United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Monmouth, NJ, Employer
__________________________________________

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

Docket No. 14-1405
Issued: December 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 5, 2014 appellant, through his attorney, filed a timely appeal from a March 24,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation and medical
benefits effective August 10, 2013.
FACTUAL HISTORY
On December 30, 2010 appellant, then a 37-year-old supply technician, filed a traumatic
injury claim alleging that on December 29, 2010 he bruised his right shoulder when he slipped
on steps. OWCP accepted the claim for a right iliofemoral hip sprain, right rotator cuff
1

5 U.S.C. § 8101 et seq.

syndrome with allied disorders, a sprain of the right shoulder, right upper arm and right rotator
cuff, a sprain of the sacrum, and thoracic or lumbosacral neuritis, or radiculitis. Appellant
stopped work on December 29, 2010.
On February 18, 2011 appellant underwent surgery on his right shoulder. On
February 23, 2011 he returned to limited duty but stopped work again on March 22, 2011.
Appellant resumed modified work on July 5, 2011 but filed a recurrence of disability on
September 15, 2011 when his work location closed and the employing establishment could not
provide him with work within his limitations. OWCP paid compensation for total disability
effective December 19, 2011. On April 18, 2012 appellant underwent an authorized
decompression laminectomy at L4, L5 and S1.
On July 10, 2012 Dr. Bruce R. Rosenblum, a Board-certified neurosurgeon, found a
negative straight leg test with no motor deficit. In a work restriction evaluation dated July 10,
2012, he diagnosed status post lumbar discectomy and found appellant could perform sedentary
full-time employment.
In a report dated August 9, 2012, Dr. Rosenblum related that appellant’s condition had
improved and referred him for a functional capacity evaluation.
On September 18, 2012 Dr. Rosenblum noted that a functional capacity evaluation
demonstrated that appellant could perform very heavy work. On examination he found some
mild back pain, a negative straight leg raise, and no motor deficit. Dr. Rosenblum released
appellant to return to heavy work as a supervisory police officer with no restrictions.
By letter dated October 1, 2012, OWCP advised Dr. Rosenblum that at the time of his
injury appellant worked as a supply technician rather than a supervisory police officer. It
requested that Dr. Rosenblum review the position description for a supply technician and
complete a work restriction evaluation. On December 5, 2012 OWCP asked him to address
whether appellant’s accepted conditions had resolved.
In a report dated December 11, 2012, Dr. Rosenblum related that appellant “has had
persistent lower back pain to his legs which is exacerbated after working through Super Storm
Sandy. [Appellant] as well did not return to work.” On examination he found no motor deficits
and a negative straight leg raise. Dr. Rosenblum diagnosed residual radiculitis.
On December 18, 2012 Dr. Rosenblum discussed appellant’s complaints of low back pain
radiating into the lower extremities. He advised that appellant should not work pending a
magnetic resonance imaging (MRI) scan study. On January 15, 2013 Dr. Rosenblum related that
an MRI scan study showed “residual spondylosis in the facet joints at L4-5. However, there is
also exuberant epidural fibrosis.” He recommended steroid injections.
On February 15, 2013 OWCP referred appellant to Dr. Stanley R. Askin, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated March 1, 2013,
Dr. Askin discussed appellant’s history of injury and reviewed the medical reports of record. He
noted that appellant complained of right shoulder pain, right arm and shoulder weakness, and
pain in his lower back radiating into the legs. Dr. Askin questioned the need for the shoulder and
back surgery given the findings on MRI scan studies. He noted that the January 11, 2011 MRI
2

scan of appellant’s right shoulder showed tendinosis and osteoarthritis consistent with his age
and without findings of a traumatic injury. On examination Dr. Askin found no frozen right
shoulder or crepitus. With regard to the lower back he found a negative right straight leg raise
and back pain on the left straight leg raise and normal manual muscle testing of the lower
extremities. Dr. Askin stated, “Sensation is preserved in both lower extremities in the sense that
there is no anesthesia, but he did report diminished sensation on the dorsolateral aspect of the left
foot.” He found that the accepted conditions had resolved and related that appellant’s
“overarching problem is the fact that he is significantly heavier than ideal for his frame.”
Dr. Askin opined that appellant could work as a supply technician with no limitations and
required no further medical treatment. He related:
“Firstly, I do not dispute that there had been discomfort associated with having
fallen. However, what has been done has been to identify imperfections that
would have been present independent of the reported slip and fall and to have
provided ‘treatments’ for such imperfections, even though there was no
expectation that such actually addressed anything that was caused by, worsened
by, aggravated by, or precipitated by anything that resulted from the event on the
date of occurrence.”
In a work restriction evaluation dated March 1, 2013, Dr. Askin released appellant to
return to work with no restrictions.
On June 18, 2013 OWCP notified appellant that it proposed to terminate his
compensation and authorization for medical benefits as he had no further employment-related
disability or need for treatment.
On June 18, 2013 Dr. Rosenblum recommended electrodiagnostic testing of the lower
extremities.
In a June 26, 2013 response to the proposed notice of termination, appellant’s attorney
related that he did not injure his back after Super Storm Sandy but instead was unable to clean up
following the storm because of his back. He further contended that Dr. Askin did not support his
opinion with rationale and did not address whether appellant had residuals from the authorized
surgeries.
By decision dated August 1, 2013, OWCP terminated appellant’s compensation and
authorization for medical treatment effective August 1, 2013. It found that Dr. Askin’s opinion
represented the weight of the evidence and established that he had no further residuals of his
December 29, 2010 work injury.
On August 8, 2013 appellant, through his attorney, requested an oral hearing before an
OWCP hearing representative.
In a statement dated July 2, 2013, received by OWCP on August 20, 2013,
Dr. Rosenblum related, “[Appellant] is still suffering the residua of his work injury and requires
treatment of lumbar sacral radiculopathy.”

