United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SAFETY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE, Renton, WA, Employer
__________________________________________

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

Docket No. 21-1055
Issued: March 30, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 7, 2021 appellant, through counsel, filed a timely appeal from a June 23, 2021
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
3

5 U.S.C. § 8101 et seq.

The Board notes that following the June 23, 2021 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 modify OWCP’s
September 28, 2018 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On October 1, 2013 appellant, then a 46-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that on September 25, 2013 he injured his cervical spine when
participating in a mandatory high intensity interval training while in the performance of duty.
OWCP accepted the claim for a cervical strain. On August 6, 2014 it expanded the acceptance of
the claim to include cervical disc herniation at C6-7. Appellant stopped work on August 6, 2014
and OWCP paid him wage-loss compensation for disability from work on the supplemental rolls.
He sought treatment for his conditions with Dr. Jason Thompson, a Board-certified orthopedic
surgeon. On August 26, 2014 appellant underwent OWCP-authorized surgery for a C6-7 cervical
disc arthroplasty. Commencing October 11, 2014 OWCP paid appellant wage-loss compensation
on the periodic rolls.
In a January 29, 2015 report, Dr. Thompson discussed appellant’s status post C6-7 disc
arthroplasty. He opined that appellant could return to work in the public sector as he had no
restrictions on lifting, bending, twisting, or exercising. However, Dr. Thompson found that
appellant could not return to a law enforcement position where the potential for unexpected
physical violence to the head and neck could be anticipated.
On February 3, 2015 OWCP referred appellant to Dr. Louis Kretschmer, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a February 17, 2105 narrative report,
Dr. Kretschmer indicated that, although, appellant did not have any specific restrictions, he would
not be able to return to work as a federal air marshal as it would be unsafe for him to participate in
vigorous physical confrontation with fellow employees during training or aggressive passengers
on an airplane. He indicated that appellant would be an excellent candidate for vocational
rehabilitation. In an accompanying February 17, 2015 work capacity evaluation (Form OWCP5c), Dr. Kretschmer determined that appellant’s restrictions were permanent and that appellant
was capable of performing sedentary-, light-, and medium-duty work.
On March 19, 2015 OWCP referred appellant for vocational rehabilitation to find a suitable
position within the restrictions provided by Dr. Kretschmer on February 17, 2015. On June 15,
2015 appellant submitted a change of address and notified OWCP that h e was relocating from
Maple Valley, Washington to Chandler, Arizona. From September 8, 2015 through February 11,
2016, appellant underwent training to become a Certified Protection Professional (CPP). After
obtaining his CPP certification, he worked with his vocational rehabilitation counselor for job
placement. Beginning August 9, 2016 appellant sought treatment with Dr. Steven Berman, a
treating physician.

4

Docket No. 19-1410 (issued November 5, 2020).

2

In a September 29, 2016 memorandum, appellant’s vocational rehabilitation counselor
noted that the position of internal security manager was vocationally suitable for appellant. She
found that the position remained medically suitable as the duties were within appellant’s work
limitations and the position was available in sufficient numbers within appellant’s commuting area
based on an August 29, 2016 labor market survey. The vocational rehabilitation counselor
reported that appellant would expect to earn the average wage of $19.45 per hour due to his prior
experience and his recently acquired CPP industry certification.
On December 7, 2016 appellant submitted another change of address and notified OWCP
that he was relocating from Chandler, Arizona to Sparks, Nevada.
On December 7, 2017 OWCP requested that appellant’s treating physician evaluate his
functional capabilities by completing a Form OWCP-5c. On a December 12, 2017 Form OWCP5c, Dr. Berman reported that appellant had reached maximum medical improvement (MMI) and
his restrictions remained unchanged. He reported that appellant could perform sedentary-, light-,
and medium-duty work.
On February 2, 2018 OWCP asked appellant’s vocational rehabilitation counselor to
perform a labor market survey for the purpose of determining if the internal security manager
position was available in appellant’s new job market of Sparks, Nevada. On March 28, 2018 the
counselor confirmed that the internal security manager job still met appellant’s criteria based on
the March 23, 2018 labor market survey. She reported that appellant was capable of working as
an internal security manager and that labor market surveys showed that the position was reasonably
available in his commuting area of Sparks, Nevada. The Department of Labor, Dictionary of
Occupational Titles (DOT) describes the internal security manager position (DOT #378.137-0102)
as involving supervision and coordination of activities of store detectives, conducting private
investigations, and selling internal protective service to wholesale and retail businesses. The
position required assigning store detectives to shifts at various locations according to job
requirements and workers’ abilities, skills, and experience. The DOT, on a job classification report
(Form OWCP-66), described the physical requirements of the position as light work to include
exerting up to 20 pounds of force occasionally. The counselor reported that the salary for this
position ranged from $18.00 to $23.00 per hour based on the labor market survey. She
recommended the average wage of $20.50 per hour based on appellant’s previous experience
performing this position and his recently acquired CPP industry certification.
In a letter dated July 9, 2018, Dr. Berman verified that appellant had reached MMI and was
capable of working full time with the restrictions that had been in place since 2014. He reported
that appellant was in a permanent stationary status and there were no significant changes to his
condition since the last visit. Dr. Berman found that there were no changes in his work status or
the recommended work restrictions.
On August 23, 2018 OWCP notified appellant that it proposed to reduce his wage-loss
compensation pursuant to 5 U.S.C. §§ 8106 and 8115. It advised him that he was only partially
disabled from work and that the position of internal security manager (DOT #378.137 -0102) was
medically and vocationally suitable with regard to his medical limitations, work experience, and
education. OWCP explained that the physical requirements of the internal security manager did
not exceed the restrictions imposed by Dr. Berman’s December 12, 2017 and July 9, 2018 reports.
It found that appellant was capable of earning wages at the rate of $820.00 per week as an internal
security manager and that the position was reasonably available within his commuting area.
OWCP provided an attachment detailing the application of the formula set forth in Albert C.
3

