United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Richmond, VA, Employer
__________________________________________

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

Docket No. 15-1361
Issued: December 15, 2015

Case Submitted on the Record

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

JURISDICTION
On June 4, 2015 appellant filed a timely appeal of a February 24, 2015 merit decision and
a May 6, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant established that he was totally disabled for the
period August 22 to September 5, 2013 due to her employment-related injuries; and (2) whether

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 6, 2015 nonmerit decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

OWCP properly denied appellant’s request for a review of the written record before an OWCP
hearing representative.
On appeal appellant argues that she was totally disabled from work for the period in
question as her physician had instructed her not to work.
FACTUAL HISTORY
On March 11, 2011 appellant, then a 46-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on March 8, 2011 she strained her lower back while providing
emergency support to a patient who was about to fall. OWCP accepted the claim for lumbar/low
back sprain and lumbosacral ligament/joint sprain.3 Appellant stopped work on March 10, 2011
and returned to light-duty work on March 11, 2011.
On September 7, 2013 appellant filed a claim for wage-loss compensation for the period
August 22 to September 5, 2013.
In duty status reports (Form CA-17) dated July 19 and August 22, 2013, Dr. Glenn Kerr,
a treating Board-certified orthopedic surgeon, diagnosed degenerative disc disease and herniated
disc which was causing radicular hip pain, which he attributed to the March 8, 2011 employment
injury. He first released appellant to return to full-time work on July 13, 2013 in his July 19,
2013 Form CA-17 but in his later August 22, 2013 Form CA-17 he released appellant to fulltime work on September 5, 2013 in the August 22, 2013 Form CA-17. On both forms, Dr. Kerr
mentioned referring appellant to Dr. Peyman Nazmi, a treating Board-certified anesthesiologist
and pain management specialist.
In a September 5, 2013 report, Dr. Nazmi diagnosed lumbar radiculopathy and lumbar
degenerative disc disease. Appellant was seen for complaints of right leg and gluteal pain.
Dr. Nazmi noted that appellant has had right leg pain since her March 8, 2011 employment
injury. He recommended that appellant return to light-duty work with a lifting restriction of 25
pounds.
In a letter dated September 30, 2013, OWCP advised appellant that the evidence of
record was insufficient to establish her claim for wage-loss compensation as the record contained
no medical evidence documenting that she was totally disabled for the period in question due to
the accepted March 8, 2011 employment injury. Appellant was advised as to the type of medical
evidence required and was afforded 30 days to provide this information.
In an October 3, 2013 report, Dr. Nazmi diagnosed lumbar radiculopathy and lumbar
degenerative disc disease and noted that appellant “has made significant progress” and opined
that she should continue permanently with light-duty work.
3

The record reveals that on December 29, 2011 appellant also filed a claim for a recurrence of disability of her
accepted March 8, 2011 employment injury. OWCP has not issued a final decision on the issue of whether she
sustained a recurrence of disability due to her accepted March 8, 2011 employment injury. Therefore, the Board
lacks jurisdiction to address this issue on appeal. 20 C.F.R. § 501.2(c). See E.L., 59 ECAB 405 (2008); Linda
Beale, 57 ECAB 429 (2006) (the Board’s jurisdiction extends only to the review of final decisions by OWCP).

2

On November 1 and December 2, 2013 and January 7, 2014 Dr. Nazmi diagnosed lumbar
radiculopathy and lumbar degenerative disc disease and noted appellant’s pain complaints.
In CA-17 forms dated October 3, November 1, and December 2, 2013 and January 7,
2014, Dr. Nazmi noted that appellant was capable of performing light-duty work and provided
work restrictions.
In a February 4, 2014 Form CA-17, Dr. Nazmi noted that appellant could return to fullduty work on February 5, 2014.
By decision dated February 24, 2015, OWCP denied appellant’s claim for wage-loss
compensation as the evidence failed to establish total disability for the period in question.
In a March 16, 2015 letter, Dr. Nazmi noted that appellant was under his care for leg and
lower back pain for the period August 22 to September 5, 2013 and that he advised her not to
work during that period.
On April 7, 2015 OWCP received appellant’s undated request for a review of the written
record by an OWCP hearing representative.
By decision dated May 6, 2015, the Branch of Hearings and Review denied appellant’s
request for review of the written record as being untimely filed.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.7
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.8 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to his or her federal
4

5 U.S.C. §§ 8101-8193

5

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
6

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

7

See Edward H. Horton, 41 ECAB 301 (1989).

8

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
9

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

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employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.10 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
eligibility for compensation.11
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for lumbar/low back sprain and lumbosacral
ligament/joint sprain. Appellant stopped work on March 10, 2011 and returned to light-duty
work on March 11, 2011. She filed a CA-7 form claiming wage-loss compensation for the
period August 22 to September 5, 2013. OWCP denied appellant’s claim for wage-loss
compensation for the period in question as it found the record was devoid of any medical
evidence finding appellant totally disabled for that period. The Board finds that appellant has
failed to meet her burden of proof to establish wage-loss compensation for the claimed period.
The record is devoid of any medical evidence supporting appellant’s contention that she
was disabled from work for the period in question. OWCP advised her of the need to submit
medical evidence supporting her disability. The relevant evidence submitted by appellant
included reports dated September 5 through February 4, 2014 and CA-17 forms dated October 3,
November 1, and December 2, 2013 and January 7 and February 4, 2014 from Dr. Nazmi. The
CA-17 forms from Dr. Kerr released appellant to full-duty work at the earliest on July 13, 2013
and referred her to Dr. Nazmi. The CA-17 forms by Dr. Nazmi noted that appellant was capable
of working light-duty work and provided work restrictions. In his reports for the period
October 3, 2013 to February 4, 2014, Dr. Nazmi diagnosed lumbar radiculopathy and lumbar
degenerative disease and noted that appellant was seen for right leg and gluteal pain complaints.
He did not address disability in any of his reports. Neither the CA-17 forms from Drs. Kerr
and Nazmi, nor the reports for the period October 3, 2013 to February 4, 2014 from Dr. Nazmi
addressed the relevant issue of whether appellant was disabled from work for any period from
August 22 to September 5, 2013 due to her accepted March 8, 2011 employment injury. Thus,
the CA-17 forms from Dr. Kerr and reports from Dr. Nazmi are of little probative value and are
insufficient to support appellant’s contention that she was disabled from work during the claimed
period.12

10

Merle J. Marceau, 53 ECAB 197 (2001).

11

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

W.W., Docket No. 09-1619 (issued June 2, 2010); Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular
injury caused an employee disability from employment is a medical issue which must be resolved by competent
medical evidence).

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The Board finds that appellant has not met her burden of proof to establish disability for
the period August 22 to September 5, 2013 due to her accepted work injury. OWCP properly
denied her claim for compensation.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant is entitled to a hearing before an
OWCP representative when a request is made within 30 days after issuance of an OWCP final
decision.13 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.14 OWCP has
discretion, however, to grant or deny a request that is made after this 30-day period.15 In such a
case, it will determine whether a discretionary hearing should be granted or, if not, will so advise
the claimant with reasons.16
ANALYSIS -- ISSUE 2
A request for a hearing must, as noted above, be made within 30 days after the date of the
issuance of OWCP’s final decision. Appellant requested a review of the written record by
OWCP’s Branch of Hearings and Review which was received April 7, 2015. As the request was
submitted more than 30 days following issuance of the February 24, 2015 decision, it was
untimely filed.
OWCP also has the discretionary power to grant a review of the written record when a
claimant is not entitled to a review of the written record as a matter of right. The Board finds
that the Branch of Hearings and Review, in its May 6, 2015 decision, properly exercised its
discretion by stating that it had considered the matter in relation to the issue involved and had
denied appellant’s request for a review of the written record by an OWCP hearing representative
because her claim could be addressed through a reconsideration application. The Board has held
that as the only limitation on OWCP’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deduction from established facts.17
In the present case, the Board finds that appellant’s request for hearing was properly denied as
untimely.