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In a report dated August 20, 2013, Dr. Rosenblum indicated that appellant’s
electromyogram revealed radiculopathy at L5 and S1 bilaterally. He stated, “[Appellant]
clarifies today what he told me at the time of his Dec[ember] 2012 office visit. After Super
[S]torm Sandy he was simply cleaning some of the debris around his house when he experienced
worsening of his prior symptomatology secondary to his work-related injury. [Appellant]
ultimately was unable to carry out the task of cleaning these areas of destruction and actually had
to hire someone to do it.” On November 25, 2013 Dr. Rosenblum implanted a spinal cord
stimulator.
In a report dated December 10, 2013, Dr. Rosenblum discussed appellant’s continued
symptoms of left lower extremity pain following implantation of the dorsal column stimulator.
On December 23, 2013 he performed a revision of the pulse stimulator and evacuation of a
postoperative wound with debridement of skin and subcutaneous tissue.
Dr. Rosenblum later related that appellant had improved post revision of the dorsal
column stimulator. He found that appellant should remain off work pending revaluation.
On January 14, 2014 Dr. Rosenblum related:
“[Appellant] currently still suffers from the residuals of his work injury as
outlined in my report previously. This is true because though [he] did improve
after his initial lumbar decompression, he continued to have residua of his
post[-]traumatic lumbar radiculopathy which ultimately worsened and failed to
respond to conservative management requiring the implantation of a dorsal
column stimulator for the alleviation of permanent residua of post[-]traumatic
lumbar radiculopathy causally related to his work injury as outlined in my
reports.”
At the hearing, held on January 16, 2014, appellant related that he was initially hired by
the employing establishment as a police officer. He transferred to a supply technician position in
October 2010 when the base began closing because he was qualified to drive a forklift.
Appellant indicated that he only sat for one hour a day and spent the rest of the time moving
things between buildings. He described his injury on December 29, 2010. Appellant related that
he underwent surgery to his low back on April 18, 2012. He initially improved but then his
nerve pain returned.
After Super Storm Sandy appellant tried to clear branches from his deck but was in too
much pain to complete the task. He asserted that Dr. Askin’s evaluation lasted only 10 minutes.
Appellant’s attorney maintained that his date-of-injury job was more physical than described in
the position description and that consequently Dr. Askin’s report was not based on an accurate
factual background. He also contended that the statement of accepted facts did not indicate that
OWCP authorized appellant’s back surgery and that Dr. Askin did not address the effect of scar
formation seen on MRI scan study. Appellant related that the employing establishment and
OWCP nurse told him that he could get a desk job as a police officer if he was cleared to return
with no restrictions. He took extra doses of pain medication to take the functional capacity
evaluation and then had to stay in bed for a week. Appellant asked Dr. Rosenblum to clear him

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for work as a police officer. The employing establishment later told him that he could not be
hired in law enforcement because of his back surgery.
On January 27, 2014 Dr. Rosenblum stated, “[Appellant] did not have a clear intervening
injury during Super Storm Sandy and due to his residua from his original work injury is unable
to return to his physically demanding job.”
By decision dated March 24, 2014, the hearing representative affirmed the August 1,
2013 decision.
On appeal, appellant’s attorney argues that Dr. Rosenblum’s opinion supports that he had
continued residuals of his accepted employment injury. He also argues that the statement of
accepted facts provided to Dr. Askin indicated that the supply technician job was sedentary and
did not indicate that the back surgery on April 18, 2012 and right shoulder surgery on
February 18, 2011 were authorized. Counsel also contends that Dr. Askin indicated that the
shoulder surgery was for a degenerative rather than a traumatic condition and that back surgery
was not warranted.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
Further, the right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.4 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.5
ANALYSIS
OWCP accepted that appellant sustained a right iliofemoral hip sprain, right rotator cuff
syndrome with allied disorders, a sprain of the right shoulder, right upper arm and right rotator
cuff, a sprain of the scrum, and thoracic or lumbosacral neuritis, or radiculitis. Appellant
sustained intermittent periods of disability. OWCP paid him compensation for total disability
beginning December 2011 after the employing establishment could not provide work within his
restrictions.

2

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

3

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

5

Id.

5

On April 18, 2012 appellant underwent a laminectomy at L4, L5 and S1. Following his
surgery on July 10, 2012 Dr. Rosenblum released appellant to resume sedentary employment.
On August 9, 2012 he related that appellant had improved and requested a functional capacity
evaluation. In a report dated September 18, 2012, Dr. Rosenblum related that a functional
capacity evaluation demonstrated that appellant could perform very heavy work and found that
he could work as a supervisory police officer without restrictions.
On February 15, 2013 OWCP referred appellant to Dr. Askin for a second opinion
examination. The Board finds that OWCP met its burden of proof to terminate his compensation
through the opinion of Dr. Askin, who determined that he had no further disability or need for
medical treatment causally related to his accepted employment injury. In his March 1, 2013
report, Dr. Askin reviewed the history of injury and the medical evidence. On examination he
found no evidence of a frozen right shoulder or crepitus, a negative right straight leg raise test,
and back pain on the left straight leg raise test. Dr. Askin found normal sensation except for
decreased sensation of the dorsolateral area of the left foot. He questioned the need for the back
and shoulder surgeries given the findings on diagnostic studies and noted that some of the
treatment was directed toward treating conditions that were unrelated to appellant’s
December 29, 2010 fall. Dr. Askin concluded that appellant had no residuals of the accepted
conditions and that he could return to work as a supply technician without limitations. He
attributed his current symptoms to his excess weight. Dr. Askin provided a thorough review of
the factual and medical background and accurately summarized the relevant medical evidence.
Moreover, he provided detailed findings on examination and reached conclusions regarding
appellant’s condition which comported with his findings.6
The remaining evidence of record submitted prior to OWCP’s termination of
compensation is insufficient to show that appellant had further disability due to his employment
injury. In a report dated December 11, 2012, Dr. Rosenblum found that appellant’s back and leg
pain increased after he worked during Super Storm Sandy. On examination he found no motor
deficits and a negative straight leg raise. Dr. Rosenblum diagnosed residual radiculitis. As he
attributed the increased back and leg pain to a possible injury sustained working during a storm,
his opinion is of little probative value.
On December 18, 2012 Dr. Rosenblum advised that appellant should not work pending
an MRI scan study. On January 15, 2013 he found that a lumbar MRI scan study showed
residual spondylosis at L4-5 and exuberant epidural fibrosis. Dr. Rosenblum did not, however,
address the cause of appellant’s condition and thus his opinion is of diminished probative value.7
On August 20, 2013 Dr. Rosenblum interpreted an electrodiagnostic study as showing
bilateral L5 and S1 radiculopathy. He related that appellant had been cleaning debris after Super
Storm Sandy when his symptoms increased due to his employment injury. In a report dated
January 14, 2014, Dr. Rosenblum noted that appellant had initially improved after his lumbar
6

See Pamela K. Guesford, supra note 4.

