United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF STATE, CHICAGO
PASSPORT AGENCY, Chicago, IL , Employer
__________________________________________

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

Docket No. 18-1108
Issued: January 22, 2019

Case Submitted on the Record

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

JURISDICTION
On May 8, 2018 appellant filed a timely appeal from an April 4, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days have elapsed
from OWCP’s last merit decision, dated October 6, 2017, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 4, 2018 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 13, 2004 appellant, then a 43-year-old contact representative/typist, filed an
occupational disease claim (Form CA-2) alleging that she developed severe bilateral carpal tunnel
syndrome in both wrists and hands as well as trigger finger and a left shoulder condition due to
typing on a keyboard in the performance of duty. On December 20, 2004 OWCP accepted her
occupational disease claim for bilateral carpal tunnel syndrome. On February 9, 2005 it expanded
acceptance of the claim to include left thumb localized swelling, fibromatosis, lesion of the ulnar
nerve, and aggravation of displacement of lumbar intervertebral disc without myelopathy.
Appellant underwent left carpal tunnel release and left thumb surgery on April 4, 2005, right carpal
tunnel release on June 15, 2005, right cubital tunnel surgical release on April 21, 2008, and left
cubital tunnel surgical release on July 21, 2008.
On October 6, 2008 appellant returned to full-duty work. By decision dated April 3, 2009,
OWCP found that her actual earnings as a modified contact representative, effective November 3,
2008 fairly and reasonably represented her wage-earning capacity and reduced her wage-loss
compensation to zero.
On December 14, 2010 appellant filed a notice of recurrence (Form CA-2a) alleging that
she stopped work on October 13, 2010 due to total disability causally related to her December 27,
1996 employment injury.3 OWCP accepted that she sustained a recurrence of disability beginning
October 21, 2010. Appellant returned to light-duty work on November 29, 2010.
Beginning on January 10, 2012 appellant’s work schedule was reduced to four hours a day.
She continued to work four hours a day through August 28, 2012.
On August 15, 2012 Dr. Robert Bowser, a family practitioner, listed appellant’s diagnosed
conditions of degenerative joint disease, carpal tunnel syndrome, gait abnormality, lumbar disc
disease with radiculopathy, hand pain, right leg numbness, tear of the bilateral shoulder
supraspinatus tendons, spinal stenosis, and pain in the ankles and feet. He opined that due to these
chronic medical problems she was unable to perform the essential functions of her position with
or without a reasonable accommodation.
In a report dated August 30, 2012, Dr. Merrie Viscarra, an osteopath and Board-certified
physiatrist, noted that appellant had problems tolerating even a four-hour workday due to severe
pain in multiple joints, including her knees and back, as well as her wrists and hands. She further
found that appellant had difficulty standing and sitting. Dr. Viscarra reported that appellant
wanted to be taken out of work and to go on disability. She opined that appellant required knee and

3
On October 28, 2010 appellant filed a claim for compensation (Form CA-7) requesting wage-loss compensation
for total disability beginning October 18, 2010.

2

back surgeries. Dr. Viscarra completed a work capacity evaluation form (OWCP-5c) on
August 30, 2012 and indicated that appellant could not work.
On August 31, 2012 appellant filed claims for compensation (Form CA-7) requesting
wage-loss compensation for total disability from September 3 through October 19, 2012.4 She
stopped work on August 31, 2012 and began using eight hours a day of leave without pay at that
time.
In a development letter dated October 30, 2012, OWCP informed appellant that it was
authorizing wage-loss compensation for four hours a day for the period September 3 through
October 19, 2012 and onward. It noted that the additional four hours a day of wage-loss
compensation claimed was not supported by the medical evidence from Drs. Viscarra and Bowser
as these physicians found that appellant was totally disabled based on her increasing subjective
pain complaints. OWCP afforded appellant 30 days to submit additional medical evidence to
support her increased disability causally related to her accepted employment injury.
Appellant submitted additional medical evidence including a July 30, 2012 note from
Dr. Joshua J. Jacobs, a Board-certified orthopedic surgeon, diagnosing end-stage bilateral knee
osteoarthritis. Dr. Jacobs recommended a 30-day pain clinic and total knee replacements.
Appellant also provided a report dated August 22, 2012 from Dr. Browser, listing her diagnosed
conditions and finding that she was totally disabled.
On November 5, 2012 the employing establishment removed her from her position.
In a note dated November 16, 2012, Dr. Viscarra reported that appellant could no longer
tolerate a four-hour workday as she had increased difficulty standing and sitting even with
accommodations. She diagnosed polyarticular arthritis. Dr. Viscarra opined that appellant was
wholly and permanently disabled from work.
On September 12 and December 4, 2012 Dr. Steven Stanos, Jr., an osteopath, discussed
pain program recommendations with appellant. He examined appellant and listed her diagnosed
conditions of chronic upper limb pain, chronic bilateral knee pain, gait abnormality, chronic
bilateral carpal tunnel syndrome, severe bilateral knee osteoarthritis with limited mobility, lumbar
spinal stenosis, lumbosacral radiculopathy with distal foot pain, and obesity.
In a report dated January 18, 2013, Dr. Stanos diagnosed severe osteoarthritis in multiple
joints including bilateral knees, hips, and upper limbs. He noted that appellant was presently
working at a sedentary level and using a scooter for mobility within her office.
On January 2, 2013 Dr. Bowser listed appellant’s conditions of lumbar degenerative disc
disease, degenerative joint disease, and spinal stenosis, as well as end stage bilateral degenerative
joint disease of both knees, carpal tunnel syndrome of both hands, and bilateral nonoperable
shoulder supraspinatus tears. He opined that she became partially disabled on January 9, 2012 due

4
Appellant submitted additional claims for compensation for the period October 22 through November 19, 2012
and “indefinite.”

3

to these conditions and totally and permanently disabled due to these conditions on
August 30, 2012.
In a January 18, 2013 report, Dr. Bowser opined that appellant had experienced a
worsening of her degenerative joint disease and degenerative disc disease of her back, which
resulted in her inability to stand erect or to sit at a computer due to her forward flexion. He further
found progression in her bilateral knee degenerative joint disease resulting in imbalance and gait
disorder. Dr. Bowser found that appellant was unable to stand or walk independently and therefore
could not perform her work duties of filing.
In a note dated April 4, 2013, Dr. Stanos diagnosed severe polyarticular osteoarthritis and
noted that appellant was undergoing a chronic pain program for management of her bilateral knee
and back pain.
On April 19, 2013 appellant underwent a functional capacity evaluation (FCE) which noted
that she did not exhibit full effort. The FCE determined that she could work full time at the
sedentary level, but that she rated her abilities as less than sedentary capacity.
On November 26, 2013 appellant elected to receive Office of Personnel Management
(OPM) disability retirement benefits rather than FECA wage-loss compensation benefits, effective
November 4, 2013.
OWCP continued to receive reports from Dr. Viscarra in 2014 and 2015, opining that
appellant continued to be totally disabled from work due to chronic pain and mobility dysfunction.5
In a report dated August 28, 2015, Dr. Viscarra opined that appellant continued to be totally and
permanently disabled due to chronic pain repeating her earlier findings and diagnoses. She further
opined that appellant had reached maximum medical improvement (MMI) on August 30, 2012.
By decision dated April 21, 2017, OWCP denied appellant’s claim for total disability for
the period September 3, 2012 through November 2, 2013. It noted that Dr. Viscarra continued to
find that appellant was capable of working four hours a day from February 13 through
August 30, 2012.6
On January 2, 2018 appellant requested reconsideration of the April 21, 2017 decision. She
provided a narrative statement and asked that OWCP recognize that she had a previous claim for
aggravation of preexisting L4-5 disc herniation. Appellant identified the medical evidence which
she believed established her total disability beginning August 31, 2012.