Shadrick.5 It afforded appellant 30 days to submit evidence and argument challenging the
proposed action.
In a September 9, 2018 letter, counsel disagreed with the proposed reduction of
compensation. He argued that the job analysis was improper because it was based on appellant’s
prior residence in Seattle, Washington. Counsel asserted that the job availability and wage rate
should have been based on the job market for Sparks, Nevada, where appellant currently resided.
He further argued that the job availability and hourly wage was likely far less in Sparks, Nevada
and requested a new labor market survey.
By decision dated September 28, 2018, OWCP reduced appellant’s wage-loss
compensation benefits, effective September 30, 2018, based on his ability to earn wages of
$820.00 per week as an internal security manager. It verified that the March 23, 2018 labor market
study, was conducted for his commuting area in and around Reno, Nevada and not Seattle,
Washington as asserted by counsel for appellant. OWCP explained that the physical duties of the
position were in accordance with the restrictions provided by Dr. Berman’s July 9, 2018 report,
and that appellant’s rehabilitation counselor had determined that he was vocationally capable of
performing the constructed position. It further found that appellant was no longer totally disabled
from work and that the position of internal security manager was medically and vocationally
suitable, and represented his wage-earning capacity. OWCP applied the Shadrick 6 formula to
determine appellant’s LWEC and adjust his compensation.
On October 9, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
January 25, 2019, appellant testified that he was unable to accept most of the jobs in the labor
market study due to other conditions.
By decision dated March 29, 2019, OWCP’s hearing representative affirmed the
September 28, 2018 decision. She concluded that the position of internal security manager
reasonably and accurately reflected his wage-earning capacity and his compensation was properly
reduced effective September 30, 2018.
Appellant appealed to the Board and, by decision dated November 5, 2020,7 the Board
affirmed OWCP’s March 29, 2019 decision.
On December 7, 2020 appellant, through counsel, requested modification of OWCP’s
September 28, 2018 LWEC determination. He submitted an October 20, 2020 report from
Dr. Paul Fry, a Board-certified orthopedic surgeon serving as an OWCP referral physician, who
advised that, during a September 22, 2020 physical examination, appellant had examination
findings of “a diminished cervical range of motion.” Dr. Fry noted that appellant’s clinical
examination showed that all measurements of his cervical range of motion were symmetrical on
the right and left. He indicated that range of motion measurements of the shoulders were optimal
and symmetrical, and that bilateral upper extremity strength measurements were optimal at 5/5.
Dr. Fry opined that appellant had residuals of his work injury resulting from cervical disc surgery
and indicated that he was unable to perform the duties of his date-of-injury position as a federal
5

5 ECAB 376 (1953).

6

Id.

7

Supra note 4.

4

air marshal. He completed a Form OWCP-5c confirming appellant’s ability to work full time with
restrictions, including lifting no more than 25 pounds intermittently.
In a January 13, 2021 report, Dr. Berman noted appellant’s subjective complaints of dull
aching, throbbing, squeezing, and cramping, but noted that as to the head and neck he had “full
range of motion, no abnormal findings.” He also indicated that appellant had no neurological
abnormalities and that he had normal strength and flexion of the bilateral upper extremities.
Dr. Berman advised that the musculature of appellant’s neck was noted to be of “normal strength
and tone.” He indicated that he would refer appellant for x-ray testing to determine if there had
been any changes in his cervical spine.
Appellant also submitted an x-ray report of his cervical spine, obtained on February 1,
2021, which contained an impression of status post artificial disc replacement at C6 -7 without
evidence of dynamic instability, as well as mild straightening of cervical lordosis in neutral
position.
By decision dated June 23, 2021, OWCP determined that appellant has not met his burden
of proof to modify OWCP’s September 28, 2018 LWEC determination. It found that the evidence
submitted by appellant on reconsideration did not show that his injury-related condition prevented
him from working as an internal security manager.
LEGAL PRECEDENT
Once OWCP accepts a claim it has the burden of proof to justify termination or
modification of compensation benefits. 8 An injured employee who is either unable to return to the
position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed based on his or her
LWEC.9 An employee’s actual earnings generally best reflect his or her wage-earning capacity. 10
Absent evidence that actual earnings do not fairly and reasonably represent the employee ’s wageearning capacity, such earnings must be accepted as representative of the individual’s wageearning capacity. 11 But if actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity or the employee has no actual earnings, then wage -earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment and other factors and circumstances that may affect wage -earning capacity
in his disabled condition. 12
OWCP must initially determine the employee’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her vocational wage -earning capacity. 13
The medical evidence OWCP relies upon must provide a detailed description of the employee’s
8

James B. Christenson, 47 ECAB 775, 778 (1996); Wilson L. Clow, Jr., 44 ECAB 157 (1992).

9

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

10

Hayden C. Ross, 55 ECAB 455, 460 (2004).

11

Id.

12

5 U.S.C. § 8115(a); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

13

M.A., 59 ECAB 624, 631 (2008).

5

condition and the evaluation must be reasonably current. 14 Where suitability is to be determined
based on a position not actually held, the selected position must accommodate the employee’s
limitations from both injury-related and preexisting conditions, but not limitations attributable to
post-injury or subsequently acquired conditions. 15
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles
(DOT) or otherwise available in the open labor market that fits the employee ’s capabilities with
regard to his or her physical limitations, education, age and prior experience.16 Once this selection
is made, a determination of wage rate and availability in the open labor market should be made
through contact with the state employment service or other applicable service. 17 Finally,
application of the principles set forth in the Shadrick decision will result in the percentage of the
employee’s LWEC.18
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous. 19 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination. 20
ANALYSIS
The Board finds that appellant has not met his burden of proof to modify OWCP’s
September 28, 2018 LWEC determination.
By decision dated November 5, 2020, 21 the Board affirmed OWCP’s March 29, 2019
decision, finding the September 28, 2018 LWEC determination was proper. Findings made in

14

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4d (June 2013).
15

N.J., 59 ECAB 171, 176 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning
Capacity Based on a Constructed Position, Chapter 2.816.4c (June 2013).
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.7b
(February 2011).
17

The job selected for determining wage-earning capacity must be a position that is reasonably available in the
general labor market in the commuting area in which the employee resides. David L. Scott, 55 ECAB 330, 335 n.9
(2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6 (June 2013).
18

20 C.F.R. § 10.403(d); see also Albert C. Shadrick, supra note 5.

19

C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

20

See T.M., Docket No. 08-975 (issued February 6, 2009).

