United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Romulus, MI, Employer
__________________________________________

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

Docket No. 10-988
Issued: November 26, 2010

Case Submitted on the Record

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

JURISDICTION
On February 26, 2010 appellant filed a timely appeal from a nonmerit decision of the
Office of Workers’ Compensation Programs dated February 23, 2010 denying his request for
reconsideration as untimely and finding that it failed to establish clear evidence of error.
Because more than one year has elapsed between the most recent merit decision dated October 8,
2008 and the filing of this appeal on February 26, 2010, pursuant to 20 C.F.R. §§ 501.2(c) and
501.3 the Board lacks jurisdiction to review the merits of appellant’s case.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request for reconsideration was untimely
filed and failed to demonstrate clear evidence of error.
1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal with the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after
November 19, 2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
This case has previously been before the Board. By decision dated March 12, 2007, the
Board found appellant did not establish a compensable factor with respect to his allegations of
harassment and discrimination. However, the Board found that appellant established a
compensable factor with respect to a June 3, 2004 altercation when he was assaulted by a
coworker.2 As a compensable factor was established the Board remanded the case to the Office
for further development of the medical evidence. In an October 8, 2008 decision, the Board
affirmed the Office’s January 9, 2008 decision which denied appellant’s claim for wage-loss
disability on and after March 21, 2005 due to insufficient medical evidence. In a November 24,
2009 decision, the Board affirmed a March 2, 2009 nonmerit Office decision.3 The findings of
fact as set forth in the prior decision are hereby incorporated by reference.4
On February 8, 2010 appellant requested reconsideration contending that both the Office
and the Board had ignored medical reports dated June 26 and October 24, 2007. He
subsequently submitted an undated request for reconsideration citing to 20 C.F.R. §§ 10.332,
10.503 and 10.606 and 5 U.S.C. § 8128(a). In support of his claim, appellant submitted factual
evidence and previously considered medical reports from Dr. Surendra Kelwala, a treating
Board-certified psychiatrist.
By decision dated February 23, 2010, the Office denied appellant’s request for
reconsideration on the basis that it was untimely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act5 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. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.6 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.7 The Board has found that the imposition of the one-year limitation

2

Docket No. 06-1983 (issued March 12, 2007). The Office incorrectly noted the author date as March 13, 2007
in IFECS.
3

Docket No. 09-1124 (issued November 24, 2009).

4

On November 26, 2004 appellant filed an occupational disease claim alleging that on or about June 3, 2004 he
first realized his depression was employment related. He stopped work on November 24, 2004, returned on
January 9, 2005 and stopped again on February 14, 2005. On March 17, 2005 appellant was terminated from
employment based on his “inability to perform essential functions -- working in a stressful environment.”
5

5 U.S.C. § 8101 et seq.

6

20 C.F.R. § 10.605.

7

Id. at § 10.607(a).

2

does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.8
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit and must manifest on its face that the Office committed an error.9 The term
‘clear evidence of error’ is intended to represent a difficult standard. The claimant must present
evidence which on its face shows that the Office made an error (for example, proof of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized medical
report which, if submitted prior to the Office’s denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.10 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.11
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
request for reconsideration. Its procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original Office decision.12 However, a right
to reconsideration within one year also accompanies any subsequent merit decision on the
issues,13 including a merit decision of the Board.14 The most recent merit decision was the
October 8, 2008 decision of the Board. Appellant had one year from the date of this decision to
make a timely request for reconsideration. Since appellant did not file a request until February 8,
2010, the Board finds that it was filed outside the one year time period.
As appellant’s request was untimely, he must submit evidence or argument that shows
clear evidence of error in the Office’s decision denying his claim for wage-loss compensation.
8

5 U.S.C. § 8128(a); E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009); Leon D. Faidley, Jr., 41
ECAB 104 (1989).
9

D.O., 60 ECAB ___ (Docket No. 08-1057, issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005);
Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991). See
E.R., supra note 8.
11

See W.G., 60 ECAB ___ (Docket No. 08-2340, issued June 22, 2009); S.D., 58 ECAB 713 (2007); Alberta
Dukes, 56 ECAB 247 (2005).
12

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008); Alberta Dukes, supra note 11.

13

D.G., 59 ECAB 455 (2008); Robert F. Stone, supra note 9.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3b (issued
January 2004).

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The term clear evidence of error is intended to represent a difficult standard.15 Appellant’s
request would have to establish on its face that the Office’s denial of his wage-loss claim was
erroneous. It cannot be a matter of opinion; it must be a matter of proof.
Appellant’s requests for reconsideration do not establish clear evidence or error. The
Office found that he failed to provide sufficient medical evidence to support his claim that he
was entitled to wage-loss compensation on and after March 21, 2005. Appellant contended that
the Office and the Board ignored pertinent medical evidence, specifically the June 26 and
October 24, 2007 reports from Dr. Kelwala, in affirming the denial of wage-loss compensation.
Contrary to appellant’s contention, the October 24, 2007 medical report from Dr. Kelwala was
considered by both the Office and the Board in prior merit decisions. His argument that relevant
medical evidence was ignored is without merit. To establish clear evidence of error, the
evidence submitted must be positive, precise and explicit and must manifest on its face that the
Office committed an error.16 Appellant did not submit such evidence.
On appeal, appellant contends that the Office ignored the law in the denial of his claim.
He also contends that the Office failed to follow 20 C.F.R. § 10.332 as it did not request his
treating physician to provide additional information and also failed to refer him for a second
opinion evaluation if his treating physician’s opinion was insufficient. Contrary to appellant’s
contentions the Office did not ignore the law in the development of his claim. He was released
to full duty by Dr. Kewala, his treating physician, as of March 21, 2005. It was appellant’s
burden to establish his entitlement to wage-loss compensation on and after March 21, 2005.17 As
noted, he has not shown that the Office committed clear evidence of error in the denial or in the
handling and development of his claim.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

15

D.L., 60 ECAB ____ (Docket No. 08-1057, issued June 23, 2009); Joseph R. Santos, 57 ECAB 554 (2006).

