, OWCP issued a schedule award for 12 percent permanent
impairment of the left upper extremity.
Appellant, through counsel, appealed to the Board on December 8, 2015. By decision
dated April 10, 2017, the Board set aside the June 23, 2015 decision.6 The Board found that
OWCP had inconsistently applied Chapter 15 of the A.M.A., Guides regarding the proper use of
either the DBI or range of motion (ROM) methodology in assessing the extent of permanent
impairment. The Board remanded the case for OWCP to issue a de novo decision after
development of a consistent method for calculating permanent impairment of the upper
extremities.
In a November 16, 2017 report, Dr. Morley Slutsky, a DMA Board-certified in
occupational medicine, reviewed the medical record with the exception of Dr. Diamond’s
January 6, 2015 report, as it had not been provided for his review and he determined that appellant
had a 10 percent left upper extremity permanent impairment. He based his impairment rating and
date of maximum medical impairment (MMI) on the June 29, 2012 report from Dr. Gelman.
Dr. Slutsky noted that Dr. Gelman provided invalid ROM measurements that appellant was rated
using the DBI method. He referenced Table 15-5 of the A.M.A., Guides, Shoulder Regional Grid,
Upper Extremity Impairment, acromioclavicular injury or disease, class 1, distal clavicle resection.
Dr. Slutsky then utilized the adjustment grid and grade modifiers, and determined that appellant
had a functional history adjustment grade modifier of 1, a physical examination adjustment grade
modifier of 1, and a clinical study adjustment grade modifier of 1, as clinical studies confirmed
lesions of rotator cuff/SLAP labral biceps tendon tear. Utilizing the adjustment formula resulted
in no adjustment to the default value of grade C, resulting in a 10 percent permanent impairment.
By decision dated November 28, 2017, OWCP denied appellant’s claim for an increased
schedule award for the left upper extremity. It related that, pursuant to FECA Bulletin No. 17-06,
the evidence did not support more than the 12 percent permanent impairment of the left upper
extremity, for which he previously received schedule award compensation.
LEGAL PRECEDENT
The schedule award provision of FECA,7 and its implementing federal regulations,8 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

6

Supra note 3.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

3

the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions issued after
May 1, 2009, the sixth edition is used to calculate schedule awards.10
The sixth edition requires identifying the impairment Class of Diagnosis (CDX) condition,
which is then adjusted by a grade modifier 4 for functional history (GMFH), a grade modifier 4
for physical examination (GMPE), and a grade modifier 2 for clinical studies (GMCS).11 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides, in part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the A.M.A.,
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”12
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides do not allow for the use of ROM for the diagnosis in question,
the DMA should independently calculate impairment using the DBI method and
clearly explain in the report, citing applicable tables in Chapter 15 of the [A.M.A.,]
Guides, that ROM is not permitted as an alternative rating method for the diagnosis
in question.
9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5 (March 2017).
11

A.M.A., Guides 411.

12

FECA Bulletin 17-06 (issued May 8, 2017). See also D.F., Docket No. 17-1474 (issued January 23, 2018).

4

“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is [in]sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP 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 this case is not in posture for decision.
The record establishes that, by decision dated April 10, 2017, the Board remanded the case
to OWCP for application of a consistent policy for establishing permanent impairment under
Chapter 15 of the A.M.A., Guides to appellant’s schedule award claim. OWCP then obtained a
medical report from its DMA, Dr. Slutsky. In his November 16, 2017 report, Dr. Slutsky noted
that he used Dr. Gelman’s report to calculate appellant’s permanent impairment, as Dr. Diamond’s
January 6, 2015 report had not been provided for his review. He found that, because Dr. Gelman
provided invalid ROM measurements for the shoulders, the DBI method was the preferred method
to calculate appellant’s impairment. Dr. Slutsky concluded that appellant had 10 percent
permanent impairment of his left upper extremity, which was less than the prior award of 12
percent, with June 29, 2012 as the date of MMI.
The Board finds that, when rendering his impairment rating, Dr. Slutsky did not have all
the relevant medical evidence as OWCP failed to provide the most recent medical report dated
January 6, 2015, which was from Dr. Diamond. There is no evidence in this case that OWCP
requested appellant or Dr. Diamond or its referral physician, Dr. Gelman, to provide a
supplemental report containing ROM measurements in accordance with the procedures set forth
in the A.M.A., Guides and FECA Bulletin No. 17-06. As noted above, FECA Bulletin No. 17-06
provides that, if the medical evidence of record is insufficient for the DMA to render a rating on
ROM where allowed, the DMA should advise as to the medical evidence necessary to complete
the rating.