13

5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Gerard F. Workinger, 56 ECAB 259 (2005).

14

20 C.F.R. § 10.616(b).

15

Hubert Jones, Jr., 57 ECAB 467 (2006).

16

Teresa M. Valle, 57 ECAB 542 (2006).

17

Id.; Daniel J. Perea, 42 ECAB 214 (1990).

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CONCLUSION
The Board finds that appellant failed to establish disability for the period August 22 to
September 5, 2013 due to her accepted work injury. The Board further finds that appellant’s
request for review of the written record was properly denied as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 6 and February 24, 2015 are affirmed.
Issued: December 15, 2015
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

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

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Appearances:
Michael E. Woods, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1097
Issued: December 5, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 28, 2016 appellant, through his representative, filed a timely appeal from an
April 5, 2016 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective April 21, 2015; and (2) whether appellant
met his burden of proof to establish continuing disability after April 21, 2015.
On appeal, appellant’s representative asks the Board to reverse OWCP’s decisions
terminating appellant’s benefits. He contends that the selection of the impartial medical
examiner was improper, that the statement of accepted facts (SOAF) was incomplete, and that
appellant had additional medical conditions causally related to the accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference. The facts relevant to this appeal
are as follows.
On March 27, 2008 appellant, then a 44-year-old expediter/clerk, was injured when a
container full of mail fell off a ramp and struck him. On June 2, 2008 OWCP accepted his claim
for sprain of the back, thoracic region, sprain of the back, lumbar region, and contusion of the
left knee. Appellant stopped work at the time of the injury, and returned to work on
September 11, 2008 on a part-time basis with restrictions. He stopped work again on October 4,
2008 and did not return. OWCP paid wage-loss compensation on the supplemental and periodic
rolls.
A conflict arose between appellant’s Board-certified internist, Dr. Mike Shah, and
OWCP’s second opinion physician, Dr. Thomas Rooney, a Board-certified orthopedic surgeon,
as to whether appellant had residuals from the accepted employment injuries. To resolve this
conflict, OWCP referred appellant to Dr. Robert P. Shackleford, a Board-certified orthopedic
surgeon, for an impartial medical examination. Based on his opinion that appellant’s accepted
conditions had resolved, by decision dated May 23, 2012, OWCP terminated appellant’s wageloss compensation and medical benefits, effective June 3, 2012.
On June 4, 2012 appellant requested an oral hearing before an OWCP hearing
representative. By decision dated December 5, 2012, OWCP’s hearing representative affirmed
the termination of appellant’s wage-loss compensation and medical benefits. Appellant
requested that OWCP reconsider the case on October 21, 2013. By decision dated January 7,
2014, OWCP denied modification of the prior decision.
Appellant appealed to the Board on January 29, 2014. By decision dated July 16, 2014,
the Board found that Dr. Shackleford had not been properly selected as an impartial medical
examiner and reversed the termination of benefits.
Following the Board’s decision, by letter dated December 29, 2014, OWCP referred
appellant to Dr. David Sanderson, a Board-certified orthopedic surgeon, for a new impartial
3

Docket No. 14-648 (issued July 16, 2014).

2

medical examination. The record contains screen shots of the ME023 (Appointment Schedule
Notification reports) detailing how Dr. Sanderson was chosen. No doctors were found within the
initial zip code cluster, so the search was expanded to include physicians within 50 miles of
appellant’s home. A “Dr. Robert E. Holladay III” and Dr. Robert E. Holladay IV, were noted to
be Board-certified orthopedic surgeons, bypassed due to a conflict.4 No physicians were found
within the 75- or 100-mile range. Dr. Richard Nicholas, a Board-certified orthopedic surgeon,
was found within the 125-mile range, but was rejected due to an inappropriate specialty. The
next physician within the 125-mile range was Dr. David Sanderson, who was chosen as the
impartial medical examiner.
By letter dated January 5, 2015, appellant’s representative asked that OWCP forward a
copy of appellant’s case record, which he noted should include a copy of an ME023, as well as a
copy of the documentation showing that Dr. Sanderson was selected in a fair and unbiased
manner. On January 27, 2015 a copy of the record was sent to appellant’s representative.
In a medical opinion dated January 28, 2015, Dr. Sanderson reviewed appellant’s medical
history and conducted a physical examination. He listed appellant’s diagnoses as left knee
contusion and lumbar and thoracic sprain secondary to on-the-job injury of March 27, 2008.
Dr. Sanderson listed nonwork-related diagnoses of status post left knee arthroscopy, left knee
arthritis with history of Snyvise injections prior to the date of the on-the-job injury; depression
treated at VA; multilevel degenerative facet arthrosis, lumbar spine; history of right foot surgery;
and acid reflux. In response to questions from OWCP, he stated that appellant was currently
complaining of lumbar spine pain which was secondary to normal degenerative changes and his
age, rather than the lumbar sprain of March 27, 2008. Dr. Sanderson noted that appellant’s
arthritis of his left knee was unrelated to the present illness. He stated that appellant’s lumbar
radiculopathy, degenerative disc disease, left knee anterior cruciate ligament tear, and
chondromalacia were not related to his employment injury. Dr. Sanderson explained that he
agreed with Drs. Holladay, Rooney, Shackleford, that appellant’s present conditions were not
related to the employment injury of March 27, 2008; he noted that there were now four opinions
in that regard and only one doctor who opined that appellant’s present condition was related to
the injury. Dr. Sanderson noted that appellant’s arthritis in his left knee, some lumbar
degenerative changes, and depression could affect his work, but that he had no current disability
from the work injury.
On March 16, 2015 OWCP issued a decision proposing to terminate appellant’s wageloss compensation and medical benefits for thoracic strain, lumbar strain, and left knee contusion
as these conditions had resolved. It denied appellant’s request to expand the case to include left
knee conditions of lumbar radiculopathy, degenerative disc disease (L4/5 and L5/S1), left knee
partial anterior cruciate tear, left knee intra-articular loose body, and left chondromalacia.
By decision dated April 21, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date, as the medical evidence established that appellant no
longer had any residuals related to his accepted work-related medical condition or continued
disability from work as a result of the March 27, 2008 injury or illness.
4

Dr. Holladay, IV had previously seen appellant for a second opinion examination.

3

On April 29, 2015 appellant, through his representative, requested an oral hearing before
an OWCP hearing representative. At the hearing held on November 17, 2015, the representative
argued that appellant was still suffering from his employment injury, that the impartial medical
examiner was not properly chosen, that his report was based on an inaccurate medical history,
and that his report was full of surmise and conjecture. Appellant testified that he was still
experiencing problems in his back and left leg. He noted that he was still on pain medication
that was prescribed for a different injury. Appellant testified that he has not worked since 2008.
Appellant’s representative made supplemental arguments in a letter dated December 17,
2015, arguing again that the SOAF was incomplete in that it did not include the February 16,
2008 magnetic resonance imaging (MRI) scan study, and that Dr. Sanderson’s report was
speculative and of no value. He contended that all of the physicians who issued reports on behalf
of the employing establishment failed to explain why appellant had a negative left knee MRI
scan one month prior to his injury and a positive MRI scan on February 11, 2011. The
representative contended that Dr. John Sazy, a Board-certified orthopedic surgeon, indicated that
appellant had an anterior cruciate tear, which was confirmed by the February 11, 2011 MRI scan.
He argued that OWCP failed to show that appellant no longer suffered from residuals of his
March 27, 2008 injury. The representative requested “closure of the hearing” and that the
April 21, 2015 decision be set aside.
In a January 26, 2016 report, Dr. Sazy noted that appellant had continued back and leg
pain with right more than left leg radiculopathy. He noted that he had not seen appellant since
February 15, 2011. Dr. Sazy further noted that appellant’s MRI scan of the left knee revealed a
partial anterior cruciate ligament tear, an intraarticular loose body, and a chondromalacia patella,
which explained why appellant continue to have leg pain. He also noted electromyogram
evidence of left L4-5 and right S1 radiculopathy. Dr. Sazy indicated that appellant required a
repeat MRI scan and that appellant would have to stay off work while these issues were treated
and diagnosed.
By decision dated February 26, 2016, the hearing representative affirmed the April 21,
2015 termination decision.
By letter dated March 10, 2016, appellant, through his representative, submitted
additional argument challenging the referral to Dr. Sanderson. He argued that the bypass history
report was procedurally defective as it bypassed Robert E. Holladay III, but that Mr. Holladay III
was not a physician but rather an accountant and the father of Dr. Holladay IV, who examined
appellant. The representative enclosed a copy of Mr. Holladay III’s obituary in support of his
argument. He argued that while Mr. Holladay III could not have been chosen, it raised questions
about the accuracy of the bypass history report. The representative asked for a new decision to
record the true nature of the bypass history report concerning Mr. Holladay III.
By decision dated April 5, 2016, the hearing representative reviewed the additional
arguments and issued a de novo decision, affirming OWCP’s decision.

