United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 14-318
Issued: May 9, 2014

Case Submitted on the Record

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

JURISDICTION
On November 26, 2013 appellant filed a timely appeal from the November 6, 2013
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP), which denied his
reconsideration request. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit decision. The
Board also has jurisdiction to review OWCP’s September 5, 2013 merit decision affirming his
schedule award.
ISSUES
The issues are: (1) whether appellant has more than a two percent impairment of his right
lower extremity causally related to the accepted employment injury, for which he received a
schedule award; and (2) whether OWCP properly denied his reconsideration request.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 8, 2005 appellant, then a 47-year-old maintenance mechanic, sustained a
traumatic injury in the performance of duty when his foot slipped off a rung and he twisted his
right knee. OWCP accepted his claim for a right knee sprain, unspecified internal derangement
of the right knee and a torn right medial meniscus.
Appellant underwent a right partial medial meniscectomy on August 24, 2005. Although
an earlier imaging study found a tear involving the posterior horn of the lateral meniscus,
surgical inspection reveal that no such tear was present.
Appellant filed a schedule award claim in 2012.
Dr. Jerome O. Carter, a Board-certified physiatrist, evaluated appellant on
January 16, 2013. He related appellant’s history and complaints as well as his findings on
physical examination. There was no swelling of the right knee. All tests (valgus stress, varus
stress, Lachman’s stress, McMurray’s stress, posterior drawer, Apley’s test) were negative,
though there was some mild crepitation. The right calf was half an inch larger than the left.
Right knee range of motion was within normal limits. Strength testing was normal in most cases
and good for hip flexors, hip extensors and leg flexors. Appellant was able to perform heel and
toe walking with difficulty.
Dr. Carter diagnosed right knee sprain/strain, right knee medial meniscus tear and right
knee internal derangement. He found that appellant had reached maximum medical
improvement.
Using the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009), Dr. Carter found that appellant’s diagnosis had a default impairment
rating of two percent, based on Table 16-3, page 509. As his functional history and physical
examination were both mild -- appellant walked with a limp and slow gait but used no assistive
devices – Dr. Carter made no adjustment to the default rating and concluded that appellant had a
two percent lower extremity impairment.
OWCP’s medical adviser reviewed Dr. Carter’s evaluation and confirmed that appellant’s
partial medial meniscectomy represented a two percent impairment of his right lower extremity.
On February 8, 2013 OWCP issued a schedule award for a two percent impairment of
appellant’s right lower extremity.
Appellant requested a review of the written record by an OWCP hearing representative.
He argued that a magnetic resonance imaging scan confirmed a tear of the medial and lateral
meniscus, and that Dr. Carter had told him that his rating would be at 10 to 12 percent, maybe a
little more.
In a decision dated September 5, 2013, OWCP’s hearing representative affirmed
appellant’s schedule award. The hearing representative noted that, although an imaging scan
was interpreted to show both a medial and lateral tear, the surgical examination established there
was no tear of the lateral meniscus. As the default impairment value of a partial medial
2

meniscectomy was two percent with no net adjustment, the hearing representative found that
appellant had no more than a two percent right lower extremity impairment, for which he had
received a schedule award.
Appellant requested reconsideration.
OWCP received this request on
September 16, 2013. Appellant argued that the two percent rating was far lower than what
Dr. Carter had told him it would be. He submitted a disability slip from 2009; a 2005 report
diagnosing right medial and lateral meniscus tears; imaging studies from 2005 and 2009
interpreted as showing a tear in the posterior horn of the right lateral meniscus; and work
restrictions from 2005.
In a decision dated November 6, 2013, OWCP denied appellant’s reconsideration request.
It found that the evidence was repetitious and insufficient to reopen the case for a merit review.
Appellant argues that his rating should be increased for both a medial and a lateral
meniscus tear, based on evidence already submitted. He questions the accuracy of Dr. Carter’s
comparison to a previously injured left lower extremity. Appellant repeats his work history since
2005 and his current complaints.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and the implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.6
ANALYSIS -- ISSUE 1
Diagnosis-based impairment is the primary method of evaluating the lower limb.
Impairment is determined first by identifying the relevant diagnosis and then by selecting the
class of the impairment: no objective problem; mild problem; moderate problem; severe
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

5

20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).

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problem; and very severe problem approaching total function loss. This will provide a default
impairment rating. The evaluator may then adjust the default rating up or down slightly for
grade, which is determined by such grade modifiers or nonkey factors as functional history,
physical examination and clinical studies.7
In most cases, only one diagnosis in a region, such as the knee, will be appropriate. If a
patient has two significant diagnoses, the examiner should use the diagnosis with the highest
impairment rating in that region that is causally related for the impairment calculation.8
OWCP accepted appellant’s claim for several medical conditions: a right knee sprain;
unspecified internal derangement of the right knee; and a torn right medial meniscus, for which
he underwent a partial meniscectomy on August 24, 2005. With no laxity or joint instability
shown on orthopedic testing, there was no basis under Table 16-3, page 510 of the A.M.A.,
Guides for rating impairment due to sprain of a cruciate or collateral ligament. Unspecified
internal derangement is a vague diagnosis not listed in Table 16-3. The table does allow,
however, a lower extremity rating of one to three percent for a partial medial or lateral
meniscectomy or meniscal tear.
Although a 2005 imaging study showed both medial and lateral tears, only a medial tear
was confirmed upon surgical inspection. No tear of the lateral meniscus was present. As the
visual and physical inspection of the lateral meniscus failed to confirm the interpretation of the
imaging study, only a partial medial meniscectomy was established. Further, the Board notes
that during his physical examination of appellant Dr. Carter performed orthopedic testing
specifically designed to detect a torn lateral meniscus, but those tests were negative.
The default lower extremity impairment rating for a partial medial meniscectomy is two
percent.
Functionally, appellant walked with a limp and had a slow gait. He used no assistive
device, such as an external orthotic device or cane or crutch. There was no evidence that
appellant had an asymmetric shortened stance. Therefore, no adjustment to the default rating
was warranted under Table 16-6, page 516 of the A.M.A., Guides.
Findings on orthopedic examination were normal or mild. Appellant showed no
moderate findings with regards to observed or palpatory findings, laxity or instability, alignment
or deformity, range of motion, atrophy or limb length discrepancy. Thus, no adjustment to the
default rating was warranted under Table 16-7, page 517.
Because clinical studies were used to establish the diagnosis and default impairment
rating, they may not be used again in the impairment calculation to adjust the default rating.9

7

A.M.A., Guides 497.

