United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE ARMY, PINE BLUFF
ARSENAL, Pine Bluff, AR, Employer
__________________________________________

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

Docket No. 18-0522
Issued: January 16, 2019

Case Submitted on the Record

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

JURISDICTION
On January 10, 2018 appellant filed a timely appeal from a July 14, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 501.3(e)(f).
One hundred and eighty days from July 14, 2017, the date of OWCP’s decision, was January 10, 2018. Since using
January 17, 2018, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of
appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark
is January 10, 2018, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2
3

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish additional bilateral
arm, back, left leg, and neck conditions causally related to or consequential to his accepted
employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as presented
in the prior appeal are incorporated herein by reference. The relevant facts are as follows.
On April 3, 1992 appellant, then a 44-year-old explosives worker, filed a traumatic injury
claim (Form CA-1) alleging that as he stepped down from a bus, his left leg caught on the top step,
causing him to trip and fall out of the bus, landing on asphalt. He injured his left shoulder, right
groin, and back. OWCP repeatedly denied appellant’s traumatic injury claim. On October 4, 1993
and July 17, 1994 it also declined to reopen his claims for reconsideration of the merits. Appellant
appealed these decisions to the Board on July 11, 1994, and by decision dated August 29, 1996,
the Board affirmed OWCP’s decisions.5
Following the Board’s August 29, 1996 decision, OWCP further developed the claim and
accepted it for lumbar and cervical sprains.6
Beginning on September 26, 2016, appellant provided medical records from the
Department of Veterans Affairs (VA). These records addressed his diagnosed conditions of
hypertension, carotid artery stenosis, cardiovascular accident, chronic obstructive pulmonary
disease (COPD), prostate cancer, calcium pyrophosphate deposition disease (CPPD),
hyperlipidemia, diverticular disease, right peroneal neuropathy, axonal polyneuropathy,
degenerative joint disease, sarcoidosis, repeated bilateral total knee arthropathies, sensorineural
hearing loss, venous insufficiency, depression, exposure to Agent Orange, spondylolisthesis,
carpal tunnel syndrome, olecranon bursectomy, surgical repair of partial triceps tendon laceration,
chondrocacinosis, dermatitis, large left posterolateral disc herniation, medial displacement of the
of the L5 nerve root, complete tear of the supraspinatus tendon left shoulder, near complete fullthickness tear infraspinatus tendon left shoulder, left C7 nerve impingement, osteoarthritis of both
ankles and right hind foot, and tinea pedis.
The medical reports submitted from the VA included handwritten notes dated May 18,
1992, which indicate that appellant fell on April 3, 1992 injuring his left shoulder, fourth and fifth
fingers of his left hand, both feet, and legs.
On August 20, 2003 appellant reported sporadic numbness in his legs and Dr. Tahir
Hassan, an internist, diagnosed degenerative joint disease of the lumbosacral spine and rheumatoid
arthritis. In an August 27, 2003 note, Dr. Margaret A. West, an internist, examined appellant due
4

Docket No. 94-2052 (issued August 29, 1996).

5

Id.

6
Appellant has three additional claims: OWCP File No. xxxxxx211; OWCP File No. xxxxxx514; and OWCP File
No. xxxxxx462.

2

to bilateral leg numbness. Appellant reported that this condition had been occurring for over three
months after he had bent over. Dr. West diagnosed large left disc herniation at L4-5 causing
medial displacement of the L5 nerve root.
On June 30, 2005 appellant sought treatment due to neck pain and numbness of the left
chest and left arm. He reported the numbness occurred when he turned his head to the left.
In a note dated March 3, 2009, Dr. Richard P. Evans, a Board-certified orthopedic surgeon,
requested additional studies to determine if appellant had a neurogenic reason or impingement that
could cause his intermittent weakness and falls. On August 3, 2010 Dr. Grace E. Brown, a Boardcertified dermatologist, noted that appellant’s chronic neck and lower back pain was worsened by
a recent motor vehicle accident. Appellant sought treatment on November 26, 2013 from
Dr. Andrew W. Johnson, a neurosurgeon, due to shooting pain from his back down his right leg
which first occurred in 2009.
In a February 14, 2014 note, Dr. Shaukat Hayat, a Board-certified neurosurgeon, found
weakness in appellant’s quadriceps muscles and reviewed a magnetic resonance imaging (MRI)
scan which found listhesis at L4-5 with a disc herniation. On June 10, 2014 appellant reported
that he had fallen three weeks earlier and experienced chronic pain in his back radiating to his
lower extremity. Dr. Zabeen K. Mahuwala, a neurologist, diagnosed L4-5 radiculopathy on
February 14, 2014. In a September 12, 2014 note, Dr. Allan C. Gocio, a Board-certified
neurosurgeon, diagnosed severe stenosis and spondylolisthesis L4-5 with radiculopathy and nerve
root compression. He reported that appellant experienced low back, right arm, and right leg pain.
On March 30, 2015 Dr. Philip A. Snodgrass, a physician specializing in emergency
medicine, examined appellant due to neck and back pain caused by degenerative disc disease.
Dr. Leroy Q. Booe, Jr., a family practitioner, examined appellant on April 6, 2015 due to severe
right lower extremity radiculopathy.
In a note dated April 13, 2015, appellant’s physician, Dr. Lawrence C. Ault, a Boardcertified anesthesiologist, reported that appellant was in his normal state of health until a motor
vehicle accident “many years ago.” He noted that appellant had undergone bilateral total knee
replacements, and was experiencing cervical pain radiating into his arms and low back pain
radiating into his legs.
On June 17, 2015 Dr. Eric Greber, an orthopedic surgeon, examined appellant due to left
shoulder pain which had been ongoing since 2004. He diagnosed rotator cuff tear and arthropathy.
In a note dated September 3, 2015, Dr. Kipp A. Cryar, an orthopedic surgeon, diagnosed
severe osteoarthritis of both ankles and the right hindfoot.
On December 13, 2015 appellant sought treatment due to pain in his right shoulder and
head. He reported that a sign fell and hit him. Appellant had no loss of consciousness and no
swelling on his head.
On December 30, 2015 Dr. Shahryar Ahmadi, an orthopedic surgeon, noted appellant’s
reports of left shoulder pain beginning 15 years earlier which occurred after a fall. He reviewed
appellant’s x-rays and noted similar findings in both shoulders.

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In a note dated March 20, 2016, Dr. Robert T. Jimmerson, II, a family practitioner,
diagnosed lumbar disc syndrome. On June 2, 2016 appellant sought treatment with Dr. Clinton Y.
McCready, a physiatrist, for chronic back pain and chronic shoulder pain.
In a November 8, 2016 development letter, OWCP requested additional factual and
medical evidence in support of appellant’s claimed consequential injury of degenerative changes
in the cervical and lumbar spines, left hip, left femur, left leg, left knee, both ankles, and right hind
foot. A questionnaire was also provided. OWCP afforded appellant 30 days for response.
On December 5, 2016 appellant provided his responses to OWCP’s questionnaire.
Appellant asserted that when his spine was in varying positions, he experienced recurrences
continuously. He reported that his spine, right shoulder, left leg, and ulnar nerve injuries were
classified as permanent and total as of April 3, 1992 by two government agencies. Appellant
further alleged that all of his illnesses and disabilities were related to his April 3, 1992 employment
injury.
In a note dated May 15, 2014, Dr. Thomas L. Lewellen, an osteopath, diagnosed
degenerative disc disease of the lumbar spine with neuropathy of the right leg.
By decision dated April 4, 2017, OWCP denied appellant’s claim for recurrence of
disability finding that he had not submitted medical evidence explaining how he had a “return” of
or increase in disability due to his accepted employment-related injury.
In a letter received April 17, 2017, appellant requested reconsideration of the April 4, 2017
OWCP decision. He contended that he was a 100 percent service-connected disabled veteran and
that his 1992 employment-related injuries could recur at any time. In support of his request for
reconsideration, appellant provided additional medical documents. The medical records included
multiple diagnostic tests, studies, and reports.
In a note dated September 16, 2003, Dr. Ali I. Raja, a Board-certified neurosurgeon,
examined appellant due to dull low back pain which intensified to sharp stabbing pain in certain
positions. He noted that appellant also experienced radicular pain. Dr. Raja reported that appellant
had patchy areas of decreased sensation in both legs in a nonspecific pattern. He also found no
pain in the lumbar region with deep palpation. Dr. Raja diagnosed possible neurosarcoidosis with
weakness in his bilateral lower extremities and numbness upon bending over.
On October 7, 2003 appellant reported that he fainted and landed on his left shoulder.
Dr. Torrance Walker, a Board-certified orthopedic surgeon, examined him on December 23, 2003
due to left shoulder pain. He noted that appellant fell on the point of his shoulder a few months
prior to the examination and was subsequently unable to lift his arm. Appellant also reported pain
in his right arm following a click in his neck.
In a March 31, 2004 note, Dr. Syed Hasan, a Board-certified internist, examined appellant
due to left shoulder symptoms. He noted a history of a fall and reported that appellant had fallen
again in September 2003.
On November 28, 2013 Dr. Nasim A. Khan, a rheumatologist, examined appellant and
diagnosed possible spinal stenosis and unilateral right lower extremity pain. On December 16,
2013 appellant sought treatment for spinal stenosis and demonstrated thigh flexor wasting.
4

