United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DURHAM VA MEDICAL CENTER,
Durham, NC, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0097
Issued: March 20, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 16, 2018 appellant, through counsel, filed a timely appeal from September 4
and 5, 2018 merit decisions 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 September 4 and 5, 2018 decisions, 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
13 percent permanent impairment of her right lower extremity; (2) whether appellant received an
overpayment of compensation in the amount of $11,898.49, for which she was without fault; and
(3) whether OWCP properly denied appellant’s request for waiver of recovery of the overpayment.
FACTUAL HISTORY
On August 14, 2014 appellant, then a 32-year-old program support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on the same date she sustained injury to her right
upper extremity and both lower extremities when she stepped into an elevator at work whose
platform was lower than the level of the floor from which she entered.4 OWCP accepted this claim
for right knee contusion, medial meniscus tear of the right knee, left ankle sprain, left foot sprain,
right shoulder sprain, and right elbow contusion. On April 27, 2015 appellant underwent OWCPauthorized right knee surgery, including partial medial and lateral meniscectomies, and
chondroplasty of the lateral femoral condyle, lateral tibial plateau, patella, and femoral trochlea.
She stopped work for the surgery and returned to full duty in December 2015.
Appellant previously filed a traumatic injury claim under OWCP File No. xxxxxx717,
which OWCP accepted for closed fracture of the upper end of the right radius and lumbosacral
sprain due to a December 12, 2007 motor vehicle accident. OWCP administratively combined
OWCP File Nos. xxxxxx717 and xxxxxx631, with the later designated as the master file.5
On December 23, 2015 appellant filed a claim for a schedule award (Form CA-7) due to
her accepted employment injuries.
Appellant subsequently submitted a December 16, 2015 report from Dr. Lyman Smith,
Board-certified in orthopedic surgery, who reported physical examination findings and opined,
without explanation, that appellant reached maximum medical improvement (MMI) and had
15 percent permanent impairment of her right lower extremity.
On January 27, 2016 OWCP referred appellant’s case to Dr. Morley Slutsky, Boardcertified in occupational medicine and serving as a district medical adviser (DMA). It requested
that he review the medical evidence, including Dr. Smith’s December 16, 2015 report, and provide
an opinion on permanent impairment of appellant’s right lower extremity under the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).6

4

Appellant indicated that her body dropped without support and that she twisted her ankles when she impacted the
elevator platform. She stopped work on August 14, 2014 and returned to limited-duty work on August 20, 2014.
OWCP assigned the claim OWCP File No. xxxxxx631.
5

By decision dated September 25, 2009, OWCP granted appellant a schedule award for four percent permanent
impairment of her right upper extremity due to the December 12, 2007 injury. The permanent impairment of
appellant’s right upper extremity is not a subject of the present appeal.
6

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

2

On February 1, 2016 the DMA conducted an impairment calculation under the diagnosisbased impairment (DBI) rating method and found that, under Table 16-3 (Knee Regional Grid) on
page 509 of the sixth edition of the A.M.A., Guides, appellant’s partial right medial and lateral
meniscectomies fell under Class 1 for the class of diagnosis (CDX), a designation which warranted
a default value of 10 percent permanent impairment of the right lower extremity. He determined
that appellant had a grade modifier for functional history (GMFH) of 1 and a grade modifier for
physical examination (GMPE) of 1, and that the grade modifier for clinical studies (GMCS) was
not applicable. Application of the net adjustment formula resulted in no movement from the
default value on Table 16-3 and therefore the DMA concluded that appellant had 10 percent
permanent impairment of her right lower extremity under the sixth edition of the A.M.A., Guides.7
Payment records in the case record show that on April 4, 2016 OWCP certified a schedule
award payment for 28.8 weeks to compensate appellant for 10 percent permanent impairment of
her right lower extremity.8 Appellant received such schedule award compensation for the effective
period December 17, 2015 to July 5, 2016. OWCP did not issue a formal decision in conjunction
with this payment.
On November 14, 2016 in response to an inquiry from counsel, OWCP referred appellant’s
case to another DMA, Dr. Arthur S. Harris, Board-certified in orthopedic surgery, and requested
that he provide an opinion regarding the extent of any permanent impairment of appellant’s left
lower extremity. In a November 16, 2016 report, the DMA did not evaluate appellant’s left lower
extremity, but rather determined that, under Table 16-3 of the sixth edition of the A.M.A., Guides,
her partial right medial and lateral meniscectomies warranted a finding of 10 percent permanent
impairment of the right lower extremity.
By decision dated December 6, 2016, OWCP granted appellant a schedule award for 10
percent permanent impairment of her right leg which ran for 28.8 weeks from July 7, 2016 to
January 24, 2017.9 Its payment records show that she received a schedule award payment for 28.8
weeks (for 10 percent permanent impairment of the right lower extremity) which duplicated the
payment which was certified on April 4, 2016 for the same right lower extremity permanent
impairment.10
By decision dated August 21, 2017, OWCP vacated its December 6, 2016 decision and
found that, with respect to both lower extremities, appellant had only established 10 percent
permanent impairment of the right lower extremity which entitled her to 28.8 weeks of schedule
award compensation. By separate decision dated August 21, 2017, it provided a corrected
schedule award which reflected the proper amount of lower extremity permanent impairment, i.e.,

7

The DMA indicated that appellant reached MMI on December 16, 2015 the date of Dr. Smith’s examination.

8

The payment records indicated that the 28.8 weeks of payments were for “Leg (Right), [10 percent].”

9

The award also referenced 10 percent permanent impairment of the left lower extremity, but there was no
indication why reference was made to this degree of permanent impairment of the left lower extremity and no payment
was made for this extremity.
10

The payment records again indicated that appellant was to receive 28.8 weeks of schedule award compensation
for “Leg (Right) [10 percent].”

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10 percent permanent impairment of the right lower extremity. OWCP did not pay appellant
additional schedule award compensation at that time.
On August 30, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. Prior to a hearing being held,
however, OWCP’s hearing representative issued a December 15, 2017 decision vacating the
August 21, 2017 decisions and remanded the case to OWCP for further development, including
referral of appellant to a second opinion physician for an examination and evaluation of the
permanent impairment of her right lower extremity.11
On January 31, 2018 OWCP referred appellant and the case record to Dr. William A.
Somers, Board-certified in orthopedic surgery, for a second opinion examination to evaluate the
extent of any permanent impairment of her right lower extremity under the sixth edition of the
A.M.A., Guides.
In a February 21, 2018 report, Dr. Somers reported physical examination findings that he
obtained on February 20, 2018 for appellant’s right lower extremity, noting that her right knee was
stable with lateral joint/patellofemoral crepitus and tenderness. He obtained range of motion
(ROM) findings for the right knee and indicated that she was able to flex her right knee to 100
degrees. Dr. Somers diagnosed, inter alia, status post partial medial and lateral meniscectomies
of the right knee. He indicated that, under the DBI rating method of Table 16-3 of the sixth edition
of the A.M.A., Guides,12 appellant’s partial meniscectomies fell under Class 2 with a default value
of 22 percent of the right lower extremity. Dr. Somers maintained that appellant’s grade modifiers
did not warrant movement from the default value and concluded that she had 22 percent permanent
impairment of the right lower extremity under the DBI rating method. He further found that
appellant had 33 percent permanent impairment of the right lower extremity under the ROM rating
method described in Chapter 16 of the A.M.A., Guides.
On March 9, 2018 OWCP referred appellant’s case to DMA Dr. Harris and requested that
he evaluate the extent of her right lower extremity permanent impairment. In a March 11, 2018
report, the DMA conducted an impairment calculation using the DBI rating method of Table 16-3
of the sixth edition of the A.M.A., Guides. He found that appellant’s partial right medial and
lateral meniscectomies (falling under Class 1 for the CDX with a default value of 10 percent
permanent impairment) warranted a finding of 13 percent permanent impairment (after calculation
of grade modifiers and application of the net adjustment formula). The DMA noted that
Dr. Somers’ rating of 33 percent permanent impairment under the ROM rating method was not
allowed by the A.M.A., Guides because Table 16-3 does not include an asterisk allowing use of
this rating method for her right knee diagnosis. Therefore, he concluded that appellant had 13
percent permanent impairment of her right lower extremity under the sixth edition of the A.M.A.,
Guides.13

11
OWCP’s hearing representative also directed further development regarding permanent impairment of the right
upper extremity and left lower extremity, but these matters are not currently before the Board.
12

Dr. Somers actually referenced Table 16-5, but the content and context of his report shows that he meant to refer
to Table 16-3.
13

The DMA indicated that appellant reached MMI on February 20, 2018 the date of Dr. Somers’ examination.