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LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP has accepted a claim, it has the burden of justifying
termination or modification of compensation benefits.5 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.7 The right to medical benefits for an
accepted condition is not limited to the period of entitlement to compensation for disability.8 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition which requires further medical treatment.9
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.10 This is called a referee examination
and OWCP will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.11 In situations where there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an impartial medical specialist for
the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight.12
The Board notes that OWCP has been delegated authority under FECA in the selection of
a medical referee physician through section 8123(a). Under the Federal (FECA) Procedure
Manual, the Director has exercised discretion to implement practices pertaining to the selection
of the impartial medical referee. Unlike second opinion physicians, the selection of referee
physicians is made from a strict rotational system.13 OWCP will select a physician who is
qualified in the appropriate medical specialty and who has no prior connection with the case.14
Physicians who may not serve as impartial specialists include those employed by, under contract
to, or regularly associated with federal agencies;15 physicians previously connected with the
5

V.C., 59 ECAB 490 (2008); Charles E. Minniss, 40 ECAB 708, 716 (1989).

6

Id.

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See T.P., 58 ECAB 524 (2007).

9

See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

10

R.C., Docket No. 12-437 (issued October 23, 2012).

11

20 C.F.R. § 10.321.

12

F.C., Docket No. 14-0560 (issued November 12, 2015).

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

14

Id. at Chapter 3.500.4(b)(1).

15

Id. at Chapter 3.500.4(b)(3)(a).

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claim or claimant or physicians in partnership with those already so connected;16 and physicians
who have acted as a medical consultant to OWCP.17 The fact that a physician has conducted
second opinion examinations in connection with FECA claims does not eliminate that individual
from serving as an impartial referee in a case in which he or she has no prior involvement.18
In turn, the Director has delegated authority to each district OWCP for selection of the
referee physician by use of the Medical Management Application (MMA) within the Integrated
Federal Employees Compensation System (iFECS).19 This application contains the names of
physicians who are Board-certified in over 30 medical specialties for use as referees within
appropriate geographical areas.20 The MMA replaces the prior Physician Directory System
(PDS) method of appointment.21 It provides for a rotation among physicians from the American
Board of Medical Specialties, including the medical boards of the American Medical
Association, and those physicians Board-certified with the American Osteopathic Association.22
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.23
The medical scheduler inputs the claim number into the application, from which the claimant’s
home zip code is loaded.24 The scheduler chooses the type of examination to be performed
(second opinion or impartial referee) and the applicable medical specialty. The next physician in
the roster appears on the screen and remains until an appointment is scheduled or the physician is
bypassed.25 If the physician agrees to the appointment, the date and time are entered into the
application. Upon entry of the appointment information, the application prompts the medical

16

Id. at Chapter 3.500.4(b)(3)(b).

17

Id. at Chapter 3.500.4(b)(3)(c).

18

See id.

19

Id. at Chapter 3.500.4(b)(6).

20

Id.

21

Id. at Chapter 3.500.5.

22

Id. at Chapter 3.500.5(a).

23

Id. at Chapter 3.500.5(b).

24

Id. at Chapter 3.500.5(c).

25

Id. The roster of physicians is not made visible to the medical scheduler under the application. The medical
scheduler may update information pertaining to whether the selected physician can schedule an appointment in a
timely manner and, if not, will enter an appropriate bypass code. Id. at Chapter 3.500.5(e-f). Upon entry of a
bypass code, the MMA will present the next physician based on specialty and zip code.

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scheduler to prepare a Form ME023 for imaging into the case file.26 Once an appointment with a
medical referee is scheduled the claimant and any authorized representative is to be notified.27
Under the procedure manual, a claimant may request to participate in the selection of the
referee physician or may object to the physician selected under the MMA. In such instances, the
claimant must provide valid reasons for any request or objection to the claims examiner.28 The
right of the claimant to participate in the selection of the medical referee is not unqualified. He or
she must provide a valid reason, not limited to: (a) documented bias by the selected physician;
(b) documented unprofessional conduct by the selected physician; (c) a female claimant who
requests a female physician when gynecological examination is required; or (d) a claimant with a
medically documented inability to travel to the arranged appointment when an appropriate
specialist may be located closer.29 When the reasons are considered acceptable, the claimant will
be provided with a list of three specialists available through the MMA.30 If the reason offered is
determined to be invalid, a formal denial will issue if requested.31
ANALYSIS -- ISSUE 1
As noted in the Board’s prior decision, in order to resolve a conflict between the opinion
of appellant’s treating physician, Dr. Shah, who determined that appellant had residuals from the
employment injury, and the second opinion physician, Dr. Rooney, who determined that the
injury appellant sustained as a result of his employment injury healed within two months, OWCP
referred appellant to Dr. Shackleford for an impartial medical examination. Dr. Shackleford
concluded that appellant’s accepted conditions should have resolved, and that appellant was not
disabled from work. Based on the opinion of Dr. Shackleford, OWCP terminated appellant’s
benefits, but the Board reversed the termination decision. The Board determined that OWCP had
not established that Dr. Shackleford was properly selected as OWCP did not meet its affirmative
obligation to establish that it followed its selection procedures.
On remand, OWCP referred appellant to Dr. Sanderson for an impartial medical
examination. The Board finds that OWCP properly terminated appellant’s benefits based on the
well-rationalized opinion of the impartial medical examiner, Dr. Sanderson. Dr. Sanderson listed
appellant’s accepted diagnoses as left knee contusion, lumbar and thoracic sprain secondary to
on the employment injury of March 27, 2008. He noted nonwork-related diagnoses of status
26

Id. at Chapter 3.500.5(g). The ME023 serves as documentary evidence that the referee appointment was
scheduled through the MMA rotational system. Should an issue arise concerning the selection of the referee
specialist, a copy of the ME023 may be reproduced and copied for the case record.
27

Id. at Chapter 3.500.4(d). Notice should include the existence of a conflict in the medical evidence under
section 8123; the name and address of the referee physician with date and time of appointment; a warning of
suspension of benefits under section 8123(d) and information on how to claim travel expenses.
28

Id. at Chapter 3.500.4(f).

29

Id. at Chapter 3.500.4(f)(1).

30

Id. at Chapter 3.500.4(f)(1)(e)(2).

31

Id. at Chapter 3.500.4(f)(1)(e)(3).

