United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION, Austin, TX, Employer
__________________________________________

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

Docket No. 11-1492
Issued: January 11, 2012

Case Submitted on the Record

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

JURISDICTION
On June 3, 2011 appellant filed a timely appeal from an April 20, 2011 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.
ISSUE
The issue is whether appellant has more than 61 percent bilateral hearing loss for which
he received a schedule award.
FACTUAL HISTORY
On February 11, 2008 appellant, then a 41-year-old motor carrier safety specialist, filed a
traumatic injury claim alleging that on February 11, 2008 he sustained hearing loss in his right
1

5 U.S.C. § 8101 et seq.

ear. He explained that during an inspection he asked the driver to blow the horn, which was at
ear level, resulting in pain in his ears. Appellant noticed liquid with small trace of blood coming
out of his right ear about 20 minutes later.
On January 11, 2011 OWCP accepted appellant’s claim for bilateral hearing loss. On
February 4, 2011 appellant filed a schedule award claim for hearing loss.
Appellant was referred for a second opinion examination to Dr. Gregory S. Rowin, a
Board-certified otolaryngologist, along with a statement of accepted facts. In a February 10,
2011 second opinion report, Dr. Rowin noted appellant’s complaints of chronic hearing loss.
Appellant related that his hearing loss started about a year ago when he experienced loud noise
exposure next to his right ear. Although he received medical treatment, his hearing never
returned and continued to deteriorate. Upon examination, Dr. Rowin observed bilateral
neurosensory hearing loss, definitely worse in the right ear, down a four-tone average of about
80 decibels with poor speech discrimination. He diagnosed moderate to severe sensorineural
hearing loss in his left ear and severe to profound sensorineural hearing loss in his right ear due
to noise exposure in the federal workplace. Dr. Rowin stated “yes” that the present audiometric
findings showed a sensorineural loss that was in excess of what would be normally predicted on
the basis of presbycusis and that appellant’s workplace exposure described in the material
provided caused the hearing loss in question.
A February 10, 2011 audiogram showed the decibel losses at frequencies of 500, 1,000,
2,000 and 3,000 hertz (Hz): 80, 80, 90 and 95 decibels for the right ear and 50, 45, 65 and 70
decibels for the left ear respectively. Dr. Rowin determined that the date of maximum medical
improvement was February 10, 2011, the date of the audiogram on which the report was based.
He also recommended hearing aids.
OWCP forwarded the case record to the district medical adviser (DMA) for review and
an opinion as to whether appellant had a ratable permanent impairment due to his accepted
hearing loss condition. In a March 4, 2011 report, the DMA reviewed Dr. Rowin’s February 10,
2011 second opinion report and concluded that appellant had a 61 percent hearing loss pursuant
to the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). According to the results of the February 10, 2011 audiogram,
decibel losses at frequencies of 500, 1,000, 2,000 and 3,000 Hz were 80, 80, 90 and 95 decibels
for the right ear (for a total of 345) and 50, 45, 65 and 70 decibels for the left ear (for a total of
230) respectively. The average loss for the right ear was 86.25, which was reduced by the fence
of 25 to equal 61.25 decibels. This amount was then multiplied by 1.5 to equal 91.875 decibels,
as the right monaural loss. The left ear was averaged to 57.5 decibels, from which the fence of
25 decibels was subtracted to equal 32.5 decibels. This loss was then multiplied by 1.5 to equal
48.75 decibels, as the left monaural loss. To calculate the binaural loss, the lesser loss of 48.75
decibels was multiplied by 5 to equal 243.75 and then added to the greater loss of 91.875 to total
335.62. This sum was then divided by 6, resulting in the binaural loss of 55.93. Since tinnitus
impacted appellant’s ability to perform activities of daily living, 5 percent was added to total
60.93, which was rounded to 61 percent. The DMA determined that the date of maximum
medical improvement was February 10, 2011, the date of the audiogram on which the report was
based. He checked “yes” that appellant’s hearing loss was made worse by exposure to
occupational noise set forth in the statement of accepted facts and recommended hearing aids.

2

By decision dated April 20, 2011, OWCP awarded appellant a 61 percent schedule award
for binaural hearing loss for the period February 10, 2011 to June 12, 2013. The date of
maximum medical improvement was noted as February 10, 2011.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
American Medical Association, Guides to the Evaluation of Permanent Impairment (sixth
edition 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.3
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. 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. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. 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, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.4 The Board has also noted OWCP’s policy to round the calculated
percentage of impairment to the nearest whole number.5
Regarding tinnitus, the A.M.A., Guides provides that tinnitus is not a disease but rather a
symptom that may be the result of a disease or injury.6 The A.M.A., Guides state that, if tinnitus
interferes with Activities of Daily Living (ADLs), including sleep, reading (and other tasks
requiring concentration), enjoying of quiet recreation, and emotional well being, up to five
percent may be added to a measurable binaural hearing impairment.7

2

5 U.S.C. §§ 8101-8193.

3

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

4

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

5

Robert E. Cullison, 55 ECAB 570 (2004); J.H., Docket No. 08-2432 (issued June 15, 2009). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010).
6

See A.M.A., Guides 249.

7

Id. See also Robert E. Cullison, supra note 5; R.H., Docket No. 10-2139 (issued July 13, 2011).