8

Id. at 497, 499, 529.

9

Id. at 515-16.

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Accordingly, appellant’s right lower extremity impairment due to the knee remains two
percent, which is what OWCP awarded. The Board will therefore affirm OWCP’s September 5,
2013 decision.
Appellant argues that his rating should be increased for both a medial and a lateral
meniscus tear. Based on the evidence that was before an OWCP’s hearing representative at the
time of his decision, only a tear of the medial meniscus was confirmed. Appellant questions
whether Dr. Carter should have compared his right calf to a previously injury left calf, but the
A.M.A., Guides provide: “For muscle atrophy, the limb circumference should be measured and
compared to the opposite limb at equal distances from either the joint line or another palpable
anatomic structure.”10 As Table 16-7, page 517 indicates, the relevant finding is one of
asymmetry with the opposite extremity, not one of deviation from the norm or from appellant’s
preinjury status. In order to adjust the default rating for physical examination findings, which is
a class 1 or mild problem, appellant would have to establish that his right calf was at least 2.0
centimeters smaller than his left, whatever circumference that might be. Dr. Carter’s findings do
not support such an adjustment.
Appellant may 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.
LEGAL PRECEDENT -- ISSUE 2
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.11 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.12
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.13 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these

10

Id. at 518.

11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.606.

13

Id. at § 10.607(a).

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standards, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.14
ANALYSIS -- ISSUE 2
OWCP received appellant’s reconsideration request on September 16, 2013, only 11 days
after the hearing representative’s decision on his schedule award. Appellant’s request was
therefore timely. The question for determination is whether that request met at least one of the
standards for obtaining a merit review of his case.
Appellant’s reconsideration request did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted.
Appellant did not advance a new and relevant legal argument. He previously argued in
his request for a review of the written record that an imaging study confirmed a tear of the
medial and lateral meniscus and that Dr. Carter had told him that his rating would be at 10 to 12
percent, maybe a little more. Those arguments were not new. Appellant asked OWCP to
consider all of his right knee medical conditions, but this was previously considered. The
A.M.A., Guides explains that, when multiple medical conditions are present, the examiner
should use the diagnosis with the highest impairment rating in that region that is causally related
for the impairment calculation. Indeed, in Example 16-9, page 526, involving an anterior
cruciate reconstruction and a medial meniscus repair, the comment states: “The methodology
requires the examiner to pick one diagnosis for the region. The anterior instability was chosen
and the effect of the meniscal tear is reflected in the adjustments.” In appellant’s case, the
diagnosis with the highest impairment rating in the right knee that was causally related was the
partial medial meniscectomy. The effect of other conditions may be reflected in appellant’s
functional history and findings on physical examination and therefore used to adjust, if
necessary, the default impairment rating.
Appellant submitted additional evidence that did not constitute relevant and pertinent
new evidence not previously considered by OWCP. None of the evidence evaluated the
impairment of his right lower extremity. The 2009 imaging study showed a lateral meniscus
tear, which is either repetitive of the 2005 imagining study that could not be confirmed upon
surgical inspection or physical examination or demonstrative of a new tear sustained during the
four-year period since appellant’s surgery. In either case, without a physician’s medical opinion
causally relating the finding to what happened on May 8, 2005 and reconciling both the surgical
and orthopedic inspection of appellant’s right lateral meniscus, the evidence is not relevant and
pertinent to the September 5, 2013 decision.
Accordingly, the Board finds that appellant’s reconsideration request did not meet any of
the requirements for obtaining a merit review of his case. The Board finds that OWCP properly
denied a merit review of his claim and will therefore affirm OWCP’s November 6, 2013
nonmerit decision.
14

Id. at § 10.608.

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CONCLUSION
The Board finds that appellant has no more than a two percent impairment of his right
lower extremity due to the accepted employment injury, for which he received a schedule award.
The Board further finds that OWCP properly denied his reconsideration request.
ORDER
IT IS HEREBY ORDERED THAT the November 6 and September 5, 2013 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 9, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sister Bay, WI, Employer
__________________________________________

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Docket No. 10-1829
Issued: April 8, 2011

Case Submitted on the Record

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

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

JURISDICTION
On July 1, 2010 appellant, through her representative, filed a timely appeal from the
June 11, 2010 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the
Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue on appeal is whether appellant met her burden of proof to establish that she had
any disability or condition after October 23, 2007 causally related to the October 11, 2005
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In a March 18, 2009
decision, the Board affirmed the June 3, 2008 decision of the Office hearing representative,
which found that appellant met her burden of proof in terminating her compensation benefits
effective October 23, 2007. The facts and history contained in the prior appeal are incorporated
by reference.
Following the June 3, 2008 decision, the Office received additional medical evidence
including some previously of record and some involving different medical condition. The new
evidence relating to the relevant condition, included reports from Dr. Jonathan S. Citow, a
Board-certified neurological surgeon, who performed the May 2007 cervical discectomy and
fusion. In his November 2, 2006 report, Dr. Citow noted that he had reviewed an
October 1, 2005 magnetic resonance imaging (MRI) scan of the cervical and thoracic spine. In
his February 15, 2008 report, he advised that appellant continued to have “diffuse aches and
pains” and related that she “feels too debilitated to work.” Dr. Citow indicated that he was
waiting for a functional capacity evaluation.
On March 1, 2010 counsel requested reconsideration. Accompanying the request was
February 11, 2010 correspondence from appellant indicating that she had difficulty obtaining
information from Dr. Citow.
By decision dated June 11, 2010, the Office denied modification of the prior decision.
LEGAL PRECEDENT
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.3
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.4

2

Docket No. 08-1864 (issued March 18, 2009).