By decision dated May 23, 2016, OWCP accepted appellant’s June 16, 2011 occupational disease claim for
bilateral carpal tunnel syndrome. On June 8, 2016 it authorized left shoulder arthroscopy. On June 15, 2016 OWCP
expanded acceptance of appellant’s claim to include incomplete rotator cuff tears of the right and left shoulders,
bilateral ulnar neuropathies, and bilateral bicipital tendinitis. It noted that bilateral knee osteoarthritis and lumbar
spinal stenosis were not accepted work-related conditions.
5

6
By decision dated October 6, 2017, OWCP denied appellant’s claim for a consequential bilateral degenerative
joint disease of the knees.

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In support of her January 2, 2018 request for reconsideration, appellant submitted a June 9,
2017 report from Dr. Chirag M. Shah, a Board-certified orthopedic surgeon, opining that she was
totally disabled due to chronic pain and mobility dysfunction. Dr. Shah found that her conditions
were related to back pain caused by lumbar degenerative disc disease, degenerative joint disease,
and spinal stenosis affecting her low back and legs. He also reported that appellant had arthritis
in both knees, chronic carpal tunnel syndrome, chronic shoulder pain, and supraspinatus tears,
chronic fatigue due to sleep apnea, and morbid obesity. Dr. Shah found that she had reached MMI
on August 30, 2012.
Appellant also resubmitted medical evidence from her treating physicians including
Drs. Viscarra, Bowser, Stanos, and Jacobs. She resubmitted medical documentation predating her
alleged period of total disability which began on August 31, 2012 as well as medical evidence that
did not mention or address the alleged period of disability, including diagnostic studies. Appellant
also resubmitted documents from OPM, OWCP, and the employing establishment.
By decision dated April 4, 2018, OWCP denied appellant’s request for reconsideration
without conducting a merit review. It determined that she had not submitted relevant and pertinent
new evidence addressing her claimed period of total disability from September 3, 2012 through
November 2, 2013.
LEGAL PRECEDENT
Section 8128(a) of FECA7 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation either under its own authority or on application by
a claimant. A request for reconsideration must also be received by OWCP within one year of the
date of OWCP’s decision for which review is sought.8 For decisions issued on or after August 29,
2011, the date of the application for reconsideration is the “received date” as recorded in the
integrated Federal Employees’ Compensation System.9
Section 10.608(b) of OWCP’s regulations provide that a timely request for reconsideration
may be granted if OWCP determined that the claimant has present evidence and/or argument that
meets at least one of the standards described in section 10.606(b)(3).10 This section provides that
the application for reconsideration must be submitted in writing and set forth arguments and
contain evidence that either: (1) shows that OWCP erroneously applied or interpreted a specific
point of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.11
7

5 U.S.C. § 8128(a). Under section 8128 of FECA, [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.
8

20 C.F.R. § 10.607(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See
also R.R., Docket No. 18-1044 (issued October 24, 2018); C.B., Docket No. 13-1732 (issued January 28, 2014).
10

20 C.F.R. § 10.608(b).

11

Id. at § 10.606(b)(3).

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Section 10.608(b) provides that, when a request for reconsideration is timely, but fails to meet at
least one of the requirements, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.12
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record13 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument
not previously considered. As such, 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)(3).
In support of her January 2, 2018 request for reconsideration, appellant submitted a report
dated June 9, 2017 from Dr. Shah. A claimant may be entitled to a merit review by submitting
relevant and pertinent new evidence, but she did not submit any such evidence in this case.15 The
underlying issue in the case is whether appellant has provided sufficient medical evidence to
establish that she was totally disabled from September 3, 2012 through November 2, 2013 due to
her accepted employment injuries. The Board notes that Dr. Shah’s report only addresses the
pertinent issue by noting that she reached MMI on August 30, 2012. However, Dr. Shah’s report
does not require a merit review as it duplicates Dr. Viscarra’s August 28, 2015 report verbatim.16
The Board has held that the submission of evidence which repeats or duplicates evidence already
in the case record does not constitute a basis for reopening a case.17
Appellant also resubmitted the medical evidence described in the factual history above.
This evidence was previously considered by OWCP and it is therefore not pertinent new
evidence.18 Appellant also provided copies of medical reports and diagnostic studies that predate
12

Id. at § 10.608(b).

13

P.H., Docket No. 18-1020 (issued November 1, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome
Ginsberg, 32 ECAB 31, 33 (1980).
14

P.H., id.; Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

15

S.S., Docket No. 18-0647 (issued October 15, 2018).

16

It appears from the letterhead that Dr. Viscarra had left the practice and that Dr. Shah merely altered the date and
signature from her August 28, 2015 report.
17

S.S., supra note 15.

18

Id.

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her alleged period of total disability beginning on August 31, 2012 or fail to address the claimed
period of disability. These reports either cannot, or do not, address the period of disability claimed
and are therefore irrelevant to the underlying basis for which OWCP denied her claim.19
Diagnostic studies are of limited probative value as they do not address whether the diagnosed
condition results in any period of disability.20 Appellant also provided copies of the documents
that she received from OPM, the employing establishment, and OWCP regarding her claim for
total disability. These documents are irrelevant to the medical issue in this case, which can only
be resolved through the submission of probative medical evidence from a physician.21 As
appellant did not meet any of the necessary regulatory requirements, she was not entitled to further
merit review based on her January 2, 2018 reconsideration request.
Appellant’s reconsideration request did not show that OWCP erroneously applied or
interpreted a point of law, advance a relevant legal argument not previously considered by OWCP,
or include relevant and pertinent new evidence.
Accordingly, the Board finds that OWCP properly denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

19

G.C., Docket No. 18-0506 (issued August 15, 2018).

20

Id.

21

Id.; C.N., Docket No. 17-1475 (issued May 23, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the April 4, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 22, 2019
Washington, DC

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

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

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

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

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

Docket No. 11-1030
Issued: February 17, 2012

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 March 22, 2011 appellant, through her attorney, filed a timely appeal from a
March 14, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent permanent impairment of the
left leg, for which she received a schedule award.
FACTUAL HISTORY
Appellant, a 52-year-old mail processor, injured her left knee on November 19, 2006,
when she tripped on some metal screws protruding from the floor of her work area. She filed a
claim for benefits on November 20, 2006, which OWCP accepted for left knee sprain.
1