16

Robert F. Stone, supra note 9.

17

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001) (for each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for work as a result of the
accepted employment injury).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2010 is affirmed.
Issued: November 26, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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Appearances:
Brian Klopfenstein, Esq., for the appellant
No appearance, for the Director

Docket No. 08-942
Issued: February 4, 2009

Oral Argument December 3, 2008

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On February 12, 2008 appellant timely appealed merit decisions of the Office of
Workers’ Compensation Programs dated September 28, 2007 and January 4, 2008, concerning
her wage-earning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
September 30, 2007 based on its determination that the constructed position of receptionist
represented her wage-earning capacity.
FACTUAL HISTORY
On August 25, 1999 appellant, then a 43-year-old flat sorting machine operator, noticed
pain and swelling in her feet that began while working overtime and during prolonged standing.
She returned to work the next day with a work restriction. The Office accepted appellant’s claim
for bilateral Achilles tendinitis with a subsequent debridement and calcaneal ostectomy and paid

her appropriate compensation. It denied appellant’s request to expand her claim to include a
consequential right knee condition.1
On May 18, 2005 appellant accepted a permanent rehabilitation job offer as a modified
full-time mail processing clerk. On May 25, 2005 she was involved in a nonwork-related motor
vehicle accident and sustained a left rotator cuff tear. As a result of the motor vehicle accident,
appellant did not work May 26 through June 26, 2005. She returned to work on June 27, 2005
and worked until June 29, 2005. Appellant stopped work and was placed on the periodic rolls.
On February 8, 2008 the employing establishment administratively removed appellant from
employment due to acceptance of nonpostal employment.
The Office denied appellant’s subsequent claims filed in July 2005, which alleged that
the work duties she performed for the three days after her motor vehicle accident aggravated her
left rotator cuff tear (file number xxxxxx464) and that her job duties exceeded her work
restrictions of 2001 and caused a tear in her back as well as a left shoulder injury (file number
xxxxxx464). By decision dated December 19, 2006, it also denied appellant’s request to expand
her claim to include a consequential left shoulder condition claimed to be caused by use of a
manual wheel chair prescribed for her accepted bilateral Achilles tendinitis condition.
On March 16, 2006 Dr. Timothy Badwey, a Board-certified orthopedic surgeon,
evaluated appellant for her bilateral Achilles tendinitis. In a work-capacity evaluation (Form
OWCP-5c), he advised that she could work full time with permanent restrictions on squatting,
kneeling or climbing and lifting no more than 30 pounds. Dr. Badwey noted that appellant
should not walk more than 100 feet without a 15-minute rest between, should sit in a chair with
feet on the floor and should use a wheelchair between the parking lot and her workstation, which
she could self-propel. Appellant also had restrictions with respect to her nonwork-related
conditions.2
On March 9, 2007 the Office referred appellant to vocational rehabilitation. On April 3,
2007 the employing establishment advised the Office that it was unable to provide employment
within appellant’s restrictions. On April 30, 2007 appellant underwent a vocational evaluation,
which demonstrated her ability to perform clerical positions.
On May 6, 2007 appellant started part-time work as an office manager at the Macedonia
Baptist Church for $100.00 per week.3 The record reflects that appellant had volunteered at the
church since 2005, performing clerical work. She received training in computer operations,
customer service skills and attended formal training classes paid for by the church, which taught
her skills in proofreading and grammar.
1

By decision dated November 4, 2003, the Board affirmed the November 20, 2002 and April 24 and February 13,
2003 decisions of the Office under file number xxxxxx280, which found that appellant did not establish a
consequential injury to her right knee. Docket No. 03-1284 (issued November 4, 2003).
2

The record indicates that appellant’s left shoulder has a permanent restriction on “prolonged propelling of the
wheelchair.” Dr. Stanley Bowling, a Board-certified orthopedic surgeon, opined that appellant reached maximum
medical improvement with respect to her right knee condition on April 7, 2003.
3

Appellant worked Tuesday through Friday 9:00 a.m. to 4:00 p.m. and four hours on Sunday.