13

Id.

14

See supra note 10 at Chapter 2.808.6(f) (March 2017).

5

The Board will, therefore, remand the case for OWCP to refer appellant for a second
opinion evaluation to obtain the necessary evidence. Following such further development of the
evidence as necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated November 28, 2017 is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: December 19, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Memphis, TN, Employer
__________________________________________

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

Docket No. 11-221
Issued: August 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 1, 2010 appellant timely appealed the July 8, 2010 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which granted a schedule award.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has more than 13 percent impairment of the right upper
extremity.

1
2

5 U.S.C. §§ 8101-8193 (2006).

The record on appeal contains evidence received after OWCP issued its July 8, 2010 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1) (2010).

FACTUAL HISTORY
Appellant, then a 53-year-old retired mail handler, injured her right shoulder in the
performance of duty on September 22, 2007. OWCP accepted her claim for right rotator cuff
sprain, right shoulder impingement syndrome and permanent aggravation of right shoulder
arthritis.3 On June 18, 2008 appellant underwent OWCP-approved right shoulder arthroscopy.
She returned to work in a limited-duty capacity in August 2008. Due to an unrelated medical
condition, appellant stopped work in February 2009. She subsequently received a disability
annuity from the Office of Personnel Management (OPM) and retired effective June 12, 2009.
In April 2010, appellant, with the assistance of counsel, filed a claim for a schedule
award (Form CA-7). In a January 4, 2010 report, Dr. Rommel G. Childress, an attending Boardcertified orthopedic surgeon,4 applied the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (2008), to find 13 percent impairment of the
right upper extremity. He based the impairment rating on the diagnosis of right shoulder partial
rotator cuff tear, which he identified as a class 1, grade E impairment, citing Table 15-5, A.M.A.,
Guides 401-05 (6th ed. 2008).
On June 17, 2010 Dr. James W. Dyer, the district medical adviser, reviewed the record.
He agreed with Dr. Childress’ rating of 13 percent impairment of the right upper extremity. The
district medical adviser found that appellant reached maximum medical improvement (MMI) on
January 4, 2010 the date of Dr. Childress’ evaluation.
By decision dated July 8, 2010, OWCP granted a schedule award for 13 percent
impairment of the right upper extremity. The award covered a period of 40.56 weeks from
January 4 to October 14, 2010.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.5 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
3

Appellant has another claim for injury arising on June 20, 2007 (File No. xxxxxx579). OWCP accepted both
left and right shoulder conditions under claim File No. xxxxxx579. The previously accepted right shoulder
condition (supraspinatus sprain) has been combined with appellant’s September 22, 2007 right shoulder injury, with
the latter claim being designated as the master file. The left shoulder injuries appellant sustained on June 20, 2007
have been separately adjudicated under claim File No. xxxxxx579.
4

Dr. Childress treated appellant for both her left and right shoulder conditions dating back to June 29, 2007.
Additionally, he performed her June 18, 2008 right shoulder arthroscopy. Dr. Childress’ January 4, 2010 evaluation
also included an impairment rating of the left upper extremity, which OWCP separately adjudicated under claim File
No. xxxxxx579.
5

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

2

evaluating schedule losses.6 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).7
ANALYSIS
Appellant did not specifically challenge the percentage of impairment found
Dr. Childress and Dr. Dyer. On appeal, she argued that the January 4, 2010 date of MMI was
incorrect. This date coincided with the date of Dr. Childress’ evaluation, which OWCP relied
upon in awarding 13 percent impairment of the right arm. Appellant noted that Dr. Childress
stated that she reached MMI on March 6, 2009.
Before an award may be made it must be medically determined that no further
improvement can be anticipated and the impairment must reach a fixed and permanent state,
known as MMI.8 MMI arises at the point at which an injury has stabilized and will not improve
further.9 This determination is factual in nature and depends primarily on the medical
evidence.10 In the absence of evidence to the contrary or a conflict in the medical evidence
requiring resolution under 5 U.S.C. § 8123, the date of MMI is usually considered to be the date
of the attending physician’s evaluation that is accepted as definitive by OWCP.11 In this
instance, OWCP relied upon Dr. Childress’ January 4, 2010 evaluation and properly utilized the
date of his evaluation as the date of MMI.
As noted, appellant did not specifically challenge the 13 percent impairment rating of her
right arm. She has not submitted any medical evidence to establish greater impairment of the
right upper extremity than awarded.
CONCLUSION
Appellant has not established that she has greater than 13 percent impairment of the right
upper extremity.