3

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

4

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

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ANALYSIS
Following the Board’s affirmance of the Office’s June 3, 2008 decision, which
terminated appellant’s compensation benefits effective October 23, 2007, appellant submitted
additional medical evidence. The additional evidence included a previous report of Dr. Citow.
The Board notes that the termination and appellant did not explain how they supported an
ongoing work-related condition beginning October 23, 2007. Other reports, not previously of
record, do not address the previously accepted employment conditions and do not provide any
opinion regarding the cause of appellant’s condition. The Board has long held that medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.5
Appellant also provided the February 15, 2008 report from Dr. Citow, who noted that she
continued to have aches and pains and felt “too debilitated to work.” The Board notes that
Dr. Citow did not provide a rationalized opinion explaining why any work-related disability
continued after termination of her wage-loss compensation benefits on October 23, 2007. As
Dr. Citow had been on one side of the conflict in the medical opinion that an impartial specialist
resolved, Dr. Citow’s report is insufficient to overcome the special weight accorded the impartial
specialist or to create a new medical conflict absent any new findings and rationale in support of
causal relationship.6
As appellant did not provide sufficient medical rationale to establish disability causally
related to the October 11, 2005 accepted employment injury, she has failed to meet her burden of
proof. On reconsideration, appellant asserted that she had difficulty obtaining evidence from
Dr. Citow. As noted, rationalized evidence is necessary to establish causal relationship and, as
the Office had properly terminated benefits, she has the burden of proof to provide such evidence
to establish her claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she had
any disability after October 23, 2007 causally related to the October 11, 2005 employment
injury.

5

Michael Smith, 50 ECAB 313 (1999).

6

See Barbara J. Warren, 51 ECAB 413 (2000); Alice J. Tysinger, 51 ECAB 638 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the June 11, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 8, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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MEMORANDUM

TO:

Board

FROM:

Maureen

RE:

Robert A. Lewis, 10-1309

The Board should note that it issued a decision on April 20, 2010 which affirmed
the Office’s May 5, 2009 and August 18, 2008 decisions denying appellant’s June 16, 2006
recurrence claim. As the Board’s decision was issued subsequent to appellant’s appeal on April
1, 2010 and the Office’s March 16, 2010 decision, I did not include it in the first paragraph of the
facts. If the Board would like its decision included in the factual history, I would be happy to do
so.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF DEFENSE, SHINNEN
ARMY BASE, Shinnen, Netherlands, Employer
__________________________________________

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

Docket No. 20-0919
Issued: February 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 24, 2020 appellant filed a timely appeal from a March 19, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $11,087.60 for which he was without fault because
he concurrently received FECA wage-loss compensation and Social Security Administration
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 19, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

(SSA) age-related retirement benefits for the period October 1, 2015 through February 1, 2020,
without an appropriate offset; (2) whether it properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$419.16 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On June 23, 1992 appellant, then a 39-year-old meat cutter, filed a traumatic injury claim
(Form CA-1) alleging that on June 21, 1992 he sustained a right hand injury when the saw he was
using pulled his hand into the blade and cut the bone in his right hand, while in the performance
of duty.
OWCP accepted the claim for severe laceration of the right hand, complete traumatic
metacarpophalangeal amputation of the right index finger, and right carpal tunnel syndrome. It
also authorized several surgeries to include: bone repair with screw and suture of the tendon and
nerve on June 21, 1992; removal of screws on December 1, 1992; tendon nerve exploration and
release on January 1, 1993; removal of neuroma of the right hand on May 27, 1993; chase
amputation of the right index ﬁnger and distal half of the second metacarpal on October 13, 1993;
excision of neuroma with transposition of proximal stump on June 13, 1995; and right carpal
tunnel release on May 13 1997. Appellant intermittently returned to work. The record reflects
that OWCP paid him wage-loss compensation on the periodic rolls as of June 16, 2002.
A notification of personnel action, Standard Form (SF)-50, dated September 3, 1995,
indicated that appellant’s service computation date was June 9, 1986 and that he was under a
Federal Employees Retirement System (FERS) retirement plan.
Appellant completed EN1032 forms dated September 26, 2016, September 22, 2017,
September 18, 2018, and September 23, 2019. In each he responded “Yes” as to whether he
received SSA retirement benefits as part of an annuity for federal service and he noted the specific
monthly amounts he received.
On December 19, 2019 OWCP forwarded a FERS/SSA dual benefits calculation
transmittal to the SSA to determine whether an offset of compensation benefits was required.
On January 14, 2020 OWCP received a completed FERS/SSA dual benefits calculation
form dated January 2, 2020 from SSA. The information provided indicated that appellant had been
in receipt of SSA age-related retirement benefits since October 2015 and provided his SSA
benefits with and without a FERS offset. Beginning October 2015, the SSA rate with FERS was
$826.00 and without FERS was $618.00, and beginning December 2016, the SSA rate with FERS
was $828.00 and without FERS was $619.80.
OWCP completed a FERS offset calculation worksheet on February 12, 2020. It
determined the overpayment amount by multiplying the daily FERS offset amount by the number
of days in each period from October 1, 2015 through February 1, 2020, resulting in a total
overpayment of $11,087.60. OWCP related that from October 1 to November 30, 2015, appellant
received an overpayment in the amount of $418.29; from December 1, 2015 to November 30,
2016, appellant received an overpayment in the amount of $2,509.71; from December 1, 2016 to