5 U.S.C. § 8101 et seq.

In a June 19, 2010 report, received by OWCP on December 16, 2010, Dr. Daisy A.
Rodriguez, a specialist in internal medicine, found that appellant had a nine percent left leg
impairment pursuant to Table 16-3, Table 16-6, Table 16-7, Table 16-8 and Table 16-23 at pages
509, 516-17 and 523 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (sixth edition) (A.M.A., Guides). She based this rating on a class 1,
permanent impairment for a left knee sprain and degenerative joint disease; i.e., arthritis, a mild
problem. Dr. Rodriguez calculated an impairment at the knee regional grid, at Table 16-3 page
509 of the A.M.A., Guides.2 Applying the net adjustment formula at pages 521-22 of the
A.M.A., Guides,3 and applying the grade modifiers at Table 16-6, Table 16-7 and Table 16-8,
she found that appellant had a class 1 impairment, the rating utilized for a mild problem/mild
deficit for the lower extremity. This translated to a mild problem for a sprain and moderate
motion deficits, which, Dr. Rodriguez found, equated to an adjusted, grade E impairment. She
found that the grade modifier at Table 16-6 for functional history was four, for a severe problem;
the grade for physical examination at Table 16-7 was one and the grade at Table 16-8 for clinical
studies was zero. Dr. Rodriguez then subtracted the grade modifier of one from four; this
yielded a three adjusted grade, which yielded a grade E, nine percent left lower extremity
impairment.
Appellant underwent x-ray testing and a magnetic resonance imaging (MRI) scan on
March 12, 2010. The x-ray report indicated that mild medial joint space narrowing and
mild-to-moderate degenerative changes involving the left knee joint. The MRI scan showed
cortical thinning along the articulating surface of the patella showing chondromalacia of the
patella, with small suprapatellar joint effusion. The report also showed subcortical foci of
increased T2 signal along the medial aspect of the very anterior lateral femoral condyle; these
were considered likely areas of degenerative change with overlying cortical thinning.
On December 15, 2010 appellant filed a claim for a schedule award.
Appellant was referred to Dr. Morris Draper, Board-certified in orthopedic surgery, for a
second opinion examination. In a February 11, 2011 report, Dr. Draper found that she had a two
percent permanent impairment for the left lower extremity under the A.M.A., Guides. He
reviewed the March 12, 2010 MRI scan and noted that there were some degenerative changes
and cortical thinning, with chondromalacia of the patella and small joint effusion of the left knee.
Dr. Draper also determined that the films showed that the articular surface was about four
millimeters into the joint surface, which was consistent with prior MRI scan results. He stated:
“Using the [A.M.A., Guides] and the Knee Regional Grid, Table 16-3, pages 509
through 511, I determine that the diagnostic criteria for osteoarthritis of the knee
cannot be used to calculate impairment because the patient has a 4 [millimeter]
cartilage interval with no full thickness articular cartilage defect. This is a
requirement for permanent knee joint arthritis, page 511 in the middle of the
page…. Consequently, I am using the diagnostic criteria for soft tissue injury
which includes contusion of the left knee on page 509, Table 16-3, Knee Regional
2

A.M.A., Guides 509.

3

Id. at 521-22.

2

Grid, Lower Extremity Impairments. Using that criteria, the patient fits a [c]lass
[1] Mild Problem because she has significant palpable findings documented above
and consistent motion deficits. Using the [A.M.A., Guides], the default
impairment is [two percent] which is [g]rade C for the contusion -- [two percent].
I am using the Net Adjustment Formula Calculation.”
Dr. Draper found that appellant had a default impairment of class 1 based on a left knee
contusion, which yielded a grade C impairment of two percent at Table 16-3, page 509 of the
A.M.A., Guides. He applied the net adjustment formula at pages 521-22 of the A.M.A., Guides,
finding that the grade modifier at Table 16-6 for functional history was one, the grade modifier
for physical examination at Table 16-7 was two and the grade modifier at Table 16-8 for clinical
studies was one. Dr. Draper then subtracting the grade modifier of one from the grade modifiers
of one, two and one at Table 16-6, Table 16-7 and Table 16-8; this adjusted appellant’s
impairment for left knee contusion from grade C to grade D, for a two percent final impairment
of the left lower extremity.
In a report dated March 1, 2011, OWCP’s medical adviser, relying on Dr. Draper’s
February 4, 2011 report, argued that appellant had two percent impairment of the left leg
pursuant to the A.M.A., Guides. He stated that Dr. Rodriguez’s June 19, 2010 report contained
insufficient medical evidence to support an impairment rating for arthritis of the left knee.
OWCP’s medical adviser found that her rating was not in conformance with the A.M.A., Guides,
which states on page 516 that “If the grade for functional history differs by 2 or more grades
from that defined by Physical Examination or Clinical Studies the Functional History should be
assumed to be unreliable. If the Functional History is determined to be unreliable or inconsistent
with other documentation, it is excluded from the grading process.” OWCP’s medical adviser
stated that because Dr. Rodriguez’s functional history grade modifier of four was
greater/different than two in relation to the grade modifier of one accorded for physical
examination, it should have been excluded. He concurred with Dr. Draper that the impairment
rating should not have been based on arthritis. OWCP’s medical adviser noted that the
March 12, 2010 x-ray indicated mild-to-moderate degenerative changes involving the left knee
joint. He further noted that Dr. Draper stated in his February 4, 2011 report that the articular
surface was about four millimeters, consistent with previous MRI scan reports.4
By decision dated March 14, 2011, OWCP granted appellant a two percent award for the
left lower extremity for the period December 3, 2009 to January 12, 2010, for a total of 5.76
weeks of compensation.

4

The Board notes that Dr. Rodriguez indicated that the cartilage interval was 3.33 millimeters in the medial
compartment. While this differs from Dr. Draper’s interpretation, the Board finds that this distinction is not relevant
because Table 16-3, page 511 of the A.M.A., Guides indicates that a class 1 impairment should be based on a three
millimeter cartilage interval, for a full-thickness articular cartilage defect.

3

LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.8
ANALYSIS
In this case, OWCP accepted a condition of left knee sprain. Appellant subsequently
sought a schedule award and submitted Dr. Rodriguez’s June 19, 2010 report indicating that she
had a nine percent left lower extremity impairment pursuant to the sixth edition of the A.M.A.,
Guides. OWCP’s medical adviser reviewed this report and Dr. Draper’s February 4, 2011 report
finding a two percent left lower extremity impairment; he then considered appellant’s entitlement
to a schedule award by applying the sixth edition of the A.M.A., Guides. The section of the
A.M.A., Guides which rates diagnosis-based impairments for the lower extremities is located at
Chapter 16, which states at page 497, section 16.2a that impairments are defined by class and
grade. This section states:
“The Impairment Class (IC) is determined first, by using the corresponding
diagnosis-based regional grid. The grade is then determined using the adjustment
grids.
“Once the impairment class has been determined, based on the diagnosis, the
grade is initially assigned the default value, C. The final impairment grade,
within the class, is calculated using the grade modifiers or [nonkey] factors, as
described in [s]ection 16.3. Grade modifiers include functional history, physical
examination and clinical studies. The grade modifiers are used on the net
adjustment formula described in [s]ection at 16.3d to calculate a net adjustment.
The final impairment grade is determined by adjusting the grade up or down the
default value C. by the calculated net adjustment.”9

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides. (6th ed. 2009).

7

Id.

8

Veronica Williams, 56 ECAB 367, 370 (2005).

9

A.M.A., Guides 497.

