United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Memphis, TN, Employer
__________________________________________

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

Docket No. 09-660
Issued: November 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 8, 2009 appellant filed a timely appeal from the May 16, 2008 merit decision
of the Office of Workers’ Compensation Programs terminating his compensation benefits with
regard to the temporary work-related aggravation of cardiomyopathy. He also filed a timely
appeal from the October 6, 2008 nonmerit decision finding that he abandoned his request for a
hearing. 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.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits for aggravation of cardiomyopathy effective November 30, 2007; and (2) whether the
Office properly found that he abandoned his request for an oral hearing.
On appeal, appellant contends that his cardiac condition was permanently aggravated by
the stress of his federal employment. He also contends that he never received notification of the
oral hearing.

FACTUAL HISTORY
On July 5, 2006 appellant, then a 48-year-old air traffic control specialist, filed an
occupational disease claim alleging anxiety, depression, panic attacks and cardiopmyopathy
related to his federal employment. In November 2004, he had an operational error and in
April 2005 he had a close call involving an aircraft. After these two incidents, appellant was not
as confident as he used to be. In August 2005, while training a person, he experienced an
episode of sweating and his heart beating very fast such that he had to leave the control room.
The employing establishment stated on the claim form that, after August 31, 2005, appellant was
assigned temporary administrative-type duties due to medical restrictions imposed by the flight
surgeon.
On September 8, 2005 Dr. David Stewart, a Board-certified internist with a subspeciality
in cardiovascular disease, performed a single day dual isotope myocardial perfusion study. He
listed his impressions as an abnormal treadmill study with evidence of left ventricular dilation,
but no definite segmental ischemia and abnormal left ventricular systolic function.
On September 26, 2005 appellant saw Dr. Keith G. Anderson, a Board-certified internist
certified in the subspecialties of cardiovascular disease and interventional cardiology. He
complained of an abnormal echocardiogram (EKG). Dr. Anderson noted that, one month prior,
appellant had an episode of lightheadedness and diaphoresis. Appellant also experienced chronic
fatigue, moderate weight gain intermittent headaches and heart palpitations. Dr. Anderson stated
that appellant had brief hemoptysis which he attributed to an upper respiratory tract infection.
Appellant also had intermittent dyspepsia and multiple joint pains with some intermittent lower
extremity edema while at work. Dr. Anderson also found chronic anemia which was associated
with his lymphoma. He listed his impression as dilated cardiomyopathy possibly related to nonHodgkin’s lymphoma chemotherapy, presently compensated clinically.
In an October 3, 2005 report, Dr. Anderson noted that appellant underwent a cardiac
cauterization which confirmed fairly severe global hypokinesis with an ejection fraction (EF) of
30 to 35 percent. He stated that appellant had moderate coronary artery disease, but there were
no critical lesions and his cardiomyopathy was out of proportion to his coronary artery disease.
Dr. Anderson noted that it was unlikely that his coronary artery disease accounted for the
cardiomyopathy itself. On March 13, 2006 he advised that appellant underwent surveillance
EKG, which demonstrated improvement of his left ventricular ejection fraction which was now
44 percent. On June 7, 2006 Dr. Anderson noted that appellant’s dilated cardiomyopathy was
not caused by his work but might be aggravated, exacerbated or complicated by his current job.
Appellant took medical retirement as of May 9, 2006.
On June 30, 2006 appellant underwent selective renal angiography and bilateral renal
angioplasty stenting.
On July 20, 2006 appellant reiterated that, in late August 2005, while training a person
with his supervisor monitoring, he had an episode which included heart racing dizziness,
sweating and a strong urge to leave the area. He went home and made an appointment with his
family doctor who obtained an abnormal EKG. Appellant was referred to a psychiatrist, who

2

told him that his depression and stress had a link to his heart disease. He contended that the
stress from his job for almost 22 years contributed to his heart condition. Appellant
acknowledged that he smoked for the prior six years, less then a pack a day, and that he smoked
a pack a day from 1982 to 1990.
In a September 26, 2006 report, Dr. Anderson stated that appellant suffered from a
nonischemic dilated cardiomyopathy. While the cause of this condition was unknown and not
specifically related to appellant’s employment, his condition was exacerbated and aggravated by
exposure to employment as an air traffic controller. Dr. Anderson noted that appellant’s
prognosis was related to the degree of heart failure from which he suffered. Appellant’s status
was presently Class II congestive heart failure and if his prognosis worsened it would require
hospitalization for treatment. Dr. Anderson opined that exposure to employment as an air traffic
controller substantially increased appellant’s risk for decompression and adversely impacted his
prognosis. Appellant was on multiple medications which he would need to take indefinitely, as
his condition was not curable. The medications lowered his blood pressure substantially.
Dr. Anderson advised that exposure to full-time employment as an air traffic controller may not
be compatible with these medications. In a November 9, 2006 response to questions from the
Office, he stated that appellant had nonischemic dilated cardiomyopathy of undetermined
etiology. Dr. Anderson indicated that the exact cause of this condition would never be
determined. He reviewed the description of appellant’s job as an air traffic controller, and stated:
“The chronic job stress associated with being air traffic controller CAUSES decompensation of
his nonischemic dilated cardiomyopathy resulting in recurrent bouts of heart failure.” (Emphasis
in the original.) Dr. Anderson recommended that appellant no longer participate in air traffic
controlling.
On May 18, 2007 the Office accepted appellant’s claim for aggravation of major
depression.
On September 27, 2007 the Office referred appellant to Dr. Kishore Kumar Arcot, a
Board-certified internist specialist in cardiovascular disease and interventional cardiology, for a
second opinion. On October 11, 2007 Dr. Arcot reviewed appellant’s medical history. He noted
that appellant’s cardiomyopathy may be ischemic or nonischemic. Dr. Arcot stated that to his
knowledge there was no association with work-related stress as a cause for dilated
cardiomyopathy. Appellant had multiple risk factors for coronary athersclerosis, including
hypercholesterolemia and a history of chronic smoking. He also had peripheral vascular disease
with a significant documented coronary arthrosclerosis.
In a February 8, 2008 note, Dr. Anderson found that appellant could perform a sedentary
job for eight hours a day with limits of minimizing emotional and physical stress that could cause
his cardiac condition to deteriorate. Appellant had reached maximum medical improvement with
respect to the August 31, 2005 illness.
The Office found a conflict in medical opinion between Dr. Anderson and Dr. Arcot with
regard to whether appellant’s current cardiac condition was causally related to the August 31,
2005 employment injury. On February 25, 2008 it referred appellant to Dr. Matthew Smolin, a
Board-certified internist in the subspecialties of cardiovascular disease and interventional
cardiology. In a March 14, 2008 report, Dr. Smolin reviewed appellant’s history of medical

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treatment and conducted an echocardiogram and nuclear stress test. He noted appellant’s history
was positive for hypertension and hyperlipidemia. Dr. Smolin diagnosed idiopathic dilated
cardiomyopathy, mild in severity. By idiopathic, he meant that the etiology of the
cardiomyopathy was undetermined. Dr. Smolin did not believe that there was any evidence for
ischemic cardiomyopathy or for myocardial scarring. He also noted mild atherosclerotic heart
disease; palpitations; dyspnea and chest pain with no objective evidence of ischemia;
hypertension; hyperlipidemia.
Appellant had a history of non-Hodgkin’s lymphoma,
postchemotherapy and radiation therapy as well as a bone marrow transplant with no evidence of
disease. Appellant was a smoker, ongoing, with an undetermined psychiatric illness as
diagnosed and treated by Dr. Juan Javamillo. Dr. Smolin noted that appellant’s only current
symptoms with regard to the August 31, 2005 incident were heart palpitations. He noted that
appellant’s EF had improved when compared to his initial evaluations in 2005. Dr. Smolin
advised that the etiology and duration of the dilated cardiomyopathy was unknown. He opined
that the palpitations that appellant experienced on August 31, 2005 were likely the result of
appellant’s cardiomyopathy aggravated by the stress of his employment. However, Dr. Smolin
did not believe that the cardiomyopathy itself was the result of the employment. He opined that
appellant had recovered from any temporary aggravation of his cardiomyopathy by
November 2007. Dr. Smolin found that appellant’s prognosis was excellent. He attached results
from the stress test and myocardial perfusion imaging study, which noted normal wall motion
with an ejection fraction of 53 percent and no definite evidence of ischemia.
By decision issued May 16, 2008, the Office accepted appellant’s claim for a temporary
aggravation of cardiomyopathy from August 31, 2005 through November 30, 2007. In a
separate decision dated May 16, 2008, it terminated appellant’s medical and compensation
benefits effective November 30, 2007 because the medical evidence established that he no longer
had any residuals or disability due to the temporary aggravation.
On June 11, 2008 appellant requested an oral hearing, by telephonic hearing. In a July 1,
2008 letter, the Office acknowledged receipt of the oral hearing request. By letter dated
August 22, 2008, it sent appellant notification that a telephonic hearing would be held on
September 26, 2008 at 1:00 pm. The letter provided the toll free number and pass code for the
hearing. The letter was addressed to appellant’s address of record.
In an October 6, 2008 decision, the Office found that appellant abandoned his request for
a hearing. It noted that a hearing was scheduled for September 26, 2008, that he received proper
notice of the hearing, but that failed to call the Office as directed on the date of the hearing, or
subsequently contact the Office to provide the reasons for his failure to appear.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.1 Having determined that an employee has a disability
causally related to his federal employment, the Office may not terminate compensation without
1

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006); George A. Rodriguez, 57 ECAB
224 (2005).