7

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003) (medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of diminished probative value on
the issue of causal relationship).

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decompression surgery but that his conditioned subsequently worsened. He found that appellant
had continued residuals of his lumbar radiculopathy and required the implantation of a dorsal
column stimulator. On January 27, 2014 Dr. Rosenblum opined that appellant did not have an
intervening injury during Super Storm Sandy and was unable to perform his physically
demanding job due to residuals of his work injury. He did not, however, provide any rationale
for his opinion that residuals of the December 29, 2010 work incident and resulting surgery
caused his condition to worsen. Dr. Rosenblum further did not explain the effects of the
intervening injury cleaning up after Super Storm Sandy or how appellant was now disabled from
a physically demanding job. Such rationale is particularly necessary given that he previously
indicated that a functional capacity evaluation found that appellant could perform heavy work
and released him to return to employment as a supervisory police officer. OWCP asked that
Dr. Rosenblum address whether appellant could work as a supply technician and complete a
work restriction evaluation; however, the physician did not provide the requested information.
The Board thus finds that the weight of the evidence establishes that appellant had no residuals
of his employment injury effective August 10, 2013, the date OWCP terminated his
compensation.
On appeal, appellant’s attorney contends that Dr. Rosenblum’s opinion supports that he
had continued residuals of his accepted employment injury. As discussed, however,
Dr. Rosenblum’s opinion is insufficiently rationalized to establish that he had further disability
or need for medical treatment due to his accepted work injury.
Counsel further maintains that the statement of accepted facts provided to Dr. Askin did
not indicate that the back surgery on April 18, 2012 and right shoulder surgery on February 18,
2011 were authorized by OWCP. He also contends that Dr. Askin found that the shoulder
surgery was for a degenerative and not a traumatic condition and was thus inconsistent with the
statement of accepted facts. Dr. Askin, however, discussed the surgeries and questioned why
they were performed given the diagnostic studies. He noted that the MRI scan of appellant’s
shoulder showed tendinosis and osteoarthritis consistent with age. Dr. Askin opined that
appellant received treatment for his work injury that had resulted from unrelated imperfections.
He did not, however, find that the accepted conditions did not occur and thus his opinion is not
inconsistent with the statement of accepted facts.
Counsel further argues that the position of supply clerk was wrongly identified as
sedentary. The position description provided by the employing establishment, however,
indicates that was a primarily sedentary position with no “special physical demands.” Appellant
has not established that the position was not as described in the position description.
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 OWCP properly terminated appellant’s compensation benefits for
lost wages and authorization for medical treatment effective August 10, 2013 on the grounds that

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he had no further disability or need for medical treatment due to his December 29, 2010
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 21-0492
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On February 12, 2021 appellant filed a timely appeal from a January 4, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $74,899.31, compromised to $48,961.60, for
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 4, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

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

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

3

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

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment. 4 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.5 When an overpayment of compensation has
been made to an individual because of an error of fact or law, adjustment shall be made under
regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled.6
Section 10.421(d) of FECA implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-based benefits that are attributable to federal
service of the employee. 7 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit. 8
The determination that the debt has been compromised does not carry the right to a hearing
or to review by the Board. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $74,899.31, compromised to $48,961.60, for which he was
without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period June 1, 2006 through July 18, 2020, without an
appropriate offset.
The evidence of record indicates that, while appellant was receiving wage -loss
compensation benefits under FECA, he also was receiving SSA age-related retirement benefits
based upon his federal service. A claimant cannot receive both compensation for wage-loss
compensation benefits under FECA and SSA age-related retirement benefits attributable to federal
service for the same period. 10 The information provided by SSA established that appellant
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

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

8

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

9

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

Id.

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

11

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

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

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

14

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

Id. at § 10.437(a)(b).

5

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

16

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

17

Id. at § 10.438(b).

18

Id. § 10.436.

19

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

Id.

21

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

6

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

22

Id. at § 10.441(a).

23

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

24

Supra note 9 at Chapter 6.500.6 (September 2020).

25

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

26

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

27

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

7

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

28

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
F.K., Appellant
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Windsor Locks, CT,
)
Employer
)
___________________________________________ )
Appearances:
Appellant, pro se,
Office of Solicitor, for the Director

Docket No. 07-1794
Issued: December 27, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated April 19, 2007 denying modification of a June 14, 2006
decision finding that he failed to establish that he sustained an injury as alleged. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the issues in this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an injury in the performance of duty on April 24, 2005.
FACTUAL HISTORY
On December 28, 2005 appellant, then a 27-year-old transportation security screener,
filed a traumatic injury claim alleging that he inhaled a dangerous odor on April 24, 2005 during
a routine bag check. He stopped work on April 24, 2005 and returned on April 26, 2005.

By letter dated January 17, 2006, the Office informed appellant of the evidence needed to
support his claim and requested that he submit the additional evidence within 30 days.
In a December 30, 2005 statement, Elizabeth Pajak, an official from the employing
establishment, confirmed that appellant had a physical reaction described as “eye irritation” from
a substance called “jungle juice.”
By decision dated February 24, 2006, the Office denied the claim. It found that the
evidence supported that the claimed exposure occurred. However, there was no medical
evidence that provided a diagnosis which could be connected to the events.
On March 17, 2006 the Office received appellant’s request for reconsideration. It
subsequently received an April 24, 2005 examination sheet signed by an individual whose name
or credentials are not discernible, which contained a diagnosis of toxic fume exposure. The
April 24, 2005 emergency room notes of Dr. Edward Ewald, a family practitioner, diagnosed
“chemical exposure.” Discharge instructions dated April 24, 2005 contained a diagnosis of
“toxic effect-gas/fumes/vapors.” In a prehospital patient care report dated April 24, 2005, an
individual whose signature is illegible indicated that appellant was exposed to “jungle juice.” By
decision dated June 14, 2006, the Office denied modification of the February 24, 2006 decision.
Appellant requested reconsideration on November 29, 2006 and submitted additional
evidence, including a copy of a prehospital patient care report dated April 24, 2005 which
appears to be signed by a nurse and an April 24, 2005 emergency room treatment note from
Dr. R. Kent Sargent, Board-certified in emergency medicine. He noted appellant’s reported
history of searching suitcase and inhaling “an air freshener called ‘jungle juice’” and diagnosed
“toxic effect-gas/fumes/vapors.” Dr. Sargent discharged appellant to go home and advised that
he was in satisfactory condition. Also submitted were hospital forms and information sheets, an
April 24, 2005 e-mail from Ms. Pajak, a position description and previously submitted
documents.
By decision dated April 19, 2007, the Office denied modification of the June 14, 2006
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