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ANALYSIS
OWCP accepted appellant’s claim for bilateral hearing loss and referred appellant to
Dr. Rowin for a second opinion examination. In a February 10, 2011 second opinion report,
Dr. Rowin diagnosed moderate-to-severe sensorineural hearing loss in the left ear and severe-toprofound sensorineural hearing loss in his right ear due to noise exposure in the federal
workplace. After reviewing Dr. Rowin’s February 10, 2011 audiogram and report, the DMA
correctly applied OWCP’s standardized procedures to the results. Testing for right ear at
frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 80, 80, 90 and 95
for a total of 345. This total was divided by 4 to obtain the average hearing loss of 86.25, which
was reduced by the fence of 25 to equal 61.25 decibels. This amount was then multiplied by 1.5
to equal 91.875 decibels, as the right monaural loss. Testing for the left ear at frequency levels
of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 50, 45, 65 and 70 decibels for the
left ear for a total of 230. This total was divided by 4 to obtain the average hearing loss of 57.5
decibels. The fence of 25 decibels was then subtracted to equal 32.5 decibels and multiplied by
1.5 to equal 48.75 decibels, as the left monaural loss. To calculate the binaural loss, the lesser
loss of 48.75 decibels was multiplied by 5 to equal 243.75 and then added to the greater loss of
91.875 to total 335.62. This sum was then divided by 6, resulting in the binaural loss of 55.93.
Since tinnitus impacted appellant’s ability to perform ADLs, 5 percent was added to total 60.93,
which was rounded to 61 percent. The Board finds that the medical adviser applied the proper
standards to the February 10, 2011 audiogram and correctly determined that appellant had a 61
percent binaural hearing loss. Thus, appellant has not established that he has more than 61
percent binaural hearing loss, for which he received a schedule award.
Appellant is entitled to receive a schedule award for a 61 percent binaural hearing loss.
The schedule award provision of FECA specifies the number of weeks of compensation to be
paid for each permanent impairment listed in the compensation schedule.8 The maximum
number of weeks of compensation for loss of hearing in both ears is 200 weeks.9 Thus, appellant
is entitled to 61 percent of 200 weeks, or 122 weeks of compensation. The Board finds that
OWCP properly concluded that the schedule award ran for 122 weeks beginning on
February 10, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant sustained a 61 percent binaural hearing loss and is not
entitled to a greater schedule award than granted.

8

5 U.S.C. § 8107(c).

9

Id.

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ORDER
IT IS HEREBY ORDERED THAT the April 20, 2011 schedule award decision of the
Office of Workers’ Compensation Programs is affirmed.

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Norfolk, VA, Employer
__________________________________________

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Appearances:

Docket No. 07-2186
Issued: February 25, 2008

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 24, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 8, 2007 decision denying his schedule award claim for
disfigurement and a March 5, 2007 decision granting a schedule award for 20 percent
impairment of the right arm. 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 has more than a 20 percent permanent impairment
of the right upper extremity for which he received a schedule award; and (2) whether he is
entitled to a schedule award for disfigurement.
FACTUAL HISTORY
On June 8, 2005 appellant, then a 31-year-old painter, sustained injury when an industrial
vacuum hose sucked his right hand and arm into the machine causing injury. The Office
accepted his claim for open wound of the right shoulder with complications and authorized

surgery on June 8 and 14 and August 22, 2005. Appellant stopped work on June 8, 2005. He
returned to limited duty on November 23, 2005 and full-time duty with restrictions on
July 11, 2006.
Appellant submitted a physical examination prepared by Dr. Aaron L. Marlow, a Boardcertified orthopedist, dated June 8, 2005, who noted a history of injury and diagnosed impending
compartment syndrome and recommended performing a complete fasciotomy on both dorsal and
volar aspects. In an operative report dated June 8, 2005, Dr. Marlow performed a forearm
fasciotomy with arterial exploration and diagnosed impending compartment syndrome of the
right forearm. In reports dated October 25 to November 22, 2005, he noted findings upon
physical examination revealed a right forearm which was neurologically intact, with full range of
motion and improving strength. Dr. Marlow recommended physical therapy and returned
appellant to light duty with restrictions on lifting. In work capacity evaluations dated August 30
and November 22, 2005, he returned appellant to work full time with a lifting restriction. An xray report of the right hand, forearm and elbow dated June 8, 2005 revealed no abnormalities.
Appellant came under the treatment of Dr. Tad E. Grenga, a Board-certified orthopedic surgeon,
who treated appellant from June 8 to July 25, 2005. Dr. Grenga diagnosed fasciotomy wounds
of the right arm and forearm. In an operative report dated June 14, 2005, he performed a
debridement and complex closure of multiple wounds of the right arm and diagnosed open
wound of the right arm and right forearm.
On August 22, 2005 Dr. Ronny Ghazal, a Board-certified orthopedic surgeon, performed
a left shoulder arthroscopy and resection of superior labrum, anterior and posterior capsular
release, release of the rotator interval, endoscopic subacromial decompression and debridement
of small partial thickness rotator cuff tear.
On November 15, 2006 appellant filed a claim for a schedule award. He submitted a
November 8, 2006 report from Dr. Richard D. Knauft, a Board-certified orthopedic surgeon, who
noted a history of injury and subsequent treatment for impending compartment syndrome in the
right forearm. Dr. Knauft noted findings of well-healed wounds about the forearm, secondary to
the fascia release, good range of motion of the elbow and wrist, mild loss of pronation and
supination of five degrees each side and Jamar grip testing revealed the grip strength on the right
side half of the left hand grip strength. He opined that appellant sustained permanent impairment
of the right arm due to the work-related compartment syndrome. Dr. Knauft opined that in
accordance with the American Medical Association, Guides to the Evaluation of Permanent
Impairment,1 (A.M.A., Guides) appellant had 20 percent impairment of the right upper extremity
due to loss of grip strength.2
The Office referred the medical evidence to an Office medical adviser. In a report dated
January 3, 2007, he advised that appellant sustained 20 percent permanent impairment of the
right arm in accordance with the A.M.A., Guides. The Office medical adviser noted that

1

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

2

Id. at 509, Table 16-34.