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establishing either that the disability has ceased or that it is no longer related to the employment.2
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.3 To terminate authorization for medical treatment, the Office
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.4 The fact that the Office accepts a claim for a specified period
of disability does not shift the burden of proof to the employee to show he or she is still
disabled.5
Under the Federal Employees’ Compensation Act, when employment factors cause an
aggravation of an underlying condition, the employee is entitled to compensation for the periods
of disability related to the aggravation. When the aggravation is temporary and leaves no
permanent residuals, compensation is not payable for periods after the aggravation has ceased,
even if the employee is medically disqualified from continuing employment due to the
underlying condition.6
Section 8123(a) of the Act provides in pertinent part: If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.7 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.8
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for temporary aggravation of his cardiomyopathy
from August 31, 2005 through November 30, 2007. It terminated his compensation benefits for
this condition as of November 30, 2007 finding that the medical evidence established that he did

2

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Elaine Sneed, 56 ECAB 373 (2005).

3

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008); Jaja K. Asaramo, 55 ECAB 200 (2004);
Furman G. Peake, 41 ECAB 361 (1990).
4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); T.P., 58 ECAB ___ (Docket No. 07-60,
issued May 10, 2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).
5

See Dawn Sweazy, 44 ECAB 824 (1993).

6

See Raymond W. Behrens, 50 ECAB 221 (1999).

7

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).
8

Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

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not have any residuals or disability after that date.9 It is the Office’s burden to demonstrate that
his disability ceased or was no longer employment related.10
Dr. Anderson opined that appellant’s job stress associated with working as an air traffic
controller caused decompensation of his nonischemic dilated cardiomyopathy resulting in
recurrent bouts of heart failure. The second opinion physician, Dr. Arcot, found that there was
no association between work-related stress and dilated cardiomyopathy. He noted that appellant
had multiple risk factors for coronary arthrosclerosis including hypercholesterolemia and history
of chronic smoking. Appellant also had peripheral vascular disease with a significant association
for coronary artery disease. As there was a conflict between the opinion of appellant’s treating
physician and that of the second opinion physician with regard to whether appellant’s cardiac
condition was caused by his employment, the Office properly referred him to Dr. Smolin for an
impartial medical examination.
In a report dated March 14, 2008, Dr. Smolin noted mild atherosclerotic heart disease,
palpitations, dyspnea and chest pain with no objective evidence of ischemia, hypertension and
hyperlipidemia. He noted that the etiology and duration of the dilated cardiomyopathy were
unknown. Dr. Smolin opined that the heart palpitations that appellant experienced on August 31,
2005 were likely the result of his underlying cardiomyopathy aggravated by the stress of his
employment. He did not find evidence that the cardiomyopathy itself was the result of
appellant’s federal employment. Dr. Smolin also noted that appellant recovered from the
temporary aggravation of his cardiomyopathy by November 2007. He based this on the fact that
the documented change in appellant’s condition on diagnostic testing since 2005 has been
favorable with substantial recovery of his ejection fraction, such that he was substantially
recovered by November 2007.
The Board finds that the opinion of Dr. Smolin, a Board-certified cardiologist selected for
the purpose of resolving the conflict in opinion, is entitled to special weight.11 Dr. Smolin’s
opinion is based on an accurate factual and medical history, and a detailed examination and
diagnostic tests. He found that appellant’s cardiomyopathy was aggravated by the stress of his
employment but that appellant recovered from this temporary aggravation by November 2007.
Based on this report, the Office properly accepted appellant’s claim for a temporary aggravation
of his cardiomyopathy from August 31, 2005 through November 30, 2007 and appropriately
found that this aggravation ceased after November 30, 2007. Accordingly, the Board finds that
the Office properly terminated appellant’s compensation and medical benefits for aggravation of
cardiopathy as of November 30, 2007.

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The Board notes that the Office also accepted appellant’s claim for aggravation of major depression and is
paying appropriate benefits for this condition. The fact that the Office is paying benefits with regard to his
depression is not affected by the termination of benefits with regard to his cardiac condition.
10

See Dawn Sweazy, supra note 5.

11

Kathryn E. Demarsh, 56 ECAB 677 (2005).

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LEGAL PRECENT -- ISSUE 2
A claimant who has received a final adverse decision by the Office may obtain a hearing
by writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.12 Unless otherwise directed in writing by the claimant, the Office
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.13 Chapter 2.1601.6(e) of the
Office’s procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to
appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the
hearing.
Under these circumstances, H&R [the Branch of Hearings and Review]
will issue a formal decision finding that the claimant has abandoned his or
her request for a hearing and return the case to the DO [district Office].”14
ANALYSIS -- ISSUE 2
In the present case, the Office sent notice that the telephonic hearing would be held on
September 26, 2008 at 1:00 pm to appellant’s address of record. It also sent him instructions as
to how to connect with the telephonic hearing. This notice was not returned as undeliverable.
Thus, under the mailbox rule, the presumption is that appellant received proper notification of his
hearing.15
There is no evidence that appellant requested a postponement or attempted to telephone
the Office hearing representative at the designated time on November 8, 2007. In addition, there
is no evidence of record that he provided notification of his failure to participate in the scheduled
hearing within 10 days of the scheduled date.

12

20 C.F.R. § 10.616(a).

13

Id. at § 10.617(b).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearing and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).
15

Under the mailbox rule, a letter properly address and mailed in the due course of business, such as in course of
the Office’s daily activities, is presumed to have arrived at the mailing address in due course. See James A. Gray, 54
ECAB 277 (2002); Charles R. Hibbs, 43 ECAB 699 (1992).

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The Board accordingly finds that, based on the evidence of record, appellant abandoned
his request for a hearing in this case.16 The Office properly issued a formal decision finding
abandonment of the hearing request.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation and
medical benefits for aggravation of cardiomyopathy effective November 30, 2007. The Board
further finds that the Office properly found that appellant abandoned his request for an oral
hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 6 and May 16, 2008 are affirmed.
Issued: November 24, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

16

See C.T., 60 ECAB ___ Docket No. 08-2160, issued May 7, 2009).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kingsville, TX, Employer
__________________________________________