21

Supra note 4.

6

prior Board decisions are res judicata absent further review by OWCP under section 8128 of
FECA.22
The Board finds that appellant has not shown that modification of the September 28, 2018
LWEC determination is warranted by establishing that a spontaneous worsening of his injuryrelated condition after the issuance of the September 28, 2018 LWEC determination prevented
him from working as an internal security manager. 23
Appellant submitted an October 20, 2020 report from Dr. Fry, an OWCP referral physician,
who advised that, during a September 22, 2020 physical examination, appellant had examination
findings of “a diminished cervical range of motion.” He further discussed appellant’s examination
findings and opined that appellant had residuals of his work injury which prevented him from
performing the duties of his date-of-injury position as a federal air marshal. Dr. Fry completed a
Form OWCP-5c confirming appellant’s ability to work full time with restrictions, including lifting
no more than 25 pounds intermittently. In a January 13, 2021 report, Dr. Berman noted appellant’s
subjective complaints of dull aching, throbbing, squeezing, and cramping, but indicated that as to
the head and neck he had “full range of motion, no abnormal findings.” He also noted that
appellant had no neurological abnormalities and that he had normal strength and flexion of the
bilateral upper extremities. Dr. Berman advised that the musculature of appellant’s neck was noted
to be of “normal strength and tone.” Appellant also submitted an x-ray report of his cervical spine,
obtained on February 1, 2021, which contained an impression of status post artificial disc
replacement at C6-7 without evidence of dynamic instability, as well as mild straightening of
cervical lordosis in neutral position.
The Board finds that the submitted reports of Dr. Fry and Dr. Berman, as well as the
diagnostic testing report, are of no probative value in showing that a worsening of appellant’s
injury-related condition prevented appellant from working as an internal security manager, i.e., the
position that served as the basis for the September 28, 2018 LWEC determination. These reports
do not provide an opinion that appellant was unable to work as an internal security manager.
Dr. Fry’s report contains restrictions that would allow him to work in the position. The Board has
held that medical evidence that does not offer an opinion regarding a given medical matter, such
as the inability to perform a given position, is of no probative value on that matter.24 Therefore,
these reports are insufficient to establish appellant’s request for modification of the September 28,
2018 LWEC determination.
The Board further finds that appellant has not shown that modification of the September 28,
2018 LWEC determination is warranted by establishing that he was subsequently retrained or
otherwise vocationally rehabilitated. 25 Therefore, appellant has not met any of the three prongs of
the standards for modifying an LWEC determination.

22

C.D., Docket No. 19-1973 (issued May 21, 2020); B.W., Docket No. 17-0366 (issued June 7, 2017); Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).
23

Id.

24

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

25

See supra note 19.

7

Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to modify OWCP’s
September 28, 2018 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
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U.S. POSTAL SERVICE, POST OFFICE,
)
Lafayette, LA, Employer
)
__________________________________________ )
H.S., Appellant

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

Docket No. 10-614
Issued: October 15, 2010

Case Submitted on the Record

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

JURISDICTION
On January 4, 2010 appellant filed a timely appeal from the December 1, 2009 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than nine percent impairment to her right upper
extremity.
FACTUAL HISTORY
This case was previously on appeal to the Board. On July 12, 2007 the Board affirmed a
November 24, 2006 Office decision denying appellant’s claim for a right knee injury.1

1

Docket No. 07-925 (issued July 12, 2007).

On October 12, 2006 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim alleging that she sustained a right knee injury caused by factors of her
employment. On August 2, 2006 she underwent a right knee partial medial meniscectomy
performed by Dr. Harold J. Granger, a Board-certified orthopedic surgeon. On August 8, 2008
the Office accepted appellant’s claim for a right knee medial meniscus tear, right knee cruciate
ligament sprains, right patella chondromalacia and right leg traumatic arthritis. On August 25,
2008 appellant filed a claim for a schedule award.
On November 16, 2006 Dr. Granger noted that appellant was doing well following her
medial meniscal tear surgery and had only a mild amount of pain in her proximal lateral portal.
She was able to perform almost any activity with minimal discomfort. Findings on physical
examination included no right knee effusion, range of motion from 0 to 120 degrees and negative
Lachman’s and anterior drawer signs. Varus/valgus stress showed no laxity. There was no
pretibial edema. Dorsalis pedis pulse was 2+.
In a January 28, 2008 report, Dr. John W. Ellis, a Board-certified family practitioner,
reviewed the medical history and provided findings on physical examination. The posterior
cruciate ligament was normal. There was some laxity of the anterior cruciate ligament (ACL).
The medial collateral ligament (MCL) was lax because of the surgical partial removal of the
patella. There was some chondromalacia on movement of the patella due to her job and an
aggravation of the meniscal injury. Dr. Ellis calculated 16 percent right lower extremity
impairment, including 7 percent for mild MCL laxity, 7 percent for mild ACL laxity and 2
percent for a partial medial meniscectomy, according to Table 17-33 at page 546 of the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (the A.M.A., Guides).
On November 20, 2008 Dr. Ronald Blum, an Office medical adviser, reviewed the
reports of Dr. Ellis and Dr. Granger. He noted that Dr. Ellis found decreased right knee range of
motion and laxity of the ACL and MCL. Dr. Granger found full range of motion (0 to 120
degrees), negative Lachman and anterior drawer signs (ACL tests) and no laxity on varus (lateral
collateral ligament) or valgus (MCL) stress tests. Dr. Blum recommended an evaluation by an
appropriate Board-certified specialist.
In a February 17, 2009 report, Dr. Christopher Cenac, a Board-certified orthopedic
surgeon and an Office referral physician, reviewed the medical evidence and provided findings
on physical examination. Appellant had full right knee range of motion. Measurement of the
lower extremities revealed 18 centimeters bilaterally. Appellant walked without a limp and no
assistive devices were used. She could heel and toe walk without difficulty. No point tenderness
was noted. There was no evidence of cruciate ligament laxity. Minimal to mild MCL laxity was
noted. There was no swelling or deformity of the knee. Quadriceps muscle strength was 5/5. Xrays revealed minimal loss of joint space height in the medial compartment. Dr. Cenac
calculated nine percent right lower extremity impairment based on the A.M.A., Guides fifth
edition, including seven percent for mild MCL laxity and two percent for a partial medial
meniscectomy, according to Table 17-33 at page 546 of the A.M.A., Guides.
On March 6, 2009 Dr. R. Meador, an Office medical adviser, calculated that appellant
had nine percent right lower extremity impairment based on Dr. Cenac’s report and the fifth