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November 30, 2017, appellant received an overpayment in the amount of $2,505.26; from
December 1, 2017 to November 30, 2018, appellant received an overpayment of $2,560.62; from
December 1, 2018 to November 30, 2019, appellant received an overpayment in the amount of
$2,631.61; and from December 1, 2019 to February 1, 2020, appellant received an overpayment
in the amount of $462.12.
On February 18, 2020 OWCP issued a preliminary overpayment determination, finding
that an overpayment of compensation in the amount of $11,087.60 had been created because
appellant’s wage-loss compensation payments for the period October 1, 2015 through February 1,
2020, had not been reduced to offset his SSA age-related retirement benefits that were attributable
to federal service. It determined that he was without fault in the creation of the overpayment
because he could not have reasonably known that an improper payment had occurred. OWCP
explained that appellant reported on his EN1032 forms filed since 2016 that he was receiving SSA
retirement benefits. It requested that he submit a completed overpayment recovery questionnaire
(Form OWCP-20) to determine a reasonable repayment schedule, and advised that he could
request waiver of recovery. OWCP further requested that appellant provide supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income and expenses. Additionally, it notified him that, within
30 days of the date of the letter, he could request a telephone conference, a final decision based on
the written evidence, or a prerecoupment hearing.
No response was received.
By decision dated March 19, 2020, OWCP finalized the preliminary overpayment
determination, finding that appellant had received an overpayment of compensation in the amount
of $11,087.60, for the period October 1, 2015 through February 1, 2020, because he concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation without the
required offset. It also found that he was without fault in the creation of the overpayment, but
denied waiver of recovery of the overpayment. OWCP noted that no response had been received
to the preliminary overpayment documentation and appellant had not requested waiver of
recovery. It required recovery of the overpayment by deducting $419.16 every 28 days from his
continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

3

attributable to the employee’s federal service.5 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $11,087.60, for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period October 1, 2015 through February 1, 2020, without an appropriate offset.
The evidence of record indicates that, while appellant was receiving compensation for
wage-loss under FECA, he also was receiving SSA age-related retirement benefits based upon his
federal service. A claimant cannot receive both compensation for wage loss under FECA and SSA
age-related retirement benefits attributable to federal service for the same period.7 The information
provided by SSA established that during the period October 1, 2015 through February 1, 2020,
appellant received SSA age-related retirement benefits that were attributable to federal service
while he also received FECA benefits that were not reduced by the appropriate offset.
Consequently, the fact of overpayment has been established.
To determine the amount of the overpayment, the portion of SSA’s benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its rate with FERS and without FERS for specific periods from
October 1, 2015 through February 1, 2020. OWCP provided its calculations for each relevant
period based on SSA’s worksheet which showed that appellant received an overpayment in the
amount of $11,087.60. The Board thus finds that appellant received prohibited dual benefits for
the period October 1, 2015 through February 1, 2020 in the amount of $11,087.60.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.9
Thus, a finding that appellant was without fault does not automatically result in waiver of the

5

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018); L.J., 59 ECAB 264 (2007).

6

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

7

20 C.F.R. § 10.421(d); see S.M., supra note 5; L.J., supra note 5.

8

P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020);
A.F., Docket No. 19-0054 (issued June 12, 2019).
9

5 U.S.C. § 8129(a)-(b).

4

overpayment, OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good conscience.10
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living expenses
and, also, if the beneficiary’s assets do not exceed a specified amount as determined by OWCP
from data provided by the Bureau of Labor Statistics.11 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.12
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. Failure
to submit the requested information within 30 days of the request shall result in denial of waiver.13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.14 Appellant,
however, had the responsibility to provide the appropriate financial information and
documentation to OWCP.15
Although appellant had been advised to submit Form OWCP-20 and documentation
substantiating his income and expenses, he failed to do so, as required by section 10.438 of
OWCP’s regulation. In its preliminary determination dated September 20, 2019, OWCP explained
the importance of providing the completed Form OWCP-20 and financial information, including
10

L.S., 59 ECAB 350 (2008).

11

20 C.F.R. § 10.436. OWCP’s procedures provide that the assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a (3) (September 2018).
12

Federal (FECA) Procedure Manual id. at Chapter 6.400.4(a)(3) (September 2018).

13

20 C.F.R. § 10.438.

14

Id. at § 10.436.

15

Id. at § 10.438.

5

copies of income tax returns, bank account statements, bills, pay slips, and any other records to
support reported income and expenses. It advised appellant that it would deny waiver of recovery
of the overpayment if he failed to furnish the requested financial information within 30 days.
Appellant did not timely submit a completed Form OWCP-20 or otherwise submit financial
information necessary for OWCP to determine whether recovery of the overpayment would defeat
the purpose of FECA or if recovery would be against equity and good conscience.
Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, necessary to determine his eligibility for waiver, the Board finds
that OWCP properly denied waiver of recovery of the overpayment.16
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.17
Section 10.441(a) of OWCP’s regulations18 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”19
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$419.16 every 28 days from appellant’s continuing compensation payments.
OWCP provided appellant a Form OWCP-20 with its February 18, 2020 preliminary
determination and afforded him the opportunity to provide appropriate financial information and
documentation to OWCP.20 Appellant did not complete Form OWCP-20 and provide the
necessary financial documentation to support his income and expenses prior to the March 19, 2020
final overpayment decision. The overpaid individual is responsible for providing information

16

Id.; M.R., Docket No. 20-0427 (issued October 30, 2020).

17

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

18

Id. at § 10.441(a).

19

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

20

20 C.F.R. § 10.438.

6

about income, expenses, and assets as specified by OWCP.21 When an individual fails to provide
requested financial information, OWCP shall follow minimum collection guidelines designed to
collect the debt promptly and in full.22 The Board, therefore, finds that OWCP properly required
recovery of the overpayment from appellant’s continuing compensation payments at the rate of
$419.16 every 28 days.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $11,087.60, for which he was without fault, because he
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits for
the period October 1, 2015 through February 1, 2020. The Board further finds that OWCP
properly denied waiver of recovery of the overpayment and properly required recovery of the
overpayment by deducting $419.16 every 28 days from appellant’s continuing compensation
payments.
ORDER
IT IS HEREBY ORDERED THAT the March 19, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 8, 2021
Washington, DC

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

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

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

21

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

22
See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, supra note 12 at Chapter 6.400.3 (September 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Palatine, IL,
Employer
__________________________________________

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

Docket No. 18-0275
Issued: June 8, 2018

Case Submitted on the Record

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

JURISDICTION
On November 20, 2017 appellant filed a timely appeal from a September 1, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to the accepted factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence with her appeal to the Board. The Board’s
jurisdiction is limited to the evidence that was before OWCP at the time it issued its final decision. The Board is
therefore precluded from considering this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1);
P.W., Docket No. 12-1262 (issued December 5, 2012).