Dr. Shagufta P. Siddiqui, a Board-certified internist, examined appellant on December 19,
2013 due to worsening of the arthritic changes in his back and a herniated disc.
Dr. Hayat examined appellant on February 14, 2014 and recommended surgical
decompression and stabilization of his lumbar spine.
In a note dated June 10, 2014, Dr. Mahuwala examined appellant due to degenerative joint
disease, L4-5 radiculopathy with pain in the back radiating to the right lower extremity, and neck
pain radiating to the right arm and little finger. She reviewed appellant’s 2005 cervical MRI scan
and 2010 lumbar MRI scan and diagnosed L4-5 radiculopathy and possible cervical radiculopathy.
On August 4, 2014 appellant fell.
In a note dated September 10, 2014, Dr. Gocio examined appellant due to severe stenosis
with radiculopathy. Appellant reported low back, right arm, and right leg pain, as well as weakness
in his lower extremities bilaterally due to multiple knee surgeries. Dr. Gocio diagnosed cervical
and lumbar stenosis and a vague history of a brain tumor.
A note dated April 6, 2015 from Dr. Booe diagnosed severe spinal stenosis at L4-5 and
right lower extremity radiculopathy.
In a note dated June 17, 2015, Dr. Ahmadi examined appellant’s left shoulder and reported
that appellant had experienced pain since 2004. He diagnosed left shoulder rotator cuff
arthropathy. Appellant refused left shoulder surgery.
On December 15, 2015 Dr. Zsolt F. Sandor, a physician specializing in emergency
medicine, diagnosed right shoulder contusion resulting after a sign fell on appellant’s right
shoulder. On January 19, 2016 appellant reported that he sustained a “pinched nerve” due to a
recent accident.
On March 20, 2016 appellant sought treatment for lumbar disc syndrome, chronic low back
pain, and sciatica. Dr. Clinton Y. McCready, a physiatrist, examined appellant on April 8, 2016
due to low back pain. He reviewed appellant’s lumbar MRI scan and found advanced degenerative
disc disease and right L4 nerve compression. Dr. Jimmerson, examined appellant on March 20,
2016 due to chronic low back pain and sciatica. Appellant reported that he was standing and his
right leg collapsed.
On October 23, 2016 appellant sought treatment after a pressure cooker exploded in his
home. He noted that he injured his back and head when he was knocked from his chair by the
explosion. Following the October 2016 explosion, appellant had several falls through
November 21, 2016. On January 26, 2017 he sought medical treatment following a fall on
December 29, 2016 resulting in a comminuted nondisplaced proximal fibula fracture. Appellant
also reported back and left lower extremity pain.
By decision dated July 14, 2017, OWCP denied modification of the April 4, 2017 merit
decision finding appellant had not established consequential spine, right shoulder, left leg, and
ulnar nerve conditions. It found that there was no medical evidence establishing a causal
relationship between appellant’s diagnosed conditions and his accepted employment injuries of
cervical and lumbar strains.
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LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any specific condition or disability for which compensation is claimed is causally related
to the employment injury.8
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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.10
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to the claimant’s own conduct.11 Thus, a subsequent injury, be it an
aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and
natural result of a compensable primary injury.12 A claimant bears the burden of proof to establish
a claim for a consequential injury. As part of this burden, the claimant must present rationalized
medical opinion evidence.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish additional
bilateral arm, back, left leg, and neck conditions causally related to or consequential to his accepted
employment injuries.

7

Supra note 2.

8
J.F., Docket No. 09-1061 (issued November 17, 2009).
December 6, 2017.
9

See also J.T., Docket No. 17-0578 (issued

F.L., Docket No. 17-1613 (issued August 15, 2018).

10

Id.; I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

11
A.M., Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson
& Lex K. Larson, The Law of Workers’ Compensation 10-1 (2006).
12

F.L., supra note 9; Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

13

F.L., supra note 9; Charles W. Downey, 54 ECAB 421 (2003).

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OWCP accepted that appellant sustained cervical and lumbar sprains from an April 3, 1992
injury when he fell from a bus in the performance of duty. It determined that his claim for
recurrence was actually a claim that his currently diagnosed conditions were causally related to or
consequential to the accepted employment injuries. Appellant was not asserting a worsening of
his accepted conditions. Rather, he was asserting that his current bilateral arm, back, left leg, and
neck conditions were caused by the work-related cervical and lumbar sprains. This is evidenced
in appellant’s December 5, 2016 statement.
Appellant submitted multiple reports from attending physicians which discussed his
ongoing lumbar, cervical, shoulder, and leg conditions, but none of these reports provides a clear,
rationalized opinion that any additionally diagnosed condition was caused by the accepted
employment incident. Only the May 18, 1992 treatment note, mentions appellant’s April 3, 1992
employment injury and diagnoses injuries of the left shoulder, fourth and fifth fingers of his left
hand, both feet, and legs. The Board has held that a medical report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how
physiologically an employment injury could have caused or aggravated a medical condition.14 As
the May 18, 1992 note does not address the accepted conditions of cervical and lumbar sprains nor
does it explain how the April 3, 1992 employment injury resulted in the diagnosed conditions, this
report is insufficient to establish appellant’s claim for additional bilateral arm, back, left leg, and
neck conditions.
The remainder of the medical reports submitted by appellant do not offer an opinion on the
causal relationship between the diagnosed conditions and his accepted employment injury. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.15 These reports
are therefore of no probative value in establishing that appellant’s current bilateral arm, back, left
leg, and neck conditions were causally related to his accepted employment injury.16
The medical evidence submitted by appellant contains several references to events
occurring after the April 3, 1992 employment injury including motor vehicle accidents, falls, and
explosions which impacted his arms, back, left leg, and neck conditions. Specifically, Dr. Ahmadi
reported that appellant fell on his left shoulder in approximately 2000; on March 7, 2003 appellant
fainted and fell on his left shoulder and then fell again in September 2003; on March 3, 2009
Dr. Evans reported that appellant had repeated falls; on August 3, 2010 Dr. Brown noted appellant
was involved in a recent motor vehicle accident which worsened his chronic neck and back pain;
Dr. Mahuwala reported a fall in May 2014; Dr. Sandor reported that appellant was struck on the
head and shoulder by a sign in December 2015; in January 2016 appellant reported he sustained a
pinched nerve due to a recent accident; March 20, 2016 appellant’s left leg collapsed causing him
to fall; and in October 2016 appellant was thrown from his chair when his pressure cooker
exploded injuring his back and head. Following the explosion, appellant experienced several

14

F.L., supra note 9; Charles H. Tomaszewski, 39 ECAB 461 (1988).

15

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

16

Id.