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By decision dated April 6, 2018, OWCP found that, based on Dr. Harris’ March 11, 2018
report, appellant had no more than 13 percent permanent impairment of her right lower extremity.
It noted that she previously received schedule award compensation for 20 percent permanent
impairment of her right lower extremity and indicated that a resulting overpayment of
compensation would be addressed in a separate letter.
In an April 6, 2018 notice, OWCP advised appellant of its preliminary determination that
she received an $11,898.49 overpayment of compensation because she received schedule award
compensation for 20 percent permanent impairment of the right lower extremity, but was only
entitled to receive schedule award compensation for 13 percent permanent impairment. It
explained that payment records and worksheets showed that she received $36,832.85 in schedule
award compensation, but that subtracting $24,934.36 for her true entitlement to schedule award
compensation for 13 percent permanent impairment yielded the $11,898.49 figure for the
overpayment.14 OWCP also made a preliminary determination that appellant was not at fault in
the creation of the overpayment.15
In a Form OWCP-20, completed on May 7, 2018, appellant listed monthly income of
$2,824.00 comprised of two payments of $1,412.00, and monthly expenses of $2,899.00
comprised of $1,060.00 for home rent, $400.00 for food, $100.00 for clothing, $654.00 for utilities,
and $685.00 for miscellaneous expenses. She also listed assets of $2,090.00 from checking/
savings accounts.16
On April 13, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review regarding the April 6, 2018 schedule
award decision and, on April 18, 2018 appellant requested a telephonic prerecoupment hearing
with such a representative regarding the April 6, 2018 preliminary overpayment determination.
Appellant challenged the fact and amount of the overpayment, and she requested waiver of
recovery of the overpayment.
On July 11, 2018 OWCP’s hearing representative held a hearing which encompassed both
the schedule award and overpayment matters. Counsel acknowledged that appellant received
duplicate payments for 10 percent permanent impairment of the right lower extremity (which
equaled payments for 20 percent permanent impairment) and that OWCP was entitled to recover
monies equal to schedule award compensation for 7 percent permanent impairment given that she
now had 13 percent permanent impairment. Appellant testified that she had an annual salary of
approximately $57,000.00. She also testified regarding her monthly expenses, noting that she paid
$800.00 for rent for her home, $200.00 for food, $100.00 for clothing, and $585.00 for
miscellaneous expenses. Appellant listed assets of between $13,000.00 and $14,000.00 from the
Thrift Savings Plan (TSP). The hearing representative afforded appellant 30 days to submit
14

The case record contains OWCP payment records and worksheets detailing the prior payments and overpayment
calculations.
15

OWCP advised appellant that she could submit evidence challenging the fact or amount of the overpayment, or
request waiver of recovery of the overpayment. It informed her that she could submit additional evidence in writing
or at prerecoupment hearing, but that a prerecoupment hearing must be requested within 30 days of the date of the
written notice of overpayment. OWCP requested that appellant complete and return an overpayment recovery
questionnaire (Form OWCP-20) within 30 days even if she was not requesting waiver of the overpayment.
16

Appellant indicated that she financially supported her mother.

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documentation to support her claimed monthly expenses and other financial details. However, no
documentation was received.
By decision dated September 4, 2018, OWCP’s hearing representative determined that
appellant had not met her burden of proof to establish more than 13 percent permanent impairment
of her right lower extremity. The DMA’s March 11, 2018 opinion was deemed to represent the
weight of the medical evidence with respect to permanent impairment of the right lower extremity.
By decision dated September 5, 2018, OWCP’s hearing representative determined that
appellant received an $11,898.49 overpayment of compensation, for which she was without fault,
because she received schedule award compensation for 20 percent permanent impairment of the
right lower extremity, but was only entitled to receive schedule award compensation for 13 percent
permanent impairment of the right lower extremity. The hearing representative denied her request
for waiver of recovery of the overpayment. Appellant was found to have monthly income of at
least $3,059.00,17 monthly expenses of $2,339.00, and assets of between $13,000.00 and
$14,000.00 from TSP monies. The hearing representative indicated that waiver of recovery of the
overpayment was denied because appellant had not submitted documentation supporting her
claimed monthly expenses, the evidence showed that her monthly income exceeded her monthly
expenses by more than $50.00, even in absence of complete documentation, and she testified to
having at least $13,000.00 in assets.18
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,19 and its implementing federal regulations,20 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.21 As May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.22 A claimant has the

17

OWCP’s hearing representative noted that the $2,824.00 figure reported on appellant’s Form OWCP-20 was for
two biweekly periods, and indicated that converting this figure to a monthly figure yielded $3,059.00 in monthly
income. The hearing representative asserted that appellant’s monthly income was likely higher as she testified to a
gross salary of more than $57,000.00 per year.
18

OWCP’s hearing representative required appellant to make payments of $170.00 every 28 days in order to recover
the overpayment. With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases
where OWCP seeks recovery from continuing compensation benefits. A.B., Docket No. 18-0915 (issued
October 24, 2018). As appellant was not in receipt of continuing wage-loss compensation at the time of OWCP’s
overpayment determination, the Board does not have jurisdiction over the method of recovery of the overpayment in
this case. See Miguel A. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.
19

5 U.S.C. § 8107.

20

20 C.F.R. § 10.404.

21

Id. at § 10.404(a).

22

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

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burden of proof under FECA to establish permanent impairment of a scheduled member or
function as a result of his or her employment injury entitling him or her to a schedule award.23
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the right lower extremity for the present
case, reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.24 After the
CDX is determined from the Knee Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the grade modifiers in the following formula:
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).25
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish more than 13
percent permanent impairment of her right lower extremity.
The Board finds that, in a March 11, 2018 report, the DMA properly interpreted the
findings of Dr. Somers, an OWCP referral physician, and determined that appellant had 13 percent
permanent impairment of her right lower extremity. He conducted an impairment rating using the
DBI rating method of Table 16-3 of the sixth edition of the A.M.A., Guides.26 The DMA correctly
found that appellant’s partial right medial and lateral meniscectomies (falling under Class 1 for the
CDX with a default value of 10 percent permanent impairment) warranted a finding of 13 percent
permanent impairment (after calculation of grade modifiers and application of the net adjustment
formula).27 He noted that Dr. Somers’ rating of 33 percent permanent impairment under the ROM
rating method was not allowed by the A.M.A., Guides because Table 16-3 does not include an
asterisk allowing use of this rating method for her right knee diagnosis, partial medical and lateral
meniscectomies.28 Therefore, the DMA properly concluded that appellant had 13 percent
permanent impairment of her right lower extremity under the sixth edition of the A.M.A., Guides.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

23

M.G., Docket No. 19-0823 (issued September 17, 2019); I.T., Docket No. 18-1049 (issued December 31, 2018).

24

See A.M.A., Guides (6th ed. 2009) 509-11.

25

Id. at 515-22.

26

Id. at 509, Table 16-3.

27

See id. at 515-17. The Board further notes that Dr. Somers provided a 22 percent permanent impairment rating
of the right lower extremity using the DBI method under Table 16-3, but that such a rating is not warranted under that
table. Table 16-3 only allows for such a level of impairment rating for a Class 2 diagnosis of total medial and lateral
meniscectomies, whereas appellant only underwent partial right medial and lateral meniscectomies which fall under
class 1. Id. at 509.
28

Id.

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LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.29 Section 8129(a) of FECA provides, in pertinent part, that when
an overpayment has been made to an individual “because of an error of fact or law, adjustment
shall be made under regulations prescribed by the Secretary of Labor by decreasing later payments
to which an individual is entitled.”30
OWCP’s procedures provide that if a schedule award decision is set aside (after a hearing
or review by the Board or as part of OWCP’s reconsideration process), and additional development
is undertaken to resolve the schedule award issue, a new schedule award decision should be issued
that fully addresses the reasons for the change in rating. Declaring an overpayment thereafter is
appropriate if the later decision substantiates a lesser degree of permanent impairment than
previously awarded, so long as both ratings are based on the same edition of the A.M.A, Guides.31
FECA provides for 288 weeks of compensation for 100 percent loss or loss of use of a lower
extremity32 and the implementing regulations provides that compensation for proportionate
periods of time is payable for partial loss.33
ANALYSIS -- ISSUE 2
The Board finds that appellant received an overpayment of compensation in the amount of
$11,898.49, for which she was without fault.
OWCP properly found that appellant received an $11,898.49 overpayment of
compensation because she received schedule award compensation for 20 percent permanent
impairment of her right lower extremity, but was only entitled, for the reasons described above, to
receive schedule award compensation for 13 percent permanent impairment of her right lower
extremity.34 It explained that payment records and worksheets in the case record showed that she
received $36,832.85 in schedule award compensation, and that subtracting $24,934.36 for her true
entitlement to schedule award compensation for 13 percent permanent impairment yielded the

29

5 U.S.C. § 8102(a).

30

Id. at § 8129(a).