2

claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury and generally this can
be established only by medical evidence.5 The employee must also submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.6 The medical evidence required to establish causal relationship is usually
rationalized medical evidence. Rationalized medical opinion evidence is medical evidence
which includes a physician’s rationalized opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
Appellant alleged that on April 24, 2005 he inhaled a substance while performing a
routine bag check in the performance of duty. The employing establishment confirmed that he
was exposed to a substance called “jungle juice.” The Office found that the evidence supported
that the claimed exposure occurred. Therefore, the first component of fact of injury is
established; the claimed incident -- that appellant was working on April 24, 2005 and inhaled a
substance while performing a routine bag check.
However, the medical evidence is insufficient to establish the second component of fact
of injury, that the employment incident caused an injury. The medical reports of record do not
establish that the inhalation or exposure to “jungle juice” while at work caused a personal injury
on April 24, 2005. The medical evidence contains no reasoned explanation of how the specific
employment incident on April 24, 2005 caused or aggravated an injury.8
The record contains April 24, 2005 emergency room notes from Dr. Ewald who
diagnosed “chemical exposure” and Dr. Sargent who diagnosed “toxic effect-gas/fumes/vapors.”
4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

6

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

7

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

3

However, the physicians did not specifically address causal relationship, nor did they provide a
firm diagnosis other than to note “chemical exposure” and “toxic effect-gas/fumes/vapors.”
Neither physician diagnosed a particular medical condition that resulted from the workplace
exposure to any vapor or chemical. Other medical records submitted by appellant do not contain
a physician’s opinion addressing causal relationship. Office procedures recognize that, in clearcut traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.9 The present case, where appellant was exposed to fumes of unknown chemical
composition upon opening a suitcase, is not such an obvious case. In the absence of a medical
report providing a diagnosed condition and a reasoned opinion on causal relationship with the
employment incident, appellant did not meet his burden of proof. As the medical reports
provided by appellant do not contain a firm diagnosis and a specific and reasoned opinion
regarding the cause of his condition, they are insufficient to establish that appellant sustained an
employment injury on April 24, 2005.10
The record also contains reports from nurses. However, nurses are not physicians under
the Act and are not competent to render a medical opinion.11
Because the medical reports submitted by appellant do not address how the activities at
work caused or aggravated a diagnosed condition, these reports are of limited probative value12
and are insufficient to establish that the April 24, 2005 employment incident caused or
aggravated a specific injury.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on April 24, 2005.

9

G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007). See Federal (FECA) Procedure Manual,
Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (July 2000).
10

See Willie M. Miller, 53 ECAB 697 (2002).

11

G.G., supra note 9.

12

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 19, 2007 is affirmed.
Issued: December 27, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1173
Issued: April 4, 2018

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 May 8, 2017 appellant filed a timely appeal from a March 17, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.2
ISSUE
The issue is whether appellant has more than 26 percent permanent impairment of her left
lower extremity, for which she previously received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After exercising its discretion
pursuant to 20 C.F.R. § 501.5(a) the Board, by a September 22, 2017 order, denied appellant’s request because it could
adequately address appellant’s contentions based on a review of the case record. Order Denying Request for Oral
Argument, Docket No. 17-1173 (issued September 22, 2017).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 31, 1994 appellant, then a 30-year-old tax examiner, filed a traumatic injury claim
injured her left knee and lower back when an elevator malfunctioned while she was performing
her duties. She underwent a left knee magnetic resonance imaging (MRI) scan on May 11, 1994
due to an April 10, 1994 motor vehicle accident which showed chondromalacia patella of the left
knee.4 Appellant underwent left knee arthroscopy with chondroplasty patella and lateral tibial
plateau on July 12, 1994. On November 29, 1994 she again underwent arthroscopy of the left knee
due to internal derangement, with chondromalacia patellae, and maltracking of the patella with
chronic lateral subluxation-dislocation.
OWCP accepted the claim for aggravation of preexisting low back and left knee and left
ankle sprain. It entered appellant on the periodic rolls on October 3, 1994.
Appellant underwent an April 30, 1995 MRI scan of the left ankle which showed focal soft
tissue edema adjacent to the medial malleolus. A December 22, 2005 MRI scan of the lumbar
spine revealed facet joint degenerative changes at L3-4, L4-5, and L5-S1.
By decision dated January 13, 1997, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date. By decision dated February 2, 1998, an
OWCP hearing representative affirmed the January 13, 1997 decision. Appellant appealed the
February 2, 1998 decision to the Board and, by decision dated March 20, 2000, the Board affirmed
the termination of her wage-loss compensation and medical benefits effective January 13, 1997.5
A lower extremity nerve conduction velocity (NCV) study dated May 4, 2004
demonstrated electrical evidence of right L4, L5, and S1 radiculopathy and denervation of the right
side tibialis anterior and gastrocnemius muscles as well as no response in the posterior tibial motor
nerve on the right. Dr. Russell I. Abrams, a neurologist, examined appellant on June 1, 2004 for
a May 6, 2004 nonemployment injury. He noted that she was at a store when a worker dropped a
large wooden rack on her foot. Dr. Abrams noted appellant’s history of left foot drop, headaches,
cervical radiculopathy, carpal tunnel syndrome, complex regional pain syndrome (CRPS), and
lumbosacral radiculopathy. He also diagnosed right peroneal neuropathy.
On July 2, 2008 appellant requested a schedule award (Form CA-7). By decision dated
August 11, 2009, OWCP denied her schedule award claim. On August 15, 2009 counsel requested

3

Docket No. 98-1560 (issued March 20, 2000).

4

A July 25, 1994 statement of accepted facts (SOAF) noted that appellant had been involved in a motor vehicle
accident on April 10, 1994.
5

Supra note 2.