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additional falls through November 21, 2016 and he fractured his fibula in a December 29, 2016
fall.
As previously noted, once the work-connected character of a condition is established, the
subsequent progression of the condition remains compensable so long as the worsening is not
shown to have been produced by an independent nonindustrial cause.17 From the list of events
above, it is clear that the explosion, being struck by the sign, and the motor vehicle accident are
independent intervening causes.18 Therefore any change in appellant’s accepted conditions of
cervical and lumbar sprain following these incidents would not be considered work-related
consequential injuries. In regard to his repeated falls, the changes in his diagnosed conditions as
a result of these injuries would only be compensable if he submitted medical evidence establishing
that these falls were the “direct and natural result” of his accepted cervical and lumbar sprains.19
Appellant has not provided such medical opinion evidence.
The diagnostic testing of record is also of diminished probative value and is insufficient to
establish appellant’s consequential injury claim as diagnostic testing does not provide an opinion
on the cause of the diagnosed conditions.20
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish additional
bilateral arm, back, left leg, and neck conditions causally related to or consequential to his accepted
employment injury.

17
See Sandra Dixon- Mills, 44 ECAB 882, 885 (1993) (finding that bending over to lift an infant was an independent
intervening cause); Robert W. Meeson, 44 ECAB 834, 840 (1993) (finding that an automobile accident was an
independent intervening cause).
18

Id.

19

See P.J., Docket No. 17-0570 (issued October 26, 2017) and Karen C. Schaffer, 39 ECAB 1219 (1988) (finding
that the claimants had not established that their falls were caused by accepted employment injuries through the
submission of rationalized medical opinion evidence).
20

F.L., supra note 9; C.P., Docket No. 15-0600 (issued June 2, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the July 14, 2017 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1442
Issued: February 9, 2022

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 July 27, 2020 appellant, through counsel, filed a timely appeal from a January 29, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the January 29, 2020 decision, appellant submitted additional evidence to OWCP.
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.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation benefits, effective June 14, 2018, as he no longer had disability causally
related to his accepted January 1, 2005 employment injury; and (2) whether appellant has met his
burden of proof to establish continuing disability on or after June 14, 2018, causally related to his
accepted January 1, 2005 employment injury.
FACTUAL HISTORY
This case has previously been before the Board on a different issue. 4 The facts and
circumstances as set forth in the Board’s decision are incorporated herein by reference. The
relevant facts are as follows.
On February 22, 2005 appellant, then a 65-year-old lead security screener, filed a notice of
recurrence of a medical condition (Form CA-2a) alleging that on January 1, 2005, he experienced
a recurrence of previously accepted cervical and lumbar spine conditions. 5 He stopped work on
February 12, 2005 and did not return. OWCP developed the recurrence claim as one for a new
occupational condition. 6 On May 5, 2005 it accepted a lumbar strain, cervical-thoracic strain, and
lumbar radiculopathy. On July 27, 2005 OWCP expanded its acceptance of the claim to include
the additional diagnosis of an L4-5 disc herniation. On August 29, 2005 Dr. Daniel G. Nehls, a
Board-certified neurosurgeon, performed an OWCP-authorized laminectomy, facetectomy, and
foraminotomy at L4 and L5. 7 OWCP paid wage-loss compensation benefits. It placed him on the
periodic rolls, effective February 19, 2006.8
Appellant remained under medical treatment. He underwent a series of OWCP-authorized
cervical facet block and cervical epidural injections from January 12 through July 18, 2007, and
lumbar epidural steroid injections on August 28, 2007.9 Appellant underwent a series of OWCPauthorized bilateral L3, L4, and L5 medial branch and dorsal ramus blocks on December 30, 2014.
On March 24, 2015 he underwent an OWCP-authorized right-sided radiofrequency ablation from
4

Docket No. 17-1423 (issued November 8, 2017).

5

Appellant has a previous traumatic injury claim under OWCP File No. xxxxxx865, accepted for lumbar strain,
cervical-thoracic strain, and lumbar radiculopathy. OWCP has administratively combined File Nos. xxxxxx840 and
xxxxxx865, with File No. xxxxxx840 serving as the master file.
6

A March 4, 2005 lumbar magnetic resonance imaging (MRI) scan demonstrated multilevel disc bulges and severe
degenerative disc disease.
7

Appellant participated in postoperative physical therapy treatments through July 2006.

8

A January 23, 2006 cervical MRI scan demonstrated disc narrowing at C4-5, C5-6, and C6-7 with degenerative
disc bulges.
9

A June 3, 2008 lumbar MRI scan demonstrated bilateral posterior laminectomies at L4-5 with 5 mm anterolisthesis
of L4 on L5, increased since a March 4, 2005 study, resulting in bilateral neural foraminal narrowing, with possible
compression of the left exiting L4 nerve root, a posterior osteophyte at L5-S1 contributing to moderate bilateral neural
foraminal narrowing with contact of the exiting L5 nerve roots bilaterally, mildly increased posterior disc bulge at
L2-3 with mild spinal canal and neural foraminal narrowing, and moderate-to-severe facet arthropathy at L4-5. June 3,
2008 lumbar x-rays demonstrated a grade 1 anterolisthesis of L4 on L5 with instability, and prominent degenerative
disc disease present at L5-S1.

2

L3 through L5, and authorized left L3 and L4 medial branch and left L5 dorsal ramus
radiofrequency ablation. Appellant also underwent an OWCP-authorized series of caudal epidural
steroid and bilateral L4-5 transforaminal epidural steroid injections from September 10, 2015
through January 23, 2017. He participated in physical therapy treatments from March 2016
through April 2017.
On May 30, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions to Dr. Vicki Kalen, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding the status of appellant’s accepted
January 1, 2005 employment injury. In a June 21, 2017 report, Dr. Kalen described the January 1,
2005 employment injury and noted appellant’s accepted lumbar strain, cervicothoracic strain,
lumbar radiculopathy, and L4-5 herniated disc. On examination she noted a well-healed surgical
scar over the lumbar spine, limited cervical and lumbar spine motion in all planes, full strength of
the upper and lower extremities with no atrophy, intact reflexes and normal motor testing in all
extremities, and overreaction to lumbar and cervical spine motion. Dr. Kalen opined that
multilevel degenerative changes visible on imaging studies were normal for appellant’s age, and
that surgery had resolved the accepted L4-5 disc herniation. She found that the accepted
occupational injuries had resolved without residuals. Dr. Kalen returned appellant to full-time
sedentary or light duty with restrictions. In a July 10, 2017 supplemental report, she noted that the
work limitations were due exclusively to appellant’s age of 78 and age-related spinal complaints
and unrelated to the accepted occupational injury.
In a July 20, 2017 report, Dr. Russel R. Kinder, Board-certified in pain medicine and
anesthesia, diagnosed a sprain of the ligaments of the cervical and lumbar spine. On September 6,
2017 he performed authorized bilateral transforaminal epidural steroid injections at L4 -5.
Dr. Kinder diagnosed lumbar radiculopathy.
OWCP received chart notes dated from January 31 through April 25, 2018 by Catherine
Milgate, a physician assistant.
A December 6, 2017 MRI scan of the cervical spine demonstrated moderate -to-severe
spondylosis at C5-6, C6-7, and C7-T1 with spinal stenosis, multiple areas of facet arthrosis, and
neuroforaminal narrowing.
On March 20, 2018 OWCP referred appellant for an impartial medical examination with
Dr. Lowell Anderson, a Board-certified orthopedic surgeon, to resolve the conflict of medical
opinion between Dr. Kalen, for the government, and Dr. Kinder, for appellant, regarding
appellant’s continuing employment-related disability and medical residuals. An updated SOAF,
dated Mach 6, 2018, noted accepted conditions of lumbar sprain, cervical-thoracic sprain, lumbar
radiculitis, and herniated lumbar (L4-5) disc.
In an April 18, 2018 report, Dr. Anderson, serving as the impartial medical examiner
(IME), reviewed appellant’s history of injury, medical records, and the SOAF. On examination
he observed restricted range of motion of the cervical spine, paraspinal tenderness to palpation of
the cervical spine, left intrascapular region, and lumbosacral junction, possible mild weakness of
the left lower extremity evident on toe-raise and step testing, possible mild hamstring weakness in
the left lower extremity, subjective decreased sensation in the second, third, and fourth fingers of
the left hand, minimally decreased sensation in the fifth finger of the left hand, limited lumbar
range of motion, decreased sensation in the entire left lower extremity, and negative seated straight
3