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Using the formula above and the net adjustment formula outlined at pages 521-22 of the
A.M.A., Guides, OWCP’s medical adviser, adopting Dr. Draper’s findings, found that appellant
had a class 1 impairment; i.e., a mild problem. He then applied the net adjustment formula at
pages 521-22 of the A.M.A., Guides, finding that appellant had a grade modifier of one for
functional history, two for physical examination and one for clinical studies at Table 16-6, Table
16-7 and Table 16-8, then subtracting from these totals from the grade modifier of one. Based
on this calculation, the medical adviser adjusted her impairment for left knee contusion from
grade C to grade D, for a final two percent left lower extremity impairment. The Board finds
that he properly determined that appellant had a two percent permanent impairment of his left
lower extremity, as he calculated this rating based on the applicable protocols and tables of the
sixth edition of the A.M.A., Guides.10 The only other impairment rating in the record was that of
Dr. Rodriguez, who found that appellant had a nine percent left lower extremity impairment.
This report is of diminished probative weight, however, as she based this rating upon the
diagnosis of arthritis.11 OWCP’s medical adviser properly determined that Dr. Rodriguez’ rating
was not in conformance with the A.M.A., Guides at page 516, which stipulates that if the grade
for functional history cannot differ by two or more grades from that defined by physical
examination or clinical studies it shall be considered unreliable and therefore excluded from the
grading process. In addition, Dr. Draper stated in his February 4, 2011 report that the articular
surface cartilage interval was about four millimeters, consistent with previous MRI scan reports;
this exceeds the standard of three millimeters set forth at Table 16-3, for a class 1 impairment
based on a full-thickness articular cartilage defect.12
OWCP properly found that the opinion of OWCP’s medical adviser constituted sufficient
medical rationale to support its March 14, 2011 schedule award decision. As appellant did not
submit any medical evidence to support an additional schedule award greater than the two
percent for the left lower extremity already awarded, the Board will affirm the March 14, 2011
decision.
Appellant may request an increased schedule award, at anytime, based on evidence of a
new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

10

Appellant’s attorney questioned whether OWCP’s medical adviser authored the February 4, 2011 report which
bears his signature. However, he has not submitted evidence to support his contention that the impairment rating
was prepared by someone other than OWCP’s medical adviser.
11

The Board notes that a description of appellant’s impairment must be obtained from her physician, which must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize the
impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580, 585 (2005).
12

Counsel argues that OWCP should have referred the MRI scan to be reviewed to a Board-certified radiologist
to resolve the issue of whether the cartilage interval was 4 millimeters, as Dr. Draper found or 3.3 millimeters, as
Dr. Rodriguez indicated. As noted above, however, the difference is not relevant because even if the measurement
is 3.3 millimeters it does not meet the standard outlined at Table 16-3 for a class 1 impairment based on a fullthickness articular cartilage defect.

5

CONCLUSION
The Board finds that appellant has more than a two percent permanent impairment of the
left lower extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2011 decision is affirmed.
Issued: February 17, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
REGION SOUTHWEST HUMAN RESOURCES
OFFICES, San Diego, CA, Employer
__________________________________________

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Appearances:
Brett E. Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1767
Issued: January 4, 2016

Case Submitted on the Record

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

JURISDICTION
On August 20, 2015 appellant, through counsel, filed a timely appeal from March 18 and
July 17, 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 this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty causally related to factors of her federal
employment.
On appeal, appellant’s counsel asserts that the evidence is sufficient to establish, at the
least, that appellant has established compensable factors of employment and, therefore, the case
must be remanded for development of the medical evidence.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In an August 7, 2013 decision, the
Board affirmed a June 28, 2012 OWCP decision. The Board noted that appellant had not
attributed her emotional condition to the performance of her regular work duties or to any special
work requirement arising from her employment duties. Rather, appellant’s claim pertained to
administrative actions that occurred beginning in May 2009 and allegations that she was
harassed and treated in an abusive manner by employing establishment supervisors. The Board
found that appellant’s allegations regarding the denial of leave, participation in a wellness
program, requesting a personal refrigerator, and having her desk moved were without merit as
they were reasonable administrative functions and there was no indication of error or abuse in
these matters. The Board further found that appellant’s assertion that she was forced to attend a
physician’s appointment in September 2009 also without merit. The Board noted that it was
reasonable for the supervisor to schedule a medical appointment for appellant, based on language
in an e-mail forwarded to her by appellant.3 Finally, the Board found that appellant did not
establish a factual basis for her allegation of verbal abuse or harassment by employing
establishment management.4 The facts of the previous Board decision are incorporated herein by
reference.
On April 3, 2014 appellant, through counsel, requested reconsideration with OWCP.
Counsel asserted that, based on an attached statement, appellant “unequivocally states that her
work duties contributed to her emotional condition.” In a March 28, 2014 statement, appellant
indicated that “the constant stress of my daily work duties over time has contributed to my
emotional condition of Major Depressive and Severe Recurrent Panic Disorders.”
In a merit decision dated September 17, 2014, OWCP denied modification of the prior
decisions. It found appellant’s statement vague and insufficient because she did not describe
with specificity the work duties she believed contributed to her emotional condition.
On January 20, 2015 counsel again requested reconsideration, asserting that an attached
statement by appellant established that her work duties contributed to her emotional condition.
In a January 14, 2015 statement, appellant reported that her department was greatly impacted by
base realignment, closures, and reassignments. In 2009 she became emotionally stressed when
trying to balance multiple jobs as a travel assistant and passport agent. Appellant noted
simultaneously performing counter, accounting, customer service clerk, central telephone
2

On March 17, 2011 appellant, then a 46-year-old transportation assistant, filed an occupational disease claim
alleging that factors of her employment caused stress. In a September 15, 2011 decision, OWCP found that she did
not establish a compensable factors of employment and denied her claim that she sustained an emotional condition
in the performance of duty. The employing establishment provided a statement on December 9, 2011 countering
appellant’s allegations. Appellant retired on disability effective December 31, 2011. In a decision on the merits of
her claim dated June 28, 2012, OWCP denied modification of the September 15, 2011 decision.
3

In the September 3, 2009 e-mail message, appellant, who is diabetic, stated that high volumes of stress and
anxiety and increased sugar levels, “could be dangerous to myself and others around me.”
4

Docket No. 12-1715 (issued August 7, 2013), Order Denying Petition for Recon. (issued March 5, 2014). The
record includes reports by several doctors who diagnosed acute stress reaction, major depressive disorder, and panic
disorder.

2

operator, port call message, adviser, and ship locator duties plus maintaining a physical and
electronic, numerical, and alphabetical filing system without proper training.
In a merit decision dated March 18, 2015, OWCP reviewed appellant’s statement and
found the evidence submitted insufficient to establish a compensable factor of employment and
denied her claim that she sustained an emotional condition in the performance of duty.
Appellant, through counsel, again requested reconsideration on April 21, 2015, asserting
that her work duties as described contributed to her diagnosed emotional condition. In an
April 14, 2015 statement, Sabrina A. Thomas, a coworker, indicated that she worked with
appellant from 2009 through 2011 and concurred with appellant’s January 14, 2015 statement,
attesting that everything on the statement was true to her knowledge, the events happened as
stated, and appellant’s job duties were correctly described.
In a merit decision dated July 17, 2015, OWCP found that the evidence presented was of
insufficient probative value and denied modification of the prior decisions.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.5 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.6 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,8 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.9 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
5

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

6

Dennis J. Balogh, 52 ECAB 232 (2001).

7

Id.

8

28 ECAB 125 (1976).

9

See Robert W. Johns, 51 ECAB 137 (1999).