2

an oral hearing. By decision dated December 29, 2009, an OWCP hearing representative affirmed
the August 11, 2009 decision.
Appellant inquired about a schedule award on October 29, 2010. She provided an
August 4, 2004 NCV study showing electrical evidence of right L4, L5, and S1 radiculopathy and
denervation of the right side tibialis anterior and gastrocnemius muscles as well as no response in
the posterior tibial motor nerve on the right. Appellant submitted a February 23, 2009 operative
report for a tibialis posterior tendon transfer through the interosseous membrane to the dorsum of
the left foot, and tendo-achilles lengthening left.
In a letter dated February 18, 2011, OWCP requested additional medical evidence
supporting appellant’s claim for permanent impairment. In a report dated February 24, 2012,
Dr. Gerald E. Dworkin, an osteopath, examined her for schedule award purposes. He noted that
appellant’s May 31, 1994 injury at work resulted in trauma to her legs and back. Dr. Dworkin
reviewed her operative reports dated July 12 and November 29, 1994, and February 23, 2009. He
also described an April 16, 2011 contracted left toe extensor tendon surgical release. Dr. Dworkin
diagnosed traumatic low back pain consistent with multi-level radiculopathy and left-sided
sciatica, chronic chondromalacia of the left knee, left foot drop, and CRPS of the left leg. He
determined that appellant had reached maximum medical improvement and applied the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides),6 finding 18 percent permanent impairment for her low back pain, 8 percent
permanent impairment for her left knee chondromalacia, 16 percent permanent impairment for her
left foot drop was, and 28 percent permanent impairment for CRPS. Dr. Dworkin determined that
she had 32 percent permanent impairment of the left leg and 20 percent permanent impairment of
the whole person.
Appellant filed a schedule award claim (Form CA-7) on June 21, 2012. On August 13,
2015 OWCP prepared a new SOAF noting her May 31, 1994 employment injury and listing as the
only accepted condition aggravation of preexisting lumbar sprain. On September 1, 2015 OWCP’s
medical adviser reviewed appellant’s claim and found that Dr. Dworkin’s report was not
sufficiently detailed to establish her permanent impairment for schedule award purposes as he
failed to provide reference to specific tables of the A.M.A., Guides, failed to provide the grade
modifiers he relied on in reaching the impairment ratings, failed to utilize the appropriate tables
for peripheral nerve injuries, and failed to appropriately apply the reflex sympathetic dystrophy
(RSD) provisions. He recommended a second opinion evaluation.
On November 10, 2015 OWCP referred appellant, a SOAF, and a list of specific questions
for a second opinion examination with Dr. Lawrence Barr, an osteopath, to assess her permanent
impairment for schedule award purposes. In a December 8, 2015 report, Dr. Barr reported her
history of dropping 30-feet in an elevator resulting in left knee, ankle, and low back pain. He also
noted that appellant had motor vehicle accidents in 1994 and 2011. Dr. Barr reviewed her medical
history, including surgeries and diagnostic studies. On physical examination he found shortness
of her left foot as well as lack of Achilles or knee jerk reflexes in the left lower extremity.
Appellant’s right calf measured 46 centimeters, while her left calf was 44 centimeters. Her right
6

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

3

ankle was 27 centimeters, while her left ankle was 29.5 centimeters. Appellant had no motion of
the left ankle and could not move her toes. She also exhibited decreased sensation on the dorsum
of the foot. Appellant’s left knee demonstrated parapatellar tenderness with crepitus. Dr. Barr
diagnosed lumbar sprain, sprain and contusion of the left knee, and left foot drop. He opined that
these conditions were related to appellant’s accepted employment injury of May 31, 1994.
Dr. Barr found that she had 7 percent permanent impairment of the whole person based on her
spine injury, 10 percent permanent impairment of the whole person due to her left knee conditions,
and 5 percent permanent impairment of the lower extremity due to her left ankle and foot
conditions.
On December 23, 2015 Dr. Barr provided a supplemental report with citations to the
A.M.A., Guides. He continued to address appellant’s spinal impairment through the whole person
and referenced page 570 of the A.M.A., Guides, Lumbar Spine Regional Grid. Dr. Barr noted that
he used pages 510 and 511 of the A.M.A., Guides, and that her left knee was a class 1, grade C
impairment. He also found that appellant’s left ankle and foot drop should be evaluated through
Table 16-12, peripheral nerve impairments, page 535 of the A.M.A., Guides and result in 30
percent impairment of the whole person.
OWCP amended the SOAF on February 2, 2016 to reflect appellant’s accepted conditions
of aggravation of preexisting left knee strain, left ankle sprain, and lumbar sprain. OWCP’s
medical adviser reviewed the record on March 2, 2016 and applied the A.M.A., Guides. He found
that appellant had 10 percent impairment of the left leg as a result of post-traumatic patella
chondromalacia with documented osteochondral fracture.7 The medical adviser noted that, to rate
her spinal impairment under FECA, it must impact her lower extremity, and must be evaluated
under The Guides Newsletter, July/August 2009.8 He found that appellant had one percent
impairment of the left leg due to mild pain and impaired sensation from left L5 lumbar
radiculopathy. The medical adviser noted that Dr. Barr’s rating of 10 percent whole person
impairment for residual problems with the left knee was, in all likelihood, a typographical error as
the medical adviser believed he meant 10 percent of the lower extremity due to problems with the
left knee. He further found five percent leg impairment for residual left ankle problems following
her tendon transfer.9 The medical adviser utilized the Combined Values Chart and found that
appellant had 26 percent permanent impairment of her left leg.10
By decision dated May 26, 2016, OWCP granted appellant a schedule award for 26 percent
permanent impairment of the left lower extremity. The period of the award was for 74.88 weeks
from May 1, 2016 through May 15, 2017. OWCP granted appellant a payment of $10,241.61 for

7

Id. at 511, Table 16-3.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010)
(Exhibits 1, 4).
9

A.M.A., Guides 501, Table 16-2.

10

Id. at 604.