2

appellant had a 50 percent strength loss index which resulted in 20 percent impairment to the
right arm.3 The date of maximum medical improvement was June 8, 2006.
In a decision dated March 5, 2007, the Office granted appellant a schedule award for 20
percent permanent impairment of the right upper extremity. The period of the award was from
June 8, 2006 to August 18, 2007.
On April 11, 2007 appellant filed a claim for a schedule award for disfigurement. In a
March 19, 2007 narrative statement, he noted that, as a result of the work injury and surgical
treatment, he developed a 21.5 centimeter crescent shaped scar on the right arm along the palmar
and a 18 centimeter scar to the dorsal forearm. Appellant noted that he was disabled from
performing his daily tasks, he lacked mobility in the right arm which interfered with him
performing his job duties and prevents him from playing sports. As a result of the scars, he was
the recipient of sarcastic remarks and negative reactions from coworkers. In an attending
physician’s report dated April, 17, 2007, Dr. Grenga noted that there was no further
improvement in the scar on appellant’s arm. He indicated that appellant reached maximum
medical improvement on July 12, 2006. Dr. Grenga recommended an excision of the dorso
radial portion of the forearm scar which would improve the appearance of the scar and
disfigurement. He noted that the disfigurement was two centimeters wide and spanned the right
ulnar upper extremity between the mid-arm and distal forearm and a second scar spanned the
entire right radial forearm.
In a decision dated August 8, 2007, the Office denied appellant’s claim for a
disfigurement award. It found that he did not sustain serious disfigurement of the face, head or
neck pursuant to 5 U.S.C. 8107(c)(21).
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.

3

Id.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

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ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for open wound of the right shoulder and
complications and authorized surgery which was performed on June 8 and 11 and
August 22, 2005.
Appellant submitted a November 8, 2006 report from Dr. Knauft, a Board-certified
orthopedic surgeon, who noted well-healed wounds about the forearm, secondary to the fascia
release, good range of motion of the elbow and wrist, mild loss of pronation and supination of
five degrees each side and Jamar grip testing revealed the grip strength on the right side half of
the left hand grip strength. Dr. Knauft opined that appellant’s weakness was primarily muscular
and that, in accordance with the A.M.A., Guides, he sustained a 20 percent impairment to the
right arm due to loss of grip strength.6
The medical adviser agreed with the impairment rating by Dr. Knauft, who noted that
appellant had a 50 percent strength loss index which results in 20 percent impairment to the right
upper extremity.7
Dr. Knauft opined that maximum medical improvement was on
February 21, 2007. This evaluation conforms to the A.M.A., Guides and establishes that
appellant has no more than a 20 percent impairment of the right upper extremity.
Appellant did not submit any medical evidence supporting a greater impairment than 20
percent of the right upper extremity.
LEGAL PRECEDENT -- ISSUE 2
The Act8 provides in section 8107(c)(21) that “[f]or serious disfigurement of the face,
head or neck of a character likely to handicap an individual in securing or maintaining
employment, proper and equitable compensation not to exceed $3,500.00 shall be awarded in
addition to any other compensation payable under this schedule.”9 In a case involving
disfigurement, the question before the Board is whether the amount awarded by the Office was
based upon sound and considered judgment and was “proper and equitable” under the
circumstances as provided by section 8107(c)(21) of the Act. In determining what constitutes
“proper and equitable compensation” for disfigurement, sound judgment and equitable
evaluation must be exercised as to the likely economic effect of appellant’s disfigurement in
securing and maintaining employment.10

6

A.M.A., Guides 509, Table 16-34.

7

Id.

8

5 U.S.C. § 8101 et seq.

5 U.S.C. § 8107(c)(21).
10

Mark A. Wages, 39 ECAB 282, 287 (1987); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.8 (August 2002).

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ANALYSIS -- ISSUE 2
Appellant contends that he is entitled to an award for disfigurement for scarring on his
right arm. The Office accepted his claim for open wound of the right shoulder and complications
and authorized surgery which was performed on June 8 and 11 and August 22, 2005.
Appellant noted that, as a result of the work injury and surgical treatment, he developed a
21.5 centimeter crescent shaped scar on the right arm along the palmar and an 18 centimeter scar
to the dorsal forearm. He stated that the scars disabled him from performing his job, that he
experienced sarcastic remarks and negative reactions from coworkers and hides his arm when he
is in public. On April, 17, 2007 Dr. Grenga noted that appellant reached maximum medical
improvement on July 12, 2006. He noted that the disfigurement was two centimeters wide and
spanned the right ulnar upper extremity between the mid-arm and distal forearm and a second
scar spanned the entire right radial forearm.
By the terms of section 8107(c)(21), a schedule award for disfigurement is limited to the
face, head or neck. The Act makes no provision for scarring or disfigurement of any other part
of the body. Neither the Office nor the Board has the authority to enlarge the terms of the Act or
to make an award of benefits under any terms other than those specified in the statute or
regulations.11 The record establishes that appellant’s work-related scars are located on his midarm and distal forearm and span the entire right radial forearm. They were not located on his
face, head and neck as required by the Act. The Board finds that appellant is not entitled to an
award for scarring or disfigurement of his right arm.12
CONCLUSION
The Board finds that appellant sustained a 20 percent permanent impairment of the right
arm. It further finds that he is not entitled to a schedule award for disfigurement.

11

Richard T. DeVito, 39 ECAB 668 (1988).

12

See William Tipler, 45 ECAB 185 (1993); Norma Jean Polen, 24 ECAB 64 (1972) (finding no award payable
for disfigurement of the breast, abdomen, thighs or right arm).

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ORDER
IT IS HEREBY ORDERED that the August 8 and March 5, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 25, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., claiming as widow of S.D., Appellant