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

Docket No. 16-1403
Issued: December 22, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 3, 2016 appellant filed a timely appeal from a January 11, 2016 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,625.37 during the period April 1, 2014
through February 27, 2015 for which he was not at fault; and (2) whether it properly denied
waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as set forth in the
Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On May 20, 2011 appellant, then a 47-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained an injury to his left leg as a result of duties
of his federal employment as of May 4, 2011. On August 25, 2011 OWCP accepted his claim
for thoracic or lumbosacral neuritis or radiculitis, left internal derangement of the knee, and left
contusion of the lower leg. He received wage-loss compensation on the periodic rolls from
August 30, 2012 to March 8, 2014. Appellant returned to part-time modified work on March 3,
2014 and then received compensation on the supplemental rolls based on his partial disability.
She filed claims for compensation (Form CA-7). By decisions dated July 21, 2014, OWCP
denied appellant’s claims for total disability compensation on March 27, 2014 and for periods of
total disability after April 1, 2014. On October 14, 2014 appellant appealed to the Board. In a
March 13, 2015 decision, the Board found that OWCP had properly denied appellant’s claims for
total disability compensation for March 27, 2014 and subsequent to April 1, 2014.3
In a financial worksheet dated March 11, 2015, an OWCP representative calculated what
appellant owed for the unpaid health and life insurance premiums for the period April 1, 2014
through February 27, 2015. He calculated that appellant owed $3,414.92 in deductions for health
insurance premiums for the following periods: April 1 through 5, 2014; April 6, 2014 through
January 10, 2015; January 11 through February 7, 2015; and February 8 through 27, 2015. The
representative additionally calculated that appellant owed $210.45 for life insurance premiums
for the following periods: April 1 through 5, 2014; April 6, 2014 through February 7, 2015; and
February 8 through 27, 2015.
On March 18, 2015 OWCP advised appellant that a preliminary determination that he had
been overpaid in the amount of $3,625.37 for the period April 1, 2014 through February 27, 2015
because it had failed to deduct health benefits or basic life insurance premiums for that period. It
also made the preliminary determination that appellant was without fault in the creation of the
overpayment because appellant was not aware nor could he reasonably be expected to know that
OWCP had paid compensation incorrectly. OWCP provided appellant 30 days to challenge the
proposed overpayment, request a telephonic conference, and to submit financial information.
On March 22, 2015 appellant requested a prerecoupment hearing before an OWCP
hearing representative on the issue of his overpayment. He stated that the overpayment was not
his fault, and noted that he also disagreed that the overpayment occurred and with its amount.
With his request, appellant completed an overpayment recovery questionnaire (Form
OWCP-20), which noted no monthly income, along with a rent payment of $723.00 per month;
food costs of $400.00 per month; clothing costs of $300.00 per month; utility expenses of
$500.00 per month; loan expenses of $75.00 per month; and other expenses of $727.00 per
2

Docket No. 15-0071 (issued March 13, 2015).

3

Id.

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month. He claimed no cash on hand, no savings account balance, no current value of stocks or
bonds, no value of personal property, and $500.00 of debt to his checking account balance.
Appellant also claimed that OWCP had underpaid him.4
The hearing was held on October 16, 2015. Appellant noted to the hearing representative
that he had retirement income of roughly $1,400.00 per month. He noted that he had two
teenage daughters who did not work and attended school. Appellant verified that he had rent of
$723.00 per month, with utilities of $90.00 to $100.00 per month. He noted that he spent
roughly $400.00 per month on food and nothing on clothing. Appellant speculated that he might
have a Thrift Savings Plan, but that he had not used it. The hearing representative explained that
he would send another financial information form for appellant to complete.
On November 11, 2015 appellant submitted a corrected overpayment recovery
questionnaire, noting monthly income from social security benefits of $1,954.00 and benefits
from OPM of $990.88. He recorded no other sources of income. Appellant noted monthly costs
of $566.75 in rent, $500.00 in food, $200.00 in clothing, $429.00 in utilities, and other expenses
of $887.00 per month. He also noted an extra $50.00 per month under “other expenses” and
$150.00 per month for “necessities.” Appellant noted that he had no funds whatsoever other
than $2.00 in his checking account.
By decision dated January 11, 2016, OWCP finalized the preliminary determination and
found that appellant received a $3,625.37 overpayment of compensation. It found that appellant
was without fault in the creation of the overpayment, but that he was not eligible for waiver of
recovery, as the figure reported established that appellant retained at least $300.00 to $400.00 per
month after paying his monthly living expenses. OWCP noted that, while appellant had reported
$1,954.20 per month from social security benefits, the statement he provided from social security
indicated that his monthly payment would be $2,107.00 each month after September 23, 2015. It
found that his monthly income was $2,107.00 in social security benefits plus $990.88 from OPM
retirement benefits, for a total of $3,097.88 in monthly income. OWCP found that his monthly
expenses included $566.75 in rent, $500.00 in food, $200.00 in clothing, $429.00 in utilities, and
$887.00 in other expenses, for a total of $2,582.75 in monthly expenses. It found that the
overpayment should be repaid through payments of $200.00 every 28 days based on these
figures.
LEGAL PRECEDENT -- ISSUE 1
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.5 When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.6
4

Appellant elected Office of Personnel Management (OPM) retirement benefits as of June 29, 2015.

5

Id. at § 8102(a).

6

Id. at § 8129(a).

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Under Federal Employees’ Group Life Insurance, most civilian employees of the Federal
Government are eligible to participate in basic life insurance and one or more of the options.
When an under withholding of life insurance premiums occurs, the entire amount is deemed an
overpayment because OWCP must pay the full premium to OPM upon discovery of the error.7
The Board has similarly recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.8
ANALYSIS -- ISSUE 1
The record reflects that OWCP failed to recover the health and life insurance premiums
for the period April 1, 2014 through February 27, 2015. An overpayment occurred due to the
nonrecovery of these health and life insurance premiums. OWCP provided a worksheet
explaining how the overpayment was calculated for this time period. It calculated that appellant
owed $3,414.92 in deductions for health insurance premiums for the following periods: April 1
through 5, 2014; April 6, 2014 through January 10, 2015; January 11 through February 7, 2015;
and February 8 through 27, 2015. OWCP further calculated that the government owed
$10,245.35 for the same period. It additionally calculated that appellant owed $210.45 for life
insurance premiums for the following periods: April 1 through 5, 2014; April 6, 2014 through
February 7, 2015; and February 8 through 27, 2015. The amount of the overpayment was,
therefore, $3,414.92 in health insurance premiums and $210.45 in life insurance premiums, for a
total of $3,625.37.
The Board finds that an overpayment of compensation was created in the amount of
$3,625.37 due to underwithholding of health insurance and life insurance premiums.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.9 These statutory guidelines
are found in section 8129(b) of FECA which states: Adjustment or recovery of an overpayment
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.10 When a claimant is found to be
without fault in the matter of the overpayment, then, in accordance with section 8129(b), OWCP
may only recover the overpayment if it determined that recovery of the overpayment would
neither defeat the purpose of FECA nor be against equity and good conscience.11
7

See J.H., Docket No. 15-1385 (issued October 27, 2015).

8

James Lloyd Otte, 48 ECAB 334 (1997).

9

See Robert Atchison, 41 ECAB 83, 87 (1989).

10

5 U.S.C. § 8129(b).

11

M.G., Docket No. 14-1917 (issued January 22, 2015).

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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. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. This
information will also be used to determine the repayment schedule, if necessary. Failure to
submit the requested information within 30 days of the request shall result in denial of waiver,
and no further request for waiver shall be considered until the requested information is
furnished.12
ANALYSIS -- ISSUE 2
OWCP found appellant to be without fault in creating the overpayment. The issue is
whether recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience. OWCP provided appellant with an OWCP-20 form and requested in the
March 18, 2015 preliminary determination that he submit supporting financial documentation
with respect to his monthly income and expenses. Appellant was notified of the provisions of
20 C.F.R. § 10.438.
Appellant provided a corrected overpayment recovery questionnaire on November 11,
2015 and clarified his financial situation at the prerecoupment hearing. Based on his testimony
and information from the overpayment recovery questionnaire, OWCP’s hearing representative
found that appellant had monthly income of $3,097.88 and monthly expenses of $2,582.75, for a
total monthly surplus of $515.13. As such, the hearing representative found that appellant had
sufficient surplus monthly income remaining to pay the overpayment and denied waiver.
The Board finds that OWCP properly denied waiver. OWCP did not abuse its discretion
in finding that recovery of the overpayment would not defeat the purpose of FECA or be against
equity and good conscience.13 Pursuant to 20 C.F.R. §§ 10.436 and 10.438, it may properly deny
waiver of the overpayment. For this reason, OWCP properly denied waiver in conformance with
the implementing federal regulations.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $3,625.37 for which he was not at fault. The Board further finds that OWCP properly denied
waiver of recovery.

12

20 C.F.R. § 10.438.

13

See D.I., Docket No. 13-469 (issued July 1, 2013). See also N.R., Docket No. 12-1853 (issued June 10, 2013).