7

post left knee arthroscopy; left knee arthritis with history of Synvise injections prior to the date
of the job injury; depression treated at VA; multilevel degenerative facet arthrosis, lumbar spine;
history of right foot surgery; and acid reflux. Dr. Sanderson stated that appellant had complaints
of lumbar spine pain but that appellant’s pain was secondary to normal age-related degenerative
changes and not the employment injury of March 27, 2008. He opined that appellant’s lumbar
radiculopathy, degenerative disc disease, left knee partial anterior cruciate tear; left knee intraarticular loose body, and left chondromalacia were not related to his employment injury.
Dr. Sanderson noted that this opinion was earlier shared by Drs. Holladay, Rooney, and
Shackleford.
The Board finds that Dr. Sanderson’s opinion constitutes the special weight of the
medical evidence and is sufficient to justify OWCP’s termination of wage-loss compensation
benefits. When a case is referred to an impartial medical examiner to resolve a conflict, the
resulting medical opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.32 The Board finds that OWCP properly deferred to
Dr. Sanderson’s January 28, 2015 findings. Dr. Sanderson provided a well-reasoned report
based on a proper factual and medical history. He also accurately summarized the relevant
medical evidence. Additionally, Dr. Sanderson provided a thorough physical examination. His
February 23, 2012 report included detailed findings and medical rationale supporting his opinion,
based upon the entire medical record. As the impartial medical examiner, Dr. Sanderson’s
opinion was entitled to determinative weight.33 Accordingly, the Board finds that OWCP
properly relied on Dr. Sanderson’s findings as a basis for terminating appellant’s wage-loss
compensation and medical benefits.34
Appellant’s representative contends that Dr. Sanderson was not properly chosen as an
impartial medical examiner.
As appellant’s representative expressed no objection to
Dr. Sanderson’s selection at the time of his appointment and did not object to the appointment
until after the examination, his objection is untimely.35 Furthermore, the Board finds that OWCP
provided documentation that Dr. Sanderson was properly appointed as the impartial medical
examiner. A notation was made that “Dr. Robert E. Holladay III” and Dr. Robert E. Holladay IV
were bypassed due to a conflict.36 The Board notes that appellant had previously seen
Dr. Holladay IV on September 7, 2010 for a second opinion. Physicians previously associated
with a claimant may not serve as impartial medical specialists.37 The evidence of record
indicates that Robert E. Holladay III, Dr. Holladay’s father, was an accountant and is now
deceased.
32

Gary R. Sieber, 46 ECAB 215, 225 (1994).

33

B.H., Docket No. 13-1053 (issued April 8, 2014).

34

Id.

35

See J.B., Docket No. 09-2229 (issued August 12, 2010); L.D., Docket No. 09-520 (issued December 18, 2009).

36

See supra note 4.

37

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)(1)
(July 2011).

8

Dr. Sanderson was selected at a distance of 120.56 miles from appellant’s zip code area.
The letter to Dr. Sanderson was sent to his Dallas office, but the examination was scheduled at
his Wilton, Arkansas office. Contrary to the representative’s allegations, there is no evidence
that Dr. Sanderson was not licensed to practice medicine in Arkansas. Appellant’s representative
also argued that Dr. Sanderson’s office was not within the 125-mile radius. He noted that as
Dr. Sanderson’s Dallas office is 190 miles from appellant’s zip code and that his primary address
was Nacogdoches, Texas, which was more than 180 miles from appellant’s zip code.
Nevertheless, the appointment was made at Dr. Sanderson’s Wilton, Arkansas office, which the
MMA listed as being 120.56 miles from appellant’s zip code. The fact that Dr. Sanderson’s
phone number or main office are in Texas is not the relevant factor; Dr. Sanderson saw patients,
and in particular, saw appellant, at his Wilton, Arkansas office. The representative argues that
even Dr. Sanderson’s office in Wilton was outside of the 125-mile radius, noting that the
representative conducted a search on MapQuest and that Dr. Sanderson’s Wilton office was
greater than 125 miles from appellant’s zip code. The FECA regulations specifically state that
the referee physician is determined by using the MMA.38 Accordingly, the Board finds that
Dr. Sanderson was properly selected as the impartial medical examiner.
Appellant’s representative contends that the SOAF was incomplete as it did not list a
February 16, 2008 MRI scan and that as Dr. Sanderson does not list this MRI scan, it was not
clear that he was aware of this study. The representative argues that the March 27, 2008 MRI
scan was important as Dr. Sanderson does not explain how appellant went from having a normal
knee prior to the March 27, 2008 injury to having a left knee partial anterior cruciate tear after
the injury. In securing the opinion of a medical specialist, OWCP’s procedures note that a SOAF
and questions are to be prepared by the claims examiner for use by the physician.39 Specifically,
the claims examiner is required to correctly set forth the relevant facts of the case, including the
employee’s date-of-injury, age, job held when injured, the mechanism of the injury and any
conditions claimed or accepted by OWCP.40 The SOAF contained all the required information.
The Board further notes that OWCP provided Dr. Sanderson with a complete copy of appellant’s
case record and therefore, Dr. Sanderson was provided with a copy of the February 26, 2008
MRI scan. The Board finds that there was no error in the SOAF.
Accordingly, the Board finds that OWCP properly terminated appellant’s compensation
and medical benefits based on the opinion of the impartial medical examiner, Dr. Sanderson.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to appellant to establish that any subsequent disability is causally related to the
accepted injury.41
38

Id. at 3.500.5.

39

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.3
(September 2009).
40

Id.; see A.C., Docket No. 09-389 (issued October 7, 2009).

41

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

9

To establish a causal relationship between the claimed condition, as well as any attendant
disability and the employment event or incident, an employee must submit rationalized medical
evidence based on a complete medical and factual background supporting such a causal
relationship.42 Causal relationship is a medical issue and the medical evidence generally
required to establish causal relationship is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the employee,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition, disability and the
specific employment factors identified by the employee.43
ANALYSIS -- ISSUE 2
Following the termination of appellant’s compensation benefits on April 21, 2015 OWCP
received a January 26, 2016 report from Dr. Sazy in support of continuing disability. The Board
finds that Dr. Sazy’s report of January 26, 2016 is of diminished probative value. Dr. Sazy
reviewed appellant’s current diagnostic findings, but offered no medical rationale explaining
how these findings were related to appellant’s accepted injury, or why they caused continuing
disability. As previously noted, to establish continuing disability appellant must submit medical
evidence which contains medical rationale explaining the nature of the relationship between the
diagnosed condition, disability, and the accepted employment injury.44
The Board also notes that Dr. Sazy had submitted prior reports, and reports from a
physician who was on one side of a medical conflict that an impartial medical examiner resolved
are generally insufficient to overcome the weight of the impartial medical examiner, or to create
a new conflict.45 Accordingly, OWCP properly terminated appellant’s wage-loss compensation
and medical benefits, effective April 21, 2015.
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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 21, 2015. Appellant has not met his burden
of proof to establish that he had any continuing disability after April 21, 2015, causally related to
the accepted employment injury.

42

G.T., 59 ECAB 447 (2008); Elizabeth Stanislave, 49 ECAB 540 (1998).

43

See N.T., Docket No. 14-0694 (issued February 19, 2016).

44

Id.

45

L.C., Docket No. 09-696 (issued March 8, 2010).