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arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.10 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.11 Where the
claimant alleges compensable factors of employment, he or she must substantiate such
allegations with probative and reliable evidence.12 Personal perceptions alone are insufficient to
establish an employment-related emotional condition.13
ANALYSIS
On reconsideration appellant, who retired in December 2011, asserted that her emotional
condition was a result of her job duties as a transportation assistant under Cutler. She
specifically alleged, in a January 14, 2015 statement, that in 2009 she started to become
emotionally stressed when trying to balance multiple jobs as a travel assistant, passport agent,
and performing various counter, accounting, customer service clerk, central telephone operator,
port call message, adviser, and ship locator duties while maintaining a physical and electronic,
numerical, and alphabetical filing system, without being properly trained. Appellant, however,
failed to factually establish that those were her working conditions. The employing
establishment previously submitted a statement dated December 9, 2011 in which it countered
her allegations. On March 30, 2012 appellant submitted a statement in which she described her
job duties. These reports were previously reviewed both by OWCP and the Board in its
August 7, 2013 decision.14 On reconsideration, appellant did not sufficiently identify particular
duties performed at specific times and places or provide evidence confirming such allegations.
Although appellant submitted an April 14, 2015 statement from Ms. Thomas, this
statement is insufficient to meet appellant’s burden of proof. Ms. Thomas merely generally
advised that she concurred with appellant’s statement and did not provide dates or describe
particular situations with any specificity.
Thus, contrary to appellant’s assertions on appeal, she has not established any
compensable employment factors under FECA and, therefore, has not met her burden of proof in
establishing that she sustained an emotional or stress-related condition in the performance of
duty. As she has not established any compensable employment factors, the Board need not
consider the medical evidence of record.15

10

Supra note 8.

11

J.F., 59 ECAB 331 (2008).

12

M.D., 59 ECAB 211 (2007).

13

Roger Williams, 52 ECAB 468 (2001).

14

Supra notes 2 and 4.

15

See Margaret S. Krzycki, 43 ECAB 496 (1992).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained an emotional condition
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 17 and March 18, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 4, 2016
Washington, DC

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

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

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

5


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

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

Docket No. 09-302
Issued: July 28, 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 November 12, 2008 appellant filed a timely appeal of the September 9, 2008 decision
of the Office of Workers’ Compensation Programs denying his request for reconsideration
without a merit review. Because more than one year has elapsed from the last merit decision
dated July 25, 2007 to the filing of this appeal, the Board lacks jurisdiction over the merits of this
case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without further review under section 8128(a).
FACTUAL HISTORY
On October 3, 2006 appellant, then a 62-year-old clerk, filed an occupational disease
claim alleging that he developed shoulder and right arm pain from casing mail. He first realized
his condition was caused by his employment on September 11, 2006. Appellant did not stop
work. The employing establishment controverted the claim.

Appellant submitted a September 13, 2006 report from Dr. Michael Spezia, an osteopath
specializing in family medicine, who noted that appellant started having difficulty with mobility
while at work and after doing repetitive motion within the neck, low back and shoulder areas.
Dr. Spezia diagnosed cervical somatic dysfunction, right shoulder sprain and contusion, cervical
myositis, cervical sprain, cervicothoracic myositis and right shoulder tenosynovitis. He opined
that appellant appeared to have aggravated his right shoulder and neck area during his
employment with repetitive motion to the right shoulder and neck area causing aggravation of
pain and discomfort within that area.
On December 22, 2006 the Office advised appellant of the factual and medical evidence
necessary to establish his claim. It allowed him 30 days to submit additional information.
By decision dated July 25, 2007, the Office denied appellant’s claim for compensation
finding that the medical evidence did not establish that the claimed right upper extremity
condition was related to the established work-related events.
On June 27, 2008 appellant requested reconsideration and described the nature of work
he performed. He noted that his position required reaching and stretching while casing mail for
eight hours a day. Appellant also noted that he engaged in little to no activities outside of work.
In a June 16, 2008 report, Dr. Spezia indicated that appellant sustained a work-related
injury to his right shoulder with decreased mobility, increased pain and an inability to complete
range of motion without discomfort. He diagnosed status post right arm rotator cuff surgery
performed on April 16, 2008. Dr. Spezia noted that appellant had a torn right rotator cuff caused
by chronic overuse of adduction, abduction and internal and external rotation of his right
shoulder during his employment.
By decision dated September 9, 2008, the Office denied appellant’s request for
reconsideration without a merit review. It found that the medical evidence submitted on
reconsideration was cumulative and substantially similar to the evidence already of record.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.1 Section 10.608(b) of Office
regulations provides that when an application for reconsideration does not meet at least one of
the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.2

1

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

2

20 C.F.R. § 10.608(b); K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

2

ANALYSIS
Appellant’s reconsideration request contained a statement describing the nature of his
position, which required reaching and stretching. However, the underlying issue is medical in
nature; whether the medical evidence establishes that his right upper extremity condition is
causally related to employment factors. The Office did not dispute the duties that appellant
identified as the cause of his claimed condition. Therefore, appellant did not demonstrate that
the Office erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first two requirements.
Regarding the third basis for reopening a claim for merit review, submission of relevant
and pertinent new evidence, appellant submitted Dr. Spezia’s June 16, 2008 report. Dr. Spezia
opined that appellant sustained a work-related injury due to chronic overuse of his right shoulder.
While new, this report is not pertinent and relevant as it is cumulative in nature. This report is
similar to the opinion on causal relationship provided in the physician’s September 13, 2006
report. The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.3 No other medical
evidence was submitted with appellant’s request for reconsideration.
Therefore, the Office properly denied appellant’s request for a review on the merits as he
failed to meet any of the three requirements, noted above, for reopening a claim for merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without further merit review.

3

Roger W. Robinson, 54 ECAB 846 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 9, 2008 is affirmed.
Issued: July 28, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 11-1857
Issued: May 22, 2012

Case Submitted on the Record

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

JURISDICTION
On August 9, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs (OWCP) decision dated June 23, 2011 which denied appellant’s
reconsideration request on the grounds that it was untimely filed and failed to establish clear
evidence of error. Because more than one year has elapsed between the last merit decision dated
April 7, 2004 and the filing of this appeal on August 9, 2011, the Board lacks jurisdiction to
review the merits of her claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
In this case, OWCP accepted a claim for bilateral overuse syndrome. It commenced
appropriate payment for total disability compensation. Appellant has not worked since 1997.

By decision dated April 25, 2002, OWCP terminated appellant’s compensation due to her
refusal to accept a suitable job offer as a video-coding technician. By decision dated October 7,
2002, OWCP’s hearing representative affirmed the April 25, 2002 decision. By decisions dated
November 25, 2002, October 1, 2003 and April 7, 2004, OWCP denied modification of the
April 25, 2002 decision.
By letter dated June 4, 2011, appellant requested reconsideration. She essentially
contended that OWCP erred in finding that she refused to accept suitable employment.
Appellant stated that she accepted the employing establishment’s offer of a video coding position
on August 8, 2002; she submitted a copy of the job description, which indicated that she signed
her acceptance of the job offer on August 8, 2002. She asserted in her letter that she had several
conditions in addition to overuse of the wrists, including carpal tunnel syndrome, post-traumatic
stress disorder and severe depression condition, which rendered her totally disabled from work at
the time the position was offered.
In support of her request, appellant submitted a January 10, 2002 report from
Dr. George D. Karalis, a specialist in psychiatry and her treating psychiatrist, who stated that she
was not ready to return to any job with the employing establishment because of her ongoing
psychiatric total disability. Dr. Karalis therefore opined that she was not able to accept the
video-coding technician job. Appellant also submitted several position description forms.
By decision dated June 23, 2011, OWCP denied appellant’s request for reconsideration
without a merit review, finding the request was untimely and that she had not established clear
evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA1 does not entitle an employee to a review of an OWCP decision
as a matter of right.2 This section, vesting OWCP with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at anytime on her own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”

1

5 U.S.C. § 8128(a).

2

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).