and
U.S. POSTAL SERVICE, POST OFFICE,
Spring Valley, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-235
Issued: August 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On November 15, 2012 appellant filed a timely appeal of an August 23, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her death benefits
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that the employee’s death was causally related
to factors of his federal employment.
On appeal appellant contends that the impartial medical specialist selected in this case
was not qualified in the appropriate specialty. She also contends that OWCP failed to accept the
factors of retaliation and harassment as compensable.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a January 24, 2000 decision, the
Board found that the factual evidence established a compensable factor in that the employee’s
postal route required more than eight hours to prepare and complete.2 The Board remanded the
case to OWCP for further development. On remand, OWCP accepted an adjustment disorder
with mixed anxiety and depressed mood. It authorized compensation for the period July 12 to
October 23, 1997, the date the emotional condition was found to have resolved. In a March 9,
2007 decision, the Board set aside an OWCP nonmerit decision dated June 2, 2006.3 The Board
found that it improperly denied appellant’s request for merit review as she submitted new and
relevant factual evidence. In a March 26, 2008 decision, the Board set aside an April 20, 2007
OWCP decision denying appellant’s claim.4 The Board found the case was not in posture on the
question of whether appellant established harassment or retaliation as compensable employment
factors. In a September 24, 2009 decision, the Board remanded the case for further development
of the medical evidence. The Board found the evidence of record sufficient to establish
retaliation as a compensable factor.5 The Board also found that development of the medical
evidence was warranted on whether the employee’s death was caused or aggravated by the
employment factors. In a February 22, 2011decision, the Board set aside a May 13, 2010 OWCP
decision and again remanded the case for further development.6 It found an unresolved conflict
in medical opinion between Dr. Khalid Rehman, a second opinion Board-certified internist with
subspecialties in hematology and oncology, and Dr. Paul Rosch, a Board-certified internist for
appellant, on whether the employee’s colon cancer was caused or hastened by the accepted
emotional condition. The facts of the case as set forth in the Board’s prior decisions are hereby
incorporated by reference.7
On January 19, 2012 OWCP referred the case record to Dr. Shamoon Ahmad, a Boardcertified internist with a subspecialty in oncology, to resolve the conflict in the medical opinion
evidence. The statement of accepted facts provided to the physician listed as the accepted factors
that the employee’s carrier route required more than eight hours a day to complete and the
employee had been subjected to harassment and retaliation at the employing establishment.

2

Docket No. 99-1439 (issued January 24, 2000). On May 26, 1998 OWCP denied the employee’s emotional
condition claim on the basis that he failed to establish a compensable factor of employment. By decision dated
December 31, 1998, an OWCP hearing representative affirmed the denial. The Board found a compensable factor
under Lillian Cutler, 28 ECAB 125 (1976).
3

Docket No.06-1937 (issued March 9, 2007).

4

Docket No. 07-1857 (issued March 26, 2008).

5

Docket No. 08-2190 (issued September 24, 2009).

6

Docket No. 10-1719 (issued February 22, 2011).

7

The employee died on April 12, 2001 and appellant, the employee’s widow, filed a claim for survivor’s benefits
(Form CA-5) on September 3, 2003 alleging that the employee’s death was causally related to his accepted
employment injury.

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On May 16, 2012 OWCP received Dr. Ahmad’s undated report. Dr. Ahmad reviewed the
employee’s medical records and stated his agreement with the second opinion report of
Dr. Rehman that the employee’s colon cancer was not caused or hastened by his depression or
adjustment disorder. He noted that the results of some studies had indicated a link between
various psychological factors and an increased risk of developing cancer, no direct cause and
effect relationship had been proven. In response to the inquiry as to whether the employee’s
diagnosed metastatic colon cancer was connected to the work-related emotional condition,
Dr. Ahmad responded “No.” He responded “N/A” to the remaining inquires asking for further
opinion on aggravation, findings and nonindustrial cause.
By letter dated May 22, 2012, OWCP notified Dr. Ahmad that clarification of his medical
opinion was sought on whether the employee’s stress condition aggravated the tumor growth.
Dr. Ahmad was asked to submit additional rationale in support of his stated response of “No”
when asked to address causal relation and aggravation.
In a June 25, 2012 response, Dr. Ahmad resubmitted a copy of his prior undated report.
He restated his agreement with Dr. Rehman’s opinion that the employee’s colon cancer was not
caused or hastened by his depression and adjustment disorder. Dr. Ahmad noted that in the
absence of substantiated proof, the studies indicating a link between psychological factors and
increased risk for cancer could not be asserted in this case. He noted that the studies were of
“animal models” that could not be extrapolated to humans in the absence of human studies. In
response to the question on causal relation, Dr. Ahmad replied “No. There is no evidence to
support that the claimant’s cancer was medically connected to the work or aggravated by it.
There is not literature to support this notion.”
By decision dated August 23, 2012, OWCP denied appellant’s claim for survivor’s
benefits. It found the opinion of Dr. Ahmad, the impartial medical specialist, established that the
employee’s colon cancer and death were unrelated to the accepted emotional condition or
compensable work factors.
LEGAL PRECEDENT
FECA8 provides that the United States shall pay compensation for disability or death of
an employee resulting from personal injury sustained while in the performance of duty.9
However, an award of compensation in a survivor’s claim may not be based on surmise,
conjecture or speculation or on appellant’s belief that the employee’s death was caused,
precipitated or aggravated by his employment. A claimant has the burden of proving by the
weight of the reliable, probative and substantial evidence that the employee’s death was causally
related to his or her employment.10 This burden includes the necessity of furnishing rationalized

8

5 U.S.C. §§ 8101-8193.

9

Id. at § 8102(a).

10

D.H. (G.H.), 58 ECAB 636 (2007); Viola Stanko (Charles Stanko), 56 ECAB 636 (2005).

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medical opinion evidence, based on a complete factual and medical background, showing causal
relationship.11
Section 8123(a) of FECA12 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.13 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination.14 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.15
ANALYSIS
The Board finds that this case is not in posture for decision.
In a February 22, 2011 decision, the Board found an unresolved conflict in the medical
opinion evidence between Dr. Rehman, a second opinion Board-certified internist with
subspecialties in hematology and oncology, and Dr. Rosch, appellant’s Board-certified internist,
requiring further development of the evidence on the issue of whether the employee’s colon
cancer was caused or hastened by the accepted emotional condition, On remand, OWCP
properly referred the employee’s case record for review by Dr. Ahmad, selected as the impartial
medical referee.
The Board finds that the reports of Dr. Ahmad are not sufficient to resolve the conflict in
medical opinion. In both reports, Dr. Ahmad stated agreement with the report and conclusions of
Dr. Rehman, the second opinion specialist, who found that the employee’s colon cancer had not
been caused or aggravated by the accepted emotional condition. He provided reference to
studies performed over 30 years regarding the relationship between cancer, stress and
psychological factors and noted conflicting results. In addressing OWCP’s questions concerning
the issues of causal relationship, Dr. Ahmad provided a brief “No” without further elaboration.
By letter dated May 22, 2012, OWCP requested clarification from Dr. Ahmad, asking
that he address with rationale the issues of causal relationship and aggravation. The Board has
held that, when OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or

11

L.R. (E.R.), 58 ECAB 369 (2007); Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

12

5 U.S.C. § 8123(a).

13

J.J., Docket No. 09-27 (issued February 10, 2009); F.R., 58 ECAB 607 (2007); Darlene R. Kennedy, 57 ECAB
414 (2006).
14

20 C.F.R. § 10.321.

15

R.H., 59 ECAB 382 (2008); Elaine Sneed, 56 ECAB 373 (2005).