10

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 5, 2016 is affirmed.
Issued: December 5, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
HEALTH AGENCY, Fort Belvoir, VA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0092
Issued: March 4, 2021

Case Submitted on the Record

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

On October 16, 2019 appellant filed a timely appeal from an August 29, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned the appeal Docket No. 20-0092.
The Board has duly considered the matter and finds that this case is not in posture for
decision.
On December 11, 2016 appellant, then a 48-year-old dental assistant, filed a traumatic
injury claim (Form CA-1) alleging that on December 7, 2016 she was struck by a vehicle when
crossing a street on the employing establishment premises while in the performance of duty. She
stopped work on December 8, 2016. OWCP initially accepted the claim for cervical spine sprain,
hematoma of the scalp, abrasion injury of other part of the head and abrasion of the left elbow. It
subsequently expanded its acceptance of the claim to include strain of the muscles and tendons of
the left shoulder rotator cuff, and cervical disc disorder with radiculopathy. OWCP paid appellant
intermittent wage-loss compensation on the supplemental rolls as of January 23, 2017. Appellant
returned to full-time modified work on June 4, 2017. OWCP continued to pay appellant wageloss compensation on the supplemental rolls until it placed her on the periodic rolls as of
April 29, 2018. Appellant subsequently returned to work in a sedentary position and OWCP paid

her compensation for intermittent wage-loss on the supplemental rolls as of December 10, 2018.
Appellant did not receive wage-loss compensation between February 2, 2019 and June 10, 2019.
On February 5, 2019 Dr. Ryan Jander, a Board-certified hand surgeon, performed a left
shoulder arthroscopy to treat appellant’s left shoulder adhesive capsulitis.
Appellant submitted claims for compensation (Form CA-7) for leave without pay (LWOP)
for the period March 18 to June 7, 2019.1
In March 28, 2019 treatment notes, Dr. Jander assessed post arthroscopy adhesive
capsulitis and cervical radiculopathy. He provided a disability certificate of the same date,
indicating that appellant could not return to work “until after April 11, 2019, when further
disability will be determined.”
A separate treatment note, dated March 28, 2019, provided by Dr. Christopher Spevak,
Board-certified in pain medicine, indicated that appellant was released to return to work without
restrictions.
OWCP received treatment notes, dated from April 18 to 24, 2019, from Dr. Rosemarie
Filart, a Board-certified physiatrist. In her April 18, 2019 notes, Dr. Filart advised that appellant’s
chief complaint was chronic pain. She noted appellant’s history of injury, examined appellant,
and diagnosed cervicalgia. Dr. Filart related that appellant had been released to return to work
without restrictions. Dr. Spevak also saw appellant on April 24, 2019 for complaints of neck pain
with radiculopathy. He also released appellant to return to work without limitations.
In a development letter dated May 10, 2019, OWCP notified appellant that the evidence of
record indicated that she was claiming wage-loss compensation due to total disability related to a
left shoulder arthroscopy surgery performed on February 5, 2019. It noted that the operative report
indicated that appellant had left shoulder adhesive capsulitis, which was not a currently accepted
work injury. OWCP explained that additional evidence was needed to establish that the
February 5, 2019 surgery was causally related to the work injury and medically necessary. It
advised appellant that her case would be held open for 30 days to afford her the opportunity to
submit the requested information.
In an April 4, 2019 report, Dr. Bradley Dengler, a neurosurgeon, noted that appellant
underwent cervical spine surgery on May 24, 2018 and a recent shoulder surgery. He advised that
appellant was seen for recurrent cervical symptoms. Dr. Dengler diagnosed cervical radiculopathy.
He also provided treatment notes of the same date. Dr. Dengler indicated that appellant could
return to work on May 28, 2019.
In May 2, 2019 treatment notes and a narrative report of the same date, Dr. Dengler related
that appellant was seen in a follow up related to her April 25, 2019 magnetic resonance imaging
(MRI) scan results, which revealed a combination of old left C5-6 and C6-7 laminectomy and new

1
Appellant had filed Form CA-7 claims for compensation for disability commencing February 4, 2019; however,
the claims, prior to March 18, 2019, are not the subject of this appeal.

2

C5-6 findings and resolution of foraminal stenosis. In May 3, 2019 treatment notes, he reviewed
her MRI scan results, diagnosed cervicalgia, and recommended a spinal cord stimulator.
OWCP received treatment notes, dated May 10, 2019, from Dr. Michael Stockin, a Boardcertified anesthesiologist, who diagnosed cervicalgia.
In May 13, 2019 reports, Dr. Stockin noted that he treated appellant for sprain of the
cervical spine ligaments and cervical radiculopathy. He advised that she underwent a successful
spinal cord stimulator trial and he was planning to perform surgical implementation on
June 12, 2019.
Dr. Filart also saw appellant on May 13, 2019 and treated her for cervicalgia.
In a May 16, 2019 report, Dr. Jander diagnosed adhesive capsulitis, cervical radiculopathy,
and post arthroscopy. He opined that appellant had reached maximum medical improvement
(MMI) and was cleared to return to work as her shoulder symptoms had resolved. Dr. Jander also
noted that appellant’s further work restrictions could be assessed by a neurosurgeon.
Dr. Dengler, in a May 22, 2019 report, noted that appellant underwent cervical spine fusion
surgery on May 24, 2018 and recent shoulder surgery. He advised that she was seen on April 4,
2019 with recurrent cervical neck symptoms. Dr. Dengler opined that appellant could return to
work no earlier than June 26, 2019.
In a June 6, 2019 report, Dr. Jander noted that appellant’s history of injury was related to
a motor vehicle accident on December 7, 2016. He explained that she sustained a cervical spine
injury, which required multiple surgeries and overshadowed the less urgent left shoulder injury.
Dr. Jander indicated that, after appellant’s cervical spine injuries were stabilized, she was able to
fully focus on the left shoulder injury and her ongoing pain and limited motion. He noted that he
first evaluated appellant in July 2018 and that the treatment appellant received for the left shoulder
was ineffective. Dr. Jander advised that appellant had gone one and a half years without pain relief
and, after several conservative measures, appellant underwent arthroscopic release on her left
shoulder on February 5, 2019. Additionally, he noted that appellant underwent intensive
rehabilitation with an excellent functional result and significant improvement in her shoulder pain
and range of motion). Dr. Jander opined, “[w]ithout question, the left shoulder pain is causally
related to the motor vehicle accident that occurred on December 7, 2016. [Appellant] states that,
prior to this accident, her shoulder was fine and had no problems.” He advised that appellant did
not require further treatment.
OWCP received June 12, 19, and 26, July 5, 12, and 30, and August 14, 2019 reports
related to appellant’s spinal cord stimulator placement and after care.
In a June 19, 2019 report, Dr. Dengler advised that appellant should continue off work.
On July 30, 2019 Dr. Dengler completed a work capacity evaluation (Form OWCP-5c) in
which he noted appellant’s diagnoses as cervical spondylosis and radiculopathy and related that
appellant could return to sedentary work, starting August 6, 2019, for three hours a day.

3

In an August 14, 2019 report, Dr. Spevak noted that appellant was treated for chronic pain
syndrome of the neck and left arm.
By decision dated August 29, 2019, OWCP denied appellant’s claim for disability for the
period from March 18 through June 7, 2019, finding that the medical evidence of record was
insufficient to establish that appellant was disabled from work due to her accepted work-related
conditions. It further found that medical evidence of record was insufficient to establish that
adhesive capsulitis and the attendant surgery were causally related to the accepted December 7,
2016 employment injury.
The Board, having duly considered the matter finds that OWCP did not discuss medical
evidence submitted in support of appellant’s claims. Thus, the Board finds that this case is not in
posture for decision.2
In the case of William A. Couch,3 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
While OWCP is not required to list every piece of evidence submitted to the record, the
record is clear that medical reports were not reviewed by OWCP in its August 29, 2019 decision.4
OWCP did not address the reports from Dr. Dengler regarding appellant’s disability due to
appellant’s accepted cervical conditions. Furthermore, OWCP also did not address medical reports
from Drs. Spevak, Filart, and Stockin.
As the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to the subject matter of the claim which was properly submitted to OWCP prior
to the time of issuance of its final decision be reviewed and addressed by OWCP.5 OWCP did not
consider medical reports from Drs. Dengler, Spevak, Filart, and Stockin, the Board cannot review
such evidence for the first time on appeal.6

2

See A.C., Docket No. 20-0917 (issued January 27, 2021); K.F., Docket No. 19-0888 (issued January 2, 2020);
J.J., Docket No. 13-1666 (issued August 18, 2014).
3

41 ECAB 548 (1990).

4

See T.G., Docket No. 19-1930 (issued January 8, 2021).