leg raising tests bilaterally. Dr. Anderson also noted that thigh circumference at 10 centimeters
proximal to the patella was 51/49, right over left. He diagnosed multilevel cervical spondylosis,
cervical spinal stenosis, likely left upper extremity radiculopathy symptoms related to nerve root
irritation at multiple levels of the cervical spine, central cervical stenosis related to genetic and
age-related progression of a preexisting cervical condition. Dr. Anderson opined that the accepted
injury “with likely L4-5 herniated disc” and surgery had resolved without residuals as it was “likely
satisfactorily treated” by surgery. He noted that appellant’s ongoing cervical and lumbar
conditions were due only to age-related degenerative changes. Dr. Anderson indicated that
appellant had attained maximum medical improvement “many years ago.” He found appellant
unable to perform his date-of-injury position due to nonoccupational, age-related degenerative
changes of the cervical and lumbar spine.
On May 9, 2018 OWCP proposed to terminate appellant’s wage-loss compensation
benefits because he no longer had disability from work due to the accepted January 1, 2005
injuries, based on Dr. Anderson’s report. It afforded him 30 days to respond.
In a letter dated June 6, 2018, appellant, through counsel, contended that Dr. Anderson
failed to differentiate between the sequelae of the accepted occupational injuries and surgery and
age-related degenerative changes. He submitted a June 1, 2018 report by Dr. Xi Tian, Boardcertified in anesthesiology and pain medicine, diagnosing a cervical spine ligamentous sprain and
chronic postoperative pain.
By decision dated June 14, 2018, OWCP terminated wage-loss compensation, effective
that date, based on the special weight accorded Dr. Anderson’s report as the IME.
On July 3, 2018 appellant requested a telephonic oral hearing before a representative of
OWCP’s Branch of Hearings and Review. During the hearing, held on November 14, 2018,
counsel contended that Dr. Anderson’s opinion should not have been accorded special weight as
it was equivocal and insufficiently rationalized. Following the hearing, in a December 11, 2018
letter, counsel asserted that OWCP should have accepted an L5 -S1 disc herniation, lumbar
stenosis, and failed back syndrome.
OWCP received a June 7, 2018 report, Dr. Tian diagnosed a sprain of ligaments of cervical
spine. When asked by appellant, Dr. Tian indicated that he would not provide an opinion on
whether appellant remained disabled for work.
In reports dated June 22 and November 1, 2018, Dr. Richard N.W. Wohns, a Boardcertified neurosurgeon, noted the accepted January 1, 2005 occupational injury. He diagnosed
cervical stenosis, cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back
pain.10 Dr. Wohns opined that appellant’s cervical radiculopathy, cervical stenosis, bilateral
occipital neuralgia, and low back pain remained related to the accepted January 1, 2005 injury, in

10
A July 11, 2018 MRI scan of the lumbar spine demonstrated central stenosis at L2-3 with broad-based central
protrusion, L3-4 central stenosis with broad-based bulging, small central canal, and left foraminal and central disc
protrusion, degenerative spondylosis at L4-5 with marked narrowing of the right nerve root and marked flattening of
the existing L4 nerve, L5-S1 broad-based disc bulging and retrolisthesis with bilateral neuroforaminal narrowing, and
right S1 nerve root displacement.

4

part, because latent, asymptomatic conditions were aggravated, activated, or ma de symptomatic
by the accepted injury.
In an October 25, 2018 report, Dr. David Hoffman, a Board-certified family practitioner,
reviewed a history of injury and treatment and referred appellant to a medical clinic.
In a January 10, 2019 report, Dr. Darin Blackburn, a Board-certified family practitioner,
noted that he had been treating appellant since the January 1, 2005 occupational injury. He opined
that appellant’s injury-related cervical and lumbar spine symptoms had not yet resolved.
Dr. Blackburn noted work limitations attributable to the accepted occupational injury.
By decision dated January 29, 2019, the hearing representative affirmed the June 14, 2018
termination, finding that Dr. Anderson’s opinion continued to carry the special weight of the
medical opinion evidence.
On January 16, 2020 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In a November 15, 2018 report, Dr. Tian diagnosed lumbago, other chronic postoperative
pain, and sprain of ligaments of lumbar spine.
In reports dated January 25 and April 10, 2019, Dr. Michael J. Martin, a Board-certified
orthopedic surgeon, noted a history of the accepted January 1, 2005 occupational injury and
subsequent treatment. On examination he noted slightly diminished cervical and lumbar lordosis,
limited range of cervical and lumbar spine motion, normal motor and sensory findings in all
extremities, and negative straight leg raising tests bilaterally. Following additional imaging
studies,11 Dr. Martin recommended physical therapy.
In July 1, September 3, 2019 and January 8, 2020 reports, Dr. Wohns opined that appellant
should undergo a C5-6, C6-7 anterior cervical discectomy and fusion, and extension of the prior
laminectomy to include L2 and L3 due to severe stenosis.
In a January 17, 2020 report, Dr. Kathy Wang, an osteopath Board-certified in
anesthesiology, administered a provocative lumbar discography and discogram at L2 -3, L3-4, and
L5-S1 which demonstrated nonconcordant pain at L2-3, L3-4, L4-5. She noted that discography
was not performed at L5-S1 due to a posterior osteophyte complex and autofusion.
Appellant also submitted reports dated from March 27 through November 25, 2019 by Soo
Yoon, a nurse practitioner.
By decision dated January 29, 2020, OWCP denied modification.

11

A March 8, 2019 MRI scan of the cervical spine, and April 9, 2019 MRI scans of the thoracic and lumbar spine
demonstrated degenerative changes throughout the spine as evident on prior imaging studies. The April 9, 2019
lumbar MRI scan demonstrated a midline laminectomy with excellent decompression of the spinal canal at L4-5 and
L5-S1.

5

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify
termination or modification of benefits. 12 It may not terminate compensation without establishing
either that the disability has ceased or that it is no longer related to the employment. 13 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background. 14
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination. 15 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 16
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective June 14, 2018.
OWCP properly identified a conflict of medical opinion between Drs. Kalen and Kinder,
and referred appellant to Dr. Anderson for an impartial medical evaluation. In his April 18, 2018
report, Dr. Anderson reviewed appellant’s history of injury, medical records, and the SOAF. He
noted that the accepted January 1, 2005 injury “likely” caused an L4-5 herniated disc, “likely
satisfactorily treated” by the authorized August 29, 2005 laminectomy, facetectomy, and
foraminotomy at L4-5.
The Board finds that Dr. Anderson’s report is inconsistent with the SOAF. OWCP
specifically accepted that the L4-5 herniated disc was caused by the accepted January 1, 2005
occupational injury. 17 It is well established that a physician’s opinion must be based on a complete
and accurate factual and medical background. When OWCP has accepted an employment

12

A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
13

A.G., Docket No. 18-0749 (issued November 7, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 54
ECAB 734 (2003).
14

R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB
284 (1988).
15

5 U.S.C. § 8123(a); D.B., Docket No. 19-0663 (issued August 27, 2020); L.T., Docket No. 18-0797 (issued
March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).
16

D.B., id.; D.W., Docket No. 18-0123 (issued October 4, 2018).

17

D.B., supra note 15; Willa M. Frazier, 55 ECAB 379 (2004).

6

condition as occurring in the performance of duty, the physician must base his opinion on these
accepted conditions.18
The Board therefore finds that Dr. Anderson’s opinion is of limited value on the relevant
issue in this case, and is insufficient to carry the special weight of the medical evidence.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation benefits, effective June 14, 2018.19
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: February 9, 2022
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

18

Id.; V.C., Docket No. 14-1912 (issued September 22, 2015).