FACTUAL HISTORY
On June 1, 2017 appellant, then a 58-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that, on April 21, 2017, she injured both shoulders at work while lifting,
pushing, and pulling postal equipment containing rewrap mail. She stopped work that day and
returned on April 25, 2017. The employing establishment controverted the claim. In
correspondence dated June 5, 2017, it maintained that the claim should be adjudicated as a notice
of occupational disease (Form CA-2).
In an April 22, 2017 report, Dr. Anatoly M. Rozman, a Board-certified physiatrist,
indicated that appellant had previous injuries that were grossly resolved. He noted appellant’s job
duties and her report that, due to persistent pain and weakness, she struggled to properly perform
job duties.3 Dr. Rozman described her complaints of neck pain radiating into both shoulders,
bilateral elbow pain with swelling, right wrist pain and swelling, right hip area pain with swelling
and burning, right low back pain radiating into the right lower extremity, chest wall pain, and
bilateral shoulder pain on movement with any activities above the shoulder. Findings on physical
examination included positive empty can and lift-off tests of both shoulders, pain on palpation of
both lateral epicondyles, pain in the right trochanteric area, and pain in the right lumbosacral area,
positive Ober’s, Clarke’s, Patrick’s, and Tinel’s tests with a negative straight leg raising.
Dr. Rozman diagnosed bilateral shoulder tendinitis/rule out tear of the tendons/rotator cuff tear,
bilateral epicondylitis, right cubital tunnel syndrome, right trochanteric bursitis, sacroiliac joint
sprain on the right, thoracalgia, right knee osteoarthritis, and patellofemoral syndrome on the right.
He opined that the diagnoses were related to appellant’s job duties as a mail handler.
By development letter dated June 13, 2017, OWCP informed appellant that Dr. Rozman’s
report was insufficient to establish her claim and informed her of the type of evidence needed to
establish her claim.
On July 10, 2017 appellant indicated that she was claiming an occupational disease rather
than a traumatic injury. She also indicated that, while wrapping and lifting heavy packages on
April 21, 2017, she began to feel pain in her neck and right shoulder, with radiating pain and
tingling into the fingers, right knee pain, and pain on the left.
On July 21, 2017 OWCP informed appellant that her claim would be adjudicated as an
occupational disease.
Dr. Rozman completed a duty status report (Form CA-17) on June 12, 2017. He noted that
appellant was working and described clinical findings in the neck, left shoulder, elbow, and knee
for diagnoses of osteoarthritis and carpal tunnel syndrome. Dr. Rozman provided physical
restrictions, including lifting of 25 pounds for four hours daily. A July 10, 2017 electromyogram
and nerve conduction velocity (EMG/NCV) study performed by Dr. Rozman demonstrated
bilateral carpal tunnel syndrome and cubital tunnel syndrome.

3
Dr. Rozman indicated that appellant’s job duties included heavy pushing, lifting, handling materials, sorting mail,
and lifting parcels up to 30 pounds occasionally.

2

By report dated July 12, 2017, Dr. Rozman noted that appellant had been under his care
since June 29, 2011 and continued to have significant problems with persistent pain at multiple
points including right hip, low back pain radiating to the right lower extremity, bilateral shoulder
pain, and bilateral wrist pain. He discussed physical examination findings and additionally
diagnosed right carpal tunnel syndrome. Dr. Rozman indicated that the diagnosed conditions were
causally related to appellant’s work activities and that she was having a flare-up which required
physical therapy and medications. On July 29, 2017 he indicated that appellant had no change in
her physical examination.
By decision dated September 1, 2017, OWCP denied appellant’s claim. It found that the
medical evidence of record did not establish that the diagnosed conditions were causally related to
the accepted employment factors. OWCP found Dr. Rozman’s reports insufficient because he did
not describe specific work activities that caused the claimed conditions, nor did he describe the
mechanism of injury which resulted in the diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
OWCP’s regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”7 To
establish that an injury was sustained in the performance of duty in an occupational disease claim,
a claimant must submit the following: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the employment factors identified by the claimant. The medical opinion 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.8

4

Supra note 1.

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Michael E. Smith, 50 ECAB 313 (1999).

7

20 C.F.R. § 10.5(ee).

8

Roy L. Humphrey, 57 ECAB 238 (2005).

3

Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.10
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed conditions were causally related to her accepted employment factors.
To establish causal relationship, a claimant must submit a physician’s report in which the
physician reviews the employment factors identified as causing the claimed condition and, taking
these factors into consideration as well as findings upon examination, opines whether the
employment injury caused or aggravated the diagnosed conditions and presents medical rationale
in support of his or her opinion.12
While the record contains several reports from Dr. Rozman, the Board finds that he did not
provide sufficient explanation regarding whether the conditions he diagnosed were caused or
aggravated by appellant’s work duties. A mere conclusion without the necessary rationale
explaining how and why specific duties resulted in a diagnosed condition is not sufficient to meet
a claimant’s burden of proof.13 Dr. Rozman only generally described appellant’s work duties. He
expressed no knowledge of the amount of time appellant spent performing the work activities he
listed, and he provided no explanation as to the mechanics of how the listed work duties resulted
in appellant’s diagnosed conditions. Thus, Dr. Rozman’s reports are insufficient to meet
appellant’s burden of proof.14
As the record is devoid of rationalized medical opinion evidence explaining how or why
appellant’s employment duties either caused or contributed to her diagnosed conditions, appellant
has not met her burden of proof to establish causal relationship.

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

Dennis M. Mascarenas, 49 ECAB 215 (1997).

12

J.M., 58 ECAB 303 (2007).

13

Y.R., Docket No. 17-1521 (issued December 28, 2017).