5

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.K., Appellant
and
U.S. POSTAL SERVICE, YBOR CITY
PROCESSING & DISTRIBUTION CENTER,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0989
Issued: January 25, 2022

Case Submitted on the Record

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

JURISDICTION
On April 8, 2020 appellant, through his representative, filed a timely appeal from a
February 20, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 20, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish total disability from
work for the period August 4 through December 3, 2018 causally related to his May 24, 2017
employment injury.
FACTUAL HISTORY
On May 25, 2017 appellant, then a 60-year-old electronic technician, filed a traumatic
injury claim (Form CA-1) alleging that on May 24, 2017 he sustained an injury to his right low
back when he attempted to fix an automated parcel and bundle sorter that was jammed while in
the performance of duty. He stopped work on that date and returned to full-time, modified-duty
work on July 30, 2017. OWCP accepted appellant’s claim for aggravation of intervertebral disc
displacement of the lumbar region and paid him wage-loss compensation on the supplemental rolls
from July 9 through 29, 2017.4
On September 29, 2017 appellant accepted a full-time, modified-duty assignment as an
electronic technician.5
Appellant continued to receive medical treatment. In a June 26, 2018 report, Dr. Jorge J.
Inga, a Board-certified neurosurgeon, noted that appellant was evaluated for complaints of
persistent lumbar pain radiating into his bilateral lower extremities, which was exacerbated by
prolonged standing or bending forward. Upon examination of appellant’s lumbar spine, he
observed restricted range of motion and tenderness and spasm of the paraspinal muscles. Dr. Inga
also provided a work excuse note, which indicated that appellant was unable to work for the next
two weeks due to a “flare up of his lumbar symptoms.”
In reports dated July 9 and August 9, 2018, Dr. Inga recounted appellant’s complaints of
persistent lumbar pain radiating into the bilateral lower extremities, worse on the right side. He
reviewed appellant’s diagnostic testing and conducted an examination. Dr. Inga indicated that
appellant had been treated conservatively for his lumbar pathology since May 2017 without
improvement. He explained that, because of appellant’s persistent disabling symptoms and
inability to achieve symptomatic control with medical management, appellant was a candidate for
lumbar laminectomy, discectomy, and fusion at L4-5 and L5-S1. Dr. Inga reported that appellant
was temporarily totally disabled and would remain in that work status until his surgery.
In a July 12, 2018 letter, Dr. Inga reported that appellant had a diagnosis of herniated
lumbar discs at L4-5 and L5-S1 and would be undergoing surgery on August 24, 2018. He

4
The present claim is assigned OWCP File No. xxxxxx792. Appellant also has previously accepted traumatic
injury claims. Under OWCP File No. xxxxxx831, OWCP accepted that he sustained lumbar disc bulge at L4-5 and
lumbar radiculopathy causally related to an August 22, 2015 employment injury. Under OWCP File No. xxxxxx372,
it accepted appellant’s claim for lumbar herniated disc with radiculopathy as causally related to a December 28, 2016
employment injury. OWCP administratively combined OWCP File Nos. xxxxxx372, xxxxxx792 and xxxxxx831,
with the latter designated as the master file.
5

The duties of the modified electronic technician position required loading, unloading, and operating a cardboard
compactor. The physical requirements of the position included no repetitive pushing, pulling, or bending, no lifting
over 30 pounds, no climbing, and rotating standing, sitting, and walking 30 minutes at a time.

2

indicated that appellant was temporarily totally disabled and unable to engage in any em ployment
for the period July 9 through October 24, 2018.
On August 7, 2018 OWCP referred appellant’s medical record, along with a statement of
accepted facts (SOAF), to Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon serving as
an OWCP district medical adviser (DMA) to determine whether the proposed low back disc
surgery was medically necessary or causally related to appellant’s May 24, 2017 employment
injury. In an August 15, 2018 report, Dr. Ugokwe, noted that he had reviewed the medical
evidence of record, including Dr. Inga’s July 9, 2018 report. He opined that appellant’s current
back condition was causally related to his original work injury because his previous back condition
was under control until the original work injury aggravated it. The DMA also responded “Yes”
indicating that the proposed lumbar surgery was causally related to the accepted injury. He further
responded “No” to the question of whether the proposed lumbar surgery was medically
necessitated because appellant did not have evidence of instability or significant stenosis that
required an aggressive decompression.
An August 16, 2018 lumbar spine x-ray examination scan demonstrated mild anterior
degenerative vertebral endplate spondylosis at L1-2, L2-3, L3-4, and L4-5.
In a September 18, 2018 report, Dr. Inga recounted appellant’s complaints of progressively
worsening lumbar pain that was exacerbated by sitting down. He noted that appellant was a
candidate for lumbar surgery at L4-5 and L5-S1. Dr. Inga reported that, because of persistent
disabling symptoms, appellant remained temporarily totally disabled.
Dr. Inga also completed duty status reports (Form CA-17) dated June 26 through
September 18, 2018, which indicated that appellant was totally disabled.
On October 15, 2018 OWCP requested that the DMA, Dr. Ugokwe, provide an addendum
report clarifying whether the proposed lumbar surgery was medically necessary to treat appellant’s
lumbar injuries. In an October 23, 2018 report, the DMA indicated that he had reviewed the
combined case files. He reported that he still believed that the proposed lumbar surgery was
causally related to appellant’s accepted employment injuries, but was not medically necessary to
treat appellant’s accepted lumbar injuries.
In an October 19, 2018 report and Form CA-17, Dr. Inga indicated that appellant continued
to complain of persistent pain in the lumbar area with sciatic radiation going down the right lower
extremity. He provided examination findings and recommended that appellant undergo lumbar
laminectomy, discectomy, and fusion at L4-5 and L5-S1. Dr. Inga noted that appellant remained
totally disabled. In an undated progress report received on October 25, 2018, he performed a
physical examination and noted that appellant was still a candidate for lumbar laminectomies,
discectomies, and fusion with instrumentation at L4-5 and L5-S1. Dr. Inga opined that appellant
had not reached maximum medical improvement and remained temporarily total disabled.
On October 29 and November 12 and 26, 2018 appellant filed several claims for
compensation (Form CA-7) for disability from work for the period August 4 through
November 23, 2018, for leave without pay (LWOP) and night differential.6 In an attached time
analysis (Form CA-7a), he claimed eight hours of LWOP each on: August 18, 19, 20, 23, 24, 25,
6

Appellant initially filed several CA-7 forms on October 11, 2018, but portions of the forms were illegible.

3

26, 27, 30, and 31, 2018; September 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 27,
28, 29, and 30, 2018; October 1, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25, 26, 27, 28,
and 29, 2018; and November 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, and 23, 2018.
Appellant noted that his reason for leave use was “physician orders.”
In a November 20, 2018 development letter, OWCP advised appellant that the evidence
submitted was insufficient to establish total disability commencing August 4, 2018 and requested
that he submit additional evidence to establish that he was unable to work due to his May 24, 2017
employment injury. It provided a questionnaire for his completion and specifically requested that
he submit a physician’s opinion explaining how the claimed disability was due to his accepted
cervical conditions. OWCP afforded appellant 30 days to provide the requested evidence.
In reports dated November 27 and December 3, 2018, Dr. Inga noted appellant’s
complaints of continued lumbar pain and provided examination findings. He reported that
appellant’s insurance had denied authorization for the proposed lumbar surgery and recommended
pain management. Dr. Inga advised that appellant could return to work on December 5, 2018 with
restrictions of lifting up to 20 pounds and no repetitive pushing, pulling, bending, lifting, climbing,
or manual work and completed a Form CA-17.
On December 6, 2018 appellant accepted a full-time, modified-duty job offer as an
electronic technician.
On December 10, 2018 appellant filed a Form CA-7 for total disability for the period
November 24 through December 3, 2018, for LWOP and night differential. In an attached Form
CA-7a, he claimed eight hours of LWOP each on November 24, 25, 26, 29, and 30, 2018 and
December 1, 2, and 3, 2018. Appellant noted that his reason for leave use was “physician orders.”
In a December 19, 2018 report, Dr. Dario A. Grisales, a pain management specialist,
indicated that appellant was evaluated for complaints of low back pain radiating to th e bilateral
posterior thighs due to a May 24, 2017 work injury. Upon examination of appellant’s lumbar
spine, he observed pain on range of motion, paraspinal tenderness upon palpation, and tenderness
at the facet joints L3-4, L4-5, and L5-S1. Straight leg raise testing was positive. Dr. Grisales
diagnosed low back pain, lumbar radiculopathy, lumbosacral spondylosis without myelopathy or
radiculopathy, spondylosis without myelopathy or radiculopathy, sacroiliitis, lumbosacral plexus
disorder, and muscle spasms.
In a January 14, 2019 work excuse note, Dr. Grisales indicated that appellant could return
to light duty on January 15, 2019.
In a January 29, 2019 report, Dr. Grisales recounted appellant’s complaints of continued
low back pain radiating to the right posterior thigh and provided examination findings. He
completed a work capacity evaluation (Form-OWCP 5c) indicating that appellant could work full
time with restrictions of pushing, pulling, and lifting up to 35 pounds.
OWCP referred appellant, along with a SOAF, a copy of the case record, to Dr. William
Dinenberg a Board-certified orthopedic surgeon, for a second opinion evaluation regarding
whether the proposed low back disc surgery was medically necessary or causally related to
appellant’s May 24, 2017 employment injury. In a February 8, 2019 report, Dr. Dinenberg noted
his review of the SOAF and discussed the medical treatment that appellant had received for his
August 22, 2015 and May 24, 2017 employment injuries. Upon physical examination of
4