19

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.L., Appellant
and
DEPARTMENT OF AGRICULTURE,
DEADWOOD RESERVOIR, Lowman, ID,
Employer
__________________________________________

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

Docket No. 08-466
Issued: October 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 5, 2007 appellant filed a timely appeal of a July 24, 2007 merit decision of
the Office of Workers’ Compensation Programs, which granted a schedule award for a three
percent impairment each of the right and left lower extremities. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has more than a three percent impairment of the right
lower extremity and a three percent impairment of the left lower extremity, for which he received
a schedule award.
FACTUAL HISTORY
This case has previously been before the Board on four occasions. In a June 11, 2002
decision, the Board affirmed the Office’s May 10 and December 21, 2000 decisions.1 The Board
1

Docket No. 01-1685 (issued June 11, 2002).

found that the Office properly reduced appellant’s compensation based on its determination that
the constructed position of lot attendant represented his wage-earning capacity. The Board,
however, reversed the Office’s May 3, 2001 decision, denying appellant’s request for
reconsideration. The Board found that he submitted relevant and pertinent new evidence and
remanded the case to the Office for further merit review of his claim pursuant to 5 U.S.C.
§ 8128(a). By order dated June 25, 2002, the Board dismissed appellant’s second appeal of the
Office’s May 3, 2001 decision as a duplicate docket.2 The Board stated that this appeal was
inadvertently docketed as he had previously filed an appeal of the May 3, 2001 decision, which
the Board had already assigned a docket number. In a January 10, 2003 order, the Board
dismissed appellant’s appeal of the Office’s October 9, 2002 decision, denying modification of
its wage-earning capacity determination as appellant had already filed an appeal of this decision
which was pending before the Board.3 In a decision dated March 11, 2003, the Board affirmed
the Office’s October 9, 2002 decision.4 The Board found the evidence submitted by appellant
insufficient to establish that the Office’s wage-earning capacity determination was erroneous. In
an order dated December 8, 2003, the Board denied appellant’s petition for reconsideration of its
June 25, 2002 decision on the grounds that it did not establish any error of fact or law warranting
further consideration.5 The facts and the circumstances of the case as set forth in the Board’s
prior decisions and orders are incorporated herein by reference.6 The facts and the history
relevant to the present issue are hereafter set forth.
In a March 12, 2007 medical report, Dr. John C. Steinmann, an attending Board-certified
orthopedic surgeon, reviewed the history of appellant’s September 12, 1997 employment injury
and noted his complaints of pain in his lower back, left hip and both legs. On physical
examination, he reported essentially normal findings with the exception of limited lumbar range
of motion. Dr. Steinmann reviewed an x-ray which demonstrated advanced degenerative disc
disease at L5-S1. He also reviewed a magnetic resonance imaging (MRI) scan which revealed
the same results as the x-ray with three millimeter disc herniation. Dr. Steinmann stated that
there was no significant central or neuroforaminal stenosis. He diagnosed discogenic low back
pain. Dr. Steinmann stated that appellant was status post revision laminotomy and discectomy at
L5-S1 for recurrent disc herniation which was performed on July 22, 2004. He opined that
appellant had reached maximum medical improvement. Dr. Steinmann further opined that
appellant could work with restrictions.
On June 9, 2007 Dr. Arthur S. Harris, an Office medical adviser, reviewed appellant’s
case record including, Dr. Steinmann’s March 12, 2007 report. He stated that appellant was
2

Order Dismissing Appeal, Docket No. 02-1335 (issued June 25, 2002).

3

Order Dismissing Appeal, Docket No. 03-216 (issued January 10, 2003). The Board notes that the January 10,
2003 order is not contained in the case record.
4

Docket No. 03-165 (issued March 11, 2003).

5

Order Denying Petition for Reconsideration, Docket No. 03-165 (issued December 8, 2003).

6

On September 13, 1997 appellant, then a 34-year-old forestry technician, filed a traumatic injury claim alleging
that on September 12, 1997 he hurt his back when he bent over to pick up his saw from an uphill side slope. The
Office accepted the claim for low back sprain and L5-S1 disc herniation. It authorized a L5-S1 discectomy and
laminectomy and a revision laminectomy.

2

status post L5-S1 laminectomy and discectomy, which was performed on April 30, 1998 and
noted the July 22, 2004 surgery. Dr. Harris stated that appellant had chronic lumbar
radiculopathy. He determined that appellant had Grade 3 pain or decreased sensation of the
bilateral S1 nerve root that interfered with some activity based on Table 16-10 and Table 15-18
on page 482 and 424, respectively, of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001), resulting in a three
percent impairment of the right lower extremity. Dr. Harris opined that appellant’s impairment
was causally related to the accepted September 12, 1997 employment-related injuries. He stated
that appellant reached maximum medical improvement on March 12, 2007.
By letter dated June 15, 2007, the Office advised appellant that he was entitled to
schedule award compensation. It further advised him and the employing establishment to
complete an enclosed schedule award claim (Form CA-7).
On June 25, 2007 appellant filed a CA-7 form.
On July 2, 2007 the Office requested clarification from Dr. Harris as to whether appellant
sustained a three percent impairment of the left lower extremity, as well as, the right lower
extremity.
In a July 14, 2007 report, Dr. Harris stated that appellant sustained a three percent
impairment of each lower extremity.
By decision dated July 24, 2007, the Office granted appellant a schedule award for a
three percent impairment of the right lower extremity and a three percent impairment of the left
lower extremity for 17.28 weeks of compensation for the period July 8 through
November 5, 2007.7
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing regulation9 sets forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.10 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.11
7

On July 8, 2007 the Office terminated appellant’s compensation for loss of wage-earning capacity.

8

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

9

20 C.F.R. § 10.404.

10

5 U.S.C. § 8107(c)(19).

11

See supra note 9.

3

The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.12
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the protocols of the A.M.A., Guides, his opinion is of diminished
probative value in establishing the degree of any permanent impairment. In such cases, the
Office may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the findings
reported by the attending physician.13
ANALYSIS
The Office accepted that appellant sustained low back sprain and disc herniation at L5-S1
while working at the employing establishment on September 12, 1997. Dr. Steinmann,
appellant’s attending physician, stated in a March 12, 2007 report that an x-ray and an MRI scan
demonstrated advanced degenerative disc disease at L5-S1 with three millimeter disc herniation.
He diagnosed appellant as having discogenic low back pain. Dr. Steinmann stated that appellant
was status post revision at L5-S1 laminotomy and discectomy for recurrent disc herniation which
was performed on July 22, 2004. He opined that appellant had reached maximum medical
improvement and that he could work with restrictions. However, Dr. Steinmann did not provide
an impairment rating based on the tables and figures of the A.M.A., Guides. Therefore, the
Board finds that his report is insufficient to establish that appellant has more than a three percent
impairment of each lower extremity.
Dr. Harris, an Office medical adviser, reviewed appellant’s case record including
Dr. Steinmann’s March 12, 2007 findings and provided an accurate medical background of the
accepted employment injuries. He stated that appellant suffered from chronic lumbar
radiculopathy. Dr. Harris determined that his continuing lumbar symptoms constituted a Grade 3
level of pain or sensory deficit at the bilateral S1 nerve root that interfered with some activity
(A.M.A., Guides 482, 424, Table 16-10 and Table 15-18) which represented a three percent
impairment of the right lower extremity.
In a supplemental report, Dr. Harris opined that appellant also sustained a three percent
impairment of the left lower extremity.
Dr. Harris properly applied the A.M.A., Guides and provided rationale for rating a three
percent impairment of the right lower extremity and a three percent impairment of the left lower
extremity. The Board finds that Dr. Harris’ opinion represents the weight of the medical
evidence of record. Appellant has no more than a three percent impairment of each lower
extremity.

12

See Paul A. Toms, 28 ECAB 403 (1987).

13

See John L. McClanic, 48 ECAB 552 (1997); see also Paul R. Evans, 44 ECAB 646, 651 (1993).