6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
8

Id. at Chapter 3.700.3a (1).

9

Peter C. Belkind, 56 ECAB 580, 585 (2005).

10

Id.

11

See supra note 8.

3

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 11, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Atlanta, GA, Employer
__________________________________________

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

Docket No. 16-1131
Issued: November 16, 2016

Case Submitted on the Record

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

JURISDICTION
On May 6, 2016 appellant filed a timely appeal from a February 24, 2016 merit decision
and a March 23, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant’s claim for compensation was timely filed under 5
U.S.C. § 8122; and (2) whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 11, 2016 appellant, then a 71-year-old retired distribution clerk, filed a
traumatic injury claim (Form CA-1) alleging that on June 23, 1996 she was injured when her
1

5 U.S.C. § 8101 et seq.

supervisor asked her to lift a 70-pound sack of mail, which appellant alleged was outside of her
work restrictions. A supervisor noted on the claim form that appellant had retired 15 years ago
and that the alleged injury occurred 20 years ago.
By letter dated January 14, 2016, the employing establishment challenged appellant’s
claim. It noted that she had worked in a sedentary modified position from 1993 until her
retirement on September 20, 2005.
By letter dated January 20, 2016, OWCP requested that appellant submit additional
evidence to support her claim for compensation. It noted that she had not submitted sufficient
evidence to establish that she provided timely notification of the alleged work-related injury.
Appellant was afforded 30 days to submit the additional evidence.
On January 24, 2016 appellant responded to OWCP. She stated that she tripped and fell
on December 4, 1993 while performing duties of her federal employment and that she had a prior
condition of right carpal tunnel syndrome.2 Appellant noted that she had an intervening workrelated injury on June 23, 1996 when she was ordered by her supervisor to lift a 70-pound sack
of mail. She stated that she had filed a timely claim for compensation on December 17, 1996,
but that she had unknowingly filed it as a recurrence rather than a new claim.
In a statement dated February 5, 2016, appellant noted that on December 17, 1996 she
had filed a written notice of recurrence of disability (Form CA-2a) and that she had evidence that
her claim was timely filed. She stated that she had filed this as a notice of recurrence mistakenly
but that she had an intervening injury on June 23, 1996.
In a memorandum dated March 19, 1997, OWCP noted that “the question for
determination is whether the claimed condition is related to the injury of December 4, 1993.”3
The memorandum noted that appellant had claimed a recurrence of temporary total disability on
or after June 22, 1996, alleging right hand pain causally related to the original December 4, 1993
injury.
By decision dated February 24, 2016, OWCP denied appellant’s current claim. It found
that the claim was untimely filed, as the alleged date of injury was June 23, 1996, but the claim
was not filed until January 20, 2016, which was beyond the three-year time limit. OWCP also
found that appellant had not submitted evidence that her supervisor had actual knowledge within
30 days of the alleged injury.
On March 11, 2016 appellant requested reconsideration of OWCP’s February 24, 2016
decision. With her request, she submitted a statement dated March 8, 2016. Appellant claimed
that her claim had mistakenly been filed as a recurrence in 1996, noting “A new emotional injury
on June 22 or 23, 1996 was timely filed. An intervening incident of June 22 or 23, 1996, when
my supervisor ordered me to pick up a 70-pound sack of mail. The injury or exposure prior to
2

OWCP file number (xxxxxx417).

3

The memorandum from OWCP was partly illegible and incomplete, as paragraphs were crossed out, and it only
included one page from a multipage document.

2

December 4, 1993 occurred at the time, place, and in the manner alleged, and resulted in a left
hand fracture and carpal tunnel syndrome right.”4 Appellant also submitted several medical
reports with her request for reconsideration.
In a record of a telephonic conversation dated March 21, 2016, an OWCP representative
spoke to appellant and explained that the memorandum of March 19, 1997 was referencing a
different claim with a different date of injury. The representative explained that, because the
memorandum was referencing a different claim, she could not use that memorandum to establish
her current claim with a date of injury of June 23, 1996. Appellant mentioned an emotional
condition under a prior claim, to which the representative replied that she could not revisit prior
claims for other injuries under the current claim.
By decision dated March 23, 2016, OWCP denied appellant’s request for reconsideration.
It noted that her statement dated March 8, 2016 was repetitious of her prior statements and
contained no new argument or evidence that her claim had been timely filed.
LEGAL PRECEDENT -- ISSUE 1
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.5 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may be allowed even if a claim
is not filed within three years if the immediate superior had actual knowledge of the injury or
death within 30 days such as to put the immediate superior reasonably on notice of an on-the-job
injury or death, or written notice of injury or death as specified in section 8119 was given within
30 days.6
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day, and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.7 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.8
For actual knowledge of a supervisor to be regarded as timely filed, an employee must show not
4