14

See M.R., Docket No. 16-1851 (issued January 19, 2018).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 1, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
COMBAT COMMAND, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

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

Docket No. 13-1506
Issued: November 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 11, 2013 appellant filed a timely appeal from a March 15, 2013 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his claim for an
employment-related injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty.
On appeal, appellant contends that OWCP’s decision did not cover the employment
factor that caused his medical conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 24, 2011 appellant, then a 60-year-old telecommunications specialist, filed an
occupational disease claim (Form CA-2) alleging that as a result of noise exposure during the
performance of his federal duties he suffered an aggravation of preexisting tinnitus and persistent
headaches that interfered with his sleep. He indicated that the aggravation of his medical
conditions began shortly after management directed his move on October 5, 2011 to Building 6
where he was exposed to noise.
Appellant entered voluntary retirement effective
December 31, 2011.
In a November 22, 2011 letter, OWCP requested additional factual and medical evidence.
It afforded appellant 30 days to submit additional evidence and respond to its inquiries.
Subsequently, appellant submitted a narrative statement indicating that he wore earplugs
in his work environment as of October 6, 2011 and previously filed a claim for hearing loss and
tinnitus in 1995 with the Department of Veterans Affairs. He stated that he decided to retire
solely to remove himself from the work environment, where the conditions disrupted his sleep
and ability to work and concentrate and he deeply regretted having to leave his federal
employment.
By letter dated July 30, 2012, OWCP informed appellant that he had not submitted
necessary information and gave him 30 days to provide further information and evidence in
support of his claim.
In response, appellant submitted a position description and an August 23, 2012 narrative
statement, indicating that he believed the source of noise at Building 6 was the network and
communications equipment located in the building. He recalled no required safety practices with
respect to hearing protection nor any regulations that demanded them. Appellant reiterated that,
after the first day he was assigned to Building 6, he wore earplugs as he felt it was the only
possible course of action at the time that he could take to protect himself. He also submitted a
March 20, 1996 rating decision from the Department of Veterans Affairs regarding his hearing
loss and tinnitus.
On December 7, 2012 the employing establishment indicated that appellant was not
provided with ear protection as Building 6 was an office environment with an air handler and
computers.
By decision dated December 10, 2012, OWCP denied the claim on the basis that
appellant failed to establish fact of injury, finding no evidence to suggest that he was exposed to
occupational noise levels above 85 decibels during the course of his federal employment.2

2

On May 3, 2012 OWCP referred appellant to Dr. Ivan D. Karabachev, a Board-certified otolaryngologist, for a
second opinion evaluation. In reports dated June 22 and 25, 2012, Dr. Karabachev opined that appellant suffered
from noise-induced bilateral sensorineural hearing loss related to his working conditions. By decision dated
December 10, 2012, OWCP noted that it erroneously referred appellant to a second opinion examination with
Dr. Karabachev on June 22, 2012 and, thus, his reports were of no probative value.

2

On December 28, 2012 appellant requested a review of the written record by an OWCP
hearing representative and submitted a narrative statement.
By decision dated March 15, 2013, an OWCP hearing representative affirmed the
December 10, 2012 decision finding no factor of employment for workplace noise exposure.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim. When an employee claims that he sustained an injury in the
performance of duty, he must submit sufficient evidence to establish that he experienced a
specific event, incident or exposure occurring at the time, place and in the manner alleged.
Appellant must also establish that such event, incident or exposure caused an injury.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
ANALYSIS
The record does not contain an explanation as to how appellant sustained an aggravation
of his preexisting tinnitus and persistent headaches. Appellant simply stated that he sustained
these conditions due to noise exposure at work. He believed that the source of noise at
Building 6 was the network and communications equipment located in the building, but there is
no explanation or evidence as to the decibel level. On December 7, 2012 the employing
establishment indicated that appellant was not provided with ear protection as Building 6 was an
office environment with an air handler and computers. OWCP informed appellant of the
deficiencies in his claim, but he did not provide the required documentation prior to OWCP’s

3

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally Elaine Pendleton, 40 ECAB 1143 (1989).
4

See Solomon Polen, 51 ECAB 341 (2000); J.L., Docket No. 11-771 (issued November 17, 2011).

3

issuance of its March 15, 2013 decision. Accordingly, the Board finds that appellant failed to
meet his burden of proof.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed conditions became apparent during a period of
employment, nor his belief that his conditions were caused by his employment is sufficient to
establish causal relationship.6 Since appellant failed to establish the first component of fact of
injury, it is not necessary to discuss whether he submitted medical evidence sufficient to
establish that a medical condition existed and whether the condition was causally related to the
employment factors alleged.7
On appeal, appellant contends that OWCP’s decision did not cover the employment
factor that caused his medical conditions. OWCP did not accept noise exposure as a factor of his
federal employment. For the reasons stated above, appellant failed to establish fact of injury.
Thus, the Board finds his claim is not substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty.

5

See Walter D. Morehead, supra note 3; M.L., Docket No. 12-957 (issued December 7, 2012).

6

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the March 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 08-1909
Issued: April 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 1, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 12, 2008 merit decision concerning his entitlement to schedule
award compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof that he has more than a seven
percent permanent impairment of his left arm and a two percent permanent impairment of his
right leg, for which he received schedule awards.
FACTUAL HISTORY
This is the second appeal in this case. In the prior appeal,1 the Board issued a decision on
April 17, 2008 setting aside the Office’s July 9, 2007 decision on the grounds that further
1

Docket No. 07-2021 (issued April 17, 2008).

development was necessary to determine whether appellant has more than a seven percent
permanent impairment of his left arm and a two percent permanent impairment of his right leg
under the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides) (5th ed. 2001).2 The Board found that the Office based its schedule award
determination on the May 23, 2007 assessment of Dr. Arthur S. Harris, a Board-certified
orthopedic surgeon, who served as an Office medical adviser,3 but found that Dr. Harris did not
adequately explain why he chose to only use the findings of Dr. Greenspan to evaluate
appellant’s left arm impairment. The Board noted that the record contained three other
impairment evaluations that occurred after Dr. Greenspan’s evaluation, including the May 2,
2006 evaluation of Dr. Paul Bouz, a Board-certified orthopedic surgeon,4 the May 11, 2006
evaluation of Dr. Grant Orlin, an attending Board-certified orthopedic surgeon, and the
February 21, 2007 evaluation of Dr. Albert Simpkins, Jr., an attending Board-certified
orthopedic surgeon. The Board noted that the reports of Dr. Orlin and Dr. Simpkins both
contained findings for left shoulder motion, which would produce greater impairment ratings for
motion limitations than the findings of Dr. Greenspan.5
The Board further found that Dr. Harris did not adequately explain why he concluded that
appellant only had a two percent permanent impairment of his right leg due to his March 18,
2004 partial medial meniscectomy. Dr. Harris did not explain why it would not be more
appropriate to base appellant’s right leg impairment rating on range of motion deficits for the
right knee.6 The Board remanded the case to the Office to further develop the medical evidence
and address its concerns such that there would be a full and accurate assessment of appellant’s
right leg and left arm impairments under the standards of the A.M.A., Guides. The Board
directed that, after such development as the Office deemed necessary, the Office should issue an
appropriate merit decision regarding appellant’s entitlement to schedule award compensation.