4

On appeal, appellant contends that his schedule award which expired on November 5,
2007 should be reinstated. Under the Act, the maximum award for an impairment of the leg is
288 weeks of compensation.14 The three percent impairment of the right lower extremity entitled
appellant to three percent of 288 weeks or 8.64 weeks of compensation. Appellant was also
entitled to compensation for the same number of weeks for a three percent impairment of the left
lower extremity. Calculated together, his schedule award equaled 17.28 weeks of compensation.
Therefore, the Board finds that the Office correctly determined appellant’s schedule award to be
17.28 weeks of compensation. Appellant is entitled to no more under the Act.15
CONCLUSION
The Board finds that appellant has failed to establish that he has more than a three percent
impairment of the right lower extremity and a three percent impairment of the left lower
extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the July 24, 2007 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: October 17, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

14

5 U.S.C. § 8107(c)(2).

15

The Board notes that, upon expiration of appellant’s schedule award, the Office reinstated his compensation for
loss of wage-earning capacity. The Board has consistently held that compensation under a schedule award and
compensation for a loss of wage-earning capacity cannot be paid for the same period of time. Joseph R. Waples,
44 ECAB 936, 939 (1993); Benjamin Swain, 39 ECAB 448 (1988); Andrew B. Poe, 27 ECAB 510 (1976);
Stanley F. Stuczynski, 12 ECAB 159 (1960).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Oyster Bay, NY,
Employer
__________________________________________

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

Docket No. 15-1280
Issued: November 13, 2015

Case Submitted on the Record

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

JURISDICTION
On May 18, 2015 appellant filed a timely appeal from a November 21, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $61,947.91;
(2) whether it properly found that appellant was at fault in creating the overpayment; (3) whether
OWCP properly found the overpayment should be recovered by deducting $338.23 from
continuing compensation payments; and (4) whether it properly denied appellant’s request for a
prerecoupment hearing.
1

The record also contains a December 12, 2014 decision denying a request for a hearing.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant sustained a lumbosacral sprain in the performance of duty
as a park ranger on December 21, 1991. Appellant stopped working and received wage-loss
compensation based on total disability. He was annually requested to complete EN1032 forms
with respect to employment activity and receipt of benefits. The form specifically asks a
claimant to report any benefits received from the Social Security Administration (SSA) which
are received as part of an annuity for federal service. The record indicates that on EN1032 forms
dated March 28, 2008, April 3, 2009, April 21, 2010, May 2, 2011, April 30, 2012, June 6, 2013,
and April 2, 2014, appellant stated “no” in response to the question as to receipt of social
security benefits.
On August 28, 2014 OWCP requested that the SSA provide information regarding
appellant’s receipt of social security benefits. In a form completed September 10, 2014, SSA
reported that appellant began receiving SSA retirement benefits as of April 2008.3 SSA provided
the amount he would have received based on federal service with Federal Employee’s
Retirement Service (FERS) and the amount he would have received without FERS.
By letter dated September 17, 2014, OWCP advised appellant that it was aware that he
had been receiving age-related social security benefits since April 1, 2008. It stated that it would
begin offsetting the social security benefits attributable to federal service as of
September 21, 2014.
OWCP advised appellant in a letter dated October 10, 2014 of its preliminary
overpayment determination of $61,947.91 for the period April 1, 2008 to September 20, 2014.
The basis for the overpayment was appellant’s receipt of wage-loss compensation while he was
also receiving retirement benefits from SSA as part of an annuity under FERS. As to the amount
of the overpayment, OWCP explained that the portion of the social security benefits attributable
to federal service should have been deducted from appellant’s compensation. Using the figures
provided by SSA, it calculated the daily amount to be deducted for specific periods and included
a calculation worksheet.
It was explained that, for the period April 1 through November 30, 2008, appellant
received $1,386.80 per month in social security retirement benefits. The amount not based on
federal service was $648.00, thus the difference of $738.80 per month should have been offset
from appellant’s wage-loss compensation benefits. The monthly amount of $738.80 was
equivalent to the 28-day amount of $681.969, or the daily amount of $24.356. Since the period
April 1 through November 30, 2008 covered 244 days, the amount that should have been offset
for that period was $5,942.87.
Similar calculations were provided for subsequent time periods at issue, with increased
figures of social security retirement benefits reflected. It was calculated that, for the period
December 1, 2008 to November 30, 2011, the amount that should have been offset was
$28,218.51. For the period December 1, 2011 through November 30, 2012 the offset amount
3

The record also contains a form dated July 8, 2013 from SSA indicating that appellant was eligible for disability
benefits as of May 1972.

2

should have been $9,772.20, for the period December 1, 2012 through November 30, 2013 the
offset amount should have been $9,911.55, and for the period December 1, 2013 through
September 20, 2014 the offset amount should have been $8,102.77. For the entire period
April 1, 2008 to September 20, 2014, OWCP found $61,947.91 should therefore have been
deducted.
In the October 10, 2010 letter, OWCP made a preliminary determination that appellant
was at fault in creating the overpayment as he had made an incorrect statement as to a material
fact that he knew or should have known was incorrect, citing the submission of Forms EN1032.
Appellant was advised that he had 30 days to submit an enclosed Form OWCP-20 and relevant
financial information with respect to waiver or recovery of the overpayment. In addition, OWCP
advised him that he had 30 days to request a prerecoupment hearing before an OWCP hearing
representative.
The record contains a memorandum of telephone call dated November 7, 2014 stating
that appellant was seeking a 30-day extension as he was looking to go into a facility for brain
injuries. A memorandum of telephone call dated November 19, 2014 indicated that OWCP
spoke with a social worker, with appellant in attendance, regarding the overpayment. In a letter
dated November 19, 2014, appellant’s congressional representative asserted that appellant
suffered from a traumatic brain injury and had difficulty processing information. The hearing
representative stated that appellant claimed that he had acted in good faith and had answered the
questions on the EN1032 forms to the best of his ability.
By decision dated November 21, 2014, OWCP finalized its determination of a
$61,947.91 overpayment. It found that no evidence had been presented as to a brain injury, that
appellant had been provided 30 days to respond to the October 10, 2014 preliminary
determination, but no response was received and that it found him at fault for the overpayment.
OWCP affirmed its preliminary finding of fault, which was that he had made an incorrect
statement as to material fact on the EN1032 forms, and it also stated that he had accepted a
payment he knew or reasonably should have known was incorrect. It found that the overpayment
would be recovered by deducting $336.23 from his 28-day continuing compensation payments.4
On December 1, 2014 OWCP received a November 20, 2014 request for a
prerecoupment hearing before an OWCP hearing representative.5 Appellant submitted a
November 20, 2014 letter from a social worker stating that he had significant mental health and
psychological problems. He also submitted a Form OWCP-20 overpayment recovery
questionnaire dated November 20, 2014.
By decision dated December 12, 2014, OWCP denied the request, finding it was untimely
filed.

4

A November 20, 2014 memorandum states that this represents 27 percent of appellant’s net compensation.
According to the memorandum, a lesser percentage triggered an error message based on his life expectancy and the
recovery end date.
5

The postmark date is difficult to read, but appears to be November 21, 2014.

3

LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8116(d)(2) requires that compensation benefits be reduced by “the amount of
any such [SSA] benefits payable that are attributable to federal service.” OWCP procedures
provide that, while social security benefits are payable concurrently with FECA benefits, in
disability cases, FECA benefits will be reduced by social security benefits paid on the basis of
age and attributable to the employee’s federal service.6 It obtains information from SSA on the
amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits. SSA
will provide the actual amount of social security benefits received by the claimant/beneficiary.
SSA will also provide a hypothetical social security benefit computed without FERS covered
earnings. OWCP will then deduct the hypothetical benefit from the actual benefit to determine
the amount of benefits which are attributable to federal service and that amount will be deducted
from FECA benefits to obtain the amount of compensation payable.7
ANALYSIS -- ISSUE 1
The overpayment in this case is based on the evidence provided by the SSA on the
benefits it paid to appellant. This evidence shows that in April 2008 he began receiving SSA
retirement benefits. The SSA benefits attributable to appellant’s federal service was provided by
SSA. However, a claimant cannot simultaneously receive both wage-loss compensation under
FECA and SSA retirement benefits attributable to the claimant’s federal service. In this case,
appellant received wage-loss compensation from April 1, 2008 to September 20, 2014, while
also receiving social security benefits based his on federal service. Accordingly, an overpayment
of FECA wage-loss compensation was created.
As to the amount of the overpayment, OWCP provided a detailed discussion as to its
calculations, as well as a calculation worksheet. Based on the information from SSA, it
identified the offset amount for specific periods: April 1 to November 30, 2008, December 1,
2008 to November 30, 2011, December 1, 2011 to November 30, 2012, December 1, 2012 to
November 30, 2013, and December 1, 2013 to September 20, 2014. OWCP identified the
number of days in each period and found that the overpayment amount was $5,942.87,
$28,218.51, $9,772.20, $9,911.55, and $8,102.77 respectively. The total overpayment was
therefore $61,947.91, and no contrary evidence is of record. The Board finds that OWCP
properly found an overpayment of $61,947.91 was created in this case.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (June 2009). This
same section of the manual explains that if social security benefits are paid for disability rather than age, social
security benefits paid for disability shall be reduced by FECA compensation payable.
7

FECA Bulletin No. 97-09 (issued February 3, 1997). See also P.G., Docket No. 13-589 (issued July 9, 2013).