5

See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 3.
6

20 C.F.R. § 501.2(c). See also G.M., Docket No. 16-1766 (issued February 16, 2017).

4

For this reason, the case will be remanded to OWCP to properly consider all of the
evidence of record.7 Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the August 29, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 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

7

M.J., Docket No. 18-0605 (issued April 12, 2019).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0368
Issued: November 26, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On December 10, 2018 appellant, through counsel, filed a timely appeal from a
November 6, 2018 decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as No. 19-0368.
On October 7, 2017 appellant, then a 52-year-old mail carrier, filed a notice of recurrence
(Form CA-2a) of disability concerning a previously accepted October 10, 2014 employment injury
under File No. xxxxxx866. On his Form CA-2a he identified September 27, 2017 as the date of
recurrence and explained that his current condition was related to his original injury because the
pain in his lower back was in the same place. On the reverse side of the claim form S.M.,
appellant’s manager at the employing establishment, confirmed that after the October 10, 2014
original injury appellant accepted a permanent modified job offer on November 20, 2015. She
noted that appellant had worked his modified carrier position until he stopped work on
September 27, 2017. Appellant submitted various medical reports related to his claimed
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.

recurrence of injury. The claim for appellant’s previously accepted October 10, 2014 employment
injury under File No. xxxxxx866 is not presently before the Board.
On November 29, 2017 appellant filed an occupational disease claim (Form CA-2) alleging
that he had sustained a “flare-up” of back pain while delivering mail, and that the pain was in the
same location as the pain he experienced in October 2014. He noted that he first became aware of
his condition and realized it resulted from his employment on October 7, 2017. OWCP assigned
that claim File No. xxxxxx821. By decision dated February 27, 2018, it denied appellant’s
occupational disease claim, finding that the evidence of record was insufficient to establish that
the employment factors occurred as alleged. OWCP noted that appellant had not submitted a
detailed description of the employment factors he believed caused or contributed to his alleged
lumbar condition. Accordingly, appellant had not met his burden of proof to establish fact of
injury.2
On July 24, 2018 appellant, through counsel, requested reconsideration. By decision dated
November 6, 2018, OWCP denied modification of the February 27, 2018 denial decision.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between case files.3 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.4
Herein, appellant filed a recurrence of disability claim for an October 10, 2014 injury, to
which OWCP had assigned File No. xxxxxx866. He subsequently filed an occupational disease
claim on November 29, 2017, which was assigned File No. xxxxxx821. On the claim form
appellant noted that he sustained a “flare-up” of back pain and related that his back was hurting in
the same place as the October 10, 2014 work injury. OWCP thereafter denied the occupational
disease claim for failure to establish fact of injury. In its February 27, 2018 decision, it noted that
appellant had filed a recurrence of disability claim of his October 10, 2014 work injury. OWCP
did not, however, provide any other information regarding the adjudication of appellant’s
recurrence claim nor an explanation for why it adjudicated appellant’s new November 29, 2017
occupational disease claim instead of his October 7, 2017 recurrence of injury claim.
The record reveals that appellant’s previous October 10, 2014 employment injury was
assigned File No. xxxxxx866 and that the injury in that claim was to the same part of the body as
the injury in the present claim. The factual and medical evidence pertaining to File No.
xxxxxx866, however, is not in the case record presently before the Board.

2

OWCP also noted that appellant had filed a recurrence claim on October 10, 2017 alleging that he sustained a
recurrence of his previously accepted October 10, 2014 work injury under File No. xxxxxx866. It related that the
previous claim was accepted for closed lumbar fracture.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8c
(February 2000).
4

Id.

2

For a full and fair adjudication, the case must be returned to OWCP to combine the current
case record with File No. xxxxxx866.5 On remand OWCP shall determine whether appellant
sustained either a new work injury or a recurrence of disability due to his previously accepted
employment injury. Following this and other such further development as it deems necessary,
OWCP shall issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the November 6, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: November 26, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5

See M.W., Docket No. 17-0743 (issued January 23, 2018).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE ARMY, CPAC,
ATTN: ICPA, Fort Carson, CO, Employer
__________________________________________

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

Docket No. 09-1992
Issued: May 5, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 28, 2009 appellant filed a timely appeal from a February 3, 2009 schedule award
decision and a June 30, 2009 nonmerit 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.
ISSUES
The issues are: (1) whether appellant established that he has more than a nine percent
binaural hearing loss for which he has received schedule awards; and (2) whether the Office
refused to reopen appellant’s case for further consideration of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On May 12, 2008 appellant, a 71-year-old retired1 pipe fitter/plumber, filed a traumatic
injury claim (Form CA-2) for hearing loss that he attributed to employment-related exposure to
1

The record reflects appellant retired January 3, 1995.

loud noise produced by tools he used in the performance of his federal duties, such as high power
air and steam tools as well as electric and air hammers.
Appellant submitted a June 30, 2007 report in which Dr. Max Stanley Chartrand,
behavioral medicine specialist, reported that a video otoscopy and tympanometry revealed
tympanosclerosis and considerable scarring on tympanic membrane.
In his history,
Dr. Chartrand noted that appellant complained of: “chronic tinnitus and considerable scar tissue
on each tympanic membrane apparently due to childhood chronic [otitis media with effusion]
and subject sensorineural damage from working in a Radar [sic] facility for many years.”
Appellant submitted an undated note documenting his employment history and results
from an audiogram conducted January 17, 2008.
The Office referred appellant, together with a statement of accepted facts, for a second
opinion examination by Dr. Richard Lee Cundy, a Board-certified otarlaryngologist. In a
December 1, 2008 report, Dr. Cundy diagnosed neurosensory hearing loss and tinnitus. He
reported that appellant has significant hearing loss at all frequencies in excess of that expected
for a person of his age caused by his employment as a pipe fitter and a security guard.
Dr. Cundy recommended appellant be outfitted with hearing aids. An audiogram conducted
December 1, 2008 which reflected testing at 500, 1,000, 2,000 and 3,000 cycles per second (cps)
levels and showed the following decibel losses: 40, 30, 20 and 25 in the right ear and 35, 30, 50
and 50 in the left ear. Dr. Cundy recommended appellant be furnished hearing aids.
By report dated January 8, 2009, the district medical adviser reviewed the audiogram
supplied by Dr. Cundy and determined that appellant sustained a 24.375 percent monaural
hearing loss in his left ear and a 5.63 percent hearing loss in his right, producing an 8.8 percent
binaural hearing loss. The district medical adviser authorized hearing aids.
On January 8, 2009 the Office accepted appellant’s claim for binaural hearing loss.
By decision dated February 3, 2009, the Office granted appellant a schedule award for an
8.8 percent hearing loss impairment, rounded to 9 percent, which it reduced to 4 percent to
reflect a prior schedule award appellant received for binaural hearing loss under another claim.2
Appellant submitted results from audiograms conducted between 1982 and 1987. He
submitted a copy of the district medical adviser’s January 8, 2009 report and an undated
document concerning appellant’s employment history. Appellant also submitted a January 12,
1987 note in which Dr. J. Valentine Cichon, a Board-certified otolaryngologist, reported that
appellant’s prior audiograms revealed “fluctuating low frequency hearing loss in the right ear.”
On June 9, 2009 appellant requested reconsideration.
By decision dated June 30, 2009, the Office denied the request.
2

The record reflects that appellant was granted a schedule award for a five percent hearing loss under File No.
xxxxxx021. The February 3, 2009 nine percent hearing loss schedule ward was reduced by this five percent
impairment award to four percent.