31

See supra note 22 at Chapter 2.1601.8 (October 2011).

32

5 U.S.C. § 8107(c)(2).

33

20 C.F.R. § 10.404.

34

On April 4, 2016 OWCP certified a schedule award payment for 28.8 weeks to compensate appellant for 10
percent permanent impairment of her right lower extremity and it then paid her such schedule award monies. FECA
provides for 288 weeks of compensation for 100 percent loss or loss of use of a lower extremity and the implementing
regulation provides that compensation for proportionate periods of time is payable for partial loss. See supra notes
32 and 33. By decision dated December 6, 2016, OWCP found that appellant had 10 percent permanent impairment
of her right leg and it then mistakenly paid her 28.8 weeks of schedule award compensation which duplicated the
payment which was certified on April 4, 2016 for the same right lower extremity permanent impairment.

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$11,898.49 figure for the overpayment. The Board therefore finds that OWCP has adequately
explained the basis for the $11,898.49 overpayment.35
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment of compensation shall be recovered
by OWCP unless 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
conscience.36 Section 10.438 of OWCP’s regulations provides that the individual who received
the overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. Failure to submit the requested information within 30 days of the request
shall result in denial of waiver of recovery of the overpayment.37 The guidelines for determining
whether recovery of an overpayment would defeat the purpose of FECA, or would be against
equity and good conscience, are set forth in sections 10.434 to 10.437 of OWCP’s regulations.38
Section 10.436 provides that recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.39 For waiver under
this standard, appellant must show both that she needs substantially all of her current income to
meet current ordinary and necessary living expenses, and that her assets do not exceed the
allowable resource base.40 An individual is deemed to need substantially all of his or her current
income to meet current ordinary and necessary living expenses if monthly income does not exceed
monthly expenses by more than $50.00.41 OWCP’s procedures provide that the assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse
or dependent plus $1,200.00 for each additional dependent.42 An individual’s liquid assets include,
but are not limited to cash, the value of stocks, bonds, savings accounts, mutual funds, and
certificate of deposits.43

35

See supra note 31.

36

5 U.S.C. § 8129.

37

20 C.F.R. § 10.438.

38

Id. at §§ 10.434-10.437.

39

Id. at. § 10.436.

40

Id.

41

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4a(3) (September 2018).
42

Id. at Chapter 6.400.4a(2).

43

Id. at Chapter 6.400.4b(3)(a), (b). Nonliquid assets include, but are not limited to, the fair market value of an
owner’s equity in property such as a camper, boat, second home, furnishings/supplies, vehicle(s) above the two
allowed per immediate family, retirement account balances (such as TSP or 401(k)), jewelry, and artwork. Id.

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Recovery of an overpayment is also considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be made,
gives up a valuable right or changes his or her position for the worse.44 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the payment(s) or on the notice
of payment.45
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied appellant’s request for waiver of recovery of
the overpayment.
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown both that she needs substantially all of her current income to
meet ordinary and necessary living expenses, and that her assets do not exceed the allowable
resource base.46 The Board finds that she has at least $13,000.00 in assets, comprised of TSP
monies, and therefore her assets exceed her allowable resource base of $10,300.00 (for an
individual with one dependent).47 Because, appellant has not met the second prong of the
two-prong test of whether recovery of the overpayment would defeat the purpose of FECA, it is
not necessary for OWCP to consider the first prong of the test, i.e., whether her needs substantially
all of her current income to meet current ordinary and necessary living expenses.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience because she has not shown, for the reasons noted above, that she would
experience severe financial hardship in attempting to repay the debt or that she relinquished a
valuable right or changed her position for the worse in reliance on the payment which created the
overpayment.48 Because, she has failed to establish that, recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience, she has failed to show that
OWCP improperly refusing to waive the overpayment.49
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 13
percent permanent impairment of her right lower extremity. The Board further finds that she
received an overpayment of compensation in the amount of $11,898.49, for which she was without
fault, and that OWCP properly denied her request for waiver of recovery of the overpayment.

44

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

45

Supra note 41 at Chapter 6.400.4c(3) (September 2018).

46

See supra notes 39 and 40.

47

See supra note 42.

48

See L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

49

See supra note 36.

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ORDER
IT IS HEREBY ORDERED THAT the September 5 and 4, 2018 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 20, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
RECORDS MANAGEMENT CENTER,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 10-1497
Issued: March 22, 2011

Case Submitted on the Record

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

JURISDICTION
On May 11, 2010 appellant filed a timely appeal from a February 22, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on June 23, 2009.
FACTUAL HISTORY
On July 20, 2009 appellant, then a 48-year-old file clerk, filed a traumatic injury claim
alleging that she sustained right knee pain and swelling on June 23, 2009 as a result of repeated

contact between her right knee and the first two steps of a ladder that she climbed at work.1 She
stopped work on August 10, 2009.
Return-to-work forms for the period July 13 to 31, 2009 signed by Drs. Rekha Devkota
and Gail L. Birkenmeier, a Board-certified family practitioner and internist, respectively, advised
that appellant be placed on limited duty due to right knee pain. A July 28, 2009 note from
Dr. Birkenmeier specified that the injury occurred on June 23, 2009.
In an August 19, 2009 duty status report, Dr. Gary Miller, a Board-certified orthopedic
surgeon, commented that appellant routinely climbed a ladder at work for filing purposes
and sustained considerable pain and swelling while doing this on June 23, 2009. In September 9
and 17, 2009 reports, he advised that she might require reconstructive knee surgery and was
unable to work until further notice.
On October 5, 2009 the Office informed appellant that the evidence submitted was
insufficient and requested additional evidence to establish her claim.
Appellant provided medical records dated July 6 to October 16, 2009. Nursing notes
dated July 6 and 28, 2009 mentioned that she climbed and struck her right knee against a ladder
five nights a week at work.
In a July 13, 2009 progress note, Dr. Devkota stated that appellant worked the night shift
for the employing establishment and regularly used a ladder. She examined appellant’s right
knee and observed limited range of motion (ROM) due to pain and anterior swelling.
Dr. Devkota diagnosed right knee arthralgia. In an August 5, 2009 physical therapy note signed
by Dr. Devkota, appellant complained of work-related right knee pain as a result of repeatedly
striking the knee against the rungs of a ladder in June 2009. The physical therapist referred to
the July 13, 2009 x-ray indicating a previous fracture deformity of the lateral tibial plateau.
Appellant denied any prior history of knee trauma. On physical examination, she exhibited
impaired gait mechanics, ROM and strength deficits with mild edema and tenderness of the right
medial and lateral joint lines and patellar tendon.
A July 13, 2009 x-ray report from Dr. Thangaiyan Sezhiyan, a vascular and
interventional radiologist, noted a preexisting fracture deformity of the right lateral tibial plateau
and no new fracture or dislocation.
In an August 6, 2009 treatment report, Dr. Miller stated that appellant “hit her knee on
the ladder rung” at the employing establishment while performing her filing duties. In August 12
and 19, 2009 reports, Dr. Birkenmeier reiterated that appellant bumped her right knee against a
ladder approximately six weeks earlier and diagnosed degenerative joint disease.
An August 19, 2009 x-ray report from Dr. James Walton Debnam, a Board-certified
radiologist, revealed minimal degenerative arthritis of the patellofemoral and medial
compartments, chondromalacia patella beneath the medial patellar facet and a slight depression
1

Appellant later filed an occupational disease claim on November 17, 2009.
jurisdiction over this aspect of the case. See 20 C.F.R. § 501.2(c).