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OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).3 As one such limitation, OWCP has stated that
it will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.4 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
by OWCP under 5 U.S.C. § 8128(a).5
In those cases where a request for reconsideration is not timely filed, the Board had held
however that OWCP must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.6 OWCP procedures
state that it will reopen appellant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review shows “clear
evidence of error” on the part of OWCP.7
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by OWCP.8 The evidence must be positive, precise and explicit and
must be manifested on its face that it committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP 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 OWCP.12 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.13 The Board makes an
3

Thus, although it is a matter of discretion on the part of OWCP whether to review an award for or against
payment of compensation, OWCP has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that OWCP erroneously applied or interpreted a point of law, or (2) advancing a relevant legal argument
not previously considered by OWCP or (3) constituting relevant and pertinent new evidence not previously
considered by OWCP. See 20 C.F.R. § 10.606(b).
4

20 C.F.R. § 10.607(b).

5

See cases cited supra note 2.

6

Rex L. Weaver, 44 ECAB 535 (1993).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

8

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

9

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

10

See Jesus D. Sanchez, supra note 2.

11

See Leona N. Travis, supra note 9.

12

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

13

Leon D. Faidley, supra note 2.

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independent determination of whether an appellant has submitted clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.14
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
It issued its most recent merit decision in this case on April 7, 2004. Appellant requested
reconsideration on June 4, 2011; thus, the request is untimely as it was outside the one-year time
limit.
The Board finds that appellant’s June 4, 2011 request for reconsideration failed to show
clear evidence of error. In order to establish clear evidence of error, appellant must submit
evidence which not only would be of sufficient probative value to establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision relevant to the
issue which was decided by OWCP. She alleged that she had in fact accepted the offered
position, and submitted a copy of her acceptance dated August 8, 2002. However, appellant only
accepted the job in August 2002; four months after OWCP issued its April 2, 2005 termination
decision.15 In addition, she did not submit any new medical evidence with her request.
Dr. Karalis’ January 10, 2002 psychiatric report, which did not provide a diagnosis or any detail
regarding why appellant was disabled, was submitted previously and rejected by OWCP in its
April 25, 2002 termination decision.16 Appellant did not submit any new factual evidence with
her request for reconsideration. Therefore, she has failed to demonstrate clear evidence of error
on the part of OWCP such that it abused its discretion in denying merit review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of OWCP in his reconsideration request dated June 4, 2011. Inasmuch as appellant’s
reconsideration request was untimely filed and failed to establish clear evidence of error, OWCP
properly denied further review on June 23, 2011.

14

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

15

The Board notes that OWCP, in its April 25, 2002 decision, stated that appellant admitted that she had refused
to accept the job offer on the grounds that she was unable to perform it, which contradicts her argument in her
reconsideration request that she had actually accepted this position.
16

In its April 25, 2002 termination decision, OWCP stated that it had received and considered Dr. Karalis’
January 10, 2002 report.

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ORDER
IT IS HEREBY ORDERED THAT the June 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & IMMIGRATION SERVICES,
Los Angeles, CA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1608
Issued: January 18, 2013

Case Submitted on the Record

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

JURISDICTION
On July 23, 2012 appellant, through her attorney, filed a timely appeal from a June 29,
2012 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 met her burden of proof to establish that her disability for
the period December 19, 2011 through January 11, 2012 was causally related to her employment
injury.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the June 29, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant’s attorney contends that the decision was contrary to fact and law.
FACTUAL HISTORY
On February 4, 2009 appellant, then a 47-year-old immigration information officer, filed
an occupational disease claim (Form CA-2) alleging left arm, hand, wrist and finger conditions
due to factors of her federal employment. OWCP accepted the claim for left carpal tunnel
syndrome.3
In a September 28, 2011 report, Dr. Jacob Tauber, a Board-certified orthopedic surgeon,
advised that appellant had pain in her right shoulder and left hand. He found significant pain,
numbness and tingling in the left hand and a positive Tinel’s sign. Dr. Tauber opined that
appellant was temporarily totally disabled.
OWCP authorized left carpal tunnel surgery which appellant underwent on
January 12, 2012.
Appellant filed claims for compensation (Form CA-7s) for the following periods:
December 19 to 31, 2011, January 2 to 13 and January 16 to 28, 2012. She submitted a
January 6, 2012 chest x-ray which revealed no significant acute process and a January 6, 2012
preoperative medical clearance report for the left carpal tunnel release surgery.
OWCP authorized disability compensation from January 12 to 28, 2012 due to
appellant’s temporary total disability due to surgery.
By letter dated February 6, 2012, OWCP requested additional medical evidence to
establish appellant’s disability for work from December 19, 2011 through January 11, 2012. It
allotted 30 days for submission. Subsequently, appellant submitted pharmaceutical reports from
Dr. Tauber dated January 12 and 26, 2012.
By decision dated March 23, 2012, OWCP denied appellant’s claim for disability from
December 19, 2011 through January 11, 2012 on the grounds that the medical evidence
submitted was not sufficient to support total disability due to the accepted employment injury.
On March 28, 2012 appellant requested reconsideration and submitted physical therapy
notes dated January 24 through March 27, 2012.
In a February 13, 2012 report, Dr. Tauber stated that appellant remained temporarily
totally disabled. Although appellant’s surgery was performed on January 12, 2012, as of
December 19, 2011 she was unable to carry out any fine function or gripping or grasping with
her hand, as her pain had progressed to the point where she was unable to function. Dr. Tauber
stated that she had severe carpal tunnel identified intraoperatively due to the thickening of the
ligament and, therefore, her account was corroborated by the intraoperative findings. He
3

Appellant filed claims for disability compensation for the dates December 21, 2009 and February 17, 2011. By
decisions dated May 19, 2010 and June 22, 2011, OWCP denied the claims on the basis that the medical evidence
submitted was not sufficient to support temporary total disability on the dates claimed.

2

concluded that appellant had been disabled since December 19, 2011. On March 15, 2012
Dr. Tauber indicated that she reported that her long and small fingers of her left hand were
triggering and she had continuing pain and weakness.
By decision dated June 29, 2012, OWCP denied modification of the March 23, 2012
decision.
LEGAL PRECEDENT
Section 8102(a) of FECA4 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”5 This meaning, for brevity, is expressed as disability for work.6
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.7 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable probative and substantial
medical evidence.8
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.9
ANALYSIS
The Board finds that appellant has not established that she was disabled for the period
December 19, 2011 through January 11, 2012 causally related to her employment injury. While
OWCP accepted that she sustained an employment injury, appellant bears the burden to establish
through medical evidence that she was disabled during the claimed time periods and that her
4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
6

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7

See William A. Archer, 55 ECAB 674 (2004).

8

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

9

Id.