4

conscience.”8 A claimant who is at fault in creating the overpayment is not entitled to waiver.9
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or
she has done any of the following: “(1) made an incorrect statement as to a material fact which
he or she knew or should have known to be incorrect; (2) failed to provide information which he
or she knew or should have known to be material; or (3) accepted a payment which he or she
knew or should have known was incorrect.”
ANALYSIS -- ISSUE 2
As noted above, a finding of fault may properly be based on any of the three standards
found under 20 C.F.R. § 10.433. As discussed in the preliminary determination, appellant had
completed EN1032 forms from March 28, 2008 to April 2, 2014. The EN1032 forms
specifically require a claimant to provide information with respect to receipt of social security
benefits. The “no” response was an incorrect statement as to a material fact. The period of the
overpayment, however, extended to September 20, 2014. There is no evidence of record that
appellant made an incorrect statement as to material fact between April 2 and
September 20, 2014. OWCP has therefore not established that he was at fault in the creation of
the overpayment after April 2, 2014 based on making an incorrect statement of material fact.
The Board notes that in the final overpayment decision dated November 21, 2014 OWCP
affirmed the finding of fault based on making incorrect statements of material fact, but also
found that appellant was at fault for accepting payments he knew or should have known were
incorrect.
Extensive due process rights attach to any attempt by OWCP to recoup benefits already
paid, even if paid in error. The Board has held that OWCP may not change the grounds for fault
to a standard to which the claimant has had no opportunity to respond. As making an incorrect
statement as to material fact was the only reason provided for finding fault in both the
preliminary determination and the final decision, the Board may affirm the finding of fault only
on this basis.10 Upon return of the case record OWCP shall determine whether the overpayment
appellant received after April 2, 2014 should be waived.
The November 19, 2014 letter from appellant’s congressional representative states that
appellant claimed the answers provided were to the best of his ability and in good faith. To the
extent that appellant asserts that he did not know that he needed to report SSA retirement
benefits he was receiving, the Board notes that the standard is knew or should have known to be
incorrect. As the Board has indicated, the forms provide clear language as to the necessity of
reporting social security benefits.11 Although appellant’s congressional representative referred to
a difficulty in processing information, there was no probative evidence of record on this issue
submitted to OWCP prior to November 21, 2014. There was no supporting evidence for an
8

5 U.S.C. § 8129(b).

9

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

10

See Anna E. Eacker, Docket No. 05-1245 (issued April 12, 2006).

11

See R.B., Docket No. 15-0192 (issued August 6, 2015); P.G., Docket No. 15-0413 (issued June 25, 2015).

5

argument that appellant could not understand the clear language provided on the EN1032 forms.
The evidence establishes that he made an incorrect statement as to a material fact that he knew or
should have known to be incorrect through April 2, 2014.
LEGAL PRECEDENT -- ISSUE 3
OWCP regulations provide:
“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 the 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 hardship.”12
With respect to the submission of financial evidence, OWCP’s regulations at 20 C.F.R.
§ 10.438 provide:
“(a) 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.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”
ANALYSIS -- ISSUE 3
In this case, OWCP advised appellant that he needed to submit a Form OWCP-20
overpayment questionnaire and relevant financial documents. In determining amount to be
deducted from his continuing compensation, OWCP regulations identified above require that
OWCP consider financial circumstances and other relevant factors to minimize hardship.
Appellant did not submit any relevant financial information prior to the final
overpayment decision. As noted above, it is his responsibility to submit the necessary financial
information. When a claimant fails to submit financial information, OWCP may recover the
overpayment in installments large enough to recover the debt promptly.13 In the present case,

12

20 C.F.R. § 10.441.

13

P.P., Docket No. 14-2048 (issued May 13, 2015).

6

OWCP considered appellant’s life expectancy and indicated that it would recover the minimum
amount from continuing compensation to recover the overpayment in a timely fashion.14
LEGAL PRECEDENT -- ISSUE 4
OWCP regulations on the recovery of overpayments provide that, before collecting the
overpayment, it must provide the claimant with written notice of the fact and amount of the
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount, or
finding of fault and the right to request waiver of the overpayment.15 The regulations further
provide that a claimant may request a prerecoupment hearing with respect to an overpayment.16
Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right
to a hearing.17
ANALYSIS -- ISSUE 4
The preliminary determination of overpayment and fault was dated October 10, 2014.
Appellant had 30 days from that date to request a prerecoupment hearing before an OWCP
hearing representative. A memorandum of telephone call dated November 7, 2014 indicated that
he requested an extension of time. The Board, however, has held that there is no provision in the
regulations for extending the 30-day time period.18 The prerecoupment request was postmarked
November 21, 2014. Since this is more than 30 days after the October 10, 2014 preliminary
determination, it is untimely. The Board finds that appellant waived his right to a prerecoupment
hearing.
On appeal, appellant states that he is unable to understand the letters received from
OWCP due to a brain injury and mental illness. He states that he submitted letters from a social
worker and a psychologist regarding his mental condition. OWCP did receive a letter from a
social worker on December 1, 2014. This letter was not before OWCP at the time of the
November 21, 2014 decision, and it is well established that a social worker is not a physician
under FECA and therefore the letter is of no probative medical value.19 With respect to the
request for a prerecoupment hearing, as noted above, there is no provision for extension of the

14

If OWCP receives financial information and determines that the overpayment should be waived after April 2,
2014, it should also determine whether the rate of the recovery of the overpayment should be adjusted.
15

20 C.F.R. § 10.431.

16

Id. at 10.432.

17

Id.

18

See G.W., Docket No. 12-0297 (issued October 25, 2012); H.K., Docket No. 11-543 (issued
November 25, 2011).
19

R.W., Docket No. 14-1890 (issued February 11, 2015).

7

30-day time period. As to evidence from a psychologist, the record did not contain a medical
report that was before OWCP as of December 12, 2014.20
CONCLUSION
The Board finds that OWCP properly found an overpayment of $61,947.91 was created,
that appellant was not entitled to waiver of the overpayment through April 2, 2014, and that
recovery of the overpayment would be accomplished by deductions from continuing
compensation payments. In addition, OWCP properly denied his request for a prerecoupment
hearing. The Board also finds that OWCP has not established that appellant was at fault in the
creation of the overpayment after April 2, 2014. Upon return of the case record OWCP shall
determine whether the overpayment after April 2, 2014 should be waived.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 12 and November 21, 2014 are affirmed in part, and
reversed in part.
Issued: November 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

The Board can review only evidence that was before OWCP at the time of the final decisions on appeal.
20 C.F.R. § 501.2(c)(1).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. GOVERNMENT, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jon B. Robinson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0906
Issued: December 15, 2017

Case Submitted on the Record

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

JURISDICTION
On December 19, 2016 appellant, through counsel, filed a timely appeal from a
November 10, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied his direct claim for benefits under the War Hazards Compensation Act (WHCA). 2