The record indicates that appellant had filed a prior claim for a June 22, 1993 injury under OWCP file number
(xxxxxx597). That claim was filed as an occupational disease claim (Form CA-2) for the conditions of depression
and anxiety.
5

Charles Walker, 55 ECAB 238, 239 (2004); see Charles W. Bishop, 6 ECAB 571, 571 (1954).

6

5 U.S.C. § 8122(a).

7

Id. at § 8119; Larry E. Young, 52 ECAB 264, 266 (2001).

8

Laura L. Harrison, 52 ECAB 515, 517 (2001).

3

only that the immediate superior knew that he or she was injured, but also knew or reasonably
should have known that it was an on-the-job injury.9
Where a traumatic injury definite in time, place, and circumstances is involved, the time
for giving notice of injury and filing for compensation begins to run at the time of the incident,
even though the employee may not have been aware of the seriousness or ultimate consequences
of his injury.10 The Board has held that the applicable statute of limitations commences to run
although the employee does not know the precise nature of the injury.11
ANALYSIS -- ISSUE 1
In the present case, appellant filed a traumatic injury claim dated January 11, 2016,
alleging that on June 23, 1996 she was injured when her supervisor asked her to lift a 70-pound
sack of mail, which appellant alleged was outside of her work restrictions. She later indicated
that she had unknowingly or mistakenly filed a claim for recurrence in relation to this alleged
injury.
With respect to timeliness of the claim, the three-year time limitation begins to run on the
date of injury, as noted above. Appellant would therefore have had three years from June 23,
1996 to timely file the claim. The Form CA-1 dated January 11, 2016 was not filed within three
years of June 23, 1996.
The claim could still be considered timely if the 30-day notice provisions of 5 U.S.C.
§ 8122 were met, but in this case no probative evidence was presented that appellant provided
notice of injury within 30 days. The only evidence provided in favor of appellant’s providing
notice of injury was a partly illegible and incomplete memorandum dated March 19, 1997
discussing a separate claim and noting that appellant had previously claimed a recurrence of
temporary total disability on or after June 22, 1996. Whether appellant’s claim for recurrence
was mistaken or not, this memorandum does not constitute probative evidence that appellant had
notified her immediate superior of a new employment injury on June 22 or 23, 1996, such that
her immediate supervisor would have actual knowledge of this new injury within 30 days.
Furthermore, there is no evidence that written notice of injury was given within 30 days.
For the above reasons, the Board finds that the claim in this case was untimely filed. The
evidence of record does not establish that the claim was timely under the provisions of 5 U.S.C.
§ 8122.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

9

Delmont L. Thompson, 51 ECAB 155, 156 (1999).

10

Emma L. Brooks, 37 ECAB 407, 411 (1986).

11

Supra note 7.

4

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.12 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.13
ANALYSIS -- ISSUE 2
On March 11, 2016 appellant requested reconsideration of OWCP’s February 24, 2016
decision, finding that appellant had not timely filed her claim. With her request, she submitted a
narrative statement, in which she reiterated her argument that her claim had been mistakenly
filed as a recurrence.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her claim.
In her March 8, 2016 request for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law, or advance a new, pertinent, and relevant legal
argument not previously considered. To the extent her statement could be construed as a legal
argument, it had already been considered because she had put the same argument forward prior
to OWCP’s February 24, 2016 decision. Thus, she is not entitled to a review of the merits of her
claim based on the first and second above-noted requirements under section 10.606(b)(2).
The underlying issue is whether appellant timely filed her claim for compensation. A
claimant may be entitled to a merit review by submitting relevant and pertinent new evidence,
but appellant did not submit any new evidence in this case. Her March 8, 2016 statement merely
reiterated arguments that OWCP had already considered in its February 24, 2016 decision.
Appellant also submitted medical reports on reconsideration, which were irrelevant to the issue
of whether her claim was timely filed. As such, appellant did not submit sufficient evidence to
warrant reconsideration of her claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