3

disability was causally related to her accepted injury.10 The Board finds that she submitted
insufficient rationalized medical evidence that addresses her left carpal tunnel syndrome caused
her to be disabled for work from December 19, 2011 through January 11, 2012, prior to surgery.
Dr. Tauber opined generally that appellant was temporarily totally disabled. Although
her left carpal tunnel surgery was performed on January 12, 2012, appellant was unable to carry
out any fine function or gripping or grasping with her hand as of December 19, 2011.
Dr. Tauber explained that she had severe carpal tunnel identified intraoperatively due to the
thickening of the ligament and her history was corroborated by the intraoperative findings. He
reiterated that appellant had been disabled since December 19, 2011. Although Dr. Tauber
opined that she was disabled, he failed to provide a fully rationalized medical explanation as to
the relationships between the reported residuals and the accepted condition of left carpal tunnel
syndrome. He did not address how the carpal tunnel condition prevented appellant from
performing her federal employment duties. Dr. Tauber did not address her work activities and
appeared to base his opinion on “her history.” Appellant has not met her burden of proof to
establish that she was disabled for work due to the employment injury.
The physical therapy notes dated January 24 through March 27, 2012 do not constitute
medical evidence as they were not prepared by a physician.11 As such, the Board finds that
appellant did not meet her burden of proof with these submissions.
Appellant has not submitted any rationalized medical evidence establishing that she was
disabled during the period December 19, 2011 through January 11, 2012 causally related to the
employment injury. Thus, she has not met her burden of proof to establish that she is entitled to
compensation for any disability.
On appeal, counsel contends that the decision was contrary to fact and law. For the
reasons stated above, the Board finds that counsel argument is not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
disability for the period December 19, 2011 through January 11, 2012 was causally related to her
employment injury.

10

See supra notes 6 and 7. See also V.P., Docket No. 09-337 (issued August 4, 2009).

11

Physical therapists are not physicians under FECA. See 5 U.S.C. § 8101(2).

4

ORDER
IT IS HEREBY ORDERED THAT the June 29, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 18, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Citrus Heights, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1545
Issued: July 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On August 20, 2020 appellant filed a timely appeal from a February 28, 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 appellant received an overpayment of compensation, for which
she was without fault, in the amount of $11,451.43 for the period September 11, 2010 through
August 18, 2018; (2) whether OWCP properly denied waiver of recovery of the overpayment; and
1
2

5 U.S.C. § 8101 et seq.

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

(3) whether OWCP properly required recovery of the overpayment by deducting $690.63 from
appellant’s continuing compensation payments, every 28 days.
FACTUAL HISTORY
On April 24, 2008 appellant, then a 49-year-old window and distribution clerk, filed a
traumatic injury claim (Form CA-1) alleging that on April 21, 2018 she injured her low back, right
knee, shoulders, neck, and head when a coworker ran into her while in the performance of duty.
She stopped work on April 21, 2008 and returned to work on April 24, 2008. OWCP accepted the
claim for lumbar sprain. It subsequently expanded acceptance of the claim to include neck sprain,
thoracic sprain, a sprain of the right knee and leg, and a recurrent episode of severe major
depression without mention of psychotic behavior.3 OWCP paid appellant wage-loss
compensation on the supplemental rolls, beginning May 1, 2008.
On June 8, 2010 OWCP advised appellant that it was placing her on the periodic
compensation rolls effective April 11, 2010.4 It indicated that it was deducting premiums for basic
life insurance (BLI) and optional life insurance (OLI) from her compensation payments. OWCP
did not deduct premiums for postretirement basic life insurance (PRBLI).
In a letter dated July 30, 2018, OPM informed OWCP that appellant, as a compensationer,
was eligible to continue coverage under the Federal Employees’ Group Life Insurance (FEGLI)
Program. It further notified OWCP that she had elected PRBLI with no reduction commencing
September 11, 2010. OPM advised that appellant’s final base salary for FEGLI purposes was
$54,257.00.
On August 19, 2018 OWCP began deducting premiums for PRBLI from appellant’s
continuing compensation payments.
In a notice dated October 2, 2018, OWCP advised appellant of its preliminary
determination that she had received an overpayment of compensation in the amount of $11,443.73
because it had failed to deduct PRBLI premiums from her compensation payments for the period
September 1, 2010 through August 18, 2018. It further notified her of its preliminary
determination that she was without fault in the creation of the overpayment. OWCP requested that
appellant complete the enclosed overpayment recovery questionnaire (Form OWCP-20) and
submit supporting financial documents. Additionally, it notified her that, within 30 days of the
date of the letter, she could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing, if she objected to the preliminary notification findings or
requested waiver of recovery of the overpayment.

3

OWCP had previously accepted that appellant sustained right hip strain, lumbar disc degeneration and disc
protrusion, right knee sprain, and disorders of the sacrum due to a May 10, 2003 employment injury, assigned OWCP
File No. xxxxxx807 and lumbar sprain due to a July 14, 2005 employment injury, assigned OWCP File No.
xxxxxx597.
4

A notification of personnel action dated September 30, 2010 indicated that the Office of Personnel Management
(OPM) had approved appellant’s disability retirement and that her last day in pay status was September 10, 2009. She
was a PS07/0 at the time of her retirement which yielded a yearly salary of $54,257.00 effective November 21, 2009.

2

On October 28, 2018 appellant, through her then-counsel, requested a prerecoupment
hearing before a representative of OWCP’s Branch of Hearings and Review. She submitted a
completed Form OWCP-20.
Following a preliminary review, by decision dated January 29, 2019, OWCP’s hearing
representative vacated the October 2, 2018 preliminary overpayment determination, finding that
the evidence of record did not contain a signed form documenting appellant’s election of life
insurance.
Subsequently, OWCP received a June 30, 2018 letter from appellant reducing her Part B
life insurance from a multiple of five to a multiple of two.
On February 27, 2019 OPM provided a FEGLI form completed by appellant on
July 4, 2010. Appellant elected BLI with no reduction in retirement and selected Option A and
Option B with five multiples.
On March 19, 2019 OWCP issued a preliminary determination that appellant had received
an overpayment of $11,976.60 because it had failed to deduct PRBLI premiums from her
compensation payments for the period July 4, 2010 through August 18, 2018. It further advised
her of its preliminary determination that she was without fault in creating the overpayment of
compensation.
On April 9, 2019 appellant’s then-counsel requested a prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. Appellant submitted a completed
OWCP-20.
A telephonic hearing was held on June 9, 2019.
In a July 1, 2019 response to appellant’s request for information regarding the calculation
of the overpayment, OWCP advised that it had automatically calculated the amount using its
computerized system. It provided a portion from its preliminary overpayment determination
setting for the monthly rates for each $1,000.00 of insurance in effect during each period.
By decision dated August 16, 2019, OWCP’s hearing representative set aside the
preliminary overpayment determination. She found that OWCP had incorrectly determined that
the period of the overpayment had begun on July 4, 2010 instead of September 11, 2010. The
hearing representative further found that OWCP had failed to adjust the overpayment based on
appellant’s change in election of life insurance effective July 1, 2018.
The record contains a computer calculation form for PRBLI setting forth the monthly rate
for premiums from September 11, 2010 to August 18, 2018. It indicated that the deduction amount
was $11,697.83. In a separate calculation form, OWCP found that OLI with a multiple of two
yielded a premium deduction of $190.40 for the period July 1 to August 18, 2018.
On August 27, 2019 OWCP advised appellant of its preliminary determination that she had
received an overpayment of compensation in the amount of $11,451.43 because it had failed to
deduct PRBLI premiums from her compensation payments for the period September 11, 2010
through August 18, 2018. It further found that it had not properly adjusted her OLI to Option B
3