appellant’s lumbar spine, he observed tenderness of the lumbar spine to palpation and pain to
gentle axial load. Straight leg raise testing was positive on the right and negative on the left.
Dr. Dinenberg diagnosed lumbar disc bulge at L4-5 with right-sided lumbar radiculopathy. In
response to OWCP’s question, he indicated that the proposed lumbar laminectomy/discectomy
was medically necessary and connected to the accepted condition of lumb ar disc bulge with rightsided lumbar radiculopathy. Dr. Dinenberg also reported that the L5-S1 disc bulge did not appear
to be related to the August 22, 2015 employment injury. He further reported that the proposed
lumbar fusion surgery was not medically necessary as there was no evidence of instability of
appellant’s lumbar spine.
By decision dated March 5, 2019, OWCP denied appellant’s claim for compensation due
to total disability for the period August 4 through December 3, 2018. It found that the medical
evidence of record was insufficient to establish that he was disabled from work during the claimed
period due to his May 24, 2017 employment injury.
Appellant continued to receive medical treatment and submitted reports and CA-17 forms
dated February 26 through April 24, 2019 from Dr. Inga. He noted a diagnosis of disc protrusion
at L4-5 and indicated that he could work with restrictions of pushing, pulling, bending, or lifting
up to 20 pounds.
OWCP also received medical evidence from Dr. Grisales. In reports and OWCP-5c forms
dated March 26 through November 25, 2019, Dr. Grisales indicated that appellant was seen for
follow-up examination for complaints of low back pain radiating bilaterally to appellant’s thighs.
He provided examination findings and indicated that appellant could continue working full-time,
modified-duty work with restrictions of pushing, pulling, and lifting up to 35 pounds.
In a May 13, 2019 letter, Dr. Inga indicated that he had treated appellant for diagnosis of
herniated lumbar discs at L4-5 and L5-S1. He reported that appellant had a “flare up of his lumbar
symptoms for which he will need to remain off work until May 24, 2019.”
On May 16, 2019 appellant stopped work. OWCP paid him wage-loss compensation on
the supplemental rolls beginning May 16, 2019.
A May 29, 2019 lumbar spine magnetic resonance imaging (MRI) scan demonstrated mild
bilateral facet arthropathy at L4-5 and L5-S1 and no evidence of acute post-traumatic injury.
In a May 24, 2019 report and Form CA-17, Dr. Inga indicated that appellant’s clinical
symptoms had deteriorated. He reported lumbar examination findings of tenderness and spasm of
the paraspinal muscles. Dr. Inga indicated that appellant remained a candidate for lumbar
laminectomies, discectomies, and fusion with instrumentation at L4-5 and L5-S1. He concluded
that appellant remained temporarily totally disabled.
In reports and CA-17 forms dated June 20 and July 30, 2019, Dr. Inga indicated that
appellant was his patient for diagnosis of herniated lumbar discs at L4-5 and L5-S1. He noted that
appellant could return to work for four hours per day with restrictions of pushing, pulling, bending,
or lifting up to 20 pounds.
On August 3, 2019 appellant began to work part-time, modified-duty work for four hours
per day.
5

On August 16, 2019 OWCP referred appellant’s medical record, along with a SOAF, to
Dr. Ugokwe, serving as an OWCP DMA to determine whether the proposed low back disc surgery
was medically necessary or causally related to appellant’s May 24, 2017 employment injury. In a
September 23, 2019 report, the DMA, Dr. Ugokwe, indicated that he had reviewed Dr. Inga’s
May 24, 2019 report and agreed that appellant’s current lumbar conditions and proposed low back
surgery were causally related to appellant’s accepted May 24, 2017 employment injury. He also
explained that the proposed surgery was not medically necessary to treat appellant’s accepted
lumbar injury because there was no evidence of instability.
On December 4, 2019 appellant, through counsel, requested reconsideration.
Appellant submitted a December 3, 2019 progress note from Dr. Inga. Dr. Inga indicated
that appellant continued to complain of lumbar and mid-thoracic pain radiating into the right lower
extremity. He provided examination findings and noted that appellant underwent cervical surgery
a few weeks ago. Dr. Inga reported that appellant was still a candidate for lumbar laminectomies,
discectomies, and fusion with instrumentation at L4-5 and L5-S1 and remained unable to work.
In a January 14, 2020 progress note, Dr. Inga advised that appellant could return to work
with restrictions of lifting, pushing, and pulling up to five pounds and no repetitive pushing,
pulling, bending, or lifting.
In a January 14, 2020 report and Form OWCP-5c, Dr. Grisales recounted appellant’s
complaints of continued low back pain radiating into the bilateral lower extremities. He conducted
an examination and indicated that appellant could work part-time, modified duty for four hours
per day. Dr. Grisales recommended that appellant undergo lumbar laminectomy at L4-5.
By decision dated February 20, 2020, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employmen t injury.8 The term disability is
defined as the incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of the injury. 9 For each period of disability claimed, the employee has the
burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.10
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position, or the medical evidence
7

Supra note 2.

8

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
9

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).
10

See D.G., Docket No. 18-0597 (issued October 3, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005).

6

establishes that he or she can perform the limited-duty position, the employee has the burden of
proof to establish by the weight of reliable, probative, and substantial evidence a recurrence of
total disability and to show that he or she cannot perform such limited-duty work. As part of this
burden of proof, the employee must show a change in the nature and extent of the injury -related
condition or a change in the nature and extent of the limited-duty job requirements. 11 This burden
of proof includes the necessity of furnishing evidence from a qualified physician who concludes,
on the basis of a complete and accurate factual and medical history that, for each period of
disability claimed, the disabling condition is causally related to th e employment injury, and
supports that conclusion with medical reasoning. 12 Where no such rationale is present, the medical
evidence is of diminished probative value. 13
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the claimed disability and the specific employment factors
identified by the claimant.14
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self -certify his or her disability and
entitlement to compensation. 15
ANALYSIS
The Board finds that this case is not in posture for decision.
In January 2019, OWCP referred appellant, along with a SOAF, a copy of the case record,
and a series of questions, to Dr. Dinenberg for a second opinion evaluation regarding whether the
proposed low back disc surgery was medically necessary or causally related to appellant’s May 24,
2017 employment injury. In a February 8, 2019 report, Dr. Dinenberg noted in response to
OWCP’s question that the proposed lumbar laminectomy/discectomy was medically necessary and
connected to the accepted condition of lumbar disc bulge with right-sided lumbar radiculopathy.
He also reported that the L5-S1 disc bulge did not appear to be related to the August 22, 2015
employment injury and further reported that the proposed lumbar fusion surgery was not medically
necessary as there was no evidence of instability of appellant’s lumbar spine. On August 16, 2019
OWCP referred appellant’s medical record, along with a SOAF, to Dr. Ugokwe, serving as an
OWCP DMA to determine whether the proposed low back disc surgery was medically necessary
or causally related to appellant’s May 24, 2017 employment injury. In a report dated
11

S.F., Docket No. 19-1735 (issued March 12, 2020); J.B., Docket Nos. 18-1752, 19-0792 (issued May 6, 2019);
C.G., Docket No. 16-1503 (issued May 17, 2017); Terry R. Hedman, 38 ECAB 222 (1986).
12

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

13

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

14

V.A., Docket No. 19-1123 (issued October 29, 2019).

15

See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).

7

September 23, 2019, Dr. Ugokwe opined that the proposed lumbar surgery was causally related to
appellant’s accepted employment injuries, but was not medically necessary to treat appellant’s
accepted lumbar injuries.
The Board finds that OWCP failed to properly develop appellant’s claims for compensation
for disability during the period August 4 through December 3, 2018. When OWCP referred the
case for DMA and second opinion evaluations, it should have also inquired as to whether
appellant’s disability from work for the period August 4 through December 3, 2018 was causally
related to any employment-related conditions
It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16 OWCP has an obligation to see that justice is
done.17 Thus, the Board will remand the case to OWCP for further development of the medical
evidence in order to determine whether appellant’s disability from work beginning August 4, 2018
was causally related to his accepted August 22, 2015 and May 24, 2017 employment injuries. On
remand, OWCP shall request a supplement report from Dr. Dinenberg addressing specifically
whether appellant’s disability from work for the period August 4 through December 3, 2018 was
causally related to any employment-related conditions. Following this, and any other further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

16

See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);
Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8 ECAB 769, 770-71; Dorothy L. Sidwell, 36 ECAB
699, 707 (1985).
17

See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).