2

The Board does not have

of the lateral tibial plateau. He also noted evidence of a previously healed lateral tibial plateau
fracture. In an August 26, 2009 magnetic resonance imaging (MRI) scan report, Dr. Markus
Lammle, a Board-certified diagnostic radiologist, identified mild triocompartmental
osteoarthritis, mild depression of the right lateral tibial plateau consistent with an old fracture
deformity, mild to moderate chondrosis in medial and lateral compartment, degenerative changes
in the posterior horn of medial meniscus, complex tear in the posterior horn of lateral meniscus
extending into body of meniscus and small joint effusion.
In a September 10, 2009 report, Dr. Miller related that appellant complained of right knee
pain and swelling and denied any prior injury. He pointed out that diagnostic testing showed a
previous lateral tibial plateau fracture, a small articular cartilage defect of the medial tibia
plateau and a degenerative tear of the posterior horn lateral meniscus. Dr. Miller examined
appellant and observed an antalgic gait, moderate right knee effusion without erythema and
generalized tenderness to palpation. He diagnosed chondrosis of the posterior aspect lateral
compartment of the right and opined that the injury was possibly due to the preexisting fracture.
In Dr. Miller’s subsequent October 16, 2009 attending physician’s report, he diagnosed knee
arthralgia and checked the “yes” box in response to a form question asking whether appellant’s
condition was caused or aggravated by her employment.
By decision dated November 6, 2009, the Office denied appellant’s claim, finding that
the medical evidence was insufficient to establish that the July 20, 2009 work incident caused a
traumatic injury.
Appellant requested a review of the written record on November 19, 2009 and submitted
additional medical records. In a November 17, 2009 report, Dr. Miller detailed that her job
duties included repetitive use of a ladder and frequent climbing, which made her prone to
knocking her right knee against the rail of the ladder and led to discomfort after several months.
He added that appellant’s condition climaxed on June 23, 2009 when the right knee swelled
significantly and could no longer bear weight. Dr. Miller examined her and observed limited
ROM, atrophy of the quadriceps muscles, moderate joint effusion and knee crepitus with range.
He diagnosed right knee arthropathy, lateral and medial compartment chondrosis,
chondromalacia patella and posterior horn tears of the medial and lateral menisci. Dr. Miller
opined:
“There are a variety of etiologic factors involved in development of chondrosis of
the knee. [Appellant] has no antecedent knee history. Her occupation requires
repeated climbing of ladders and transport of heavy objects. It is considered more
likely than not that [appellant’s] occupational history requiring repetitive load of
the knee is a main etiologic factor in the development of her current knee
chondrosis. It is further suggested that the knee contusion suffered on June 23[,
2009] is the proximate cause of her arthropathy.”
In attending physician’s reports dated November 18, 2009 and January 29, 2010,
Dr. Miller checked the “yes” box concerning whether appellant’s condition was caused by her
employment. He specified in the November 18, 2009 report that she sustained a work-related
contusion with acute arthropathy on June 23, 2009.

3

By decision dated February 22, 2010, the Office hearing representative affirmed the
May 21, 2009 decision, finding the medical evidence insufficient to demonstrate that appellant
sustained a knee injury related to the June 23, 2009 work event.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act2
has the burden of establishing the essential elements of her claim by the weight of reliable,
probative and substantial evidence,3 including that she is an “employee” within the meaning of
the Act and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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
The evidence supports that appellant used a ladder at work on June 23, 2009. However,
she did not provide sufficient medical evidence to establish that this employment activity caused
or aggravated a right knee injury.
In a November 17, 2009 report diagnosing right knee arthropathy and chondrosis,
Dr. Miller emphasized that appellant was required to climb a ladder as part of her job duties and
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

T.H., 59 ECAB 388 (2008).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

was susceptible to striking her knee against it. He stated that this repetitive contact debilitated
the right knee so as to render it incapable of bearing weight by June 23, 2009. Dr. Miller
concluded that this occupational activity was “more likely than not” the primary cause of her
condition.8 His opinion is of limited probative value as he did provide sufficient medical
rationale explaining the reasons why climbing stairs on June 23, 2009 caused the diagnosed right
knee injury.9 Furthermore, Dr. Miller noted that appellant had no antecedent knee history, which
conflicts with his previous September 10, 2009 report that not only acknowledged diagnostic,
radiological evidence of a preexisting fracture deformity of the right lateral tibial plateau, but
also posited that her condition possibly arose from this. Medical opinions based on an
incomplete or inaccurate history are also of diminished probative value.10 Dr. Miller did not
otherwise explain the pathophysiological process by which appellant’s recurrent striking of her
right knee against a ladder on June 23, 2009 led to her diagnosed condition.11
Dr. Miller’s other reports are also insufficient to establish the claim as they either do not
address causal relationship or do not provide a reasoned opinion supporting causal relationship.
In October 16 and November 18, 2009 and January 29, 2010 reports, he supported causal
relationship by checking a box “yes” on a form report, are of limited probative value. The Board
has held that an opinion on causal relationship consisting only of a physician checking “yes” on a
medical form report without further explanation or rationale is of little probative value.12
Although Dr. Miller added in the November 18, 2009 report that appellant sustained a
work-related contusion with acute arthropathy on June 23, 2009, he did not provide sufficient
rationale in support of his conclusion.
Medical records from Drs. Devkota and Birkenmeier also failed to establish appellant’s
claim as they offered no specific opinion regarding the cause of appellant’s condition.13
Dr. Devkota noted in a July 13, 2009 progress note that appellant used a ladder at work. In an
August 5, 2009 report, she noted that appellant struck her knee against ladder rungs in
June 2009. However, Dr. Devkota did not specifically relate a diagnosed condition to
appellant’s work on a ladder on June 23, 2009 nor did she explain the reasons why striking of the
right knee on the ladder would cause a diagnosed condition. Likewise, Dr. Birkenmeier noted on
August 12 and 19, 2009 that appellant bumped her knee against a ladder but she did not
8

The Board notes that Dr. Miller’s opinion that appellant’s condition developed over a period of time rather than
a single workday or shift is more consistent with occupational disease than traumatic injury. See 20 C.F.R. § 10.5(q)
& (ee).
9

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).
10

M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980).

11

Ern Reynolds, 45 ECAB 690 (1994). See also T.M., Docket No. 08-975 (issued February 6, 2009) (a medical
opinion stating that a condition is causally related to an employment injury because the employee was asymptomatic
before the injury but symptomatic after is insufficient, without supporting rationale, to establish causal relationship).
12

See Alberta S. Williamson, 47 ECAB 569 (1996).

13

See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

5

specifically attribute any diagnosed condition to a June 23, 2009 ladder incident. The record also
contains several diagnostic test reports but these reports are insufficient to establish the claim as
they did not address whether the June 23, 2009 work incident caused a diagnosed condition.
Appellant also submitted treatment records from nurses. However, these records have no
probative medical value since nurses are not physicians as defined by the Act.14
Appellant argues on appeal that the Office hearing representative’s decision was contrary
to fact and law. As stated above, the medical evidence did not sufficiently explain how climbing
a ladder on June 23, 2009 caused or contributed to appellant’s injury.15
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on June 23, 2009.

14

Roy L. Humphrey, 57 ECAB 238, 242 (2005). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949)
(medical opinion, in general, can only be given by a qualified physician); 5 U.S.C. § 8101(2).
15

The Board notes that the record contains evidence which the Office received after its February 22, 2010
decision. The Board lacks jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2030
Issued: June 10, 2009