2

LEGAL PRECEDENT - - ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.3 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001) as the appropriate standard for evaluating schedule losses.4 Effective February 1,
2001, schedule awards are determined in accordance with the A.M.A., Guides (5th ed. 2001).5
Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.6 Then, the fence of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.7 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.8 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five and then added to the greater loss and the total is divided by six to arrive at the amount of
the binaural hearing loss.9
ANALYSIS -- ISSUE 1
On appeal, appellant faults the Office’s February 3, 2009 decision because it did not
include an award for tinnitus, only provided eight weeks of compensation and did not award
hearing aids.
The Office medical adviser applied the Office’s standardized procedures to the
December 1, 2008 audiogram obtained by Dr. Cundy. Testing at frequency levels of 500, 1,000,
2,000 and 3,000 cps revealed hearing losses in the right ear of 40, 30, 20 and 25 respectively.
These totaled 115 decibels which, when divided by 4, yields an average hearing loss of 28.75
decibels. The average of 28.75 decibels, is reduced by 25 decibels (the first 25 decibels are

3

The Act provides that, for complete or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).
4

20 C.F.R. § 10.404 (2006).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

6

A.M.A., Guides 250 (5th ed. 2001).

7

Id.

8

Id.

9

Id.

3

discounted as discussed above) and is then multiplied by the established factor of 1.5 to produce
a 5.63 percent hearing loss in the right ear.
Testing for the left ear at frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed
hearing losses in the left ear of 35, 30, 50 and 50 respectively. These totaled 165 decibels,
which, when divided by 4, yields an average hearing loss of 41.25 decibels. The average of
41.25 decibels, reduced by 25 decibels (the first 25 decibels were discounted as discussed above)
and multiplied by the established factor of 1.5 produces a 24.38 percent hearing loss in the left
ear.
Using these calculations, the district medical adviser calculated appellant’s binaural
hearing loss. The 5.63 percent hearing loss for the left ear was multiplied by 5 and yielded a
product of 28.13. The 28.13 was then added to the 24.83 percent hearing loss for the right ear to
obtain a total of 52.50. The 52.50 was then divided by 6, in order to calculate a binaural hearing
loss of 8.75 percent which the Office rounded up to 9. Therefore, the evidence of record
establishes that appellant has a nine percent binaural hearing loss.
Appellant argues that this figure should have been adjusted to reflect the impact of
tinnitus (ringing in the ears) on his hearing loss. Dr. Cundy diagnosed tinnitus but provided no
opinion, rationalized or otherwise, specifically addressing the impact of tinnitus on appellant’s
activities of daily living10 and therefore neither the district medical adviser nor the Office were
required to factor in the impact of tinnitus on appellant’s hearing loss.11
Appellant disputes the Office’s award of only eight weeks of compensation for his
hearing loss. The eight-week period commences on December 1, 2008, the date of Dr. Cundy’s
report, because his report is the only probative medical evidence of record establishing
appellant’s hearing loss. Although appellant submitted results from several prior audiograms
reflecting bilateral hearing loss, none of these audiograms have any probative value because they
were not certified by a physician as accurate and thus cannot be used to establish the
compensation period for a schedule award.12 Therefore, as the only probative medical evidence
of record on this issue, Dr. Cundy’s December 1, 2008 report establishes the starting point of the
compensation period for appellant’s hearing loss schedule award.13

10

Randolph Taylor, 6 ECAB 986, 988 (1954) (holding that a medical opinion not fortified by medical rational is
of little probative value).
11

See Juan A. Trevino, 54 ECAB 356, 358 (2003).

12

See Joshua A. Holmes, 42 ECAB 231, 236 (1990). See also James A. England, 47 ECAB 115 (1995) (finding
that an audiogram not certified by a physician as being accurate has no probative value; the Office need not review
uncertified audiograms).
13

See 5 U.S.C. § 8101(2). This subsection defines the term physician. See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician);
Herman L. Henson, 40 ECAB 341 (1988) (an audiologist is not considered a physician under the Act). See also
Robert E. Cullison, 55 ECAB 570 (2004) (the Office does not have to review every uncertified audiogram, which
has not been prepared in connection with an examination by a medical specialist).

4

The applicable compensation schedule is set by statute.14 The Act provides for 200
weeks of compensation for 100 percent binaural hearing loss. Here, the Office determined that
appellant sustained an 8.8 percent impairment, which it rounded to 9 percent. It reduced this
impairment rating to four percent to reflect the schedule award appellant received for a five
percent hearing loss impairment under a prior claim. Applying appellant’s established four
percent hearing loss impairment to the statutory schedule then, appellant is entitled to 8 weeks
of compensation (four percent impairment x 200 weeks = 8 weeks of compensation). The Board
notes that if appellant’s award was calculated for monaural loss of hearing he would be entitled
to 16 weeks of compensation, less 10 weeks for the award he has previously received. The
computation of eight weeks of compensation for a binaural hearing loss is therefore the most
beneficial method of calculation of this hearing loss.
Appellant also disputes the Office’s February 3, 2009 decision for not awarding hearing
aids. The Office’s procedure manual provides that hearing aids will be authorized when hearing
loss has resulted from an accepted injury or disease if the attending physician so recommends.15
The Board notes that both Dr. Cundy and the district medical adviser recommended appellant
receive hearing aids. The Board notes that proceedings under the Act are not adversarial in
nature. The Office shares in the responsibility to develop the evidence and has an obligation to
see that justice is done.16 Accordingly, the Board finds that the case must be remanded to the
Office for further medical development on the question of whether appellant is entitled to
hearing aids. Following this and such other development as is deemed necessary, the Office
shall issue an appropriate merit decision regarding hearing aids should be authorized.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,17 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.18 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.19 When a claimant

14

5 U.S.C. § 8107(13)(B). See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability, Chapter 2.808.5(5)(a)(1) (October 2002).
15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)(2)
(October 1995).
16

Lyle Dayberry, 49 ECAB 369, 372 (1998).

17

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.607(a).

5

fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.20
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record21 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.22 While a reopening of a case may be predicated solely on a legal premise not
previously considered, such reopening is not required where the legal contention does not have a
reasonable color of validity.23
ANALYSIS -- ISSUE 2
Appellant did not argue that the Office erroneously applied a point of law, nor did she
advance a new legal argument not previously considered by the Office. Therefore, he was not
eligible or entitled to a merit review based upon the first two enumerated grounds noted above.
Concerning the third requirement, submission of relevant and pertinent new evidence not
previously considered by the Office, appellant submitted a copy of the district medical adviser’s
January 8, 2009 report, results from audiograms conducted between 1982 and 1987, as well as
Dr. Cichon’s note. The district medical adviser’s January 8, 2009 report was considered by the
Office in rendering its February 3, 2009 decision and therefore furnishes no grounds for the
Office to reopen appellant’s claim for merit review.24 The prior audiograms provide no grounds
for the Office to reopen appellant’s claim for merit review because there is insufficient
information accompanying these audiograms to demonstrate that they met the Office’s standards
for audiograms used in the evaluation of permanent hearing impairments.25 Finally,
Dr. Cichon’s note provides no grounds for reopening appellant’s claim for review of the merits
as it predates the date of injury alleged by appellant on his CA-2 and therefore is not relevant or
pertinent to the issue underlying appellant’s claim.
Therefore, the Board finds that the Office properly refused to reopen appellant’s claim for
further review on its merits under 5 U.S.C. § 8128.

20

Id. at § 10.608(b).

21

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Eugene F. Butler, 36 ECAB 393,
398 (1984).
22

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007); Edward Matthew Diekemper, 31 ECAB
224, 225 (1979).
23

M.E., 58 ECAB 694 (2007); John F. Critz, 44 ECAB 788, 794 (1993).

24

James W. Scott, 55 ECAB 606 (2004).

25

M.E., supra note 23; Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical Reports,
Chapter 3.600.8(a) (September 1994).