4

the period December 8, 2015 through May15, 2017.11 It informed her that her continuing schedule
award payments would be $1,661.00 every four weeks throughout the remainder of the award
period.
On October 2, 2016 OWCP requested that appellant complete a Form CA-1032 for the
previous 16 months. It informed her that her checks were generated on a 28-day cycle. OWCP
provided the dates of cycle checks for the years 2013 through 2016. The first check cycle listed
was for 2013 and covered the period January 13 through February 9, 2013. This information was
to inform appellant of the dates that her checks would be issued during the period covered by her
schedule award. She completed the CA-1032 form on November 3, 2016.
By decision dated March 17, 2017, OWCP reissued appellant’s schedule award decision
granting her a schedule award for 26 percent permanent impairment of her left lower extremity. It
clarified that the period of the award was from December 8, 2015 through May 15, 2017 and
payment from December 8, 2015 through May 28, 2016 was $10,241.61. Appellant’s continuing
payment for her schedule award was $1,661.00 every four weeks through from May 29, 2016
through May15, 2017.
On appeal appellant contends that the October 2, 2016 Form CA-1032 from OWCP
indicated that her schedule award benefits would begin on January 2013.
LEGAL PRECEDENT
The schedule award provision of FECA12 and its implementing regulations13 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
of use of scheduled members or functions of the body. FECA, however, does not specify the
manner in which the percentage loss of a member shall be determined. The method used in making
such determination is a matter which rests in the discretion of OWCP. For consistent results and
to ensure equal justice, the Board has authorized the use of a single set of tables so that there may
be uniform standards applicable to all claimants. OWCP evaluates the degree of permanent
impairment according to the standards set forth in the specified edition of the A.M.A., Guides.14
No schedule award is payable for a member, function or organ of the body not specified in
FECA or in the regulations.15 Because neither FECA nor the regulations provide for the payment

11
The record includes a payment in the amount of $10,241.61 for the period December 8, 2015 through
May 28, 2016. OWCP also provided a payment in the amount of $1,661.00 for the period May 29 through
June 25, 2016.
12

5 U.S.C. § 8107.

13

20 C.F.R. § 10.404.

14

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. A.M.A.,
Guides (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability
Claims, Chapter 2.808.5a (February 2013); supra note 8 at Chapter 3.700, (January 2010) exhibit 1.
15

W.D., Docket No. 10-0274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976).

5

of a schedule award for the permanent loss of use of whole person or the back or spine,16 no
claimant is entitled to such an award.17
Amendments to FECA, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.18
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine, the
A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with sixth
edition methodology.19 OWCP has adopted this approach for rating impairment of the upper or
lower extremities caused by a spinal injury, as provided in section 3.700 of its procedures which
memorializes proposed tables outlined in a July/August 2009, The Guides Newsletter.20
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS). The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).21
ANALYSIS
The Board finds that this case is not in posture for a decision.
OWCP accepted appellant’s May 31, 1994 claim for aggravation of preexisting low back
and left knee strains as well as left ankle sprain. Appellant underwent left knee arthroscopy with
chondroplasty patella and lateral tibial plateau on July 12, 1994 and on November 29, 1994 she
underwent arthroscopy of the left knee due to internal derangement, with chondromalacia patellae,
and maltracking of the patella with chronic lateral subluxation-dislocation. She also underwent
tibialis posterior tendon transfer through the interosseous membrane to the dorsum of the left foot,
and tendo-Achilles lengthening left on February 23, 2009.
Appellant requested a schedule award and submitted medical evidence from Dr. Dworkin
diagnosing traumatic low back pain consistent with multi-level radiculopathy and left-sided
16

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

17

W.D., supra note 15. Timothy J. McGuire, 34 ECAB 189 (1982).

18

W.D., supra note 15. Rozella L. Skinner, 37 ECAB 398 (1986).

19

Supra note 14 at Chapter 2.808.5c(3) (February 2013); supra note 8 at Chapter 3.700 (January 2010) Exhibit 4.

20

Supra note 8.

21

A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

6

sciatica, chronic chondromalacia of the left knee, left foot drop, and complex regional pain
disorder, RSD of the left lower extremity. Dr. Dworkin indicated that he had applied the A.M.A.,
Guides and found that her low back pain was 18 percent permanent impairment, her left knee
chondromalacia was 8 percent permanent impairment, her left foot drop was 16 percent permanent
impairment, and her CRPS was 28 percent permanent impairment. He determined that appellant
had 32 percent permanent impairment of the left lower extremity and 20 percent permanent
impairment of the whole person. FECA, however, does not provide for impairment of the whole
person.22 Further, it specifically excludes the back as an organ and, therefore, the back does not
come under the provisions for payment of a schedule award.23 As Dr. Dworkin’s did not comport
with FECA and did not include correlation with the A.M.A., Guides, his report is of little probative
value to establish appellant’s permanent impairment for schedule award purposes.24
OWCP referred appellant for a second opinion evaluation with Dr. Barr. In his
December 8, 2015 report, Dr. Barr diagnosed lumbar sprain, sprain and contusion of the left knee,
and left foot drop. He found that appellant had 7 percent permanent impairment of the whole
person based on her spine injury, 10 percent permanent impairment of the whole person due to her
left knee conditions, and 5 percent permanent impairment of the lower extremity due to her left
ankle and foot conditions. Dr. Barr submitted a supplemental report dated December 23, 2015,
noting that he used pages 510 and 511 of the A.M.A., Guides and that her left knee was a class 1,
grade C impairment. He also found that appellant’s foot drop should be evaluated through Table
16-12, page 535 of the A.M.A., Guides and result in 30 percent impairment of the whole person.
Dr. Barr also improperly addressed her permanent impairment in terms of the whole person and
failed to provide any explanation of his calculation of appellant’s under the A.M.A., Guides. This
report also lacks the probative value necessary to establish appellant’s permanent impairment for
schedule award purposes.25
OWCP’s medical adviser reviewed the medical evidence of record on March 2, 2016 and
found that appellant had one percent permanent impairment of the left lower extremity due to
impaired sensation from left L5 lumbar radiculopathy. While the medical adviser properly
referenced The Guides Newsletter, July/August 2009 for the accepted back strain condition, he
summarily concluded that she had one percent permanent impairment of her left leg as it related
to the back strain. The medical adviser did not provide any explanation as to how he arrived at his
conclusion.26 The same defect is present in the medical adviser’s evaluation of appellant’s 10
percent permanent impairment of the left leg as a result of post-traumatic patella chondromalacia
with documented osteochondral fracture and 5 percent leg impairment for residual problems with
her left ankle after her tendon transfer. He did not provide an explanation as to how he arrived at
his conclusions, did not provide evaluation of the appropriate grade modifiers, and did not provide

22

V.B., Docket No. 17-1326 (issued October 19, 2017).

23

Id.

24

F.S., Docket No. 16-0783 (issued September 26, 2017).

25

Id.

26

T.W., Docket No. 16-0176 (issued January 10, 2018).