2

edition of the A.M.A., Guides. This included two percent impairment for a partial meniscectomy
and seven percent for mild collateral ligament laxity according to Table 17-33 at page 546.2
By decision dated March 17, 2009, the Office granted appellant a schedule award, based
on nine percent right lower extremity impairment, for 25.92 weeks, from February 15 to
August 15, 2007.3
Appellant requested a hearing that was held on September 28, 2009.
evidence was submitted.

No additional

By decision dated December 1, 2009, an Office hearing representative affirmed the
March 17, 2009 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulations5 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.6
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Ellis reviewed the medical history and provided findings on physical examination at
the request of appellant’s representative. He calculated 16 percent right lower extremity
impairment, including 7 percent for mild ACL laxity, 7 percent for mild MCL laxity and 2
percent for a partial medial meniscectomy. The ratings were all made according to Table 17-33
at page 546 of the fifth edition of the A.M.A., Guides. Table 17-33 provides a 7 percent rating
2

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (after obtaining all necessary medical evidence, the file should be routed to an
Office medical adviser for an opinion concerning the nature and percentage of impairment in accordance with the
A.M.A., Guides, with the medical adviser providing rationale for the percentage of impairment specified, especially
when there is more than one evaluation of the impairment present).
3

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of the lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by nine percent equals 25.92 weeks of
compensation.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404.

3

for cruciate or collateral ligament laxity. Dr. Cenac, an Office second opinion physician,
reviewed the medical evidence and provided findings on physical examination. He calculated
nine percent right lower extremity impairment based on the A.M.A., Guides fifth edition,
including seven percent for mild MCL laxity and two percent for a partial medial meniscectomy,
according to Table 17-33 at page 546 of the A.M.A., Guides. Dr. Cenac did not find that
appellant had a permanent impairment due to ACL laxity, as had Dr. Ellis. Section 8123(a) of
the Act provides that, “if there is disagreement between the physician making the examination
for the United States and the physician of the employee, the Secretary [of Labor] shall appoint a
third physician who shall make an examination.”7
The Board finds that this case is not in posture for a decision. There is a conflict in the
medical opinion evidence between Dr. Ellis and Dr. Cenac as to appellant’s right lower extremity
impairment. Dr. Ellis found impairment pursuant to Table 17-33 due to ACL laxity but
Dr. Cenac did not. On remand of the case, the Office should refer appellant to an appropriate
Board-certified specialist, for an examination and evaluation to resolve the conflict in the
medical opinion evidence.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should refer appellant to an appropriate Board-certified specialist to resolve the conflict in the
medical opinion evidence as to appellant’s right lower extremity impairment. After such further
development as the Office deems necessary, it should issue an appropriate decision.

7

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

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 1, 2009 is set aside and the case is remanded for
further action consistent with this decision.
Issued: October 15, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Guntersville, AL, Employer
)
_________________________________________ )
K.L., Appellant

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

Docket No. 10-1331
Issued: January 18, 2011

Case Submitted on the Record

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

JURISDICTION
On April 14, 2010 appellant filed a timely appeal from a February 19, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition causally related to her federal employment.
FACTUAL HISTORY
On October 30, 2009 appellant, then a 40-year-old sales associate, filed a traumatic injury
claim (Form CA-1) alleging that she sustained anxiety and depression as a result of a
February 27, 2009 employment incident. Appellant stated that she was sexually assaulted by a
coworker on that date.
In a letter dated October 30, 2009, appellant’s postmaster stated that she had alleged a
coworker put his hand on her head as she was bending over and attempted to pull her toward his

groin area. According to the postmaster, an investigation of the allegation was undertaken and
there was nothing found to prove anyone guilty of anything.
On September 8, 2009 the postmaster advised that on February 27, 2009 appellant
submitted a statement that she was sexually harassed by a coworker. Witnesses were
interviewed on August 10, 2009. A supervisor, Toni McCay, heard appellant yell “Get your
hands off of me” and the supervisor immediately went to investigate. Appellant alleged a
coworker grabbed her by the head and pulled her toward his groin area. The supervisor told the
coworker this behavior would not be tolerated and, if he did it again, his employment would be
terminated. The coworker stated that on February 27, 2009 his hands were cold and he touched
the back of appellant’s neck, causing her to tell him to keep his hands off of her. He denied
attempting to pull appellant’s head toward him, and stated that he only touched her as a joke.
In an undated statement, Supervisor McCay stated that she heard appellant yell “keep
your hands off me.” The supervisor told the coworker he had no right to put his hands on
anyone. One hour after the incident, she again spoke to the coworker and told him that appellant
alleged he tried to pull her head toward his groin. The coworker replied, “yeah, but we do that
kind of stuff all the time, we joke around.”
With respect to medical evidence, appellant submitted a December 2, 2009 report from
Dr. Charles Larson, a family practitioner, who stated that appellant was being treated for stress,
anxiety and insomnia caused by an “unfortunate encounter” with a coworker in February.
Dr. Larson advised that appellant should remain off work. The record also contains a report
from a licensed counselor.
By decision dated December 22, 2009, the Office denied the claim for compensation. It
found the factual evidence was insufficient to establish that the touching incident occurred as
alleged, as there was insufficient evidence to establish appellant was sexually assaulted by the
coworker.
Appellant requested reconsideration and submitted additional statements from coworkers
indicating she appeared to have been adversely affected by the employment incident. In a
January 5, 2010 report, Dr. Larson indicated appellant would return to work on January 7, 2010.
In a February 19, 2010 decision, the Office reviewed the case on its merits and denied
modification of the December 22, 2009 decision.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.1 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2 If a compensable work

1

Pamela R. Rice, 38 ECAB 838 (1987).