4

elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
his original report.16
In a supplemental June 25, 2012 report, Dr. Ahmad advised again that he agreed with
Dr. Rehman’s conclusion that the employee’s colon cancer was not aggravated or caused by his
adjustment disorder and depression. He again referenced conflicting animal studies that he
stated could not be extrapolated to humans and that the employee did not have a cancer caused
by a virus. Dr. Ahmad again responded “No” that there was no evidence to support that the
employee’s cancer was caused or aggravated by his work as “[t]here is no literature to support
this notion.”
The Board finds that Dr. Ahmad’s reports are not sufficiently rationalized such that his
medical opinion is of diminished probative value. In Frederick Justiniano,17 the Board set aside
the report of an impartial specialist who stated his agreement with the opinion of an OWCP
second opinion physician without offering adequate medical rationale to support his own medical
conclusions. In the present appeal, Dr. Ahmad relied too extensively on the opinion of
Dr. Rehman without providing an adequate explanation for his own conclusions on the questions
pertaining to causal relation and aggravation.
The conflict in medical opinion is unresolved. When an impartial specialist is unable to
clarify or elaborate on his original report or if his supplemental report is also vague, speculative
or lacking in rationale, OWCP must submit the case record to another impartial specialist for the
purpose of obtaining a rationalized medical opinion on the issue.18
Upon return of the case record, OWCP should refer appellant to another impartial
specialist. The impartial specialist should provide an opinion addressing whether the employee’s
colon cancer was aggravated by the accepted compensable employment factors of overwork,
harassment and retaliation. Following this and any other development deemed necessary,
OWCP shall issue a de novo decision.
On appeal appellant contends that Dr. Ahmad is not an appropriate specialist as he has no
experience in psychiatry or psychology. In view of the Board’s findings of a conflict in the
medical opinion evidence, necessitating referral to another impartial medical specialist the Board
finds appellant’s argument regarding Dr. Ahmad to be moot.
CONCLUSION
The Board finds this case is not in posture for a decision as there is an unresolved conflict
in the medical opinion evidence requiring further development.

16

F.D., Docket No. 09-1346 (issued July 19, 2010); V.G., 59 ECAB 635 2008); Nancy Keenan, 56 ECAB 687
(2005); Talmadge Miller, 47 ECAB 673 (1996); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Developing and Evaluating Medical Evidence, Chapter 2.810(11)(e) (September 2010).
17

45 ECAB 491 (1994).

18

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 23, 2012 is set aside and the case remanded for further
proceeding consistent with the above opinion.
Issued: August 26, 2013
Washington, DC

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

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

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

6


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

)
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)
)
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Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0404
Issued: April 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 22, 2015 appellant, through counsel, filed a timely appeal from a
September 17, 2015 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition as a consequence of an April 17, 2012 employment injury.
On appeal counsel asserts that medical evidence dating back to 1991 establishes that
appellant’s anxiety and depression are related to employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 19, 2012 appellant, then a 40-year-old sales and service associate, filed a
traumatic injury claim (Form CA-1) alleging that she injured her knees, back, and hand when she
tripped and fell while carrying boxes at work on April 17, 2012. She returned to modified-duty
work. OWCP accepted lumbar sprain, bilateral shoulder sprains, and aggravation of bilateral
carpal tunnel syndrome. On June 27, 2012 Dr. Marc Weinstein, an attending Board-certified
orthopedic surgeon, advised that appellant could return to full duty. The instant claim was
adjudicated by OWCP under file number xxxxxx181.
On December 27, 2013 appellant filed an occupational disease claim (Form CA-2),
alleging that she was having panic attacks because she was being harassed by management and
publicly embarrassed. She stopped work on April 18, 2013. In support of her claim, appellant
submitted a nine-page statement describing claimed employment factors. OWCP adjudicated
this claim under file number xxxxxx325. By decision dated March 17, 2014, it denied the claim,
finding that appellant failed to establish a compensable factor of employment.
On March 25, 2015 counsel requested that the instant claim, file number xxxxxx181, be
expanded to include depression and anxiety secondary to medical conditions. He forwarded a
psychiatric evaluation dated February 9, 2015 in which Dr. Gary K. Arthur, a Board-certified
psychiatrist noted that he began treating appellant in April 2011. Dr. Arthur indicated that
appellant’s depression and anxiety became increasingly debilitating and were directly related to
her worsening physical problems of carpal tunnel syndrome, her shoulders, and her lumbar spine,
and that these also worsened her diabetes. He diagnosed depression and anxiety secondary to
medical conditions of bilateral shoulder derangement, lumbar disc disease, bilateral carpal tunnel
syndrome, and diabetes mellitus. Dr. Arthur added that appellant’s depression and anxiety had
been documented since 1991, and as her work injuries increased in disability and pain, her
depression and anxiety were directly, steadily aggravated, and worsened and began to affect her
abilities to concentrate, attend to task, and make good judgements. He concluded that she
became totally disabled from work on April 20, 2013 and remained unable to work anywhere.
On a work capacity evaluation dated February 9, 2015, Dr. Arthur repeated his diagnoses and
conclusions, opining that appellant was totally disabled from all work.
Dr. Arthur also forwarded a note dated September 17, 2013 in which he related that
appellant had increasing problems with her diabetes, lumbar discs, shoulder problems, and
bilateral carpal tunnel syndrome with pain and limitation since January 2013. He continued that
she was taken off work on April 20, 2013 because she could no longer function there and ended
up hospitalized in May 2013. Dr. Arthur concluded that appellant remained disabled for any
work due to her diabetes and orthopedic problems. He provided disability slips covering the
period April 20, 2013 to September 5, 2014. On a Family and Medical Leave Act (FMLA)
application dated June 18, 2013, Dr. Arthur advised that work stress was aggravating appellant’s
depression, anxiety, and diabetes. He indicated that beginning on April 20, 2013 she became
totally disabled due to a poor ability to concentrate, attend to tasks, relate to others, and keep
regular attendance.
One page of an unsigned April 17, 2006 report on the letterhead of Dr. Conrad P. Weller,
a Board-certified psychiatrist, advised that appellant had significant physical conditions of