Case Submitted on the Record

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

JURISDICTION
On July 14, 2008 appellant filed a timely appeal from the January 7, 2008 merit decision
of the Office of Workers’ Compensation Programs denying his emotional condition claim and
the April 15, 2008 nonmerit decision denying his request for reconsideration. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition in the
performance of duty; and (2) whether the Office properly denied his request for merit review
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 27, 2006 appellant, then a 35-year-old city letter carrier, filed a Form CA-2,
notice of occupational disease and claim for compensation, alleging an emotional condition
caused by factors of his federal employment. He first became aware of his illness in June 2002

and that it was caused or aggravated by his employment in October 2005. Appellant stopped
work on June 26, 2006.
In undated statements, appellant alleged that, from August 2005 to June 26, 2006, James
Benson, his supervisor, engaged in harassment, intimidation, race and disability discrimination,
and bullying that created a hostile work environment. He indicated that Mr. Benson returned to
the employing establishment in mid-August 2005 after being at another facility as part of a
settlement agreement. On appellant’s first day back, Mr. Benson stated that he would conduct a
driving observation on appellant the next day. During the observation, Mr. Benson made
numerous comments and snide remarks about appellant and did not discuss the inspection
results. Appellant stated that Mr. Benson conducted covert driver observations on September 26
and October 6, 2005. He did not receive a driver observation form or any consultation from the
October 6, 2005 observation. Appellant stated that Mr. Benson did driver observations on him
every three to four months. He noted that Mr. Benson performed several unscheduled route
counts in 2005 and 2006. Appellant filed an Equal Employment Opportunity (EEO) complaint
in the matter and Mr. Benson denied all allegations during a November 7, 2006 mediation. On
August 18, 2005 he alleged that a postmaster told him that, if he came back early from delivering
the mail, only half of the time would be charged to leave.1 Appellant indicated that this was
bribery. He stated that, during August and September 2005, Mr. Benson stood behind him while
he was at his case and whistled. Appellant found Mr. Benson’s actions intimidating, threatening,
disgraceful and discriminatory. When he asked Mr. Benson to stop his behavior, Mr. Benson
stated that he could stand wherever and do whatever he wanted.
Appellant alleged that Mr. Benson deviated from standard procedures such that he was
refused or given improper documentation to carry out his duties properly. On August 19, 2005
Mr. Benson would not let him deviate or provide reasonable accommodation for his disability.
On September 15, 2005 he filled out auxiliary assistance requests forms that the carrier was
supposed to complete. On September 16, 2005 Mr. Benson had appellant stop counting the mail
to verify the count. On November 5, 2005 he filled out a form to have appellant sort mail from
an unoccupied route, which violated the directions on the form. Appellant contended that
Mr. Benson would not authorize overtime, did not give 24-hours notice before cancelling an
unscheduled route count on April 2, 2006, and gave him a letter of warning for failure to obey.
During December 2005, the first part of January 2006 and on June 12, 2006, Mr. Benson forced
appellant to work overtime even though he was not on the overtime desired list. Appellant filed
grievances regarding improper management of overtime, his request for assistance and a hostile
work environment.
Appellant alleged that Mr. Benson accused him of improper mail delivery on January 17,
2006, his normally scheduled day off. Mr. Benson disapproved sick leave on January 20, 2006,
even though the leave had been verbally approved the previous day and appellant had submitted
the appropriate paperwork.2 Appellant stated that Mr. Benson insisted that he was on annual
leave on March 27, 2006, but was unable to produce documentation for a day that appellant
denied requesting leave. On March 27, 2006 Mr. Benson accused appellant of putting mail in
1

Appellant did not identify the postmaster by name.

2

He indicated that he was allowed to take his leave after speaking with the postmaster.

2

the wrong distribution slot but could not show him how the mail was misplaced. Appellant
stated that Mr. Benson accused him of not correctly filling out a request for auxiliary assistance
in April 2006 and retaliated by conducting three route counts in less than a week. He reiterated
that he did not receive post consultation copies of any route counts and Mr. Benson yelled at him
whenever he asked for copies. On June 8, 2006 appellant asserted that Mr. Benson yelled at him
about removing an observation chair and directed him to cease activities that were not credited.
He alleged that Mr. Benson never gave him a list of activities that were not credited. Appellant
asserted that Mr. Benson filled out postal document 3996, contrary to procedures, and
inappropriately commented about appellant’s speed on his route in front of a custodian. On
June 12, 2006 he followed Mr. Benson’s instructions but Mr. Benson was 40 minutes late in
picking up his outgoing mail and never returned to the office so appellant could secure the mail,
postal equipment and keys he had signed out. Appellant alleged that Mr. Benson wrongly
accused him of missing a scan on April 28, 2006. On April 29, 2006 Mr. Benson removed a lock
from a cluster of mailboxes at an apartment complex. Appellant alleged that Mr. Benson had
altered his “clock rings” since April 28, 2006. He also alleged that, when he stopped work, he
was placed on absent without leave (AWOL) status for about two months. Appellant filed a
grievance to have the AWOL status removed.
Appellant also submitted copies of vehicle history reports, excerpts from the employing
establishment’s handbook and coworker statements about their interactions with Mr. Benson. A
witness supported that on September 16, 2005 Mr. Benson yelled at appellant in the breakroom.
A settlement agreement noted that the May 5, 2006 letter of warning for failure to follow
instructions on April 21, 2006 would be expunged after three months. Copies of grievance
settlements were submitted, including Grievance #001-006 (Mount Olive) regarding 3996’s
forms/request for auxiliary assistance and overtime; and Grievance #002-006 (Mount Olive)
regarding harassment and intimidation. No wrongdoing was found.
Appellant submitted medical records dated June 27, 2006 from Eastern Medical
Associates, which noted he was being treated for major depression and anxiety and was excused
from work as of June 7, 2006. In an August 17, 2006 duty status report, Dr. Edwin W. Hoeper, a
Board-certified psychiatrist, opined that appellant had disabling post-traumatic stress disorder
and depression. On August 21, 2006 he advised that appellant’s post-traumatic stress disorder
and major depression directly resulted from persistent harassment at work.
The employing establishment controverted appellant’s claim and asserted that
management had neither erred nor acted abusively regarding the implicated administrative
matters. An employing establishment case manager noted that Mr. Benson had taken action
against appellant regarding job performance and was unaware of a claimed emotional condition
until July 11, 2006. In a July 11, 2006 statement, Mr. Benson noted that appellant went out on
sick leave while Mr. Benson was on leave from June 26 through 30, 2006. He disputed knowing
that appellant had panic attacks or major depression. Mr. Benson spoke with appellant on
several occasions concerning his job performance. On September 16, 2006 he stated that he tried
to work with appellant “every possible way” to maintain a cordial working environment.
Mr. Benson denied discrimination based on disability or race, noting that he had never taken
corrective action against appellant and had allowed him to deviate from his route if he sought
prior approval. He advised that appellant was held to the same standards as other carriers but
was not meeting those standards. Mr. Benson attached September 16 and December 12, 2005

3

statements in which he noted meeting with appellant to discuss improvement in his job
performance.
By decision dated April 20, 2007, the Office denied appellant’s claim on the grounds that
he did not establish any compensable factors of employment.
On April 29, 2007 appellant requested an oral hearing which was held on
October 15, 2007.
In an undated letter received December 28, 2007, Carmen Long, a coworker, indicated
that when she worked at the employing establishment, a supervisor told her to stay away from
appellant after they were seen talking. Compared to the other employees, she stated appellant
had a lot of route inspections and the supervisors, including Mr. Benson, talked about how it
went and lost his paperwork.
By decision dated January 7, 2008, an Office hearing representative affirmed the
April 20, 2007 decision.
On March 17, 2008 appellant requested reconsideration. He submitted two March 7,
2008 documents from the Office of Personnel Management (OPM). The materials found
appellant disabled from his position as a city carrier due to depression and anxiety and approved
his application for disability retirement.
By decision dated April 15, 2008, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of his work or
his fear and anxiety regarding his ability to carry out his work duties.3 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers’ compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.4

3

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

4

Id.

4

In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6 As a rule, allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim, but rather, must be corroborated by the
evidence.7 Mere perceptions and feelings of harassment will not support an award of
compensation.8
ANALYSIS
Appellant did not allege that he sustained an emotional condition as a result of his regular
or specially assigned duties. Rather, he alleged that his emotional condition was due to actions
taken by his supervisor in various administrative matters. The Office denied appellant’s claim
on the grounds that he failed to establish a compensable employment factor.
Appellant alleged that the manner in which Mr. Benson observed him and performed
route counts in 2005 and 2006 were against established procedures and done in a covert nature.
He indicated that he never received postconsultation copies of any of the route counts and was
yelled at when he asked for copies. Appellant contended that Mr. Benson did not follow
established procedures regarding his overtime, requests for assistance or leave. He alleged that
he was improperly placed on AWOL, denied preapproved leave, and given a letter of warning
for failure to obey. On several occasions, Mr. Benson stood behind appellant whistling.
Appellant found his actions intimidating and discriminating. Although the handling of
disciplinary actions and leave requests, the assignment of work duties and the monitoring of
work activities are generally related to employment, they are administrative functions of the
employer and not duties of the employee.9 However, the Board has found that an administrative
or personnel matter may be considered an employment factor where the evidence establishes
error or abuse on the part of the supervisor. In determining whether a supervisor erred or acted
abusively, the Board has examined whether he or she acted reasonably.10
5

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

6

Id.