7

application of the lower extremity formula. Thus, the medical adviser’s impairment rating on its
face is insufficient to establish the degree of appellant’s permanent impairment.27
It is well established that proceedings under FECA are not adversarial in nature and that
while the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.28 Once OWCP undertook development of the
evidence by referring appellant to a second opinion physician and an OWCP medical adviser, it
had an obligation to do a complete job and obtain a proper evaluation and report that would resolve
the issue in this case.29 The Board will, therefore, set aside OWCP’s March 17, 2017 decision and
remand the case for clarification of the second opinion report by Dr. Barr. After this and such
other development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

27

See Carl J. Cleary, 57 ECAB 563 (2006) (an opinion which is not based upon the standards adopted by the Board
as appropriate for evaluating scheduled losses is of little probative value in determining the extent of permanent
impairment).
28

John J. Carlone, 41 ECAB 354, 358-60 (1989).

29

Supra note 26.

8

ORDER
IT IS HEREBY ORDERED THAT the March 17, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 4, 2018
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
El Monte, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-567
Issued: August 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2006 appellant filed a timely appeal from an October 4, 2006 decision
of the Workers’ Compensation Programs, denying her request for reconsideration. The Board’s
jurisdiction to consider final decisions of the Office extends only to final decisions issued within
one year prior to the filing of the appeal.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board does not have jurisdiction over the last merit decision dated January 26, 2005 which
denied her claim for an emotional condition.2
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
reconsideration.

1
2

20 C.F.R. §§ 501.2(c); 501.3(d)(2).
See Algimantas Bumelis, 48 ECAB 679 (1997); Leon D. Faidley, 41 ECAB 104 (1989).

FACTUAL HISTORY
This case was previously before the Board. By decision dated September 29, 2004, the
Board affirmed an October 15, 2003 Office decision that denied appellant’s claim for an
emotional condition.3 The September 9, 2004 Board decision is herein incorporated by
reference.
By decision dated January 26, 2005, the Office denied modification of its prior decisions
denying appellant’s emotional condition claim.4
On January 14, 2006 appellant requested reconsideration and submitted additional
evidence. She stated her objections to the Office’s January 26, 2005 decision and alleged that
the Office claims examiner was putting “her own spin” on the facts. In an undated statement,
Judy Tanner, a supervisor, stated that, during the investigation into appellant’s allegations of
sexual harassment, employees who were interviewed were told not to discuss the case with
anyone. However, appellant solicited statements from some of these employees. Several
employees told Ms. Tanner that they were uncomfortable being asked by appellant to provide
statements. In statements dated August 10, 1995, April 6, 1998 and June 30, 2000, appellant
alleged that employees gossiped about her, management told employees not to talk to her about
her claim, employees accused her of harassing them when she solicited witness statements and
management unfairly reassigned her.
By decision dated October 4, 2006, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act5 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation.
The Act states:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on [her] own motion or on application. The Secretary,
in accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”

3

Docket No. 04-704 (issued September 29, 2004). On July 22, 1997 appellant, then a 38-year-old tax auditor,
filed a claim alleging that her emotional condition was caused by her federal employment.
4

Office decisions denying appellant’s emotional condition claim prior to the October 15, 2003 decision were
dated July 21, 2000 and September 10, 2001.
5

5 U.S.C. § 8128(a).

2

The Code of Federal Regulations provides that a claimant may obtain review of the
merits of the claim by: (1) showing that the Office erroneously applied or interpreted a specific
point of law; or (2) advancing a relevant legal argument not previously considered by the Office;
or (3) constituting relevant and pertinent evidence not previously considered by the Office.6
When an application for review of the merits of a claim does not meet at least one of these
requirements, the Office will deny the application for review without reviewing the merits of the
claim.7
ANALYSIS
The merits of the Office’s denial of appellant’s emotional condition claim are not within
the jurisdiction of the Board on this appeal. Therefore, the only issue is whether the evidence
submitted by appellant with her request for reconsideration was sufficient to warrant further
merit review.
In support of her request for reconsideration, appellant submitted her written statements
dated August 8, 1995, April 6, 1998 and June 30, 2000 and an undated statement from
Ms. Tanner. These statements described her allegations regarding sexual harassment, employees
gossiping about her, management instructing employees not to talk to her about her claim,
employees accusing her of harassing them when she solicited witness statements and
management unfairly reassigning her. These allegations were included in appellant’s statements
previously of record dated October 16, 1997, April 6, 1998, September 1, 2002, October 16,
2004 and an undated statement. Appellant’s allegations were addressed in the Office’s decisions
dated July 21, 2000, September 10, 2001, October 15, 2003 and January 26, 2005 and in the
Board’s September 29, 2004 decision. Consequently, the statements submitted with appellant’s
reconsideration request do not constitute relevant and pertinent evidence not previously
considered by the Office.
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument or submit relevant and pertinent evidence not
considered previously by the Office. Therefore, the Office properly denied her claim.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for reconsideration.

6

20 C.F.R. § 10.606(b)(2).

7

20 C.F.R. § 10.608(b).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 4, 2006 is affirmed.
Issued: August 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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)
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)
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)

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

Docket No. 07-1876
Issued: June 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 20, 2007 reducing her compensation
pursuant to 5 U.S.C. § 8113(b). Pursuant to 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 the Office properly reduced appellant’s compensation to zero
pursuant to 5 U.S.C. § 8113(b) for failure to undergo vocational rehabilitation.
FACTUAL HISTORY
The Office accepted that appellant sustained a right ankle contusion, right heel spur
syndrome, right plantar fasciitis, right tarsal tunnel syndrome and reflex sympathetic dystrophy
in the performance of duty on October 16, 1991. Appellant’s employment as a casual clerk was
terminated on March 31, 1992. She returned to part-time work as a mark-up clerk in
December 1994 and stopped working on February 5, 2001. A second opinion osteopath,