2

bilateral carpal tunnel syndrome, bilateral shoulder conditions, and significant psychiatric
difficulties including anxiety and depression. The report continued that appellant’s psychiatric
problems were directly related to her persistent musculoskeletal pain and physical limitations and
that she was mentally and behaviorally impaired.
On June 15, 2015 Dr. Arthur reiterated his findings and conclusions. He forwarded a
mental capacity assessment, originally dated October 10, 2014. On June 15, 2015 Dr. Arthur
indicated that there had been no change.
Appellant retired from the employing establishment, effective June 29, 2015. The
employing establishment noted that under OWCP file number xxxxxx325, which had been
denied, appellant claimed that her depression and anxiety were related to events and noted that
these conditions were preexisting.
On August 5, 2015 Dr. Arthur advised that the injuries that aggravated appellant’s
depression and anxiety were bilateral carpal tunnel syndrome, bilateral upper shoulder and arm
sprains, and lumbar sprain. He explained that several months of working in a hostile
environment at the employing establishment also aggravated appellant’s emotional condition, but
that both the work environment and employment injuries led to a worsening of appellant’s
depression and anxiety to the point of disability.
In treatment notes dated June 18, 2013 to June 9, 2014, Dr. Albert Tawil, a Boardcertified family physician, related that on June 7, 2013 appellant was involved in a motor vehicle
accident where her vehicle was rear-ended. He described her care thereafter, noting complaints
of cervical and lumbar pain and occipital headaches. A June 21, 2013 cervical spine magnetic
resonance imaging (MRI) scan demonstrated an impinging disc at C6-7. A lumbar spine MRI
scan that day demonstrated disc bulges at L4-5 and L5-S1. Appellant had a lumbar epidural
injection on July 30, 2013. On August 12, 2013 Dr. Tawil noted that this did not give enough
relief. On November 8, 2013 appellant had nerve root block at L4-5. On March 4, 2014 she was
seen at an emergency department for uncontrolled insulin-dependent diabetes. On April 18,
2014 appellant had an additional lumbar epidural injection. Dr. Tawil reported on May 1, 2014
that this did not give her much relief.
In a September 17, 2015 decision, OWCP denied the instant claim (OWCP file number
xxxxxx181). It referenced OWCP file number xxxxxx325, the previously denied emotional
condition claim. OWCP found that the evidence in the OWCP file number (xxxxxx181) did not
demonstrate that appellant’s psychiatric condition was caused or aggravated by the accepted
injuries.
LEGAL PRECEDENT
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the

3

nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.2
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.3 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.4 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.5
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of the claimant’s own conduct as an independent intervening cause. The basic rule is
that a subsequent injury, whether an aggravation of the original injury or a new and distinct
injury, is compensable if it is the direct and natural result of a compensable primary injury.6
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that the
diagnosed conditions of anxiety and depression were a consequence of the April 17, 2012
employment injury. The accepted conditions in this case, adjudicated under file number
xxxxxx181, are lumbar sprain, bilateral shoulder sprains, and aggravation of bilateral carpal
tunnel syndrome. Appellant stopped work on April 18, 2013 and filed an occupational disease
claim, adjudicated under file number xxxxxx325. With that claim, in a nine-page statement she
described perceived hostile treatment at work, alleging that it caused depression and anxiety such
that she could not work. Appellant did not state that the conditions accepted in this case OWCP
file number xxxxxx181 led to increased depression and anxiety. OWCP file number xxxxxx325
was denied by OWCP on March 17, 2014.
In March 2015 counsel requested that the instant claim be expanded to include a
consequential emotional condition. In support of this claim, in reports dated February 9 to
August 5, 2015, Dr. Arthur, an attending psychiatrist, diagnosed depression and anxiety and
advised that these conditions were secondary to the accepted orthopedic injuries. He maintained
that the depression and anxiety were directly, steadily, aggravated and worsened by both a
2

Charles W. Downey, 54 ECAB 421 (2003).

3

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

4

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

5

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

6

Larson, The Law of Workers’ Compensation § 1300; see supra note 2.

4

hostile environment at work and by the accepted employment injuries, such that appellant could
no longer concentrate and make good judgements, and that she became totally disabled from all
work. Dr. Arthur also submitted disability slips covering the period April 20, 2013 to
September 5, 2014 and an FMLA application dated June 18, 2013. In a September 20, 2013
treatment note, he related that appellant had increasing problems with her diabetes, lumbar discs,
shoulder problems, and bilateral carpal tunnel syndrome with pain and limitation since
January 2013. Dr. Arthur noted that she was taken off work on April 20, 2013 because she could
no longer function at the employing establishment and that she was hospitalized in May 2013.
He concluded that appellant remained disabled for any work due to her diabetes and orthopedic
problems.
The Board finds Dr. Arthur’s opinion of diminished probative value. The record supports
that appellant was in a motor vehicle accident in June 2013, shortly after she stopped work.
Dr. Tawil documented cervical and lumbar conditions resulting from the motor vehicle accident,
and appellant had several lumbar injections to relieve pain. Dr. Arthur did not reference the
motor vehicle accident and its sequelae in any of his reports. He provided no contemporaneous
evidence such as treatment notes from the time appellant stopped work in April 2013 until his
report in February 2015, with the exception of the September 20, 2013 report described above. It
is well established that to be of probative value a medical opinion must be based on a complete
and accurate factual and medical background. Medical opinions based on an incomplete or
inaccurate history, such as that of Dr. Arthur, are of diminished probative value.7
The one page, incomplete, unsigned report from Dr. Weller’s office predates the claimed
disability in this case by seven years. Moreover, reports lacking proper identification, such as
unsigned treatment notes, do not constitute probative medical evidence.8
As noted above, the opinion of a physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.9 Appellant submitted
insufficient medical evidence in this case.
Counsel, on appeal, argued that appellant’s claim should be expanded to include the
consequential injuries of major depression and anxiety disorder as a consequence of her accepted
medical conditions. As noted above, the Board finds that the evidence of record is insufficient to
establish a consequential injury.
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.