7

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).
8

Beverly R. Jones, 55 ECAB 411 (2004).

9

See Lori A. Facey, 55 ECAB 217 (2004). See also Janet I. Jones, 47 ECAB 345 (1996).

10

See Richard J. Dube, 42 ECAB 916 (1991).

5

Appellant has not submitted sufficient evidence to show that Mr. Benson acted
unreasonably with respect to the administrative actions. While he claimed that his supervisor
deviated from the standard procedures when filling out forms and authorizing leave, he presented
no evidence that the supervisor erred or was abusive.11 The issue is not whether the employing
establishment properly followed established procedures in conducting its daily business, but
rather whether there was error in the administrative actions pertaining to appellant. There is no
evidence that appellant was refused or given improper documentation to carry out his duties
properly. While appellant and Mr. Benson disagreed with the procedures pertaining to work
assignments, appellant’s dissatisfaction with perceived poor management constitutes frustration
from not being permitted to work in a particular environment or to hold a particular position and
is not compensable under the Act.12 There is no evidence that Mr. Benson engaged in
unreasonable covert driver observations or that his instructions constituted error or abuse. The
employing establishment asserted that the administrative actions were reasonable. Mr. Benson
denied acting improperly and explained that he took action to help appellant improve his poor
job performance. Appellant has not established a compensable employment factor with respect
to these administrative matters.
Appellant also alleges that he was harassed and discriminated against when Mr. Benson
unfairly disapproved leave which was previously approved, placed him on AWOL and gave him
a letter of warning for failure to obey. Additionally, he alleged that Mr. Benson illegally altered
his clock rings, wrongly accused him of various incidents, such as improper delivery of mail, put
mail in the wrong place, incorrectly completed forms, etc., and yelled at him on several
occasions. Mere perceptions of harassment or discrimination are not compensable under the
Act,13 and unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations with probative and reliable evidence.14 Appellant submitted insufficient
evidence to substantiate specific assertions.
Appellant did not provide witness statements to establish his allegations of being
improperly singled out on particular dates and times. The statements from appellant’s coworkers
regarding the number of route inspections he had is not evidence that appellant was improperly
singled out. Mr. Benson specifically denied acting improperly and indicated that he had
appropriate interactions with appellant in an effort to improve his job performance. While the
record contains evidence that the supervisor raised his voice with appellant on September 16,
2006, appellant has not shown how an isolated incident by the supervisor would rise to the level
of verbal abuse or otherwise fall within the coverage of the Act.15 Additionally appellant alleged
11

Leave matters are also considered to be administrative in nature. See Jeral R. Gray, 57 ECAB 611 (2006).

12

See Michael Thomas Plante, 44 ECAB 510 (1993).

13

James E. Norris, 53 ECAB 93 (2000).

14

Id.

15

See, e.g., Alfred Arts, 45 ECAB 530, 543-44 (1994) and cases cited therein (finding that the employee’s
reaction to coworkers comments such as you might be able to do something useful and here he comes was selfgenerated and stemmed from general job dissatisfaction).

6

various discriminatory actions but he did not submit evidence, such as findings of grievances, to
support these claims.16 He therefore failed to establish a factual basis for his claims of
harassment retaliation, or verbal abuse.17 The evidence instead suggests that the employee’s
feelings were self-generated and thus not compensable under the Act.18
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act. He has not met his burden of proof in establishing that he sustained an
emotional condition in the performance of duty.19
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.21 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.22 The Board has held that the submission of
evidence which does not address the particular issue involved does not constitute a basis for
reopening a case.23
20

ANALYSIS -- ISSUE 2
Appellant’s March 17, 2008 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
In support of his request for reconsideration, appellant submitted two March 7, 2008
documents from OPM. One letter concerned his application for disability retirement. The other
letter advised that appellant was found disabled from his position due to his emotional condition.
16

See Mary J. Summers, 55 ECAB 730 (2004).

17

Id.

18

See Gregorio E. Conde, 52 ECAB 410 (2001).

19

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
20

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
21

20 C.F.R. § 10.606(b)(2).

22

Id. at § 10.608(b).

23

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

7

However, the submission of this material does not require the reopening of appellant’s claim.
The EEO documents do not contain any pertinent findings regarding the employment factors
alleged as a cause of the claimed emotional condition. Additionally, the Board has long held that
entitlement to benefits under statutes administered by other federal agencies does not establish
entitlement to benefits under the Act.24 The EEO documents do not constitute relevant and
pertinent new evidence not previously considered by the Office.25 Therefore, the Office properly
determined that this evidence did not constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied his March 17, 2008 request for reconsideration .
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an emotional condition in the performance of duty. The Board further finds that the
Office properly denied appellant reconsideration request pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 15 and January 7, 2008 are affirmed.
Issued: June 10, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

24

See Donald Johnson, 44 ECAB 540, 551 (1993).

25

See Susan A. Filkins, 57 ECAB 630 (2006).

8


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

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

Docket No. 18-1376
Issued: March 27, 2019

Case Submitted on the Record

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

JURISDICTION
On July 5, 2018 appellant filed a timely appeal from a June 25, 2018 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 has met its burden of proof to terminate appellant’s
wage-loss compensation, effective September 30, 2017, as he no longer had disability causally
related to his accepted employment-related injuries; and (2) whether appellant has met his burden

1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the June 25, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

of proof to establish continuing disability after September 30, 2017 causally related to his accepted
employment-related injuries.
FACTUAL HISTORY
On February 12, 2007 appellant, then a 53-year-old passport clerk, filed a traumatic injury
claim (Form CA-1), under OWCP File No. xxxxxx682, alleging that the repetitive motions of
reaching and bending while processing passports aggravated his right shoulder. At that time, he
had been working in a rehabilitation position since August 21, 2006 under OWCP File No.
xxxxxx288.3 OWCP accepted the present claim for right shoulder calcifying tendinitis and injury
to right median nerve.4 Appellant stopped work on April 9, 2007 and has not returned.5 OWCP
paid him wage-loss compensation benefits on the periodic rolls commencing May 13, 2007.
In a February 28, 2017 report, Dr. Bernard Crowell, an orthopedic surgeon, diagnosed
calcific tendinitis right shoulder and right shoulder rotator cuff tear. In February 16 and March 16,
2017 duty status reports (Form CA-17), he noted that appellant, a modified city carrier
(rehabilitation clerk), had calcified tendinitis from a February 6, 2007 work injury. The physical
requirements of the modified position included lifting 15 pounds continuously and 70 pounds
intermittently.
On April 26, 2017 OWCP referred appellant for a second opinion examination, along with
a statement of accepted facts (SOAF),6 a set of questions, and the medical record to Dr. William F.
Blankenship, a Board-certified orthopedic surgeon, to determine whether he was able to return to
work as a rehabilitation/passport clerk and whether he continued to have residuals of his accepted
conditions.
In a May 23, 2017 report, Dr. Blankenship reviewed the SOAF and the medical record and
performed an examination of appellant’s right shoulder. He related that appellant had no atrophy,
but had crepitus in carrying out limited motion. Dr. Blankenship opined that, while appellant had
active residuals from the conditions he had since 1992, he could perform the rehabilitation/passport
clerk position. As there was no current clinical or diagnostic findings available, Dr. Blankenship
recommended that a repeat magnetic resonance imagining (MRI) scan be performed.

3

Under OWCP File No. xxxxxx288, OWCP accepted that on July 29, 1992 appellant, then a letter carrier, sustained
right shoulder tendinitis. Appellant underwent an authorized arthroscopic subacromial decompression and rotator cuff
debridement on August 18, 1993. He returned to work in a rehabilitation/passport clerk position.
4
On March 9, 2007 appellant also filed an occupational disease claim (Form CA-2) alleging that the duties of the
passport clerk position aggravated his right shoulder condition. Under OWCP File No. xxxxxx375, OWCP accepted
a right shoulder calcifying tendinitis condition.
5
OWCP administratively combined OWCP File Nos. xxxxxx288, xxxxxx682, and xxxxxx375, with File No.
xxxxxx288 serving as the master file.
6

The April 24, 2017 SOAF noted that the job requirements of the rehabilitation/passport clerk position were simple
grabbing, up to 8 hours not to exceed one pound with the right hand, sitting up to 8 hours per day, standing/walking
up to 4 hours per day; bending occasional up to 30 minutes per day, lifting up to 2 hours per day with right hand and
lifting up to 8 hours per day with left hand, and reaching above shoulder 0 to 20 minutes per day.