1

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

42 U.S.C. §§ 1701-17.

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant is entitled to benefits under section 101(a) of WHCA.
FACTUAL HISTORY
On April 28, 2016 appellant, then a 26-year-old military analyst manager working for an
independent contractor, filed a claim for compensation (Form LS-203) alleging an injury due to
cumulative exposure and war-risk hazards while in Kandahar Airfield and Tarin Kowt,
Afghanistan. He specified the date of injury as November 17, 2011.
Appellant initially had filed a claim for benefits under the Defense Base Act (DBA).5 In
a settlement application pursuant to section 8(i) of the Longshore and Harbor Workers’
Compensation Act6 (LHWCA), as extended by DBA, employer and carrier contended that the
statute of limitations on his claim began to run on October 11, 2012, when he telephoned the
Department of Veterans Affairs (DVA) regarding treatment for post-traumatic stress disorder
(PTSD). Employer and carrier argued that the claim for indemnity benefits was untimely under
the two-year state of limitations for filing a claim under DBA as appellant had not filed his DBA
claim until May 26, 2015. It conceded that his claim for medical benefits was timely. Appellant
concurred that his claim was filed more than two years after October 11, 2012. The parties
agreed to settle the claim for a lump-sum payment of $120,000.00 in medical benefits and no
indemnity benefits. The employer and carrier also agreed to pay $20,000.00 in attorney’s fees.
The settlement application indicated that appellant could pursue a claim under WHCA, which
had a three-year statute of limitations, if the court determined that he was not entitled to
compensation under DBA.
On March 3, 2016 an administrative law judge with the Department of Labor (DOL)
issued a decision and order approving the settlement compromise under DBA and section 8(i) of
LHWCA. He approved $120,000.00 for medical benefits only. The administrative law judge
determined that employer and carrier had no liability for indemnity compensation under DBA as
appellant’s claim for employment injuries culminating November 17, 2011 was discharged by
the expiration of the statute of limitations. He further approved $20,000.00 in attorney’s fees.

3

5 U.S.C. § 8101 et seq.

4

The Board’s jurisdiction to review decisions of OWCP under WHCA was determined in John Francis Dolezal,
9 ECAB 220 (1957). See also James R. Clark, 27 ECAB 591 (1976); Federal (FECA) Procedure Manual, Part 4 -Special Case Procedures, War Hazards, Chapter 4.300.10.d (September 1994) (individuals who file a claim under
section 101 of WHCA receive the same appeal rights granted in regular FECA cases).
5

42 U.S.C. § 1651 et seq.

6

33 U.S.C. § 901 et seq.

2

By decision dated September 19, 2016, OWCP denied appellant’s April 28, 2016 claim
under WHCA. It noted that an administrative law judge had determined that appellant was
entitled only to compensation under DBA for medical benefits but not for wage-loss
compensation as his claim for wage-loss compensation was determined to have been untimely
filed. OWCP explained that WHCA extended coverage to individuals whose injury or death was
not compensable under DBA. In this case, the claim had been denied not because it was outside
the coverage of the DBA but because the DBA claim had been untimely filed.
On October 21, 2016 appellant, through counsel, requested reconsideration. Counsel
noted that appellant was not awarded indemnity benefits under DBA as he filed his claim more
than two years after seeking assistance from the DVA for a psychological condition. He
contended, therefore, that as benefits were not payable under DBA they could be recovered
under WHCA. Counsel noted that WHCA did not define “payable” and thus it should be
interpreted by its plain meaning as an amount owed or due.
OWCP, following a preliminary review, set aside the September 19, 2016 decision as it
had failed to provide the appropriate appeal rights. It reissued the September 19, 2016 decision
on November 10, 2016.
On appeal counsel contends that he established exposure to war-risk hazards during his
employment in Afghanistan but could not receive indemnity benefits under DBA as he filed his
claim more than two years after seeking assistance from DVA for a psychological condition. He
argues that the claim was therefore not “payable” under DBA, asserting that “payable” should be
an expansive term due to WHCA’s humanitarian purpose. As “payable” is not defined by
WHCA, counsel maintains that it should be interpreted by its plain meaning as an amount due or
owed at a particular time. He notes that WHCA provided compensation to victims of war-risks
hazards even if not engaged in the course of employment.
LEGAL PRECEDENT
WHCA supplements DBA, which extends LHWCA.7 WHCA completes the protection
provided to federal contractors’ employees and certain other selected employees performing
work outside the United States. All liability for injury, death and detention benefits under the
WHCA is assumed by the Federal Government, and is paid from the Employees Compensation
Fund established by 5 U.S.C. § 8147.8
Section 101(a) of WHCA9 provides that, in case of injury or death resulting from injury
to any person employed by a contractor with the United States, if such person is an employee
specified in DBA, and no compensation is payable with respect to such injury or death under
DBA, and such injury proximately results from a war-risk hazard, whether or not such person
then actually was engaged in the course of his employment, the provisions of FECA, as
7

33 U.S.C. § 901 et seq.

8

Federal (FECA) Procedure Manual, Part 4 -- Special Case Procedures, War Hazards, Chapter 4.300.6.a
(September 1994).
9

42 U.S.C. § 1701(a)(1).

3

amended, and as modified by WHCA, shall apply with respect thereto in the same manner and to
the same extent if the person so employed were a civil employee of the United States and were
injured while in the performance of his duty.
The regulations implementing WHCA provide that compensation under section 101(a) of
WHCA is payable for injury or death due to a war-hazard risk of an employee regardless of
whether or not he was engaged in the course of employment at the time of injury.10 A condition
precedent to coverage under section 101(a) of WHCA is that no compensation is payable under
DBA with respect to such injury or death. To this end, regulations implementing WHCA further
provide: “An employee or his or her survivors may file a claim under section 101(a) of the
WHCA only after a determination has been made that no benefits are payable under the DBA
administered by [OWCP’s] Division of Longshore and Harbor Workers’ Compensation.”11
The condition precedent is also found in OWCP’s procedures: “An employee or survivor
should file a claim directly with the Division of Federal Employees’ Compensation under section
101 of the WHCA only after a Longshore District Director has determined that no compensation
is payable under the [DBA].”12
ANALYSIS
Before a claimant may make a direct claim for compensation under section 101(a) of
WHCA, a Longshore District Director must determine that no compensation is payable under
DBA.13 Appellant has not produced such a determination. In a decision dated March 3, 2016, an
administrative law judge with DOL approved a settlement compromise under DBA and
section 8(i) of LHWCA. He found that appellant was entitled to $120,000.00 for medical
benefits and $20,000.00 in attorney’s fees. The administrative law judge further found that
employer and carrier had no liability for indemnity compensation under DBA as his claim for
employment injuries culminating November 17, 2011 had not been filed within DBA’s statute of
limitations. The Board finds that appellant’s claim could not be heard under the DBA, due to the
untimely filing. There was no adjudication as to whether any benefits under DBA would have
been payable. As noted, WHCA extended coverage to employees injured or killed by a warhazard risk even if not engaged in the course of employment at the time of injury.14 Appellant
was covered under DBA for medical benefits but his claim for indemnity benefits was untimely
filed under DBA. There has been no finding that benefits under DBA were not otherwise
payable and thus has not established coverage under WHCA.15

10

20 C.F.R. § 61.201.

11

Id. at § 61.201.

12

Federal (FECA) Procedure Manual, supra note 7 at Chapter 4.300.10.a (September 1994).

13

Id; see also K.W. (S.F.), Docket No. 13-2091 (issued August 8, 2014), Nadegda Ankney, 5 ECAB 220 (1952).

14

See supra note 10.

15

See K.W. (S.F.), supra note 13.

4

Accordingly, the Board finds that appellant has not met the conditions for coverage under
section 101(a) of WHCA and affirms the November 10, 2016 OWCP decision.
On appeal counsel contends that he demonstrated that his claim was not “payable” under
DBA as it was not timely filed, noting that “payable” was not defined by WHCA and thus should
be read by its plain meaning as an amount due or owed. He asserts that due to DBA’s
humanitarian purpose its provisions should be read expansively. As discussed, however, the law
is clear that appellant must show that no compensation is payable under DBA in order to make a
direct claim for compensation under section 101(a) of WHCA.16 He received compensation in
the form of medical benefits under DBA, and he was not entitled to indemnity benefits simply
due to the running of the time limitations provisions, rather than because he did not fall within
coverage of DBA.
CONCLUSION
The Board finds that appellant has not established that he is entitled to benefits under
section 101(a) WHCA.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.17
Issued: December 15, 2017
Washington, DC

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

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

16

See supra note 12.

17

Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

5