12

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

13

20 C.F.R. § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

5

CONCLUSION
The Board finds that appellant’s claim for compensation was not timely filed under 5
U.S.C. § 8122. The Board further finds that OWCP properly denied appellant’s request for
reconsideration of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 23 and February 24, 2016 are affirmed.
Issued: November 16, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kingsport, TN, Employer
__________________________________________

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

Docket No. 11-459
Issued: October 27, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 20, 2010 appellant filed a timely appeal of a November 30, 2010
overpayment decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of this overpayment case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment from September 13 to October 25, 2008 in the amount of $3,694.76; and
(2) whether OWCP properly found that appellant was at fault in the creation of the overpayment
and not entitled to waiver.
On appeal, appellant contends that the overpayment was not his fault as he acted in good
faith and repayment would cause financial hardship.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 26, 2008 appellant, then a 53-year-old city carrier, hurt his left knee as he
opened the door of his vehicle while in the performance of duty. He felt several rapid pops in his
knee. By letter dated July 30, 2008, OWCP accepted appellant’s claim for a tear of the medial
meniscus and sprain of the medial collateral ligament of the left knee.2 It informed him about his
entitlement to compensation benefits and his responsibility to return to work. Appellant was
advised that compensation benefits were only payable when he could not perform his job duties
due to his injury and to immediately notify OWCP when he returned to work. OWCP explained
that he was to immediately return any payments that he received for any portion of the period
after he returned to work to prevent an overpayment of compensation.
Appellant was paid wage-loss compensation by check and was placed on the periodic
compensation rolls.
On August 5, 2008 OWCP authorized left knee arthroscopic surgery which appellant
underwent on August 8, 2008.
The employing establishment advised OWCP that appellant returned to full-time work on
September 15, 2008. On October 2, 2008 appellant returned to his regular work duties as a city
carrier with no restrictions. He received compensation checks dated October 3, 2008 for the
period September 13 through 25, 2008 and October 31, 2008 for the period September 26
through October 25, 2008.
On October 7, 2009 OWCP made a preliminary determination that an overpayment of
$3,558.45 arose because appellant received wage-loss benefits for total disability from
September 13 through October 25, 2008, after he returned to full-time work on
September 15, 2008. It found that he was with fault in creating the overpayment because he was
advised in the July 30, 2008 letter that he was not entitled to compensation for total disability
when he returned to work. Appellant was informed of his options if he wished to challenge the
fact of overpayment or to request waiver of recovery of the overpayment. He was advised to
submit, within 30 days, financial information by completing an overpayment recovery
questionnaire (Form OWCP-20).
On October 12, 2009 appellant requested a decision based on the written evidence. He
contended that the overpayment was not his fault. Appellant stated that, following his left knee
surgery, he did not receive any compensation for one month. He believed that since his
payments were delayed 30 days he was entitled to the checks he received after his return to work.
Appellant contended that he satisfied his reporting obligation when he notified the employing
establishment’s health and resource management office of his return to work. In a completed

2

In an October 5, 2009 decision, OWCP granted appellant a schedule award for two percent impairment of the
left lower extremity for the period October 26 through December 5, 2008.

2

Form OWCP-20, he reported total monthly income of $4,760.00 and expenses of $3,615.00.
Appellant had a total of $1,321.00 in his checking and savings account.3
By letter dated November 6, 2009, OWCP requested that appellant submit additional
financial documents to support the information provided on his Form OWCP-20. On
November 16, 2009 appellant submitted the requested financial documents. He alleged that he
did not have any money to repay the overpayment and doing so would cause him great financial
stress.
On October 6, 2010 OWCP determined that the $3,558.45 overpayment was incorrect
and must be voided. It found that appellant returned to full-time work on September 15, 2008
and full-time full-duty work on October 2, 2008. Appellant received compensation for his days
off on September 13 and 14, 2008, as well, as from September 26 to October 25, 2008. By letter
dated October 6, 2010, OWCP advised him that the October 7, 2009 preliminary overpayment
determination was set aside based on its receipt of new information.
On October 13, 2010 OWCP issued a preliminary determination that an overpayment of
$3,694.76 arose because appellant received wage-loss benefits for total disability from
September 13 through October 25, 2008, after he returned to full-time work on
September 15, 2008. Appellant received $1,226.78 in gross and net compensation for the period
September 13 to 25, 2008. OWCP further indicated that he received $2,920.92 in gross
compensation for the period September 26 to October 25, 2008 and after deducting health
benefits insurance (HBI) of $391.68, basic life insurance (BLI) of $34.29 and optional life
insurance (OLI) of $26.97 he received net compensation in the amount of $2,467.98. It added
$1,226.78 and $2,467.98 to calculate a $3,694.76 overpayment in compensation for the period
September 15 to October 25, 2008. OWCP found that appellant was with fault in creating the
overpayment because he was advised in the July 30, 2008 letter that he was not entitled to
compensation for total disability when he returned to work. Appellant was advised of his rights
in the event he disagreed with the preliminary finding. OWCP requested that he submit, within
30 days, financial information by completing a Form OWCP-20.
In a November 30, 2010 decision, OWCP finalized the $3,694.76 overpayment and
finding of fault. It found that appellant did not respond to the October 13, 2010 preliminary
decision and he did not contest the finding of overpayment and fault. Appellant was advised to
either forward a check for the entire amount of the overpayment within 30 days or to contact
OWCP in order to arrange a repayment plan.
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 duty.4 FECA, however, also places limitations on an employee’s right to receive
3