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Because appellant had secured employment, vocational rehabilitation services were
closed on August 9, 2007. The rehabilitation counselor identified the position of receptionist,
Department of Labor’s Dictionary of Occupational Titles, (DOT # 237.367-038) to be suitable,
both medically and occupationally, reasonably available in appellant’s geographic area and
comparable to the job she performed at a better wage than that provided by the Macedonia
Baptist Church. The position had estimated weekly earnings of $402.00 and was available in
sufficient numbers on a full-time basis in appellant’s community. The position description noted
that a receptionist would receive callers at the employing establishment, determine the nature of
business, direct callers to destination; obtain caller’s name and arrange for appointment with the
person called upon; direct caller to destination and record name, time of call, nature of business
and person called upon. The receptionist could also issue a visitor’s pass when required; make
future appointments and answer inquires; perform a variety of clerical duties and other duties
pertinent to type of establishment; and collect and distribute mail and messages. The position
was listed as sedentary with occasional lifting of no more than 10 pounds and no climbing,
balancing, stooping, kneeling, crouching or crawling. The rehabilitation counselor opined that
appellant’s experience exceeded the specific vocational preparation factor of three to six months
to compete on the open labor market.
In an August 23, 2007 notice of proposed reduction of compensation, the Office advised
appellant that the factual and medical evidence of record established that she was no longer
totally disabled. It found that appellant’s actual earnings performing clerical work for her church
did not adequately represent her wage-earning capacity. The Office found that the factual and
medical evidence established that she had the capacity to earn the wages of a receptionist and
requested that she submit additional evidence or argument within 30 days if she disagreed with
the proposed action.
In response, appellant disagreed with the proposed reduction. She noted that the
Macedonia Baptist Church was a nonprofit organization allowed to pay the wage amount she
received. Appellant questioned why the employing establishment did not place her in a position
for which she was qualified. She noted that no names of locations of specific receptionist jobs
were provided and was not obligated to stay in her current position. Appellant expressed
dissatisfaction with the performance of the rehabilitation counselor and noted that she had postal
skills that were not helpful at the church or any other business.
By decision dated September 28, 2007, the Office reduced appellant’s wage-loss
compensation effective September 30, 2007, finding that the position of receptionist represented
her wage-earning capacity. It noted that appellant’s current weekly pay rate for the job and step
when injured was $981.75. The Office found that appellant was capable of earning $402.00 per
week, that the adjusted wage-earning capacity per week was $374.78, that the percentage of new
wage-earning capacity was 41 percent, that the loss in wage-earning capacity amount per week
was $539.31, leaving appellant with a compensation rate of $404.48 or $414.25 per week when
increased by applicable cost-of-living adjustments. This resulted in a new compensation rate
every four weeks of $1,657.00, less health benefits premium of $268.60, less basic life insurance
premium of $14.40 and less optional life insurance premium of $76.20, for a net compensation
every four weeks of $1,297.80 beginning September 30, 2007.

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On October 12, 2007 appellant requested reconsideration. She argued that the work she
performed for the church was not consistent with the position that the Office selected. Appellant
contended that she was limited in her job duties and responsibilities and often missed work. In
an October 8, 2007 letter, John L. Brooks, Pastor, Macedonia Baptist Church, disagreed that
appellant’s job with the church was that of a receptionist. He stated that appellant only answered
the telephone and took messages. Occasionally, appellant performed other “odd and end jobs
that help out in the life of the church.” She submitted information about a dispute with the
employing establishment and a letter requesting an independent vocational rehabilitation
assessment, which the Office denied by letter dated December 5, 2007. Appellant submitted
September 11 and November 27, 2007 reports, from Dr. Badwey regarding her ankles and a
February 2, 2007 treatment note from Dr. Bowling regarding her left shoulder and right knee.
By decision dated January 4, 2008, the Office denied modification of its September 28,
2007 decision.
On appeal, appellant contended that she cannot medically and vocationally perform the
selected receptionist position. She reiterated that her actual duties at the Macedonia Baptist
Church did not fit the duties identified in the constructed position.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.4 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of
wage-earning capacity.5
Section 8115 of the Federal Employees’ Compensation Act6 and Office regulations
provide that wage-earning capacity is determined by the actual wages received by an employee if
the earnings fairly and reasonably represent his wage-earning capacity. If the actual earnings do
not fairly and reasonably represent wage-earning capacity or the employee has no actual
earnings, his or her wage-earning capacity is determined with due regard to the nature of the
injury, the degree of physical impairment, usual employment, age, qualifications for other
employment, the availability of suitable employment and other factors or circumstances which
may affect the wage-earning capacity in his or her disabled condition.7
The Office must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which the Office relies must provide a detailed description of the

4

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

5

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

6

5 U.S.C. §§ 8101-8193.

7

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, supra note 5.

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condition.8 Additionally, the Board has held that a wage-earning capacity determination must be
based on a reasonably current medical evaluation.9
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office for selection of a position listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service.10 Finally, application of the principles set forth in Albert C. Shadrick11 will result in the
percentage of the employee’s loss of wage-earning capacity.12 Subsection (d) of the regulations
provide that the employee’s wage-earning capacity in terms of percentage is obtained by
dividing the employee’s actual earnings or the pay rate of the position selected by the Office, by
the current pay rate for the job held at the time of the injury.13
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, the Office must consider the degree of physical impairment,
including impairment results from both injury related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.14
ANALYSIS
Appellant’s claim was accepted by the Office for bilateral Achilles tendinitis. By
decision dated September 28, 2007, the Office reduced her compensation effective
September 30, 2007. The Board finds that the Office properly reduced appellant’s compensation
based on her capacity to perform the duties of a receptionist.
In finding that appellant was physically capable of performing the duties of a receptionist,
the Office relied on the March 16, 2006 opinion of Dr. Badwey who evaluated appellant for her
accepted bilateral Achilles’ tendinitis. Although she has other conditions and impairments
pertaining to her left shoulder and ankles, these conditions and any impairments therefrom were
8

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

9

John D. Jackson, supra note 5.

10

James M. Frasher, supra note 4.

11

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

12

James M. Frasher, supra note 4.

13

20 C.F.R. § 10.403(d).

14

John D. Jackson, supra note 5.