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

2

factor is established, the claimant must submit rationalized medical evidence on causal relationship
between a diagnosed condition and the compensable work factors.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to her regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.4
ANALYSIS
The Office denied appellant’s claim finding that a compensable work factor was not
substantiated by the record. It found that she did not establish a sexual assault or sexual
harassment. A claimant does not have to establish sexual harassment as defined by the Equal
Employment Opportunity Commission or other agency, or that a crime was committed.5
Appellant alleged that an incident occurred on February 27, 2009 involving an unwanted
touching by a coworker. She promptly reported the incident to a supervisor.
It is well established that unwanted physical contact may support a claim for
compensation.6 The record establishes that a coworker touched appellant on the back of her head
or neck. The coworker admitted to touching appellant with cold hands, and a supervisor heard
appellant yell that the coworker should keep his hands off her. The statement from
Supervisor McCay was that, one hour after the incident, she described appellant’s allegation, and
the coworker appeared to acknowledge the incident as alleged, describing it as a joke.
The Board finds the evidence of record is sufficient to establish a compensable work
factor. The record supports unwanted physical contact on February 27, 2009. Having
established a compensable work factor, the issue is whether the medical evidence establishes a
diagnosed condition causally related to the compensable work factor.
As noted, it is appellant’s burden of proof to submit the necessary evidence to establish
the claim. In this case, the medical evidence of record is of limited probative value. Dr. Larson
3

M.D., 59 ECAB 211 (2007) (a rationalized medical opinion is based on complete factual and medical
background and supported by rationale explaining the relationship between the diagnosed condition and the
compensable employment factor).
4

Lillian Cutler, 28 ECAB 125 (1976).

5

See Michael A. Deas, 53 ECAB 208 (2001).

6

See Alton L. White, 42 ECAB 666 (1991); see also Mary J. Summers, 55 ECAB 730 (2004); Alice F. Harrell, 53
ECAB 713 (2002); Donna J. DiBernardo, 47 ECAB 700 (1996).

3

referred briefly in a December 2, 2009 report to an “unfortunate encounter” with a coworker,
without providing a complete factual or medical history. In addition, there is no rationalized
medical opinion on causal relationship between a diagnosed condition and the work factor. The
report from a licensed counselor is of no probative value as he is not a physician under the Act.7
The Board accordingly finds that appellant did not meet her burden of proof to establish an
emotional condition due to the touching incident.
CONCLUSION
The Board finds that a compensable work factor is substantiated, but the medical
evidence does not establish a diagnosed condition causally related to the accepted incident at
work.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 19, 2010 and December 22, 2009 are affirmed, as
modified.
Issued: January 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Under 5 U.S.C. § 8101(2) the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as define by State law.
There was no evidence that the licensed counselor is a physician under the Act and, therefore, the report is not
considered probative medical evidence. R.M., 59 ECAB 690 (2008).

4


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

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

Docket No. 19-0757
Issued: April 16, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 22, 2019 appellant filed a timely appeal from a January 17, 2019 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 appellant received an overpayment of compensation in the
amount of $44,476.90 for the period July 1, 2014 through October 14, 2017 because she
concurrently received FECA wage-loss compensation and Social Security Administration (SSA)
1
2

5 U.S.C. § 8101 et seq.

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

age-related retirement benefits without an appropriate offset; (2) whether OWCP properly found
appellant at fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment; and (3) whether it properly required recovery of the overpayment by deducting
$34.07 every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On October 7, 1998 appellant, then a 50-year-old rural mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 1, 1998 she injured her back while bending down to
pick up a tray of mail while in the performance of duty. OWCP accepted the claim for lumbar
sacral strain with radiculopathy and a herniated disc at L5-S1. Appellant stopped work on June 4,
1999 and underwent an OWCP-authorized decompression, laminectomy, and discectomy at L4-5.
On May 7, 2002 OWCP notified appellant of her placement on the periodic rolls, effective
April 21, 2002. It advised her to report any retirement income she received from any federal
agency, including benefits received under the Federal Employees Retirement System (FERS).
OWCP noted that “If you are covered under FERS, OWCP must deduct from your compensation
entitlement at least part of any Social Security Retirement benefits to which you are entitled based
on age. This is because a portion of FERS benefits is included in Social Security retirement
benefits.” By her signature dated May 14, 2002, appellant acknowledged the terms and conditions
under which she could receive compensation.
Appellant returned to part-time limited-duty work on September 21, 2004 and worked in a
part-time capacity until her retirement, effective October 31, 2009. OWCP paid her wage-loss
compensation on the periodic rolls.3
In an April 27, 2010 letter, OWCP issued an election letter to appellant advising her that
she was not entitled to concurrently receive both FECA wage-loss compensation and Office
Personnel Management retirement benefits and that she must elect which benefit to receive. It
also advised her that “FECA benefits will be reduced by the Social Security Act benefits paid on
the basis of age and attributable to your federal service.” In a June 1, 2010 letter, OWCP advised
appellant that compensation benefits would be reduced if she began receiving SSA retirement
benefits based upon her age and federal service. It noted that failure to report receipt of such
retirement benefits could result in an overpayment of compensation which could be subject to
recovery. In a June 7, 2012 letter, OWCP again advised appellant that FECA benefits would be
reduced by SSA benefits paid on the basis of age and federal service.
On August 24, 2017 OWCP requested that SSA provide information regarding appellant’s
retirement benefits based upon age and federal service. On October 4, 2017 SSA provided OWCP
with a FERS/SSA dual benefit calculation worksheet setting forth her SSA rates with FERS and
without FERS from July 2014 through December 2016. The SSA rates with FERS/without FERS
were reported as: $1,191.60/$86.50 for July 1, 2014; $1,211.80/$87.90 for December 1, 2014;
$1,211.80/$87.90 for December 1, 2015; and $1,215.40/$88.10 for December 1, 2016.