The Board notes that appellant incorrectly calculated the value of his total assets. Appellant had $1,256.00 in a
checking account and $65.00 in a savings account which totaled $1,321.00 rather than $1,311.00 as he reported.
4

5 U.S.C. § 8102(a).

3

compensation benefits. Section 8116 provides that, while an employee is receiving benefits he
may not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.5 OWCP regulations further state that compensation for wage loss due to
disability is available only for the period where an employee’s work-related medical condition
prevents him or her, from earning the wages earned before the work-related injury.6 A claimant
is not entitled to receive temporary total disability and actual earnings for the same period.
OWCP procedures provide that an overpayment in compensation is created when a claimant
returns to work at regular salary but continues to receive wage-loss compensation.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $3,694.76. The record reflects that appellant returned to full-time work at the employing
establishment on September 15, 2008. However, he continued to receive compensation benefits
for wage loss until October 25, 2008. OWCP determined that the amount of compensation
appellant received for the period September 13 to October 25, 2008 totaled $4,147.70 and, after
deducting HBI of $391.68, BLI of $34.29 and OLI of $26.97, an overpayment existed in the
amount of $3,694.76. Because appellant received regular full-time wages from the employing
establishment during the period September 13 to October 25, 2008, he was not entitled to
disability compensation from OWCP for the same period. The Board finds that his receipt of
dual payments created an overpayment of compensation.
There is no contrary evidence nor does appellant contest the fact and the amount of the
overpayment. The Board finds that he received an overpayment of $3,694.76 from
September 15 to October 25, 2008.
LEGAL PRECEDENT -- ISSUE 2
According to section 8129(a) of FECA, adjustment or recovery shall be made under
regulations prescribed by the Secretary of Labor when an overpayment of compensation was
made because of an error of fact or law.8 The only exception is if the individual is without fault
in the creation of the overpayment and when adjustment or recovery would defeat the purpose of
FECA or would be against equity and good conscience.9 A recipient is at fault in the creation or
acceptance of an overpayment if he has done any of the following: (1) made an incorrect
statement as to a material fact which he or she knew or should have known to be incorrect;

5

Id. at § 8116(a).

6

20 C.F.R. § 10.500(a).

7

L.S., 59 ECAB 350 (2008); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (September 2010).
8

5 U.S.C. § 8129(a).

9

Id.

4

(2) failed to provide information which he or she knew or should have known to be material; or
(3) accepted a payment which he or she knew or should have known to be incorrect.10
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the overpayment because he
accepted a payment which he knew or should have known to be incorrect and applied the third
criterion listed above. To establish that he was at fault, OWCP must establish that at the time he
accepted the compensation check in question he knew or should have known that the payment
was incorrect.
In this case, appellant received compensation by check which indicated the date of
compensation entitlement and also received wages from the employing establishment from
September 13 through October 25, 2008. In a July 30, 2008 letter, in which OWCP notified him
that his claim was accepted, OWCP clearly advised him that he was to immediately inform
OWCP upon his return to work to avoid an overpayment in compensation and that, if he worked
during any period covered by a compensation payment, he had to return the payment to OWCP.
Under these circumstances, appellant knew or should have known that he could not receive
wage-loss compensation during any period that he worked or continued to receive wages from
the employing establishment.11
OWCP was notified that he returned to work on
September 15, 2008. Appellant, however, did not return the compensation he received by checks
dated October 3 and 31, 2008, for the period September 13 through October 25, 2008. The
Board finds that he should have known at the time he returned to work on September 15, 2008
and began to receive wages from the employing establishment, that he was not entitled to
concurrently receive wage-loss compensation for the same period and had an obligation to return
a payment that he knew or should have known was incorrect.12 Under section 10.433(a) of
OWCP’s regulations, appellant is at fault and is not entitled to waiver of the overpayment in
compensation.13
Appellant contended before OWCP and on appeal that the overpayment was not his fault.
He stated that he acted in good faith and notified the employing establishment’s health and
resource management office about his return to work. Appellant further claimed that, because
his compensation benefits were 30 days late following his employment-related August 8, 2008
left knee surgery, he thought that the payment he received represented compensation to which he
was entitled. Even if OWCP was at fault for issuing compensation checks after he returned to
full-time work on September 15, 2008, this fact does not relieve him from liability for repayment
of the debt if he was at fault for accepting the payment he knew to be incorrect.14 Additionally,
10