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acquired after her employment injury; therefore, any incapacity to perform the duties of the
selected position resulting from such subsequently acquired conditions is immaterial to the loss
of wage-earning capacity that can be attributed to the accepted employment injury.15 In a
March 16, 2006 OWCP-5c form, Dr. Badwey indicated that appellant was capable of working an
eight-hour day in a sedentary position with restrictions. These restrictions involved no squatting,
kneeling or climbing, no lifting more than 30 pounds, walking no more than 100 feet without a
15 minute rest between, sitting in a chair with feet on the floor and using a wheelchair to get
from parking lot to workstation and back, which appellant could self-propel. The Board finds
that Dr. Badwey’s opinion is sufficiently well rationalized to establish that appellant is medically
capable of working full time in the constructed position, which is a sedentary position that has
occasional lifting of no more than 10 pounds and no climbing, balancing, stooping, kneeling,
crouching, or crawling. Although appellant subsequently submitted medical evidence, the
medical reports are immaterial to the medical suitability of the selected receptionist position.
The reports pertain to nonwork-related conditions of her ankles, left shoulder and right knee
which were subsequent to her accepted injury. Accordingly, the medical evidence clearly
establishes that appellant has the physical capacity to work eight hours a day as a receptionist
within the restrictions noted by Dr. Badwey.
The position of receptionist is also vocationally suitable to appellant. Appellant was in
the initial stages of vocational rehabilitation through the Office when she secured employment at
the Macedonia Baptist Church. For approximately two years, she had volunteered at the church
performing work of a clerical nature. The record reflects that appellant received training in
computer operations, customer service skills and attended formal training classes paid for by the
church, which taught her skills in proofreading and grammar. She was hired as an Office
Manager by the Macedonia Baptist Church on May 6, 2007 and performed this position from
May 6, 2007 and continuing on what appears to be a part-time basis with great flexibility on the
hours actually worked. Dr. Badwey, however, found that appellant could work full time. The
vocational rehabilitation counselor properly recommended that the Office select a full-time
receptionist position to represent appellant’s wage-earning capacity as her actual employment
and earnings with the church did not adequately represent her capacity for employment.16
The receptionist position was classified as sedentary with occasional lifting of no more
than 10 pounds and no climbing, balancing, stooping, kneeling, crouching or crawling. These
physical requirements are within the restrictions set forth by Dr. Badwey. The vocational
requirements were found by the counselor to be commensurate with appellant’s education and
experience, as she performed these duties on a voluntary basis for two years prior to being hired
May 6, 2007 and continuing. The counselor then determined the prevailing wage rate of these
positions and their reasonable availability in the open labor market. Based on these calculations,
the Office issued a September 28, 2007 decision reducing appellant’s compensation based on her
ability to earn $402.00 a week as a receptionist.
The Board finds that the Office considered the proper factors, such as availability of
receptionist positions and appellant’s physical limitations, usual employment, age and
15

Id.; see James Henderson, Jr., 51 ECAB 268 (2000).

16

T.O, 58 ECAB ___ (Docket No. 06-1458, issued February 20, 2007).

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employment qualifications, in determining that the receptionist position represented appellant’s
wage-earning capacity.17 Appellant’s actual earnings did not fairly and reasonably represent her
wage-earning capacity as such position was part time. Dr. Badwey opined that appellant was
medically capable of full-time light-duty work at the physical demand level required by the
receptionist position. Appellant performed the component tasks of this position at the
Macedonia Baptist Church since 2005, first on a volunteer basis and then on a paid basis and
continuing. The vocational rehabilitation counselor found that receptionist positions were
reasonably available in appellant’s commuting area. Also, the Office followed the established
procedures under the Shadrick decision in calculating appellant’s employment-related loss of
wage-earning capacity. Appellant did not contend that the Office erred in its mathematical
calculations of her wage-earning capacity. The Board has reviewed these calculations and finds
them to be correct.
Appellant contends that the Office wrongfully classified the job category she could
perform as her actual job duties at the church do not meet the DOL’s definition for receptionist.18
She further contends that her additional skills are not useful to her work with the church.
However, the point at issue is whether the evidence establishes that appellant is vocationally and
medically able to perform the duties of a receptionist, not whether the clerical position for which
she works at the church is the same as the selected position. She also argued that the church is a
nonprofit organization which can only pay her the wage she receives. Appellant is medically and
vocationally capable of working eight hours a day as a receptionist. It is her choice to remain in
her part-time position at the church. Appellant did not submit medical evidence to establish that
she was not capable of working eight hours a day.
Appellant has argued that the rehabilitation counselor did not report information in a
truthful manner and was biased. However, these assertions are not supported by any evidence.
The record indicates that the counselor properly monitored her situation and determined the
position accurately represented appellant’s wage-earning capacity. While appellant contended
that, the names of locations of specific jobs were not identified, such action is not necessary as
appellant had already obtained employment and her wage-earning capacity is based upon a
selected or constructed position. Furthermore, the Board has held that the mere fact that
appellant is not able to secure a job in the selected position does not establish that the work is not
available or suitable.19 While appellant also questioned why the employing establishment did
not place her in a position for which she is qualified, the Board has no jurisdiction over such
personnel matters. The other information appellant submitted has no bearing on the issue in this
case. The Office’s September 28, 2007 decision reducing appellant’s compensation based on her
ability to earn wages in the constructed position of a full-time receptionist is proper under the
law and the facts of this case.

17

Loni J. Cleveland, 52 ECAB 171 (2000).

18

While appellant contended she does not type, the Board notes no requirement for typing is listed in the
receptionist job description.
19

See Karen L. Lonon-Jones, 50 ECAB 293 (1999).

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CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
September 30, 2007 based on its determination that the constructed position of receptionist
represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs,
decisions dated January 4, 2008 and September 28, 2007 are affirmed.
Issued: February 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
TANK-AUTOMOTIVE & ARMAMENTS,
Fort Hood, TX, Employer
__________________________________________

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Appearances:
Lonnie Boyland, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1084
Issued: May 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 9, 2014 appellant, through counsel, filed a timely appeal of a February 26, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was totally
disabled for the period April 13, 2011 through August 8, 2012.
FACTUAL HISTORY
On March 1, 2012 appellant, then a 50-year-old logistics assistance representative and
equipment specialist, filed an occupational disease claim alleging that on April 13, 2011 he
1