3
Appellant continued to receive partial disability wage-loss compensation based upon her loss of wage-earning
capacity.

2

Effective October 15, 2017, OWCP offset appellant’s FECA benefits by the amount of her
SSA age-related retirement benefits attributable to her federal employment under FERS.
OWCP also calculated an overpayment amount of $44,476.90 for the period covering
July 1, 2014 through October 14, 2017. It found an overpayment of $5,574.08 resulted for the
period July 1 to November 30, 2014; $13,523.85 for the period December 1 to November 30,
2015; $13,560.90 for the period December 1, 2015 to November 30, 2016; and $11,818.07 for the
period December 1, 2016 to October 14, 2017. The overpayment was determined by subtracting
the SSA rate without FERS from the SSA rate with FERS to get the monthly FERS offset amount,
which it then converted to the 28-day offset amount to be deducted from the periodic rolls
payments based on the number of days in each corresponding period.
In a preliminary overpayment determination dated October 30, 2017, OWCP notified
appellant that she had received an overpayment of compensation in the amount of $44,476.90 for
the period July 1, 2014 through October 14, 2017 because it had failed to reduce her wage-loss
compensation by the portion of her SSA age-related retirement benefits that were attributable to
her federal service. It further advised her of its preliminary overpayment determination that she
was without fault in the creation of the overpayment because she was not aware nor could she have
been reasonably expected to know that OWCP had incorrectly paid compensation. OWCP
provided appellant with an overpayment action request form and an overpayment recovery
questionnaire (Form OWCP-20). Additionally, it notified her that, within 30 days of the date of
the letter, she could request a telephone conference, a final decision based on the written evidence,
or a prerecoupment hearing.
Appellant subsequently submitted a completed Form OWCP-20 dated November 8, 2017.
She indicated that, after she retired, she used her savings to pay down her bills. Appellant indicated
that she was living month-to-month and still trying to pay off her bills.
On March 6, 2018 OWCP issued two new preliminary overpayment determinations which
superseded the initial October 30, 2017 preliminary overpayment determination. It made a
preliminary overpayment determination that appellant was overpaid in the amount of $28,027.37
for the period July 1, 2014 through July 28, 2016 because her FECA compensation was not
reduced by the FERS portion of her SSA age-related retirement benefits. OWCP found that she
was without fault in the creation of this overpayment. It also made a preliminary overpayment
determination that appellant was overpaid in the amount of $16,449.52 from July 29, 2016 to
October 14, 2017 because she also received FECA benefits that were not reduced by the FERS
portion of her SSA age-related retirement benefits. OWCP found that she was with fault in the
creation of the $16,449.52 as she knowingly accepted payments which she knew or reasonably
should have known to be incorrect. It provided appellant with an overpayment action request form
and a Form OWCP-20 for her completion.
On March 27, 2018 appellant, through counsel, requested a prerecoupment hearing on the
March 6, 2018 preliminary overpayment determinations before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated July 24, 2018, an OWCP hearing representative conducted a preliminary
review and found that the case was not in posture for a hearing. She found that appellant had

3

received a $44,476.90 overpayment of compensation as she concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for the period July 1, 2014 to October 14,
2017 without an appropriate offset. The hearing representative remanded the case for a proper
analysis on the issue of fault for the period July 1, 2014 to July 28, 2016.
In a September 13, 2018 preliminary overpayment determination, OWCP found that
appellant received an overpayment of compensation in the amount of $28,027.37 for the period
July 1, 2014 through July 28, 2016, for which she was with fault, because she concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation without an
appropriate offset. It advised that she was provided notice on three separate occasions that her
SSA age-related retirement benefits attributable to FERS were subject to offset and she had
displayed her understanding of the subject when she completed her EN1032 forms. Thus, OWCP
found that appellant knowingly accepted compensation to which she was not entitled. It provided
her with a new Form OWCP-20.
By decision dated January 17, 2019, OWCP finalized its March 6 and September 13, 2018
preliminary overpayment determinations, finding an overpayment of compensation in the amount
of $44,476.80 for the period July 1, 2014 through October 14, 2017 as appellant had received
wage-loss compensation from OWCP without an appropriate offset for age-related SSA benefits
attributable to FERS. It further found that she was at fault in the creation of the overpayment and
thereby precluded from waiver of recovery of the overpayment. OWCP further determined that
the overpayment would be recovered by withholding $34.07 every 28 days from appellant’s
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.4 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.6 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6
20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).

4

federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $44,476.90 for the period July 1, 2014 through October 14, 2017
because she concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits.
OWCP paid appellant appropriate wage-loss compensation for total disability following
her injury. It subsequently paid her wage-loss compensation for partial disability after her return
to work. Beginning July 1, 2014, appellant received SSA age-related retirement benefits. As
noted, a claimant cannot receive compensation for wage-loss compensation and SSA retirement
benefits attributable to federal service for the same period.8 The information provided by SSA
indicated that a portion of appellant’s SSA age-related retirement benefits were attributable to her
federal service. As OWCP neglected to offset her FECA benefits for the period July 1, 2014
through October 14, 2017, she received an overpayment of wage-loss compensation.9
Based on the rates provided by SSA, OWCP calculated the overpayment of compensation
by determining the portion of SSA age-related retirement benefits that were attributable to
appellant’s federal service. It received documentation from SSA with respect to the specific
amount of SSA age-related retirement benefits that were attributable to federal service. SSA
provided appellant’s SSA rate with FERS and without FERS for specific periods beginning
July 1, 2014.10 OWCP provided its calculations of the amount that it should have offset for each
relevant period based on the SSA worksheet. The Board has reviewed OWCP’s calculations and
finds that it properly determined that appellant received prohibited dual benefits totaling
$44,476.90 creating an overpayment of compensation in that amount.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”11 A claimant who is at fault in the creation of the overpayment is not entitled to

7

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

8

Supra note 7; V.B., Docket No. 19-1082 (issued October 29, 2019); A.C., Docket No. 18-1550 (issued
February 21, 2019).
9

Id.