Dr. A. Ronald Rook, stated in a July 8, 2003 report that appellant was capable of working in a
sedentary job.
By letter dated January 5, 2005, the Office referred the case to a vocational rehabilitation
counselor, Mr. Riley. In a report dated March 8, 2005, Mr. Riley reviewed the evidence and
indicated there was a January 18, 2005 home visit for an initial vocational assessment. He
placed three telephone calls to appellant on February 4, 2005 to discuss an indication by the
employing establishment that she had been terminated for failure to provide adequate medical
evidence on disability. Mr. Riley reported that appellant did not answer her telephone, and he
left messages on February 5 and 8, 2005, but she did not respond. The rehabilitation counselor
stated that appellant was not cooperating with vocational rehabilitation services, and he noted
that she had sent a letter withdrawing her consent to release medical records.1
The Office advised appellant by letter dated May 11, 2005 that the rehabilitation
specialist had indicated that she was not cooperating with rehabilitation services. Appellant was
advised of the provisions of 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519 regarding her failure to
undergo vocational rehabilitation when so directed.
In a report dated May 27, 2005, Mr. Riley indicated that he had attempted to contact
appellant by telephone on May 20 and 23, 2005. He advised that he had not been able to speak
to appellant, but her mother had become abusive and accused him of trying to take appellant’s
medications away. By letter to appellant dated May 27, 2005, Mr. Riley advised her of a
scheduled meeting on June 3, 2005 at a restaurant close to her residence. He also noted that he
had no authority to take any medications away as only a physician could make such a
determination. By report dated June 21, 2005, Mr. Riley indicated that appellant did not appear
for the June 3, 2005 meeting. He stated that she had not cooperated with vocational
rehabilitation services and the file was placed on hold.
By letter dated July 12, 2005, the Office again advised appellant of the consequences of
failure to undergo vocational rehabilitation when directed. It stated that she should contact the
Office and the rehabilitation counselor within 30 days, or provide reasons for not participating.
On September 12, 2005 the Office received a September 1, 2005 letter from appellant regarding
a request for a lump-sum payment of compensation. Appellant did not discuss the vocational
rehabilitation efforts.
By decision dated September 30, 2005, the Office reduced appellant’s compensation to
zero for failure to undergo vocational rehabilitation when directed. Appellant requested a review
of the written record. She alleged that Mr. Riley had told her she would have to agree to stop
receiving nerve blocks and medication, and that she needed no further medical treatment.
In a decision dated March 24, 2006, the Office hearing representative affirmed the
September 30, 2005 decision.
By letter dated March 10, 2007, appellant requested

1

The record contains a January 19, 2005 letter from appellant withdrawing consent to release medical records to
Mr. Riley because he requested a new report about her work restrictions. She stated that she would be submitting a
new medical report and there was no reason to review the entire medical record, as Mr. Riley was not a physician.

2

reconsideration of her claim. She argued there was “clear evidence of error” in the reduction of
her compensation as vocational efforts were unnecessary and improper.
By decision dated April 20, 2007, the Office reviewed the case on its merits and denied
modification. It found that appellant did not cooperate with vocational rehabilitation services.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the Secretary of Labor may direct a
permanently disabled individual whose disability is compensable to undergo vocational
rehabilitation.2 The Act further provides:
“If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would probably have been his wageearning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”3
Section 10.519 of the implementing regulations of 5 U.S.C. § 8113(b), provides in
pertinent part:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, [the Office] will act as follows:”
***
“(b) Where a suitable job has not been identified, because the failure or refusal
occurred in the early but necessary stages of a vocational rehabilitation effort (that
is, meetings with the [the Office] nurse, interviews, testing, counseling, functional
capacity evaluations, and work evaluations) [the Office] cannot determine what
would have been the employee’s wage-earning capacity.
“(c) Under the circumstances identified in paragraph (b) of this section, in the
absence of evidence to the contrary, [the Office] will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wageearning capacity, and [the Office] will reduce the employee’s monetary
compensation accordingly (that is, to zero). This reduction will remain in effect

2

5 U.S.C. § 8104(a).

3

5 U.S.C. § 8113(b).

3

until such time as the employee acts in good faith to comply with the direction of
[the Office].”4
ANALYSIS
The Office in this case directed appellant to undergo vocational rehabilitation pursuant to
5 U.S.C. § 8104. The purpose of rehabilitation services is to assist injured workers in a return to
work.5 Appellant did not participate in the vocational rehabilitation effort. According to the
rehabilitation counselor, there was an initial assessment on January 18, 2005, but she failed to
respond to repeated telephone messages after that date. Appellant also failed to appear for a
June 3, 2005 meeting with the rehabilitation counselor, and failed to contact the counselor when
directed by the Office. The Office’s procedure manual provides that specific instances of
noncooperation with rehabilitation efforts include failure to appear for counseling sessions or
interviews conducted by the rehabilitation counselor.6
The Office provided appellant with an opportunity to either take steps to participate in
vocational rehabilitation or provide reasons for nonparticipation. Appellant offered no valid
reasons for her failure to participate in vocational rehabilitation. She alleged that Mr. Riley told
her she would have to stop nerve blocks and medication, but there is no evidence to support this
contention. As Mr. Riley explained in his May 27, 2005 letter to appellant, only a physician can
make a determination regarding medication or treatment. Appellant also appeared to object to a
review of her medical records by withdrawing her consent to release medical information. A
vocational rehabilitation counselor must have accurate medical information to properly assess
appellant’s ability to work. If appellant had concerns regarding medical records, she could have
discussed this with the counselor. She provided no appropriate reasons for her failure to
participate in vocational rehabilitation.
The Board accordingly finds that appellant without good cause failed to undergo
vocational rehabilitation when so directed under 5 U.S.C. § 8104. Pursuant to 5 U.S.C.
§ 8113(b), the Office may reduce appellant’s compensation in accordance with what would
probably have been her wage-earning capacity in the absence of the failure, until appellant in
good faith complies with the direction of the Secretary.
In this case a suitable job had not been identified, as the failure to participate occurred in
the early but necessary stages of the rehabilitation effort. As noted, there had only been one
initial assessment and no further interviews, conversations or counseling. Under 20 C.F.R.
§ 10.519, in the absence of contrary evidence the Office will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wage-earning

4

20 C.F.R. § 10.519.

5

Federal (FECA) Procedure Manual, Part 3 -- Rehabilitation, Services, Chapter 3.200.1(November 1990).

6

See Sam S. Wright, 56 ECAB 358, 361 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.813.11(a) (November 1996).

4

capacity, and will reduce compensation to zero. Based on the evidence of record the Board finds
that the Office properly reduced appellant’s compensation to zero.7
CONCLUSION
The Office properly reduced appellant’s compensation to zero for failure to participate in
vocational rehabilitation efforts.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 20, 2007 is affirmed.
Issued: June 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

The Board notes that appellant’s March 10, 2007 application for reconsideration used the term “clear evidence
of error.” This is a standard of review for applications for reconsideration that are untimely filed, a standard that is
not applicable in this case. See Alberta Dukes, 56 ECAB 247 (2005).

5