5 U.S.C. § 8101 et seq.

developed post-traumatic stress disorder (PTSD) while in Iraq due to factors of his federal
employment. He first realized that his condition was related to his employment on
April 27, 2011. Appellant submitted a narrative statement and attributed his condition to the job
requirement that he prepare a vehicle that had been destroyed by a roadside bomb, including
inventorying the vehicle before it was sanitized and while the body of the passenger killed in the
incident was still within the vehicle.
On March 16, 2011 appellant noted the employing establishment as his duty station and
listed his overseas and continental United States location preferences. He requested an
accommodation and noted that his wife had started a business. Appellant advised that his
youngest son was in college and asked to remain at his present location for 18 months. In an
e-mail of April 8, 2011, he requested a deferment from his move to Kansas. Appellant requested
to retire in Texas and noted that he was open to overseas deployment. He stated that a
deployment to Kansas would require him to sell the family farm, close his wife’s business and
leave his son in his final year of college. Appellant stated, “I am so devastated right now that I
can’t even see straight, please tell me my years of service have at least given me the right to
request reconsideration.”
In an e-mail dated April 21, 2011, Michael Stricker, appellant’s superior, stated that on
April 8, 2011 appellant reported increased levels of stress as well as problems sleeping due to
problems at home including his transfer from the employing establishment to Fort Riley, Kansas.
Appellant reported for a physical on April 25, 2011. He reported headaches, palpitations,
and trouble sleeping. Appellant submitted a work release note from a nurse practitioner dated
April 27, 2011 listing that he was totally disabled. In a note dated May 2, 2011, Dr. Luis
Egelsee, a Board-certified family practitioner, diagnosed PTSD and anxiety. He stated that
appellant was disabled until June 1, 2011. Jim Colbert, a licensed professional counselor,
examined appellant on November 26, 2011 and diagnosed PTSD and generalized anxiety
disorder due to the examination of the unsanitized vehicle in Iraq. He stated that appellant’s
condition caused significant difficulty in occupational functioning primarily due to his
association with his employing establishment.
In a note dated December 11, 2011, Amy Eichler, Ph.D., a clinical psychologist, stated
that appellant’s diagnosed condition of PTSD was impeding his ability to work. She stated, “His
occupational functioning is particularly weakened due to the association with his employer. On
July 27, 2012 Dr. Eichler stated that appellant began to exhibit chronic somatic complaints as the
first signs of PTSD beginning with his 2007 and 2008 deployment. She noted appellant’s
exposure to an unsanitized vehicle in Iraq which contained, blood stains, bone fragments and
body tissues throughout the passenger compartment. Dr. Eichler stated that appellant
persistently re-experienced this event, that he met avoidance criteria and exhibited significant
levels of increased arousal. She found that he met the criteria for chronic PTSD. Dr. Eichler
opined that difficult relationships at work and his change of duty station were also sources of
stress for appellant, but not the root cause of his PTSD diagnosis.
OWCP accepted appellant’s claim for PTSD on August 7, 2012. Appellant filed a claim
for compensation on August 8, 2012 for leave without pay from April 13, 2011 through
August 8, 2012.
He was removed from the employing establishment effective

2

December 16, 2011. In a letter dated September 6, 2012, OWCP requested that appellant
provide additional medical evidence addressing his disability for work during the period claimed.
Dr. Eichler completed two undated reports. She stated that appellant experienced
significant panic any time he came near the employing establishment. Dr. Eichler stated that the
symptoms of avoidance of places that forced him to relive the event had not significantly
decreased. She stated, “In my professional opinion, his condition is prohibitive to his continued
work in the military.”
In an email dated November 21, 2012, the employing establishment stated that appellant
was in a pay status from April 13 through 22, 2011 as he was deployed in Iraq. Appellant used
sick leave from April 28 through May 25, 2011 based on the note from the nurse practitioner.
The employing establishment noted that appellant submitted a note from Dr. Egelsee listing that
he was totally disabled from May 2 through June 1, 2011. Appellant then requested unpaid time
off under the Family Medical and Leave Act from May 9 through July 29, 2011 and began using
leave without pay from August 1 through December 16, 2011.
By decision dated January 2, 2013, OWCP denied appellant’s claim for disability from
April 13, 2011 through August 8, 2012. It found that he was not entitled to wage-loss
compensation benefits for the period April 13 through 22, 2011 because he received his regular
pay. OWCP noted that appellant used sick leave from April 28 through July 29, 2011 and was
placed in an absence without leave status from August 1 through December 16, 2011. Appellant
retired on disability effective November 26, 2012.
Appellant requested reconsideration on October 21, 2013. On September 25, 2013
Dr. Eichler diagnosed PTSD. She opined that this condition was still active and causing
symptoms. Dr. Eichler stated that appellant could return to some type of gainful employment in
a limited duty capacity. She stated, “Yes, the present level of disability is a direct result of
[PTSD] as it interferes with his ability to deal with anything related to the military or his
previous duties.” Dr. Eichler stated that appellant’s PTSD was chronic and, although his workrelated condition had improved, his condition had not resolved. She stated that appellant was not
medically able to perform his date-of-injury position and that that she did not expect him to be
able to return to such duties. Dr. Eichler concluded, “To reiterate, it is my definite medical
opinion that the irreversible changes in [appellant’s] mental state are contraindicated by the work
environment due to the dangers of continued exposure to the obvious external or internal cues….
I have determined that the sick leave [appellant] utilized for the period April 28, 2011 through
July 29, 2011 was necessary and reasonable in connection for his work-related PTSD. In
addition, the leave without pay for the period July 30, 2011 through March 1, 2012 was also
necessary and reasonable for the same reasons.”
Dr. Eichler also completed a work capacity evaluation and advised that appellant’s work
restrictions limited him from any work environment close to a military base, or any activity that
had to do with weaponry or military. She found that appellant could work eight hours a day
within these restrictions.