8

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: January 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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)
)

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

Docket No. 14-1429
Issued: November 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 4, 2014 appellant, through his attorney, filed a timely appeal of the
April 30, 2014 decision of the Office of Workers’ Compensation Programs (OWCP) which
affirmed a decision denying his traumatic injury claim. 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 merit decision of the case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained a traumatic injury claim in the performance of duty.
FACTUAL HISTORY
On June 24, 2011 appellant, then a 44-year-old postmaster, filed a traumatic injury claim
alleging that on May 18, 2010 while lifting heavy boxes he suffered a retinal detachment of the
1

5 U.S.C. §§ 8101-8193.

right eye. He reported having emergency surgery on May 19, 2010 and returned to work on
October 22, 2010 and stopped completely on December 28, 2010.2
Appellant submitted an operative report dated May 19, 2010 in which Dr. N.D. Radtke, a
Board-certified ophthalmologist, performed a scleral buckle, vitrectomy, membrane peeling,
panretinal endophotocoagulation, perfluorocarbon liquid fluid exchange and air perfluorocarbon
liquid exchange of the right eye. Dr. Radtke diagnosed retinal detachment, preretinal membrane
with one quadrant full thickness fixed retinal folds secondary to proliferative vitreoretinopathy
stage C1, right eye. Appellant submitted a March 7, 2011 report from Dr. Thomas Harper, a
Board-certified ophthalmologist, who noted that appellant, sustained a left eye injury while
bundling mail in April 2003 and underwent a retinal repair. Dr. Harper noted that appellant
developed uncontrolled glaucoma in the right eye in December 2010.
By letter dated August 3, 2011, OWCP advised appellant of the type of factual and
medical evidence needed to establish his claim and requested that he submit such evidence,
particularly requesting that he submit a physician’s reasoned opinion addressing the relationship
of his claimed condition and specific employment factors.
In a decision dated September 8, 2011, OWCP denied appellant’s claim for a traumatic
injury.
On September 14, 2011 appellant requested an oral hearing which was held on
January 11, 2012. He submitted an October 3, 2011 report from Dr. Radtke who noted that on
June 30, 2003 appellant had two retinal holes that were treated with cryotherapy. Dr. Radtke
noted that appellant was a high myope which could lead to weakness in the retina and retinal
holes which existed prior to the detachment on May 19, 2010. He opined that heavy lifting could
have aggravated appellant’s preexisting condition. Dr. Radtke noted that heavy lifting was not
noted in appellant’s chart note on May 19, 2010 but recalled afterward. He opined that for a
retinal detachment to occur lifting usually accompanied obstructing venous outflow or
underlying retinal breaks or tears in the eye. Dr. Radtke noted that it was feasible that the retinal
detachment in the right eye could be related to the heavy lifting incident on May 18, 2010.
In a decision dated April 2, 2012, an OWCP hearing representative set aside the
September 8, 2011 decision and remanded the matter for medical development. The hearing
representative noted that Dr. Malik’s reports April 27 and May 18, 2011 required clarification3
2

On January 4, 2011 appellant filed a Form CA-2a, notice of recurrence of disability, asserting that on
December 28, 2010 he had a recurrence of disability causally related to his April 1, 2003 left eye condition, claim
file number xxxxxx673. He indicated that he sustained a left eye injury on April 1, 2003 which was accepted for a
retinal detachment. Appellant returned to work full time and after lifting heavy boxes he developed a detached
retina of the right eye. To further develop the claim OWCP referred him to a second opinion physician, Dr. Zaiba
Malik, a Board-certified ophthalmologist. In reports dated April 27 and May 18, 2011, Dr. Malik opined that it was
highly unlikely that heavy lifting alone could cause a retinal detachment, rather, for retinal detachment to manifest
there must be an underlying retinal tear or break. He also opined that appellant was myoptic and therefore was
predisposed to thinning retina and tears. OWCP thereafter developed the right eye condition as a new traumatic
injury. Claim file number xxxxxx673 is not before the Board.
3

See id.

2

and requested that he address whether the lifting incident of May 18, 2010 aggravated
accelerated or precipitated appellant’s right eye injury.
On April 16, 2012 OWCP sought clarification from Dr. Malik and was notified that he
was no longer a practicing physician.
On May 29, 2012 OWCP referred appellant for a second opinion to Dr. Tim Conrad, a
Board-certified ophthalmologist. It provided Dr. Conrad with appellant’s medical records, a
statement of accepted facts as well as a detailed description of appellant’s employment duties. In
a June 29, 2012 report, Dr. Conrad noted appellant’s left eye was totally blind resulting from a
retinal detachment which was not successfully repaired despite two attempts. He noted that
appellant had cryotherapy treatment for right retinal tears in 2003 and had a retinal detachment in
May 2010 which was repaired. Dr. Conrad noted that appellant subsequently underwent cataract
and glaucoma surgery. He noted examining appellant on June 11, 2012 and found the right eye
had a posterior chamber lens implant, glaucoma, mild posterior capsule opacification and
epiretinal membrane. Dr. Conrad noted the right eye vision was 20/70 and was mildly myopic
refraction. He opined that the heavy lifting appellant performed did not cause, accelerate,
precipitate or aggravate the retinal detachment. Dr. Conrad advised that appellant developed a
retinal detachment spontaneously in an eye with a high risk of such. Appellant had known
retinal tears and was highly myopic. Dr. Conrad noted no studies which show a relationship
between glaucoma and heavy lifting, rather the glaucoma resulted from the surgery required to
repair the retinal detachment and was a known complication of retinal surgery. He noted that
appellant required ophthalmologist care for the remainder of his life as he developed secondary
cataracts which would require future treatment.
OWCP determined that there was a medical conflict between Drs. Radtke, appellant’s
treating physician, who opined that heavy lifting on May 18, 2010 caused or aggravated the right
eye retinal tear and Dr. Conrad, OWCP referral physician, who opined that the heavy lifting did
not cause or aggravate the diagnosed retinal tear.
Appellant submitted an August 13, 2012 report from Dr. Radtke who noted reviewing
Dr. Conrad’s report and disagreed with his findings noting he did not have retinal surgery
experience or training. He referenced an article in Epidemiology from 2008 which noted that
heavy occupational lifting, being overweight and having high myopia, were risk factors to retinal
detachment. Also submitted was a September 4, 2012 report from Dr. Robb R. Shrader, a
Board-certified ophthalmologist, who opined that appellant’s right eye retinal detachment could
occur spontaneously but could also be brought on by human activity such as injury and
significant straining.
On October 12, 2012 OWCP referred appellant to Dr. Robert Benza, a Board-certified
ophthalmologist, to resolve the medical conflict. In an October 31, 2012 report, Dr. Benza
indicated that he reviewed the records provided to him and performed a physical examination of
appellant. He noted a history of appellant’s work-related injury. Dr. Benza noted that
appellant’s visual acuity was 20/80 in the right eye without correction, his near vision was 11
point with glasses, cycloplegic refraction demonstrated a -2.75 +2.75 x 85 degrees with 20/70 +1
vision. External examination of the right eye demonstrated a sluggish pupil, full eye movements,
slit-lamp examination of the right eye demonstrated a moderate superior bleb and a well-centered