10

SSA’s worksheet provided applicable rates effective the following dates: July 1 to November 30, 2014;
December 1 to November 30, 2015; December 1, 2015 to November 30, 2016; and December 1, 2016 to
October 14, 2017.
11

5 U.S.C. § 8129(b).

5

waiver.12 On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.13
With respect to whether an individual is with fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not met its burden of proof to establish that appellant was
at fault in the creation of the overpayment for the period July 1, 2014 through October 14, 2017.
As noted above, the Federal (FECA) Procedure Manual identifies that, regarding an SSA
dual benefits scenario, where the claimant receives SSA age-related retirement benefits as part of
an annuity and wage-loss compensation under FECA, resulting in an overpayment, the claimant
should be found not at fault unless there is evidence on file that the claimant was aware that the
receipt of full SSA age-related retirement benefits concurrent with disability/wage-loss
compensation was prohibited.15 Because of the complex nature of SSA benefits administration,
appellant could not have been expected to be able to calculate the amount of an offset. Therefore,
she could not reasonably have been aware during the relevant period that her concurrent receipt of
SSA benefits constituted an actual prohibited dual benefit.16
As previously noted, to determine if an individual was at fault with respect to the creation
of an overpayment, OWCP examines the circumstances surrounding the overpayment. The degree
of care expected may vary with the complexity of those circumstances and the individual’s
capacity to realize that he or she is being overpaid.17 Therefore, based on the circumstances
described, the Board finds that OWCP has not met its burden of proof to establish that appellant
12

See C.Y., Docket No. 18-0263 (issued September 14, 2018).

13

20 C.F.R. § 10.433(a).

14

Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August 3, 2018).

15
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Fault Determinations, Chapter 6.300.4g(4)
(September 2018).
16

H.H., Docket No. 18-0674 (issued September 3, 2020); G.G., Docket No. 19-0684 (issued December 23, 2019)
(The Board affirmed OWCP’s finding that, due to the complexity of SSA age-related retirement benefits
administration, appellant was not with fault in the creation of the overpayment because he could not have reasonably
known that an improper payment had occurred. OWCP determined that appellant was not expected to be able to
calculate the amount of the offset.).
17
Id. at § 10.433(b); see also Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations
in an Overpayment, Chapter 6.300.4(d) (September 2018).

6

was at fault in the creation of the overpayment for the period July 1, 2014 through
October 14, 2017.
As the Board finds that appellant was not at fault in the creation of the overpayment for the
period July 1, 2014 through October 14, 2017, the case will be remanded to OWCP to consider the
issue of waiver of recovery of the overpayment.18
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$44,476.90 for the period July 1, 2014 through October 14, 2017 because she concurrently
received FECA wage-loss compensation and SSA age-related retirement benefits. The Board
further finds that she was not at fault in the creation of the overpayment during the above-noted
period and that the case will be remanded to OWCP to consider waiver of recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part, and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: April 16, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18

In light of the Board’s disposition of issue 2, issue 3 is rendered moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Aurora, IL, Employer
__________________________________________
Appearances:
David A. Teegarden, for the appellant1
Office of Solicitor, for the Director

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Docket No. 16-1459
Issued: December 22, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On July 1, 2016 appellant, through her representative, filed a timely appeal from a
May 19, 2016 decision of the Office of Workers’ Compensation Programs (OWCP), which
found that her reconsideration request was untimely filed and failed to demonstrate clear
evidence of error. The appeal was docketed as No. 16-1459.
In a February 20, 2015 decision, OWCP denied appellant’s claim for a traumatic right
knee injury. Appellant subsequently requested reconsideration on February 22, 2016. She also
submitted additional evidence. By decision dated May 19, 2016, OWCP denied her request for
reconsideration finding that it was not timely filed and failed to present clear evidence of error.
The Board has duly considered the matter and finds that appellant’s request for
reconsideration was timely. Section 10.607(a) of the implementing regulations provides that an
application for reconsideration must be received within one year of the date of OWCP decision

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.

for which review is sought.2 In this case, the last merit decision was dated February 20, 2015
and appellant’s request for reconsideration was received by OWCP on Monday,
February 22, 2016. In computing the time for requesting reconsideration, the last day of the
period shall be included unless it is a Saturday, a Sunday, or a legal holiday.3 As February 20,
2016 was a Saturday, appellant had until Monday, February 22, 2016 to request
reconsideration. Thus, her request was timely received by OWCP.
Because appellant filed a timely reconsideration request, OWCP should have reviewed
her request under the standard for a timely request,4 as opposed to the standard for untimely
requests.5 The clear evidence of error standard utilized by OWCP in its May 19, 2016 decision
is appropriate only for untimely reconsideration requests. The Board will set aside OWCP’s
May 19, 2016 decision and remand the case for an appropriate final decision on appellant’s
timely request for reconsideration.
IT IS HEREBY ORDERED THAT the May 19, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: December 22, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
2

20 C.F.R. § 10.607(a). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (February 2016).
3

Debra McDavid, 57 ECAB 149 (2005).

4

20 C.F.R. § 10.606(b)(3).

5

Section 10.607(b) states that OWCP will consider an untimely application for reconsideration only if it
demonstrates clear evidence of error by OWCP in its most recent merit decision. The reconsideration request must
establish that OWCP’s decision was, on its face, erroneous. Id. at § 10.607(b).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, NATIONAL PROCESSING
CENTER, Jeffersonville, IN, Employer
__________________________________________

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

Docket No. 07-1024
Issued: September 7, 2007

Case Submitted on the Record

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

JURISDICTION
On March 6, 2007 appellant filed an appeal of August 6 and December 7, 2006 decisions
of the Office of Workers’ Compensation Programs denying his occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether appellant established that he sustained respiratory, lung, eye or
neurologic injuries in the performance of duty due to accepted workplace chemical exposures.