2

The Office accepted that appellant sustained employment-related left shoulder tendinitis and mild degenerative
meniscal disease of the right knee. In a July 9, 2007 decision, it granted appellant a schedule award for a seven
percent permanent impairment of his left arm. In another July 9, 2007 decision, the Office granted him a schedule
award for a two percent permanent impairment of his right leg.
3

Dr. Harris did not examine appellant but rather reviewed the medical evidence of record. He concluded, based
on the findings of Dr. Mark Greenspan, an attending Board-certified orthopedic surgeon, that appellant had a seven
percent permanent impairment of his left arm due to limited left shoulder motion, which was comprised of a three
percent rating for flexion, one percent for extension, two percent for abduction and one percent for external rotation.
Dr. Harris found that appellant had a two percent permanent impairment of his right leg due to his March 18, 2004
partial medial meniscectomy.
4

Dr. Bouz served as an impartial medical specialist regarding appellant’s claim that he sustained additional
employment-related conditions, but did not serve as an impartial medical specialist with respect to his claim for
schedule award compensation. The Board notes that Dr. Bouz determined that appellant did not sustain any
additional employment-related conditions.
5

The findings of Dr. Orlin would produce a 9 percent impairment rating and the findings of Dr. Simpkins would
produce a 13 percent rating.
6

The Board noted that the 105 degrees of right knee flexion found by Dr. Greenspan would produce a 10 percent
permanent impairment rating for appellant’s right leg and the 79 degrees of right knee flexion found by
Dr. Simpkins would produce a 20 percent rating for appellant’s right leg.

2

The facts and the circumstances of the case up to that point are set forth in the Board’s prior
decision and are incorporated herein by reference.
On remand, the Office asked Dr. Harris to address the concerns raised by the Board. In a
May 16, 2008 report, Dr. Harris indicated that Dr. Greenspan considered appellant’s condition to
have been permanent and stationary by March 2, 2006. He stated that, when compared with an
Office referral physician’s examination a year prior on March 1, 2005, there was a decrease in the
range of motion of the right knee and a decrease in left shoulder flexion, extension and external
rotation, but there was an increase in left shoulder abduction, adduction and internal rotation.
Dr. Harris indicated that Dr. Bouz’ May 2, 2006 evaluation, i.e., just two months later, reported full
right knee range of motion with limited left shoulder range of motion revealing significant
discrepancies relative to Dr. Greenspan’s findings. There was a significant increase in range of
motion with shoulder flexion, abduction, external rotation, but that there was decreased extension,
adduction and internal rotation. Dr. Bouz stated in his report that he believed that there was a lot of
exaggeration in appellant’s complaints and that most of his disability was not work related.
Dr. Harris noted that Dr. Orlin’s May 11, 2006 examination found full range of motion of the right
knee, but also found (in comparison with Dr. Bouz’ findings) decreased shoulder flexion,
abduction and external rotation but increased shoulder adduction and internal rotation. The
February 21, 2007 evaluation by Dr. Simpkins found a marked limitation of motion of appellant’s
right knee without obvious cause. He had noted that x-rays obtained at that time demonstrated
mild degenerative changes, but that there was no significant joint space narrowing. Dr. Harris
indicated that the left shoulder examination revealed (in comparison with Dr. Orlin’s findings) an
increase in shoulder flexion and external rotation but decreased shoulder extension, abduction,
adduction and internal rotation without obvious cause.
Dr. Harris asserted that the above-described review of the findings indicated significant
inconsistencies in the physical findings. Although Dr. Greenspan found a limited range of motion
for the knee, Drs. Bouz and Orlin noted full range of motion of the right knee. Dr. Harris therefore
opined that the limited range of motion noted on March 2, 2006 by Dr. Greenspan most likely
stemmed from pain rather than true anatomic cause given the subsequent ability to demonstrate a
full range of motion on May 2 and 11, 2006. Dr. Simpkins’ February 21, 2007 examination noted
worsened range of motion without obvious cause. Dr. Harris indicated that Dr. Simpkins had
noted diagnostics showing very mild degenerative changes without joint space narrowing and that
therefore there was no obvious cause for the significant loss of right knee motion.
Dr. Harris reasoned that the loss of motion was not a consistent objective finding because
of the inconsistencies in right knee motion among the examiners and Dr. Bouz’ opinion that there
was no impairment for loss of motion in the knee. He cited the A.M.A., Guides’ statement that, if
the medical evidence appears insufficient to verify that an impairment of a certain magnitude
exists, he may modify the rating accordingly. Dr. Harris stated that the most objective way to rate
the right knee impairment would be based on the March 18, 2004 partial medial meniscectomy,
which would result in a two-percent right leg impairment. Regarding the left shoulder, he stated
that at the time of each examination -- Dr. Greenspan’s on March 2, 2006, Dr. Bouz’ on May 2,
2006, Dr. Orlin’s on May 11, 2006 and Dr. Simpkins on February 21, 2007 -- there were obvious
inconsistencies in the left shoulder motion. Given these inconsistencies on multiple examinations
and Dr. Bouz’ observations about patient exaggeration, Dr. Harris felt it best not to provide
different impairments for the left shoulder range of motion following each examination. Dr. Harris