7

L.G., Docket No. 09-1692 (issued August 11, 2010).

8

R.M., 59 ECAB 690 (2008).

9

Supra note 5.

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an emotional
condition as a consequence of an April 17, 2012 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macon, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2141
Issued: July 1, 2011

Case Submitted on the Record

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

JURISDICTION
On August 23, 2010 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs (OWCP) dated April 20, 2010. 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 found that an overpayment in compensation
in the amount of $7,623.88 was created because appellant did not report earnings for the period
April 11, 2007 through September 11, 2008; and (2) whether OWCP properly found that
appellant was at fault in the creation of the overpayment and, therefore, it was not subject to
waiver.
On appeal appellant asks that her case be reviewed.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 20, 2002 OWCP accepted that appellant, a 35-year-old part-time flexible
mail processor, sustained sprains to the left hand, wrist, upper arm and shoulder on
September 27, 2002 while sleeving mail and pulling trays. Appellant began light-duty work.
She had arthroscopic repair of the left shoulder on April 6, 2005, and was off work through
August 16, 2005. Appellant returned to light duty until June 8, 2006. She was thereafter placed
on the periodic compensation rolls. Appellant returned to six hours of daily modified duty on
February 8, 2007 and continued to receive wage-loss compensation for two hours a day.2
On August 15, 2008 appellant submitted an OWCP EN1032 form in which she reported
no employment activity. On September 8, 2008 OWCP noted that the EN1032 form was not
completed properly because the record indicated that she had been working for the employing
establishment. It asked appellant to complete another form, which was attached. On
September 11, 2008 appellant submitted a second EN1032 form. In answer to question one, on
whether she had worked for any employer during the past 15 months, she reported that she had
worked for the employing establishment since February 7, 2007; in answer to question two, on
whether she had been self-employed or involved in any business enterprise in the past 15
months, she responded “no.” The EN1032 form signed by appellant on September 11, 2008
covered the period June 11, 2007 through September 11, 2008. Appellant returned to eight hours
of modified duty on October 20, 2008.
A December 18, 2008 postal service Office of Inspector General investigation report
covered the period November 9, 2007 to December 18, 2008. The report indicated that appellant
had been a full-time student in a practical nursing program while working limited duty at the
employing establishment, and was also employed at Mediquip Rehabilitation Equipment and
Supplies. The investigator reported observing appellant in April 2008, arriving at Mediquip
dressed in a blue shirt with a Mediquip logo, and that in August 2008, the investigator entered
Mediquip, posed as a customer, and appellant assisted her. The owner of Mediquip is appellant’s
cousin and was interviewed. She stated that appellant began working for her in September 2007,
several hours a day, several days a week, working on paperwork and assisting customers. The
owner related that she had paid appellant $150.00 per week on a few occasions, and that when
profits declined, compensated appellant by buying clothes and paying for meals and
entertainment. When interviewed, appellant admitted that she was employed at Mediquip from
November 2007 to the present, answering the telephone and completing paperwork. She denied
receiving financial compensation for her work, stating that she was compensated with meals and
clothing, but later admitted that she might have been paid $150.00 on one occasion. Appellant
stated that she did not report this position because she was volunteering her time. A DVD
surveillance video of her activities from April 4 to June 12, 2008 is found in the case record.
By decision dated February 10, 2010, OWCP found that appellant had forfeited
compensation for the period June 11, 2007 through September 11, 2008 because she knowingly
2

In January 2004 appellant filed an emotional condition claim that was denied. On July 14 and 29, 2008 OWCP
found that she received overpayments in compensation in the amounts of $368.43 and $4,429.71 that were deducted
from her continuing compensation.

2

omitted and/or understated work activity and earnings on an EN1032 form.3 OWCP also made a
preliminary determination that appellant was at fault in the creation of an overpayment in
compensation in the amount of $7,623.88 because she knowingly understated or omitted
earnings for the period June 11, 2007 to September 11, 2008 and had received compensation in
this amount. Computer print-outs and an OWCP overpayment worksheet indicate that appellant
received $7,624.88 in compensation for this period.
On March 4, 2010 appellant requested a decision on the record, stating that she disagreed
that the overpayment occurred and requested waiver. She submitted an overpayment
questionnaire and stated that she was financially unable to repay the funds as she had been
terminated by the employing establishment and was currently employed by Mediquip, earning
$300.00 a week.
By decision dated April 20, 2010, OWCP finalized the preliminary determination that
appellant was at fault in creating the $7,623.88 overpayment because she failed to report a
material fact and provided information that she knew or should have known was incorrect.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.4 A claimant, however, is not entitled to
receive temporary total disability and actual earnings for the same period.5 OWCP procedures
provide that an overpayment in compensation is created when a claimant returns to work and
continues to receive compensation.6
Section 8106(b) of FECA provides that the Secretary of Labor may require a partially
disabled employee to report his earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies. It provides that an employee
who fails to make an affidavit or report when required or knowingly omits or understates any
part of his or her earnings forfeits his or her right to compensation with respect to any period for
which the affidavit or report was required.7
In order to establish that a compensationer should forfeit the compensation received for
the periods covered by completed OWCP EN1032 forms, the evidence must establish that he or
she knowingly omitted or understated his or her employment and earnings.8 As forfeiture is a
3

Appellant did not file an appeal with the Board of the February 10, 2010 final decision regarding forfeiture.