3

posterior chamber intraocular lens, the cornea was clear, interocular pressure was 14 in the right
eye, fundus examination demonstrated a cup to disc ratio of .20 and 1 to 2+ cellophane
maculopathy of the right macula with intact buckle in the periphery. Dr. Benza diagnosed status
post retinal detachment repair, right eye, macular pucker, right eye, history of glaucoma, right
eye and status post glaucoma surgery and pseudophakia of the right eye. He opined that to the
best of his knowledge he was unaware of medical evidence that lifting heavy objects would
cause, aggravate, precipitate or accelerate a retinal tear or detachment. Dr. Benza noted
appellant’s history of myopia and previous retina tears in 2003 were factors that would increase
the risk of a retinal detachment. He noted that appellant was currently stable but guarded over
time. Dr. Benza recommended that an ophthalmologist follow his glaucoma and general ocular
care.
In a decision dated December 31, 2012, OWCP denied appellant’s claim finding that the
weight of the medical evidence rested with Dr. Benza, who opined that the claimed right eye
condition was not causally related to work events on May 18, 2010.
Appellant requested an oral hearing which was held on April 15, 2013. He submitted a
February 4, 2013 report from Dr. Radtke who disagreed with Dr. Benza regarding the etiology of
the retinal detachment. Dr. Radtke noted that Dr. Benza did not have retinal surgery training or
experience. He noted treating patients who had Valsalva maneuvers and developed retinal
detachments. Dr. Radtke referenced an attached article in Epidemiology from 2008 which
concluded that heavy occupational lifting, being overweight and having high myopia, were
important risk factors to retinal detachments. He noted that appellant possessed all these
conditions and Dr. Benza agreed that appellant’s history of myopia and previous retinal tears in
2003 would be a factor to increase the risk of retinal detachments.
In a decision dated July 9, 2013, an OWCP hearing representative vacated the
December 31, 2012 decision and remanded the matter for further medical development. The
hearing representative instructed OWCP to provide Dr. Benza with Dr. Radtke’s report and
referenced articles and obtain clarification as to whether appellants’ right eye condition was due
to the lifting performed on May 18, 2010.
On July 24, 2013 OWCP requested supplemental report from Dr. Benza requesting that
he address Dr. Radtke’s February 4, 2013 report and opine whether the May 18, 2010 lifting
incident caused, accelerated, aggravated or precipitated a right eye condition.
In an August 5, 2013 report, Dr. Benza noted reviewing Dr. Radtke’s February 4, 2013
report and the article in Epidemiology from 2008. He opined that there was no strong evidence
to support the contention that lifting a heavy object caused, accelerated, aggravated or
precipitated the retinal detachment. Dr. Benza noted the referenced article was from research in
Italy from a small population of 48 patients. He noted the article concluded that heavy lifting
“could be” a risk factor and it was “cumulative lifting” which showed a dose response
relationship. Dr. Benza noted that appellant’s history of retinal tears in 2003 and history of
myopia were risk factors for retinal detachment. He noted that there was not enough evidence, in
a patient with other significant risk factors including retinal tears and myopia, to say that lifting a
top heavy box caused, accelerated, aggravated or precipitated the retinal detachment.

4

In a decision dated September 3, 2013, OWCP denied appellant’s claim for a traumatic
injury on the grounds that the weight of the medical evidence rested with the referee physician,
who opined that the claimed right eye condition was not related to work events on May 18, 2010.
Appellant requested an oral hearing which was held on February 18, 2014.
In a decision dated April 30, 2014, an OWCP hearing representative affirmed the
September 3, 2013 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
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 he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. 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.6
ANALYSIS
On June 24, 2011 appellant filed a traumatic injury claim alleging that on May 18, 2010
while lifting heavy boxes he suffered a right retinal detachment. OWCP found that a conflict of
medical opinion existed between the attending physician, Dr. Radtke, a Board-certified
ophthalmologist, who opined that heavy occupational lifting, being overweight and having high
myopia caused appellant’s right retinal detachment and the second opinion physician,
Dr. Conrad, a Board-certified ophthalmologist, who opined that heavy lifting did not cause,
accelerate, precipitate or aggravate the retinal detachment of the right eye. As there was a
4

Gary J. Watling, 52 ECAB 357 (2001).

5

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

6

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

5

conflict in the medical opinion evidence, OWCP properly referred appellant for an impartial
medical examination by Dr. Benza, a Board-certified ophthalmologist.7
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.8
In his October 31, 2012 report, Dr. Benza reviewed the entire case record and statement
of accepted facts. He examined appellant thoroughly and related his clinical findings. Dr. Benza
indicated that the examination findings revealed visual acuity was 20/80 in the right eye without
correction. External examination of the right eye demonstrated a sluggish pupil, full eye
movements while slit-lamp examination of the right eye demonstrated a moderate superior bleb
and a well-centered posterior chamber intraocular lens. Dr. Benza diagnosed status post retinal
detachment repair, right eye, macular pucker, right eye, history of glaucoma, right eye and status
post glaucoma surgery and pseudophakia of the right eye. He noted appellant’s history of
myopia and previous retina tears in 2003 were factors which would increase the risk of a retinal
detachment. In a supplemental report dated August 5, 2013, Dr. Benza addressed the literature
referenced by Dr. Radtke regarding lifting and retinal detachment and noted the article was from
research in Italy from a small population of 48 patients and concluded that heavy lifting “could
be” a risk factor and it was “cumulative lifting” which showed a dose response relationship. He
noted that appellant’s history of retinal tears in 2003 and history of myopia were risk factors for
retinal detachment and opined that there was not enough evidence, in a patient like appellant who
had other significant risk factors, to say that lifting a top heavy box caused, accelerated,
aggravated or precipitated the retinal detachment.
Appellant submitted a February 4, 2013 report from Dr. Radtke who noted that Dr. Benza
did not have retinal surgery training or experience. Dr. Radtke referenced an article in
Epidemiology 2008 which concluded that heavy occupational lifting, being overweight and
having high myopia, are important risk factors to retinal detachments and appellant had all these
conditions. He noted that Dr. Benza agreed that appellant’s history of myopia and previous
retinal tears in 2003 would be a factor to increase the risk of retinal detachments. However,
Dr. Radtke’s reports are similar to his prior reports and, as he was on one side of the conflict that
Dr. Benza resolved, his reports are insufficient to overcome that of Dr. Benza or to create a new
medical conflict.9 Furthermore, Dr. Benza, in his August 5, 2013 supplemental report considered
Dr. Radtke’s assertions about the medical article but explained why he believed that the study
did not support that appellant’s condition was employment related.

7

5 U.S.C. § 8123(a), in pertinent part, provides: “If there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who
shall make an examination.”
8

Solomon Polen, 51 ECAB 341 (2000).

9

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Radtke’s report does not contain new findings or rationale
upon which a new conflict might be based.

6

The Board finds that, under the circumstances of this case, the opinion of Dr. Benza is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant’s detach retina of the right eye was not causally
related to the workplace lifting incident on May 18, 2010. Dr. Benza had reviewed the entire
case record, statement of accepted facts and literature presented by Dr. Radtke and had examined
appellant. He additionally provided well-reasoned rationale as to why appellant’s current retinal
detachment of the right eye was not causally related to the May 18, 2010 workplace lifting
incident.
The Board finds that Dr. Benza’s opinion constitutes the weight of the medical evidence
and is sufficient to justify OWCP’s denial of appellant’s claim for compensation.
On appeal, appellant through counsel, asserted that Dr. Benza’s opinion should not have
carried the weight of the evidence because he was not a retinal specialist. He indicated that
Dr. Radtke was a retinal specialist and treated him for 13 years and had specific knowledge of
appellant’s condition. The Board finds this argument to be without merit. Dr. Benza reviewed
the entire case record and statement of accepted facts and examined appellant thoroughly and
related his clinical findings. He opined that there was not enough evidence, in a patient like
appellant who had other significant risk factors including retinal tears in 2003 and history of
myopia, to say that lifting a top heavy box caused, accelerated, aggravated or precipitated the
retinal detachment. Dr. Benza provided well-reasoned rationale as to why appellant’s current
retinal detachment of the right eye was not causally related to the May 18, 2010 workplace
lifting incident and was properly found to resolve the medical conflict and represent the weight
of the evidence.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a traumatic right eye injury causally related to factors of employment.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 30, 2014 is affirmed.
Issued: November 20, 2014
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE LOGISTICS COMMAND,
McCLELLAN AIR FORCE BASE, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 13-1841
Issued: February 3, 2014

Case Submitted on the Record

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

JURISDICTION
On August 5, 2013 appellant filed a timely appeal from a March 28, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award.
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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the March 28, 2013 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may submit this evidence to OWCP and request a schedule
award or increased schedule award based on evidence of a new exposure or medical evidence showing progression
of an employment-related condition resulting in permanent impairment or increased impairment.