3

By decision dated February 26, 2014, OWCP reviewed the merits of appellant’s claim
and denied modification of the January 2, 2013 decision. It found that Dr. Eichler’s report was
speculative and not expressed in terms of a reasonable degree of medical certainty.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.6 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.7
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9 Neither the fact that a
2

5 U.S.C. §§ 8101-8193.

3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

Id.

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Leslie C. Moore, 52 ECAB 132 (2000).

4

disease or condition manifests itself during a period of employment nor the belief that the disease
or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.10
ANALYSIS
OWCP accepted appellant’s claim for PTSD based on the medical evidence in the
records, specifically the reports of Dr. Eichler. In her reports, Dr. Eichler did not provide any
specific periods of disability related to appellant’s diagnosed condition. She did note that
appellant’s PTSD prohibited him from continuing to work in the military. These reports did not
include a specific period of disability and therefore were not sufficient to meet appellant’s
burden of proof in establishing his claim. As noted above, the Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
specific dates of disability for which compensation is claimed.11
Dr. Eichler completed a report on September 25, 2013 and again diagnosed PTSD finding
that this condition was still active and causing appellant’s symptoms. She stated that appellant’s
current disability was the direct result of PTSD and that this condition interfered with his ability
to deal with anything related to the military or his previous duties.” Dr. Eichler stated that
appellant was not medically able to perform his date-of-injury position and that she did not
expect him to be able to return to these duties. She concluded, “I have determined that the sick
leave [appellant] utilized for the period of April 28, 2011 through July 29, 2011 was necessary
and reasonable in connection for his work-related PTSD. In addition, the leave without pay for
the period July 30, 2011 through March 1, 2012 was also necessary and reasonable for the same
reasons.”
Dr. Eichler has provided a diagnosis of appellant’s accepted employment injury and
opined that this condition resulted in appellant’s disability for work beginning on April 28, 2011.
She opined that appellant’s disability for work continued until March 2012 and that he remained
partially disabled due to PTSD such that he could not return to his date-of-injury position.
Dr. Eichler has reviewed appellant’s symptoms and repeatedly concluded that appellant had
chronic PTSD, that this condition rendered appellant disabled from working at the employing
establishment or other military installation and that appellant’s disability for work began on
April 28, 2011 when he began to utilize sick leave. Appellant also submitted a report from
Dr. Egelsee dated May 2, 2011 diagnosing PTSD as well as anxiety and finding that appellant
was disabled through June 1, 2011. The Board finds that these reports are sufficient to establish
that appellant was totally disabled beginning April 28, 2011 due to his accepted condition and
that he remains partially disabled due to this condition such that he cannot return to the
employing establishment.

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Id.

5

Appellant also submitted records from a nurse practitioner. These notes do not constitute
medical evidence as nurse practitioners are not physicians under FECA and are not competent to
render a medical opinion.12
The Board finds that appellant has established a period of disability due to his accepted
PTSD and remands the case for OWCP to ascertain if appellant wishes to repurchase sick leave
from April 28 through May 25, 201113 and to determine his compensation benefits after
May 25, 2011. After this and such other development as OWCP deems, necessary, OWCP
should pay appropriate benefits.
CONCLUSION
The Board finds that appellant has established that he was totally disabled for work due
to his accepted employment injury of PTSD beginning April 28 through May 25, 2011.
Additionally, the Board finds that the case be remanded to determine any compensation benefits
after May 25, 2011.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2014 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further development
consistent with this decision of the Board.14
Issued: May 20, 2015
Washington, DC

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

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

12

G.G., 58 ECAB 389 (2007).

13

As noted by OWCP, appellant is not entitled to dual benefits and cannot receive benefits under FECA for a
period during which he received his regular pay or utilized leave. 5 U.S.C. §§ 8116(a) and 8118(c); H.S., Docket
No. 06-1329 (issued September 18, 2006).
14

Michael E. Groom, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective December 27, 2014.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, GATEWAY
)
PROCESSING & DISTRIBUTION
)
CENTER/FACILITY, Springfield, OR, Employer )
__________________________________________ )
M.C., Appellant

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

Docket No. 21-0454
Issued: December 10, 2021

Case Submitted on the Record

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

JURISDICTION
On February 2, 2021 appellant filed a timely appeal from a November 9, 2020 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 $8,240.32 for which she was without fault, because
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, appellant submitted additional evidence on appeal and, following the November 9, 2020
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.

she concurrently received FECA wage-loss compensation and Social Security Administration
(SSA) age-related retirement benefits for the period January 1 through August 15, 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 $471.39 from
appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On December 30, 1998 appellant, then a 43-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained right hand and wrist conditions
causally related to factors of her federal employment, including performing repetitive motions
when sorting letter mail. She first noticed her condition on June 1, 1998. OWCP accepted the
claim for right trigger finger, bilateral carpal tunnel syndrome, bilateral rupture of flexor tendons
of hand and wrist, cellulitis of right upper and forearm, and other tenosynovitis of hand and wrist.
Appellant stopped work on November 23, 2005 and has not returned. 3 OWCP paid her wage-loss
compensation on the periodic rolls as of May 14, 2006.
On March 10, 2020 OWCP requested that SSA provide information as to whether appellant
had received FERS/SSA dual benefits.
SSA completed the FERS/SSA dual benefits calculation worksheet on June 27, 2020. It
indicated that appellant received age-related retirement benefits effective January 2020. SSA
reported that beginning January 2020 the SSA benefit rates with a FERS offset was $1,956.80 and
without a FERS offset was $860.50.
In an August 20, 2020 letter, OWCP notified appellant that, based on the information
provided by SSA regarding the amount of her age-related retirement benefits, which were
attributable to federal service, her FECA wage-loss compensation had been adjusted. It advised
her that starting August 16, 2020 she would receive $1,011.91 in FECA wage-loss compensation
every 28 days after the SSA offset.
OWCP completed a FERS offset overpayment calculation worksheet on August 21, 2020.
It calculated the overpayment amount by determining the daily FERS offset amount and then
multiplying that amount by the number of days for the period January 1 through August 15, 2020.
The form indicated that, from January 1 through August 15, 2020, appellant received an
overpayment of $8,240.32.
On September 11, 2020 OWCP issued a preliminary overpayment determination, finding
that an overpayment of compensation in the amount of $8,240.32 had been created. It explained
that the overpayment occurred because appellant’s SSA age-related retirement benefits that she
received from January 1 through August 15, 2020 were partially based on credits earned while
working for the Federal Government, and that this portion of her SSA benefit constituted a
3