2

On July 14, 2017 OWCP notified appellant that it proposed to terminate his wage-loss
compensation as the weight of the medical evidence, as represented by the report of
Dr. Blankenship, established that he no longer had continued disability from work as a result of
his work residuals. It afforded him 30 days to submit additional evidence or argument if he
disagreed with the proposed action.
In an August 7, 2017 statement, appellant disagreed with OWCP’s proposed termination.
He noted that he had tried to return to work many times before, but the employing establishment
refused to give him a proper Form CA-17 for the rehabilitation/passport specialist position.
Appellant argued that Dr. Crowell was not provided with the physical requirements of his
rehabilitation/passport specialist position. He also questioned whether the rehabilitation/passport
position still existed.
Appellant submitted additional medical evidence including a July 27, 2017 report,
Dr. Harold B. Betton, a Board-certified family practitioner, noted that he had been trying to return
appellant to work since 2014, but the employing establishment had refused to allow appellant to
return to work.
In an August 1, 2017 report, Dr. Crowell explained that a right shoulder MRI scan
performed two years ago showed a partial-thickness rotator cuff tear, impingement syndrome
rotator cuff, and right shoulder rotator cuff tendinitis. He agreed that a repeat MRI scan right
shoulder was warranted. Requests for authorization of a right shoulder MRI scan and additional
progress reports were received.
By decision dated September 29, 2017, OWCP terminated appellant’s wage-loss
compensation benefits, effective September 30, 2017.
It found that the report from
Dr. Blankenship constituted the weight of the evidence and established that appellant was capable
of performing the physical requirements of a rehabilitation/passport specialist position. OWCP
noted that the claim remained open for medical benefits.
On January 23, 2018 appellant requested reconsideration. In statements dated January 28
and February 19, 2018, he indicated that his conditions remained active with residuals. Appellant
asserted that the employing establishment had made no effort to return him to work.
In an August 4, 2017 note, Dr. Crowell indicated that he was never made aware of the job
requirements for a rehabilitation/passport specialist. He reviewed Dr. Blankenship’s report and
agreed that a repeat MRI scan was warranted.
In a January 8, 2018 report, Dr. Betton reported examination findings and provided an
assessment of calcific tendinitis of the shoulder. He indicated that appellant’s condition was
permanent and stationary. Dr. Betton noted that appellant’s disability had not ceased. He also
noted that he concurred with Dr. Blankenship’s May 23, 2017 and Dr. Crowell’s August 4, 2017
notes. In his January 8, 2018 work capacity evaluation (Form OWCP-5c), Dr. Betton indicated
that appellant had permanent restrictions. This included a two-hour limit for reaching for the left
side and no reaching for the right side.
In a January 18, 2018 report, Dr. Crowell provided an assessment of glenohumeral arthritis
right shoulder, acromioclavicular joint arthritis, and tendinitis rotator cuff right shoulder. He
3

reported that the MRI scan indicated that appellant had posture arthritis affecting the right shoulder
and the acromioclavicular joint and, as a result, he was permanently restricted from overhead duties
for his right shoulder. In a January 18, 2018 Form OWCP-5c work capacity evaluation,
Dr. Crowell indicated that maximum medical improvement had been reached and that appellant
was capable of working a full-time sedentary job with restrictions, which included no reaching or
reaching above the shoulder.
In duty status reports (Form CA-17), dated February 28, March 27, and April 26, 2018,
Dr. Betton indicated that appellant was able to work with restrictions.
By decision dated June 25, 2018, OWCP denied modification of its prior decision.
LEGAL PRECEDENT - ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.8
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.9
ANALYSIS - ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation effective September 30, 2017.
OWCP accepted appellant’s claim for right shoulder calcifying tendinitis and injury to the
right median nerve. It subsequently terminated his wage-loss compensation, effective
September 30, 2017, based on the report of Dr. Blankenship, a Board-certified orthopedic surgeon
serving as a second opinion examiner.
Dr. Blankenship opined in his May 23, 2017 report that while appellant had active residuals
from his 1992 conditions, he could perform the rehabilitation/passport clerk positon.
Dr. Blankenship also however recommended a repeat MRI scan as there was no current clinical or
diagnostic findings of record. OWCP, however, disregarded Dr. Blankenship’s recommendation
for a repeat MRI scan.
Once it undertook development of the medical evidence, OWCP had the responsibility to
do so in a manner that would resolve the relevant issues in the case.10 As such, it should have
7
See A.G., Docket No. 18-0749 (issued November 7, 2018); A.C., Docket No. 16-1670 (issued April 6, 2018);
Bernadine P. Taylor, 54 ECAB 342 (2003).
8

Id.

9

R.P., Docket No. 17-1133 (issued January 18, 2018).

10

See R.B., Docket No. 14-1043 (issued December 12, 2014); V.H., Docket No. 14-0433 (issued July 3, 2014).

4

obtained a supplemental report from Dr. Blankenship, after he had secured and reviewed the
recommended MRI scan.11
As OWCP did not complete the development of the medical record as recommended by
Dr. Blankenship, the Board finds that has not met its burden of proof to terminate appellant’s wageloss compensation, effective September 30, 2017.12
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation, effective September 30, 2017.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2018 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 27, 2019
Washington, DC

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

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

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

11

See G.R., Docket No. 16-0455 (issued December 13, 2016); see e.g., Glenn P. Buckmann, Docket No. 96-356
(issued December 5, 1997) (where the Board remanded the case for a clarifying opinion from the impartial medical
examiner as both he and the second opinion physician before him had indicated that further diagnostic testing was
warranted before assessing whether appellant had sustained an employment-related injury. However, OWCP had
denied appellant’s claim for an employment-related injury prior to obtaining the requested testing. The Board found,
therefore, that OWCP was obligated to undertake further development of the evidence).
12

Due to the disposition of issue one, issue two is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.O., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Tobyhanna, PA, Employer
__________________________________________

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

Docket No. 09-239
Issued: August 13, 2009

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 November 3, 2008 appellant filed a timely appeal from the merit decision of the
Office of Workers’ Compensation Programs dated October 23, 2008 issuing a schedule award
for four percent impairment of the left upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has established that he has greater than four percent
impairment of the left upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On February 27, 2008 appellant, then a 59-year-old electronics mechanic, filed a
traumatic injury claim alleging that on May 14, 2007 he sustained a left thumb laceration when,
while cutting a strap on an antenna, he cut his thumb with a utility knife. On March 12, 2008 the
Office accepted appellant’s claim for open wound of left finger without complications.

On September 9, 2008 appellant filed a claim for a schedule award. In support of his
claim for a schedule award, he submitted a June 13, 2008 report by Dr. Emmanuel Jacob, a
Board-certified physiatrist, who noted that, since appellant’s work injury on May 14, 2007, he
had pain and sensitivity of his left thumb. Dr. Jacob listed his diagnoses as: (1) laceration of left
thumb with neuropraxia; and (2) left thumb digital neuritis/neuropathy. He opined that appellant
had 10 percent impairment of his right upper extremity. Dr. Jacob calculated that appellant had a
seven percent impairment based on loss of power deficit. He calculated this figure by finding
that appellant’s left hand grip was a Grade 4/5, which was equivalent to 20 percent motor deficit
pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001).1 Dr. Jacob then noted that appellant was entitled to a maximum
impairment of 35 percent for motor deficit,2 which yielded an impairment of 7 percent of the
upper extremity. He then evaluated peripheral nerve system impairment based on left thumb
digital sensory impairment and left thumb median nerve digital neuropathy.3 Dr. Jacob found
that, utilizing the A.M.A., Guides, appellant had a Grade 3 impairment, which he determined
using the A.M.A., Guides Table 16-10 and his clinical judgment indicated 40 percent severity for
sensory deficit or pain.4 He noted that the maximum impairment of the upper extremity due to
sensory deficit or pain of the median nerve was seven percent.5 Multiplying the grade of
severity, 40 percent, by the maximum upper extremity impairment, 7 percent, Dr. Jacob
calculated that appellant had 3 percent upper extremity impairment due to peripheral nerve
system impairment (2.8 percent rounded up to 3 percent).
By memorandum dated October 16, 2008, the Office asked the Office medical adviser to
determine appellant’s impairment due to his open wound on left finger. On October 19, 2008 the
Office medical adviser opined that appellant was entitled to four percent schedule award due to
impairment of his left upper extremity. He discussed Dr. Jacob’s opinion that appellant was
entitled to seven percent impairment for left upper extremity weakness, but contended that the
A.M.A., Guides indicate that decreased strength cannot be rated in the presence of painful
conditions, further noting that appellant did not meet the criteria for any of the exceptions to this
rule.6 The Office medical adviser further stated that, while Dr. Jacob recommended a greater
impairment based upon determination of impairment due to motor loss of power deficits
resulting from peripheral nerve disorders of individual muscle rating, as appellant had sensory
abnormalities, it would be more appropriate to utilize Table 16-15, as Dr. Jacob also indicated.
He noted that Table 16-15 indicated that radial palmar digital thumb nerve is seven percent
maximum deficit for sensory loss of pain. The Office medical adviser then indicated that
Dr. Jacob recommended 50 percent for Grade 3 classification sensory deficit or pain, which he
multiplied by 7 percent maximum deficit for sensory loss or pain for the ulnar palmar digital of
1

A.M.A., Guides 484, Table 16-11.