3

noted that the inconsistencies in the shoulder motion could not be explained on an anatomic or
functional basis but “in all likelihood” were a function of pain.
Dr. Harris stated that none of appellant’s physicians had documented the obvious
worsening of his condition based on objective factors such as loss of strength or worsening
diagnostic test findings. He indicated that he relied on the range of motions reported by
Dr. Greenspan as he was the most appropriate evaluator because he had treated appellant
following his injury, performed his left shoulder arthroscopy and had determined when he
reached maximum medical improvement. Dr. Harris indicated that he would not change his prior
conclusions given on his May 23, 2007 report, i.e., that appellant had a two percent permanent
impairment of his right leg based on the March 18, 2004 surgical procedure and a seven percent
permanent impairment of his left arm based on Dr. Greenspan’s March 2, 2006 documentation of
limited range of motion.
In a June 12, 2008 decision, the Office determined that appellant had not met his burden of
proof that he has more than a seven percent permanent impairment of his left arm and a two
percent permanent impairment of his right leg, for which he received schedule awards. It
indicated that the well rationalized May 16, 2008 report of Dr. Harris addressed the concerns raised
by the Board in its April 17, 2008 decision and showed that appellant did not have more than a
seven percent permanent impairment of his left arm or a two percent permanent impairment of
his right leg.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing regulations8 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.9
ANALYSIS
In a July 9, 2007 decision, the Office granted appellant a schedule award for a seven
percent permanent impairment of his left arm. In another July 9, 2007 decision, it granted him a
schedule award for a two percent permanent impairment of his right leg. The Office based its
schedule award determination on the May 23, 2007 assessment of Dr. Harris, a Board-certified
orthopedic surgeon who served as an Office medical adviser. Dr. Harris concluded, based on the
findings of Dr. Greenspan, an attending Board-certified orthopedic surgeon, that appellant had a
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404 (1999).

9

Id.

4

seven percent permanent impairment of his left arm due to limited left shoulder motion. He
found that appellant had a two percent permanent impairment of his right leg due to his
March 18, 2004 partial medial meniscectomy. In an April 17, 2008 decision, the Board
remanded the case to the Office because it had concerns about the rating methods used by
Dr. Harris.10
On remand, Dr. Harris produced a May 16, 2008 report, in which he provided further
explanation for his conclusion that appellant has no more than a seven percent permanent
impairment of his left arm and a two percent permanent impairment of his right leg, for which he
received schedule awards. The Board has carefully reviewed Dr. Harris’ May 16, 2008 report in
conjunction with the medical evidence of record and concludes that this well-rationalized report
shows that there is no evidence to show that appellant has more than a seven percent permanent
impairment of his left arm and a two percent permanent impairment of his right leg.
Dr. Harris noted that although Dr. Greenspan found limited range of motion for appellant’s
right knee, Dr. Bouz and Dr. Orlin11 noted full range of motion of the right knee. He therefore
opined that the limited range of motion noted on March 2, 2006 by Dr. Greenspan most likely
stemmed from pain rather than true anatomic cause given the subsequent ability to demonstrate a
full range of motion on May 2 and 11, 2006. Dr. Harris indicated that the February 21, 2007
examination of Dr. Simpkins, another attending Board-certified orthopedic surgeon, noted
worsened range of motion without obvious cause.12 He reasoned that the loss of motion was not a
consistent objective finding because of the inconsistencies in right knee motion among the
examiners and Dr. Bouz’ opinion that there was no impairment for loss of motion in the knee.
Dr. Harris concluded that therefore the most objective way to rate the right knee impairment would
be based on the March 18, 2004 partial medial meniscectomy, which would result in a two-percent
right leg impairment.13
Dr. Harris also provided a well-rationalized explanation for his impairment rating for
appellant’s left shoulder. He stated that at the time of each examination -- Dr. Greenspan’s on
March 2, 2006, Dr. Bouz’ on May 2, 2006, Dr. Orlin’s on May 11, 2006 and Dr. Simpkins on
February 21, 2007 -- there were obvious inconsistencies in the left shoulder motion. Given these
inconsistencies on multiple examinations as well as Dr. Bouz’ comments about patient
exaggeration, Dr. Harris felt it best not to provide different impairments for the left shoulder
range of motion following each examination. He indicated that he relied on the range of motions
reported by Dr. Greenspan, which equaled a seven percent impairment of the left arm, as he
10

The Board indicated that Dr. Harris did not adequately explain why he chose to only use the findings of
Dr. Greenspan to evaluate appellant’s left arm impairment and why he based the right leg impairment rating on
appellant’s March 18, 2004 partial medial meniscectomy.
11

Dr. Bouz and Dr. Orlin both are Board-certified orthopedic surgeons. Dr. Bouz served as an impartial medical
specialist regarding appellant’s claim that he sustained additional employment-related conditions, but did not serve
as an impartial medical specialist with respect to his claim for schedule award compensation.
12

Dr. Harris indicated that Dr. Simpkins had noted diagnostics showing very mild degenerative changes without
joint space narrowing and that therefore there was no obvious cause for the significant loss of right knee motion.
13

See A.M.A., Guides 546, Table 17-33.

5

would have been most familiar with appellant’s shoulder condition.14 Dr. Harris reasoned that
Dr. Greenspan was the most appropriate evaluator because he had treated appellant following his
injury, performed his left shoulder arthroscopy and had determined when he reached maximum
medical improvement.
For these reasons, the evidence does not show that appellant has more than a seven
percent permanent impairment of his left arm and a two percent permanent impairment of his
right leg.
CONCLUSION
The Board finds that appellant did not meet his burden of proof that he has more than a
seven percent permanent impairment of his left arm and a two percent permanent impairment of
his right leg, for which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 12, 2008 decision is affirmed.
Issued: April 14, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

The Board notes that applying the findings of Dr. Greenspan to the relevant standards of the A.M.A., Guides
would produce a seven percent impairment of the left arm. The seven percent permanent impairment was comprised
of a three percent rating for flexion (140 degrees), one percent for extension (45 degrees), two percent for abduction
(140 degrees) and one percent for external rotation (45 degrees). See A.M.A., Guides 476-78, 479, Figures 16-40,
16-43 and 16-46.

6