The current claim, OWCP File No. xxxxxx786, serves as the master file for appellant’s other claims, which are
considered subsidiary files. These include OWCP File No. xxxxxx814, OWCP File No. xxxxxx786, OWCP File No.
xxxxxx815, and OWCP File No. xxxxxx821. On appellant’s claim form dated April 11, 2005 in OWCP File No.
xxxxxx821 she noted her retirement system as Federal Employees Retirement System (FERS).

2

prohibited dual benefit. OWCP found her without fault in the creation of the overpayment and
forwarded an overpayment action request form and an overpayment recovery questionnaire (Form
OWCP-20). It requested that appellant provide supporting financial documentation, including
income tax returns, bank account statements, bills and cancelled checks, pay slips, and any other
records to support her reported income and expenses. OWCP afforded her 30 days to respond.
By decision dated November 9, 2020, OWCP finalized its preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$8,240.32, for the period January 1 through August 15, 2020, because it had failed to offset her
compensation payments by the portion of her SSA age-related retirement benefits that were
attributable to her federal service. It further found that she was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment because the evidence of record
was insufficient to establish that recovery of an overpayment would defeat the purpose of FECA
or would be against equity and good conscience. OWCP required recovery of the overpayment by
deducting $471.39 every 28 days from appellant’s continuing compensation payments.
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
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $8,240.32 for which she was without fault, for the period
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 (February 3, 1997); see M.S., Docket No. 20-0068 (issued May 14, 2021).

3

January 1 through August 15, 2020, as she concurrently received FECA wage-loss compensation
and SSA age-related retirement benefits without an appropriate offset.
As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA
age-related retirement benefits attributable to federal service for the same period.9 The information
provided by SSA established that appellant had received SSA age-related retirement benefits that
were attributable to her federal service from January 1 through August 15, 2020. Consequently,
the fact of the overpayment has been established.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to the specific amount of SSA age-related retirement
benefits that were attributable to federal service. SSA provided its rates with FERS and without
FERS during the specific period January 1 through August 15, 2020. OWCP provided its
overpayment calculations for each relevant period based on SSA’s worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period January 1 through August 15, 2020 and finds that an overpayment of compensation in the
amount of $8,240.32 has been established.
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. 10
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. 11
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. 12 Additionally, recovery of an
overpayment is considered to be against equity and good conscience when an individual who
9

Supra note 5; see D.W., Docket No. 20-1533 (issued May 27, 2021); M.R., Docket No. 20-0427 (issued
October 30, 2020); A.C., Docket No. 18-1550 (issued February 21, 2019); N.B., Docket No. 18-0795 (issued
January 4, 2019).
10

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).
11

A.C., supra note 9; see Robert Atchison, 41 ECAB 83, 87 (1989).

12

20 C.F.R. § 10.436. OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) (September 2020).

4

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. 13
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. 14 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished. 15
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 over payment
would defeat the purpose of FECA or be against equity and good conscience. 16
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she has not provided the necessary supporting financial
information. In its preliminary overpayment determination dated September 11, 2020, OWCP
clearly 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 complete the Form OWCP-20 or provide any supporting
documentation regarding her income, expenses, or assets. As she did not submit the information
required under section 10.438 of OWCP’s regulations, which was necessary to determine her
eligibility for waiver, OWCP properly denied waiver of recovery of the overpayment.17
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. 18

13

Id. at § 10.437(a)(b).

14

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

15

Id. at § 10.438(b).

16

Id. at. § 10.436.

17

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

18

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

5

Section 10.441(a) of OWCP s regulations 19 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.”20
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$471.39 from appellant’s continuing compensation payments every 28 days.
OWCP provided appellant a Form OWCP-20 with its September 11, 2020 preliminary
overpayment determination. It afforded her the opportunity to provide appropriate financial
information and documentation to OWCP. 21 Appellant did not complete the Form OWCP-20
overpayment recovery questionnaire or provide financial documentation to support her income
and expenses prior to the final November 9, 2020 overpayment determination. The overpaid
individual is responsible for providing information about income, expenses, and assets as specified
by OWCP.22 When an individual fails to provide requested financial information, OWCP shall
follow minimum collection guidelines designed to collect the debt promptly and in full. 23 The
Board, therefore, finds that OWCP properly required recovery of the overpayment from
appellant’s continuing compensation payments at the rate of $471.39 every 28 days.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $8,240.32, for the period January 1 through August 15, 2020 for
which she was without fault, as she concurrently received FECA wage-loss compensation and SSA
age-related retirement benefits without an appropriate offset. The Board further finds that OWCP
properly denied waiver of recovery of the overpayment and properly required rec overy of the
overpayment by deducting $471.39 from her continuing compensation payments.

19

Id. at § 10.441(a).

20

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

21

Id. at § 10.438.

22

Id. at § 10.438(a); see M.S., supra note 14.