FACTUAL HISTORY
On June 16, 2006 appellant, then a 51-year-old mail processing equipment operator, filed
a traumatic injury claim (Form CA-1)1 alleging that he sustained headaches, blurred vision,
nausea, weakness, a sore throat and trouble concentrating due to exposure to the adhesive
PAM-X on May 6, 2006. The employing establishment confirmed that appellant was exposed to
PAM-X 7071 white padding adhesive from April 27 to June 15, 2006 for up to eight hours a day.
He was assigned to apply PAM-X with a paintbrush to stacks of paper to create memorandum
pads. The employing establishment did not provide goggles, a mask or protective clothing.
Appellant was absent from work for three weeks beginning June 19, 2006.
In a June 23, 2006 report, Dr. Lisa C. Campisano, an attending family practitioner,
diagnosed “adverse effects” secondary to PAM-X exposure for two weeks.
In a July 5, 2006 letter, the Office advised appellant of the additional evidence needed to
establish his claim, including a rationalized statement from his attending physician explaining
how and why the identified exposures would cause the claimed conditions.
The employing establishment submitted material safety data sheets showing that PAM-X
contained synthetic resins, plastics, arsenic, benzene and a variety of organic chemicals. PAM-X
was classified as an eye, skin and respiratory irritant. Protective clothing was recommended.
In a June 16, 2006 report, Dr. Campisano diagnosed an eye irritation, headaches and
“adverse reaction” to PAM-X exposure at work beginning on April 26, 2006. She prescribed a
bronchodilator and eye drops.
In a July 17, 2006 letter, appellant noted that he quit smoking in September 2003 and had
no other respiratory disorders.
By decision dated August 7, 2006, the Office denied appellant’s claim on the grounds
that causal relationship was not established. The Office found that appellant was exposed to
PAM-X on May 6, 2006, but that the medical evidence did not establish a diagnosis caused by
the exposure.
In an August 23, 2006 letter, appellant requested a review of the written record. He
submitted additional evidence. A June 16, 2006 spirometry was normal. A June 16, 2006 chest
x-rays showed mild hyperaeration possibly indicative of emphysema. Appellant had several
granulomas but no acute cardiopulmonary disease.
A June 21, 2006 employing establishment incident report states that appellant was not
given protective clothing while working with PAM-X in April and May 2006.

1

In a July 17, 2006 letter, appellant requested that his traumatic injury claim be changed to one for occupational
disease. In an August 22, 2006 report, the employing establishment advised appellant that he should have filed a
notice of occupational disease (Form CA-2) and not a claim for traumatic injury (Form CA-1).

2

In an August 17, 2006 report, Dr. Campisano stated that appellant presented on June 16,
2006 after exposure to PAM-X adhesive fumes at work in a poorly ventilated area from April 28
to mid May 2006. He related symptoms of diarrhea, nausea, abdominal cramping, headache,
blurred vision, nose and throat irritation, mild shortness of breath, significant fatigue, anxiety,
difficulty concentrating and frequent urination. Dr. Campisano reviewed information from a
poison control center confirming that “short-term respiratory effects, light-headedness and
headache [were] related to the volatile components of the PAM-X.” He treated appellant for
respiratory irritation with an inhaler and recommended an artificial tears product for eye dryness.
Appellant also underwent an in-office nebulizer treatment which improved his air movement.
Dr. Campisano opined that based on the poison control information, she would “expect that
[appellant] would recover completely from the respiratory effects of the exposure that he
reported.… [A]ny ill effects should be short-term secondary to the volatile nature of the fumes.”
By decision dated and finalized December 7, 2006, an Office hearing representative
affirmed the August 7, 2006 decision finding that causal relationship was not established. The
hearing representative modified the prior decision to find that the claim was one for occupational
disease. It accepted that appellant was exposed to PAM-X adhesive in the performance of duty
from approximately April 27 to May 16, 2006. However, the medical evidence did not establish
that appellant sustained a diagnosed condition resulting from that exposure. The hearing
representative noted Dr. Campisano’s opinion that any respiratory effects would have been shortterm, indicating that they should have resolved prior to appellant seeking treatment on
June 16, 2006.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while 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.3 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.4
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
2

5 U.S.C. §§ 8101-8193.

3

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

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

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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.5
ANALYSIS
The Office accepted that appellant was exposed to PAM-X adhesive from approximately
April 27 to May 16, 2006. In order to prevail, appellant must establish that his exposure caused
the claimed conditions.
Appellant submitted reports from Dr. Campisano, an attending family practitioner. In
June 16 and 23, 2006 reports, Dr. Campisano diagnosed an eye irritation, headaches and
“adverse effects” secondary to occupational PAM-X exposure for two weeks beginning
April 26, 2006. She did not attribute appellant’s other presenting symptoms to PAM-X
exposure. On August 17, 2006 Dr. Campisano opined that the short-term respiratory effects and
light-headedness caused by PAM-X exposure should resolve quickly and completely due to the
volatile nature of the fumes. She did not explain how or why appellant’s exposure to PAM-X
ending on approximately May 16, 2006 would continue to cause any condition on June 16, 2006
when appellant presented for treatment. Without such rationale, Dr. Campisano’s opinion is
insufficient to establish causal relationship.6
The Board notes that appellant was advised by the July 5, 2006 letter of the necessity of
submitting rationalized medical evidence supporting a causal relationship between the accepted
exposures to PAM-X and the claimed conditions. However, appellant did not submit such
evidence. The Board, therefore, finds that appellant has not established that he sustained any
injury due to the accepted chemical exposures from April 27 to May 15, 2006.7
CONCLUSION
The Board finds that appellant has not established that he sustained eye, lung, respiratory
or neurologic injuries in the performance of duty.

5

Solomon Polen, 51 ECAB 341 (2000).

6

Steven S. Saleh, 55 ECAB 169 (2003).

7

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 7 and August 6, 2006 are affirmed.
Issued: September 7, 2007
Washington, DC

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

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

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

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