ISSUE
The issue is whether appellant has established that he sustained more than a total four
percent permanent impairment of the bilateral lower extremities, for which he received schedule
awards.
FACTUAL HISTORY
OWCP accepted that appellant, then a 46-year-old maintenance general foreman,
sustained an aggravation of degenerative disc disease at L4-5 and L5-S1 with surgery in the
performance of duty on January 22, 1988. It placed him on the periodic rolls and paid him
appropriate compensation benefits.
OWCP referred appellant to Dr. John R. Chu, a Board-certified orthopedic surgeon, for a
second opinion evaluation to determine the nature and extent of his employment-related
condition. In his February 17, 2004 report, Dr. Chu diagnosed status post right L4-5
laminectomy and disc excision with persistent low back pain and right lower extremity radicular
symptoms. He opined that appellant was capable of light-duty work with permanent restrictions
of lifting up to 50 pounds occasionally for two hours per day.
In an April 5, 2004 report, Dr. John J. Champlin, a Board-certified family practitioner,
diagnosed low back pain, herniated nucleus pulposus (HNP), status post discectomy and sciatica.
He indicated that appellant’s neurological findings were consistent with L3-4 nerve root
impingement revealed in a July 20, 1994 magnetic resonance imaging (MRI) scan report.
Dr. Champlin opined that appellant’s condition was likely aggravated by sitting and standing
activities.
By decision dated February 27, 2006, OWCP finalized a decision to reduce compensation
benefits as appellant had the capacity to earn wages as a cost estimator clerk. It determined that
he had a 77 percent loss of wage-earning capacity and his compensation was reduced to a net
compensation of $883.00 every four weeks.
On January 3, 2013 appellant filed a claim for a schedule award.
In support of his claim, appellant submitted reports dated June 23, 2011 through
January 21, 2013 from Dr. Champlin, who diagnosed lumbago, sciatica, spinal stenosis of
unspecified region and other postsurgical status. Dr. Champlin indicated that appellant’s
condition had worsened and reported numbness in both feet and distal calf, especially on the
right.
Appellant also submitted an August 25, 2011 MRI scan report of the lumbar spine which
showed multilevel degenerative disc and facet disease.
On December 4, 2012 Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon,
diagnosed HNP at L4-5, surgically treated, with chronic radiculopathy, right. He opined that
under the July 2009 newsletter of the sixth edition of the A.M.A., Guides appellant’s L5 nerve
root condition placed him in a class 1, level C impairment rating, equating to a six percent

2

permanent impairment of the right lower extremity for moderate sensory deficit and a three
percent permanent impairment of left lower extremity for mild sensory deficit.
In a February 1, 2013 report, OWCP’s medical adviser reviewed the medical evidence of
record and explained that according to the July 2009 newsletter of the sixth edition of the
A.M.A., Guides, appellant’s moderate sensory deficit of the right lower extremity would
correspond to class 1 default rating of three percent permanent impairment and his mild sensory
deficit of the left lower extremity would correspond to a class 1 default rating of one percent
permanent impairment. The medical adviser found that the grade modifier for Functional
History (GMFH) was 1 and grade modifiers for Physical Examination (GMPE) and grade
modifier for Clinical Studies (GMCS) were not applicable, resulting in a net adjustment of 0.
The medical adviser concluded that appellant had a three percent permanent impairment of the
right lower extremity and a one percent permanent impairment of the left lower extremity.
Appellant’s date of maximum medical improvement was determined to be December 16, 2011.
Subsequently, appellant submitted reports dated January 23 through February 22, 2013
from Dr. Champlin, who reiterated his diagnoses and medical opinions.
By decision dated March 28, 2013, OWCP granted appellant a schedule award for three
percent permanent impairment of the right lower extremity and a one percent permanent
impairment of the left lower extremity for a total of a four percent permanent impairment of the
bilateral lower extremities.
LEGAL PRECEDENT
The schedule award provisions of FECA3 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a matter which rests in the sound
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.4 For schedule awards after
May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides,
published in 2009.5
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability

3

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

4

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

5

See D.T., Docket No. 12-503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a (February 2013); see also Part 3 -- Medical,
Schedule Awards, Chapter 3.700 and Exhibit 1 (February 2013).

3

and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.7 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX). Evaluators are directed to provide reasons for their impairment rating choices, including
the choices of diagnoses from regional grids and calculations of modifier scores.8
The sixth edition of the A.M.A., Guides provides a specific methodology for rating spinal
nerve extremity impairment.9 It was designed for situations where a particular jurisdiction, such
as FECA, mandated ratings for extremities and precluded ratings for the spine. FECA-approved
methodology is premised on evidence of radiculopathy affecting the upper and/or lower
extremities. The appropriate tables for rating spinal nerve extremity impairment are incorporated
in the procedure manual.10
ANALYSIS
OWCP accepted that appellant sustained an aggravation of degenerative disc disease at
L4-5 and L5-S1 with surgery in the performance of duty on January 22, 1988. On March 28,
2013 it granted him a schedule award for three percent permanent impairment of the right lower
extremity and a one percent permanent impairment of the left lower extremity for a total of a
four percent permanent impairment of the bilateral lower extremities. It is appellant’s burden to
submit sufficient evidence to establish the extent of permanent impairment.11
On December 4, 2012 Dr. Hanley, a Board-certified orthopedic surgeon, diagnosed HNP
at L4-5, surgically treated, with chronic radiculopathy, right. The noted radiculopathy stemmed
from the L5 nerve root. Dr. Hanley opined that appellant’s L5 nerve root condition placed him
in a class 1, level C impairment rating, equating to a six percent permanent impairment of the
right lower extremity for moderate sensory deficit and a three percent permanent impairment of
the left lower extremity for mild sensory deficit.
In accordance with its procedures, OWCP referred the evidence of record to its medical
adviser who, in a February 1, 2013 report, reviewed the clinical findings of record and explained
that according to the July 2009 newsletter of the A.M.A., Guides, appellant’s moderate sensory
deficit of the right lower extremity would correspond to class 1 default rating of three percent
permanent impairment and his mild sensory deficit of the left lower extremity would correspond
6

A.M.A., Guides (6th ed., 2009), p.3, section 1.3, International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
7

Id. at 494-531.

8

See R.V., Docket No. 10-1827 (issued April 1, 2011).

9

The methodology and applicable tables were published in the July/August 2009 edition of The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition. See C.B., Docket No. 13-1516
(issued December 6, 2013).
10

See Federal (FECA) Procedure Manual, Part 3, supra note 5 at Chapter 3.700, Exhibit 4 (January 2010).

11

See Annette M. Dent, 44 ECAB 403 (1993).

4

to a class 1 default rating of one percent permanent impairment. The medical adviser found that
the GMFH was 1 and GMPE and GMCS were not applicable, resulting in a net adjustment of 0.
The medical adviser concluded that appellant had a three percent permanent impairment of the
right lower extremity and a one percent permanent impairment of the left lower extremity.
The Board finds that OWCP’s medical adviser applied the appropriate tables and grading
schemes of the sixth edition of the A.M.A., Guides to Dr. Hanley’s clinical findings. The
medical adviser’s calculations were mathematically accurate. There is no medical evidence of
record that under the appropriate tables of the sixth edition of the A.M.A., Guides appellant has a
greater percentage of permanent impairment. The medical adviser explained that Dr. Hanley’s
ratings of six percent permanent impairment of the right lower extremity for moderate sensory
deficit and a three percent permanent impairment of left lower extremity for mild sensory deficit
were erroneous. Rather, appellant’s moderate sensory deficit of the right lower extremity would
correspond to class 1 default rating of three percent permanent impairment and his mild sensory
deficit of the left lower extremity would correspond to a class 1 default rating of one percent
permanent impairment under the A.MA., Guides. Therefore, OWCP properly relied on the
medical adviser’s assessment of a total four percent permanent impairment of the bilateral lower
extremities.12
The reports from Drs. Chu and Champlin do not provide an impairment rating based on
the sixth edition of the A.M.A., Guides. Similarly, the August 25, 2011 MRI scan report does
not provide an impairment rating. These reports are of no probative value regarding appellant’s
permanent impairment under the sixth edition of the A.M.A., Guides.13
There is no medical evidence that appellant has more than a total four percent permanent
impairment of the bilateral lower extremities. Accordingly, he has not established that he is
entitled to a schedule award greater than that previously received.14
CONCLUSION
The Board finds that appellant has not established that he sustained more than a total four
percent permanent impairment of the bilateral lower extremities, for which he received a
schedule award.

12

See M.T., Docket No. 11-1244 (issued January 3, 2012).

13

See Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where
the A.M.A., Guides are not properly followed).
14

FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that
schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in
both cases are for impairment of the same member or function and where it is determined that the compensation for
the later disability in whole or part would duplicate the compensation payable for the preexisting disability.
5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).

5

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6