23

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); id., supra note 12
at Chapter 6.400.3 (September 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the November 9, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 10, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF DEFENSE, DLADISTRIBUTION REGION EAST,
Fort Belvoir, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1294
Issued: August 20, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 21, 2015 appellant filed a timely appeal from December 23, 2014 and May 11,
2015 merit decisions 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
ratable hearing loss entitling him to a schedule award.
FACTUAL HISTORY
On February 27, 2014 appellant, then a 56-year-old general supply specialist, filed an
occupational disease claim (Form CA-2) alleging that he developed hearing loss as a result of
1

5 U.S.C. § 8101 et seq.

employment-related noise exposure. He was employed as a general supply specialist from
January 5, 1997 to present and was exposed to noise from golf carts, fork lifts, conveyers system,
and tow line cart systems. Appellant’s prior federal employment stemmed back to
September 8, 1975.
Audiograms and hearing conservation data were submitted from January 28, 1988
through March 13, 2014.
OWCP referred appellant to Dr. Carol L. St. George, a Board-certified otolaryngologist,
for a second opinion evaluation on September 24, 2014. It prepared a statement of accepted facts
addressing appellant’s federal work duties as a general supply specialist and the types of
employment-related noise he was exposed to.
An audiogram was completed on September 24, 2014 which revealed the following
decibel (dB) losses at 500, 1,000, 2,000, and 3,000 hertz (Hz): 10, 15, 20, and 50 for the right
ear and 10, 10, 5, and 15 for the left ear. Dr. St. George noted that the audiogram showed mildto-moderate left high frequency hearing loss of a sensorineural nature and a right mild-to-severe
high frequency sensorineural hearing loss. She opined that appellant’s bilateral asymmetric high
frequency hearing loss was due to his workplace noise exposure and in excess of what would be
predicated for presbycusis. Dr. St. George stated that in accordance with the A.M.A., Guides,
calculation of monaural and binaural impairment revealed no ratable hearing loss. She further
recommended a consultation for hearing aids.
By decision dated November 24, 2014, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss.
On November 30, 2014 appellant filed a claim for a schedule award.
On October 28, 2011 an OWCP district medical adviser (DMA) reviewed
Dr. St. George’s September 24, 2014 otologic examination and agreed that appellant had
developed binaural work-related hearing loss. In accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment2 (A.M.A.,
Guides), he applied the audiometric data to OWCP’s standard for evaluating hearing loss and
determined that appellant had zero percent monaural hearing loss in the left ear, zero percent
monaural hearing loss in the right ear, and zero percent binaural hearing loss.3 The DMA
concluded that appellant had no ratable hearing loss and the date of maximum medical
improvement (MMI) was noted as September 24, 2014. He further stated that hearing aids
should be authorized for the right ear due to significant hearing loss at 3,000 Hz. However, the
DMA did not recommend hearing aids for the left ear stating that appellant had no significant
hearing loss until 8,000 Hz and it was unlikely amplification of this frequency would provide any
benefit in terms of improved speech discrimination. He requested the second opinion physician
explain why she felt amplification in the left ear was necessary.

2

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

3

Id. at 252, Table 11-2.

2

By decision dated December 23, 2014, OWCP denied appellant’s schedule award claim
finding that his hearing loss was not severe enough to be considered ratable. It further found that
he was entitled to medical benefits for the effects of his injury, including a hearing aid for the
right ear.
On January 16, 2015 appellant appealed the December 23, 2014 schedule award
determination and requested review of the written record before the Branch of Hearings and
Review. In support of his claim, he resubmitted prior audiograms previously of record.
By decision dated May 11, 2015, the Branch of Hearings and Review affirmed the
December 23, 2014 schedule award decision finding that appellant’s hearing loss was not severe
enough to be considered ratable.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.6 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.7

4

5 U.S.C. §§ 8101-8193.

5

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

6

See A.M.A., Guides 250.

7

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).

3

ANALYSIS
Appellant filed a claim for bilateral hearing loss and was referred to Dr. St. George for a
second opinion examination. After reviewing the statement of accepted facts and medical file,
conducting a thorough physical evaluation and obtaining an audiogram on September 24, 2014,
Dr. St. George diagnosed bilateral asymmetric high frequency sensorineural hearing loss due to
occupational noise exposure. The DMA concurred with this finding and further concluded that
appellant had no ratable hearing loss which would warrant a schedule award. He recommended
hearing aids for the right ear only. OWCP accepted appellant’s occupational disease claim for
bilateral sensorineural hearing loss. By decisions dated December 23, 2014 and May 11, 2015,
OWCP denied appellant’s schedule award claim.
The Board finds that OWCP correctly denied appellant’s schedule award claim.
According to the audiometry obtained on September 24, 2014, appellant’s hearing thresholds
were 10, 15, 20, and 50 on the right and 10, 10, 5, and 15 on the left. These total 95 and 40
decibels, respectively, for averages of 23.75 and 10 decibels. Because these averages are below
the fence of 25 decibels, appellant is deemed to have no impairment in his ability to hear every
day sounds under everyday listening conditions.8 This does not mean that he has no hearing loss.
It means that the extent or degree of loss is not sufficient to show a practical impairment in
hearing according to the A.M.A., Guides. The A.M.A., Guides set a threshold for impairment
and appellant’s occupational hearing loss did not cross that threshold. Thus, the OWCP DMA
applied the proper standards to the September 24, 2014 audiogram. Appellant’s hearing loss was
not ratable. For this reason, the Board finds that OWCP properly denied a schedule award for
appellant’s nonratable hearing loss.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established a ratable loss of hearing such that he is
entitled to a schedule award.

8

See L.F., Docket No. 10-2115 (issued June 3, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the May 11, 2015 and December 23, 2014
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 20, 2015
Washington, DC

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

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

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

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