with two multiples from July 1 to 18, 2018, which had resulted in an underpayment of
compensation. OWCP indicated that the overpayment amount had been calculated automatically
using the Integrated Federal Employees’ Compensation System (iFECS). It set forth the monthly
rates for each $1,000.00 of basic insurance for the periods September 11, 2010 to December 31,
2011, January 1, 2012 to August 23, 2014, August 24, 2014 to December 31, 2015, and January 1,
2016 to August 18, 2018. OWCP also set forth the deduction amounts for each period, which it
found yielded an $11,697.83 overpayment of compensation. From this amount OWCP subtracted
the $246.40 that it had over deducted from appellant’s compensation for OLI coverage from July 1
to August 18, 2018, to find a total overpayment of $11,451.43. It requested that she complete the
enclosed Form OWCP-20 and submit supporting financial documents. OWCP further advised
appellant that she could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing, within 30 days.
On September 18, 2019 appellant’s then counsel requested a prerecoupment hearing before
a representative of OWCP’s Branch of Hearings and Review and submitted a completed Form
OWCP-20. In an accompanying letter dated September 13, 2019, appellant requested waiver of
recovery of the overpayment. She also requested a breakdown of the amount that she was charged
for insurance from September 11, 2009 to August 18, 2018. Appellant maintained that she wanted
to make sure the amount of the overpayment was correctly calculated.
A telephonic hearing was held on January 6, 2020. During the hearing, appellant’s thencounsel advised that her expenses had changed since the submission of the September 2019
OWCP-20. He questioned OWCP’s calculation of the overpayment, noting that he had asked for
an itemized explanation. Appellant also asserted that she had requested an itemized statement
showing how much life insurance she should have paid, what she did pay, and the amount owed
each 28 days. She indicated that she had shown OWCP’s decision to a certified public accountant
who advised that he did not have enough information to determine whether the amount was correct.
OWCP’s hearing representative advised that a computer system automatically calculated the
overpayment based on coding from OPM. Appellant described her monthly income and expenses.
On January 20, 2020 appellant submitted a Form OWCP-20 signed January 10, 2020 and
supporting financial documentation.
By decision dated February 28, 2020, OWCP’s hearing representative found that appellant
had received an overpayment of compensation in the amount of $11,451.43 for the period
September 11, 2010 through August 18, 2018 because OWCP failed to deduct premiums for
PRBLI from her compensation.5 He found that she was without fault in the creation of the
overpayment, but denied waiver as her income exceeded her expenses by more than the allotted
amount. OWCP’s hearing representative determined that the overpayment would be recovered by
deducting $690.63 from appellant’s continuing compensation every 28 days.

5

In the issue, OWCP’s hearing representative indicated that OWCP had found an overpayment of $11,443.73 rather
than $11,451.43; however, he ultimately affirmed the finding of an overpayment of compensation in the amount of
$11,451.43.

4

LEGAL PRECEDENT -- ISSUE 1
FECA6 provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his or her
duty.7 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of labor by decreasing later
payments to which the individual is entitled.8
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in basic life insurance and one or more of the options. 9 The coverage for basic life
insurance is effective unless waived,10 and premiums for basic and optional life insurance coverage
are withheld from the employee’s pay.11
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).12
When an under withholding of life insurance premiums occurs, the entire amount is
deemed an overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.13

6

Supra note 1.

7

5 U.S.C. § 8102(a).

8

Id. at § 8129(a).

9

5 U.S.C. § 8702(a).

10

Id. at § 8702(b).

11

Id. at § 8707.

12

See C.A., Docket No. 18-1284 (issued April 15, 2019); V.H., Docket No. 18-1124 (issued January 16, 2019).

13

5 U.S.C. § 8707(d); D.H., Docket No. 19-0384 (issued August 12, 2019).

5

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation for the period
September 11, 2010 through August 18, 2018; however, the case is not in posture for decision
regarding the amount of the overpayment.
OPM advised OWCP on July 30, 2018 that appellant had elected PRBLI with no reduction
effective September 11, 2010. On February 27, 2019 OPM submitted the FEGLI form that she
had completed on July 4, 2010 electing BLI with no reduction in retirement. Appellant also
selected OLI Option A and Option B with five multiples. OWCP, however, failed to deduct
premiums for PRBLI until August 18, 2018, thereby creating an overpayment of compensation. It
explained to appellant how the overpayment occurred in its preliminary determination of the
overpayment.14
The Board finds, however, that OWCP failed to provide a detailed explanation regarding
its calculations of the amount of the overpayment.
The Board has held that, in overpayment cases, it is essential that OWCP provide the
recipient of compensation with a clear statement showing how the overpayment was calculated.15
In its preliminary overpayment determination, OWCP advised that it had computed the
overpayment automatically using iFECS, an automated system. It provided the monthly rates for
each $1,000.00 of insurance coverage in effect during the applicable time period. OWCP informed
appellant that iFECS had calculated the overpayment of compensation due to its failure to deduct
premiums for PRBLI from September 11, 2010 to August 18, 2018 as $11,697.83. From this
amount OWCP subtracted an underpayment of $246.40 due to the over deduction of premiums for
OLI for the period September 11, 2010 to August 18, 2018, to find a total overpayment of
$11,451.43.
Appellant alleged that she was unable to calculate the overpayment from the numbers
provided by OWCP. While OWCP set forth the monthly rate for deducting coverage for each
$1,000.00 of coverage, it did not include all of the variables required for her to understand its
calculations. The mathematical calculations performed by the computer program are not
reproducible from the information provided.16
It is a well-established principle that OWCP must make proper findings of fact and a
statement of reasons in its final decisions.17 Its procedures provide that a preliminary notice of
overpayment must clearly set forth the reason for the overpayment and a clearly written

14

See V.H., Docket No. 18-1124 (issued January 16, 2019).

15

See R.U., Docket No 16-0027 (issued March 24, 2016); L.D., Docket No. 15-1102 (issued January 20, 2016).

16

Cf. J.C., Docket No. 19-0122 (issued June 11, 2019) (OWCP provided mathematical calculations of the
overpayment created by its failure to deduct life insurance premiums that were clear and reproducible).
17

20 C.F.R. § 10.126; R.U., supra note 15.

6

explanation as to how the overpayment was calculated.18 OWCP should clearly explain its
calculations regarding the amount that should have been deducted for each period and the evidence
supporting such deductions identified.19
Additionally, the Board notes that OWCP reduced the overpayment amount by the amount
that had over withheld for OLI from September 11 to August 18, 2018. Although such an offset
appears administratively straightforward, the Board has held that it may circumvent established
legal procedures and protections if appellant is entitled to consideration of waiver. 20 Such offsets
are not allowed, as they permit an unrestricted recovery of the offset portion of the overpayment
without regard to the relevant factors set forth in 20 C.F.R. § 10.441(a)21 which denies
administrative due process with respect to the amount offset.22
The case will be remanded for proper findings as to the amount of overpayment based on
OWCP’s failure to properly deduct premiums for PRBLI. After such further development as
deemed necessary, OWCP should issue de novo decision.23
CONCLUSION
The Board finds that appellant received an overpayment of compensation for the period
September 11, 2010 through August 18, 2018; however, that the case is not in posture for decision
regarding the amount of the overpayment.

18

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4a
(June 2009).
19

See G.A., Docket No. 15-0095 (issued April 2, 2015).

20

P.S., Docket No. 18-1438 (issued February 1, 2019); S.P., Docket No. 17-1888 (issued July 18, 2018).

21

20 C.F.R. § 10.441(a). This section states that in collecting an overpayment of compensation, OWCP shall
decrease later payment of compensation by 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 hardship.
22

R.H., Docket No. 17-1933 (issued February 15, 2018); R.O., Docket No. 17-0894 (issued January 26, 2018).

23

In light of the Board’s disposition of Issue 1, Issues 2 and 3 are rendered moot.

7

ORDER
IT IS HEREBY ORDERED THAT the February 28, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this opinion of the Board.
Issued: July 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8