6

CONCLUSION
The Board finds appellant established that he sustained a ratable hearing loss entitling
him to a schedule award. The Board further finds that the case must be remanded to the Office
for further development on the question of whether hearing aids should be authorized. The
Board also finds that the Office properly refused to reopen appellant’s claim for further review
on its merits under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the June 30 and February 3, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed in part and set aside in part and the
case remanded for further development consistent with this decision of the Board.
Issued: May 5, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jerome, ID, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 22-0003
Issued: March 3, 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 October 1, 2021 appellant filed a timely appeal from a September 28, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,223.12 for the period July 19 through
August 14, 2021, for which she was without fault, because she continued to receive wage-loss
compensation after she returned to work; and (2) whether OWCP properly denied waiver of
recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2021 appellant, then a 44-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel
syndrome causally related to factors of her federal employment, including the repetitive nature of
her duties. OWCP accepted the claim for carpal tunnel syndrome of the right and left upper limb.
On May 18, 2021 appellant underwent an OWCP-authorized right carpal tunnel release and on
June 1, 2021 she underwent an OWCP-authorized left carpal tunnel release. OWCP paid her
wage-loss compensation by electronic funds transfer on the supplemental rolls beginning March 2,
2021 and on the supplemental rolls from March 2 through May 7, 2021, and on the periodic rolls
from March 8 through August 14, 2021.
Appellant returned to her full-time usual employment on July 19, 2021. In a telephone
memorandum (Form CA-110) dated August 13, 2021, she advised OWCP that she had submitted
paperwork showing that she had returned to work but had continued to receive compensation.
In an August 23, 2021 preliminary overpayment determination, OWCP notified appellant
of is preliminary finding that she had received an overpayment of compensation in the amount of
$3,223.12 because she returned to full-time work on July 19, 2021 but continued to receive wageloss compensation for total disability on the periodic rolls through August 14, 2021. It further
advised her of its preliminary determination that she was without fault in the creation of the
overpayment. OWCP requested that appellant submit a completed overpayment recovery
questionnaire (Form OWCP-20) to determine a reasonable payment method, and advised her that
she could request waiver of recovery of the overpayment. It further requested that she provide
supporting financial documentation, including copies of income tax returns, bank account
statements, bills and canceled checks, pay slips, and any other records supporting income and
expenses. Additionally, OWCP provided an overpayment action request form and notified
appellant 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.
In an overpayment action request form dated August 29, 2021, appellant requested a
decision based on the written evidence. She contended that the recovery of the overpayment
should be waived, contending that she called and had sent forms to OWCP advising that she had
been released to return to work. On an accompanying OWCP-20 form, appellant listed monthly
income of $4,500.00 and monthly expenses of $1,565.00 for housing, $706.81 for utilities,
$2,854.92 for other expenses, and $500.00 for credit card payments, a total of $5,626.73. She
advised that she used any extra for food and clothing. Appellant indicated that she had funds on
hand of $157.39. She submitted financial documentation showing various bills and account
statements. Appellant further submitted a U.S. Individual Income Tax Return (Form 1040) filed
with her spouse showing income of $124,605.00 and taxable income of $99,595.00. She also
provided a statement showing that she had received a distribution of $14,169.00 in 2020 from her
Thrift Savings Plan (TSP).
By decision dated September 28, 2021, OWCP finalized its finding that appellant received
an overpayment of $3,223.12 for the period July 19 through August 14, 2021 because it had paid
her wage-loss compensation for total disability after she returned to work. It calculated the
overpayment by finding that she received net compensation in the amount of $3,342.49 for the

2

period July 18 to August 14, 2021. OWCP divided $3,342.49 by 28 days and multiplied by 27,
the number of days of the overpayment, to find a total overpayment of $3,223.12. It further
finalized its finding that appellant was without fault in the creation of the overpayment. OWCP
denied waiver of recovery of the overpayment. It found that based on a joint 2020 tax return,
appellant and her husband had an estimated income of approximately $6,389.00 per month after
taxes. OWCP further noted that appellant had not provided a breakdown of her assets, described
her other expenses of $2,854.92, or documented her utility expenses other than to submit a gas bill
of $72.00. It indicated that individual was responsible for providing information about income,
expenses, and assets. OWCP found that appellant should submit the full amount as recovery of
the overpayment.
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 duty. 2 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed b y the Secretary of Labor by
decreasing later payments to which an individual is entitled. 3
Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments u ntil the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.4 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation. 5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,233.12 for the period July 19 through August 14, 2021, for
which she was without fault because she continued to receive wage-loss compensation for total
disability after she returned to full-time work.
Appellant resumed to full-time regular employment on July 19, 2021. OWCP, however,
continued to pay her wage-loss compensation for total disability following her return to work

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Id. at § 8116(a).

5

L.T., Docket No. 19-1389 (issued March 27, 2020); K.P., Docket No. 19-1151 (issued March 18, 2020); Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, Chapter
6.300.4(g) (September 2020).

3

through August 14, 2021, which resulted in an overpayment of compensation. Appellant was not
entitled to receive temporary total disability benefits and actual earnings for the same time period. 6
In determining the amount of overpayment, OWCP calculated the net amount of disability
compensation that appellant had received for the period July 18 through August 14, 2021,
$3,342.49, divided this amount by 28, and multiplied the remainder by the 27 days that she worked
during this period to find an overpayment of $3,223.12. Thus, the Board finds that appellant
received an overpayment of $3,223.12 during the above-noted period.7
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. 8
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or f ormerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 9 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 $50.00.10 Also, 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. 11 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 12
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financ ial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
6

J.R., Docket No. 20-0025 (issued December 13, 2021); L.T., Docket No. 19-1389 (issued March 27, 2020); S.N.,
Docket No. 19-1018 (issued November 12, 2019).
7

J.R., id.

8

5 U.S.C. § 8129.

9

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Pa rt 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400(2)(3) (September 2020).
10

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
11

Id. at Chapter 6.400.4(a)(2).

12

Id. at Chapter 6.400.4(b)(3).

4

worse.13 OWCP’s procedures provide that, to establish that a valuable right has been relinquished,
an individual must demonstrate that the right was in fact valuable, that he or she was unable to get
the right back, and that his or her action was based primarily or solely on reliance on the payment(s)
or on the notice of payment. 14
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 15
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. 16
The Board finds that appellant has not established that recovery of the overpayment would
defeat the purpose of FECA because she did not fully complete the Form OWCP-20 or submit
adequate documentation of her income or expenses. In an OWCP-20 form dated August 29, 2021,
appellant listed monthly income of $4,500.00 and monthly expenses totaling $5,626.73. She
advised that she had assets of $157.39 and no money in stocks and bonds. Supporting
documentation, however, indicated that appellant had withdrawn $14,169.00 from her TSP in
2020. She thus had assets in a TSP but did not provide information regarding this account. Savings
in a TSP account are included in the asset base. 17 A tax return from 2020 further indicated that
appellant had more monthly income than disclosed on the OWCP-20 form. Although OWCP
advised her to submit a Form OWCP-20 and documentation fully substantiating her income and
expenses, she failed to do so, as required by section 10.438 of OWCP’s regulations. 18
As appellant did not submit sufficient financial inf ormation and documentation, the
evidence of record is, therefore, insufficient to establish that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience.19

13

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

14

Supra note 9 at Chapter 6.400.4c(3).

15

Supra note 9 at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

16

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).

17

See S.C., Docket No. 17-0762 (issued March 19, 2018); C.P., Docket No. 14-0975 (issued September 11, 2014).

18

20 C.F.R. § 10.438; see R.M., Docket No. 19-1570 (issued June 1, 2020).

19

See supra note 15; S.L., Docket No. 21-0902 (issued December 22, 2021).

5

Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the
Board finds that OWCP properly denied waiver of recovery of the overpayment. 20
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,223.12 for the period July 19 through August 14, 2021, for
which she was without fault, because she continued to receive wage-loss compensation after she
returned to work. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 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

20

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where OWCP seeks recovery from continuing compensation benefits under FECA. As appellant is no
longer receiving wage-loss compensation, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act. R.W., Docket No. 18-1059 (issued February 6, 2019); Cheryl Thomas, 55
ECAB 610 (2004).

6