B.H., Docket No. 09-292 (issued September 1, 2009). 20 C.F.R. § 10.433(a).

11

Neill D. Dewed, 57 ECAB 451 (2006).

12

Id.

13

Id. The Board also notes that had appellant been found without fault, he would not be entitled to waiver
because he did not submit requested financial information, even though provided an overpayment questionnaire.
14

R.H., Docket No. 09-1981 (issued June 11, 2010); M.J., Docket No. 09-469 (issued August 24, 2009).

5

given the clear indication on each compensation check of the period covered, appellant knew or
should have known that the checks he received after September 15, 2008 were not late payments
for compensation due 30 days earlier. The Board finds, therefore, that he accepted compensation
he knew or should have known that he was not entitled to receive from September 13 to
October 25, 2008 after he returned to work. Since appellant is at fault on the issue of
overpayment, recovery cannot be waived.
Appellant further contended that repayment of the overpayment would cause him
financial hardship since his wife was unemployed, his paycheck was being garnished and he was
repaying a large medical bill. The Board notes that it does not have jurisdiction to review
OWCP’s determination of recovery by lump-sum payment. The Board’s jurisdiction is limited
to reviewing those cases where OWCP seeks recovery from continuing compensation under
FECA.15 As appellant was not in receipt of continuing compensation, at the time the final
decision was entered in this matter, the Board lacks jurisdiction to review recovery of the
overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
from September 13 to October 25, 2008 in the amount of $3,694.76. The Board further finds
that OWCP properly found that he was at fault in the creation of the overpayment and, therefore,
not entitled to waiver.

15

Judith A. Cardio, 55 ECAB 348, 353 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the November 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 27, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, LAKE FOREST POST
OFFICE, Jacksonville, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0563
Issued: March 22, 2022

Case Submitted on the Record

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

On March 8, 2022 appellant filed an appeal from a July 15, 2020 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0563.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 15, 2020 decision was January 11, 2021. As appellant
did not file an appeal with the Board until March 8, 2022, more than 180 days after the July 1 5 ,
2020 OWCP decision, the Board finds that the appeal docketed as No. 22-0563 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not explain ed her failure to
timely file an appeal with supporting documentation sufficient to establish compelling
circumstances. Because there is no final adverse decision issued by OWCP within 180 days of
1

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

2

Id. at § 501.3(e).

the filing of the instant appeal, the Board concludes that the appeal docketed as No. 22 -0563,
must be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0563 is dismissed.
Issued: March 22, 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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 09-887
Issued: October 23, 2009

Case Submitted on the Record

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

JURISDICTION
On February 18, 2009 appellant filed a timely appeal of a November 17, 2008 decision of
the Office of Workers’ Compensation Programs, finding that his request for reconsideration was
untimely and failed to show clear evidence of error. Pursuant to 20 C.F.R. §§ 501.2 and 501.3,
the Board’s jurisdiction is limited to decisions issued within one year of the filing of the appeal.
Since the most recent merit decision was issued November 28, 2005, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly found that appellant’s application for
reconsideration was untimely and failed to show clear evidence of error.
FACTUAL HISTORY
Appellant filed a traumatic injury claim (Form CA-1) alleging that on November 12,
2004 he sustained a back injury in the performance of duty while moving boxes. By decision
dated November 28, 2005, the Office denied the claim for compensation. It found that the