2

Id. at 489, Table 16-13.

3

Id. at 486, Table 16-12b; 488, Figure 16-48.

4

Id. at 482, Table 16-10.

5

Id. at 492, Table 16-15.

6

Id. at 508, paragraph 16.8a.

2

thumb, which equaled 3.5 percent which he rounded off to 4 percent upper extremity
impairment.7
By decision dated October 23, 2008, the Office issued a schedule award for four percent
of the upper left extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing regulations,9 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.10
The A.M.A., Guides has been adopted by the implementing regulations as the appropriate
standard for evaluating schedule losses.11
ANALYSIS
The Board finds that the medical evidence of record does not establish that appellant has
more than four percent impairment of his left upper extremity.
Appellant’s treating physiatrist, Dr. Jacob, provided a detailed description of the results
of his physical examination. He listed his diagnoses as laceration of the left thumb with
neuropraxia and left thumb digital neuritis/neuropathy. Dr. Jacob found that appellant had 10
percent impairment of his left upper extremity. In reaching this conclusion, he calculated that
appellant had 7 percent impairment based on loss of power deficit as well as 3 percent
impairment based on a Grade 3 impairment, for which he indicated equaled 40 percent
impairment of the ulnar palmar digital of thumb, which equaled an additional 3 percent
impairment.
Pursuant to the A.M.A., Guides, in a rare case, if the examiner believes the individual’s
loss of strength represents an impairing factor that has not been considered adequately by other
methods in the A.M.A., Guides, the loss of strength may be rated separately. In the rare case
when the examiner judges that the loss of strength should be rated separately in an extremity that
presents other impairments, the impairment due to loss of strength could be combined with the
other impairments only if based on unrelated etiologic or pathomechanical causes. Otherwise,

7

Id. at 492, 482, Table 16-10. Table 16-15.

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

Id.

3

the impairment ratings based on objective anatomic findings take precedence.12 Dr. Jacob gave
no explanation as to why appellant’s case warranted a special award for loss of strength.
Accordingly, he erred when he found that appellant was entitled to seven percent impairment
based on loss of power deficit; a rating based on objective anatomic findings should take
precedence. Accordingly, Dr. Jacob’s finding that appellant had 10 percent impairment of his
left upper extremity is not proper.
The Office medical adviser, relying on Dr. Jacob’s findings, concluded that appellant had
four percent impairment of the left upper extremity. In reaching this conclusion, he noted that
Dr. Jacob recommended 50 percent for a Grade 3 classification for sensory deficit or pain, which
he multiplied by 7 percent maximum deficit for sensory loss or pain in the ulnar palmar digital
thumb, which he found equaled an impairment of 3.5 percent which he rounded off to 4 percent
upper extremity impairment.13 The Office made its rating based on the opinion of the Office
medical adviser. The Board finds that the Office properly found that the Office medical adviser
properly applied the A.M.A., Guides and found that appellant was not entitled to greater than
four percent impairment of the left upper extremity.14
CONCLUSION
The Board finds that appellant has not established that he has greater than four percent
impairment of this left upper extremity, for which he received a schedule award.

12

A.M.A., Guides 508, 16.8a.

13

Id. at 482, Table 16-10; 492, Table 16-15.

14

The Board notes that Dr. Jacob recommended 40 percent, not 50 percent, for classification for severity for
sensory deficit or pain.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 23, 2008 is affirmed.
Issued: August 13, 2009
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

5


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

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

Docket No. 12-1791
Issued: February 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 20, 2012 appellant filed a timely appeal of a February 21, 2012 nonmerit
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, because more
than 180 days elapsed from December 6, 2010, the date of the most recent merit decision, to the
filing of this appeal, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 24, 2009 appellant, then a 49-year-old criminal investigator, filed a traumatic
injury claim alleging that he sustained lower back pain while playing tennis on July 19, 2009.
He specified that the activity was part of an employer-authorized health improvement plan that
prepared him to meet updated annual physical fitness standards.2 In a July 22, 2009 note,
Dr. Jeffrey T. Hoeck, a Board-certified internist, excused appellant from work for the period
July 20 to 28, 2009. A July 28, 2009 note from Dr. Andrew S. Dobin, a Board-certified internist,
discharged him to regular duty effective July 29, 2009.
OWCP informed appellant in an August 4, 2009 letter that additional evidence was
needed to establish his claim. It gave him 30 days to submit a report from a qualified physician
explaining how a diagnosed condition resulted from the alleged event.
In an August 21, 2009 report, Dr. Hoeck detailed that appellant injured his back while
running and playing tennis on or around July 19, 2009. A July 22, 2009 physical examination
revealed stiff gait, posture pain, decreased lumbosacral range of motion, right paraspinous
muscle spasm and equivocal bilateral straight leg raise test. Dr. Hoeck diagnosed mechanical
back pain. He pointed out that appellant previously underwent lumbar laminectomy, but opined
that the present symptoms were unrelated to that procedure.
By decision dated September 9, 2009, OWCP denied appellant’s claim, finding the
medical evidence insufficient to establish that the accepted July 19, 2009 employment incident
caused or contributed to a back condition.
Appellant requested reconsideration on September 6, 2010, arguing that OWCP
erroneously interpreted the law with respect to the medical evidence.
On December 6, 2010 OWCP denied modification of the September 9, 2009 decision.
Appellant requested reconsideration on December 5, 2011. He contended that a sworn
statement from Jonathan Jones “clearly shows that it was a work related injury that caused me to
seek medical attention from Dr. Hoeck, and resulted in my inability to continue with my work
duties for several days.”3 OWCP did not receive this statement.
By decision dated February 21, 2012, OWCP denied appellant’s request on the grounds
that it did not receive new and relevant evidence warranting further merit review.

2

The case record contains copies of the employing establishment’s annual physical fitness standards testing
policy, its implementation memorandum and appellant’s monthly exercise activity logs.
3

The case record does not indicate that Mr. Jones is a qualified physician.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.6
ANALYSIS
By merit decisions dated September 9, 2009 and December 6, 2010, OWCP denied
appellant’s traumatic injury claim on the grounds that the medical evidence did not sufficiently
establish that the accepted July 19, 2009 employment incident caused or contributed to a back
condition. Appellant requested reconsideration on December 5, 2011 and indicated that he
would present new evidence, namely Mr. Jones’ sworn statement. However, OWCP did not
receive this statement or any other new evidence.7 Moreover, appellant did not assert a new
legal contention. Because he failed to meet one of the standards enumerated under section
8128(a) of FECA, he was not entitled to further merit review of his claim.
Appellant raises an argument on appeal that implicates the merits of his case. The Board
only has jurisdiction to consider whether OWCP properly denied his request for reconsideration
based on the evidence and argument of record at the time the February 21, 2012 nonmerit
decision was issued. As discussed above, appellant did not provide evidence or argument
satisfying any of the three regulatory criteria for reopening a claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.

4

5 U.S.C. § 8128(a).

5

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

6

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

7

In addition, the Board points out that the issue underlying OWCP’s merit decisions was whether the medical
evidence sufficiently established causal relationship. A medical issue such as causal relationship can only be
resolved through the submission of probative medical evidence from a qualified physician. See Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949). Since Mr. Jones was not
identified as a physician, his statement would have been immaterial. See D.K., 59 ECAB 141 (2007) (submission of
evidence that does not address the particular issue involved does not constitute a basis for reopening a case).

3

ORDER
IT IS HEREBY ORDERED THAT the February 21, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: February 19, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4