medical evidence was insufficient to establish an injury. Appellant requested an appeal before
the Board. By order dated May 25, 2006, the Board dismissed the appeal at appellant’s request
to seek reconsideration and submit new evidence to the Office.1
On April 24, 2007 the Office received additional evidence. Appellant submitted a copy
of the Board’s May 25, 2006 order, on which he indicated that he had received the order on
May 31, 2006 and believed he had until May 31, 2007 to file an appeal.
By letter dated April 30, 2007, the Office stated that it was unclear whether appellant was
requesting reconsideration of the November 28, 2005 decision and requested clarification. On
July 18, 2007 it received a letter dated April 18, 2007 requesting reconsideration. Appellant
indicated that his prior appeal had been dismissed by the Board to enable him to request this
reconsideration.
On July 25, 2007 he submitted a June 22, 2007 letter, requesting
reconsideration of his claim. The record indicates that on November 13, 2007, appellant
submitted additional evidence.
In a decision dated November 17, 2008, the Office determined that appellant’s
reconsideration request was untimely. It further denied the request on the grounds that it did not
establish clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.2 The employee shall exercise this right through a written
request to the district Office. The request, along with the supporting statements and evidence, is
called the “application for reconsideration.”3
Section 8128(a) of the Act4 does not entitle a claimant to a review of an Office decision
as a matter of right.5 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.6 The Office, through regulations,

1

Docket No. 06-757 (issued May 25, 2006).

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.605 (1999).

4

5 U.S.C. § 8128(a).

5

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”

2

has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a).7
As one such limitation, the Office has stated that it will not review a decision denying or
terminating a benefit unless the application for reconsideration is filed within one year of the
date of that decision.8 The Board has found that the imposition of this one-year limitation does
not constitute an abuse of the discretionary authority granted the Office under 5 U.S.C.
§ 8128(a).9
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.10 In accordance with this holding, the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.12 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.14 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.15 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.16 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.17
7

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, it has stated that a claimant may obtain review of the merits of a claim by: (1) showing
that the Office erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal argument not
previously considered by the Office; or (3) submitting relevant and pertinent evidence not previously considered by
the Office; see 20 C.F.R. § 10.606(b).
8

Id. at § 10.607(a).

9

See Leon D. Faidley, Jr., supra note 5.

10

Leonard E. Redway, 28 ECAB 242 (1977).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996).

12

See Dean D. Beets, 43 ECAB 1153 (1992).

13

See Leona N. Travis, 43 ECAB 227 (1991).

14

See Jesus D. Sanchez, 41 ECAB 964 (1990).

15

See Leona N. Travis, supra note 13.

16

See Nelson T. Thompson, 43 ECAB 919 (1992).

17

Gregory Griffin, 41 ECAB 458 (1990).

3

ANALYSIS
The most recent merit decision by the Office denying appellant’s claim for an injury was
dated November 28, 2005. Appellant initially requested an appeal with the Board, but his appeal
was dismissed on May 25, 2006 at his request in order to pursue reconsideration before the
Office. He contends that the Board’s May 25, 2006 order allowed him to request reconsideration
before the Office up to one year after he received the order on May 31, 2006. The Board’s order
advised appellant that he should submit a written request for reconsideration and noted that a
claimant generally has one year from the date of an adverse Office decision to request an appeal
before the Board. The Board’s order did not advise appellant that he had one year in which to
request reconsideration before the Office. The Office’s regulations, as noted, clearly provide that
a timely application for reconsideration must be made within one year of the Office’s decision.
Appellant, therefore, had until November 28, 2006 to file a timely application for
reconsideration. Since his application for reconsideration was dated April 18, 2007, it is
untimely.
In this case, appellant did not clearly state the reasons he felt the Office’s November 28,
2005 decision was in error. While many documents were submitted to the record, there is little
evidence that is relevant to the issue presented. Appellant’s claim was for a back injury
sustained while moving boxes on November 12, 2004. In an October 4, 2005 report, Dr. Ronald
Hamm, Board-certified in family practice, noted in his history that appellant was “initially seen
by administrative medicine for complaints related to an occupational ‘injury’ which occurred due
to moving cartons of books on or about November 12, 2004. Appellant was treated and returned
to duty.” Dr. Hamm did not provide a complete history of the incident, a diagnosis or opinion on
causal relationship between a diagnosed condition and the employment incident.
There is no evidence of record that is sufficient to establish clear evidence of error by the
Office in the denial of the claim. The Board finds that the Office properly denied the application
for reconsideration in this case.
CONCLUSION
The Board finds that appellant’s application for reconsideration was untimely and failed
to show clear evidence of error by the Office.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 17, 2008 is affirmed.
Issued: October 23, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5