4

5 U.S.C. § 8102(a).

5

Donna M. Rowan, 54 ECAB 698 (2003).

6

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (September 1994).
7

5 U.S.C. § 8106(b); see F.C., 59 ECAB 190 (2007).

8

Robert R. Holmes, 49 ECAB 161 (1997).

3

penalty, it is not enough merely to establish that there were underreported earnings from
employment. The inquiry is whether appellant knowingly omitted or understated his earnings
from employment for the periods covered by the EN1032 forms. The term knowingly is not
defined within FECA or its implementing federal regulations. In common usage, the Board has
adopted the definition of “knowingly” as “with knowledge; consciously; intelligently; willfully;
intentionally.”9 The language on OWCP EN1032 forms is clear and unambiguous in requiring a
claimant to report earnings for the previous 15 months from any employer, self-employment or a
business enterprise in which he or she worked. The forms further emphasize that severe
penalties may be applied for failure to report all work activities thoroughly and completely.
Section 10.529 of OWCP’s regulations provide that, if an employee knowingly omits or
understates any earnings or work activity in making a report, he or she shall forfeit the right to
compensation with respect to any period for which the report was required. A false or evasive
statement, omission, concealment or misrepresentation with respect to employment activity or
earnings in a report may also subject an employee to criminal prosecution. Where the right to
compensation is forfeited, OWCP shall recover any compensation already paid for the period of
forfeiture pursuant to section 8129 and other relevant statutes.10
ANALYSIS -- ISSUE 1
The evidence of record establishes that appellant knowingly failed to report her
employment activities and earnings on an OWCP EN1032 form. The language on the form is
clear and unambiguous in requiring that a claimant report all earnings or involvement in business
enterprises, including odd jobs even if intermittent, and specifically notes that unpaid duties must
also be reported and an appropriate rate of pay shown for the activity. Appellant performed
work activities at Mediquip including completing paperwork and helping customers. Her
signature on the EN1032 form dated September 11, 2008 certified that “all the statements made
in response to questions on this form are true, complete and correct to the best of my knowledge
and belief.” Appellant only reported her part-time work at the employing establishment, but no
other work, self-employment or volunteer work of any kind. The EN1032 form covered the 15month period prior to the date of her signature on September 11, 2008. Thus, appellant
knowingly forfeited her right to compensation for the period June 11, 2007 to September 11,
2008, and an overpayment in compensation was created. In calculating the amount of the
overpayment, OWCP properly determined that she received wage-loss compensation totaling
$7,623.88 for the period in question. OWCP therefore properly found that an overpayment in
compensation in the amount of $7,623.88 had been created for the period June 11, 2007 to
September 11, 2008.11

9

Harold F. Franklin, 57 ECAB 387 (2006).

10

20 C.F.R. § 10.529.

11

F.C., supra note 7.

4

LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that an overpayment in compensation shall be
recovered by OWCP unless “incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of FECA or would be against
equity and good conscience.”12
Section 10.433(a) of OWCP’s regulations provide:
“OWCP may consider waiving an overpayment only if the individual to whom it
was made was not at fault in accepting or creating the overpayment. Each
recipient of compensation benefits is responsible for taking all reasonable
measures to ensure that payments he or she receives from OWCP are proper. The
recipient must show good faith and exercise a high degree of care in reporting
events which may affect entitlement to or the amount of benefits. A recipient
who has done any of the following will be found to be at fault in creating an
overpayment: (1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; or (2) Failed to provide
information which he or she knew or should have known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”13
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.14
ANALYSIS -- ISSUE 2
OWCP found appellant at fault in creating the overpayment in compensation because she
knowingly failed to report employment activities. Appellant had an obligation to show good
faith and to exercise a high degree of care in reporting events that could affect the amount of her
compensation.15 On an OWCP EN1032 form dated September 11, 2008, she indicated that she
had no earnings other than from her part-time postal employment, and was not performing other
work activities. The EN1032 form advised appellant that a false or evasive answer to any
question could be grounds for forfeiting compensation benefits and advised that severe penalties
could be applied for failure to report all work activities thoroughly and completely. When
appellant signed the forms, she certified that she understood that she must immediately report to
OWCP any employment or work activities. She failed to inform OWCP of her work activities,
information that she knew or should have known was material to the calculation of her wage-loss
12

5 U.S.C. § 8129(b); see Linda E. Padilla, 45 ECAB 768 (1994).

13

20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

14

Id. at § 10.433(b); Duane C. Rawlings, 55 ECAB 366 (2004).

15

Sinclair L. Taylor, supra note 13.

5

compensation.16 The Board finds that appellant was thus at fault in the creation of the
overpayment in compensation.17 Because appellant is at fault in the creation of the overpayment,
she is not entitled to waiver.18
CONCLUSION
The Board finds that appellant was at fault in the creation of an overpayment in
compensation in the amount of $7,623.88.
ORDER
IT IS HEREBY ORDERED THAT the April 20, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: July 1, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

16

Harold F. Franklin, supra note 9.

17

F.C., supra note 7.

18

Lastly, the Board notes that its jurisdiction is limited to reviewing those cases where the Office seeks recovery
from continuing compensation benefits under the Act. Where, as here, a claimant is no longer receiving wage-loss
compensation benefits, the Board does not have jurisdiction with respect to the Office’s recovery of the
overpayment under the Debt Collection Act. Albert Pineiro, 51 ECAB 310 (2000).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 11-1056
Issued: November 7, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2011 appellant filed a timely appeal from November 29, 2010 and
March 11, 2011 merit decisions of the Office of Workers’ Compensation Programs (OWCP)
which denied his claim for continuation of pay as untimely filed. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to continuation of pay for his July 15, 2010
employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 17, 2010 appellant, then a 63-year-old customer service representative, filed a
traumatic injury claim alleging that on July 15, 2010 he twisted his left knee while turning into a
break area. He explained that his quad tendon injury was diagnosed as a severe sprain of the left
quad tendon. Appellant stopped work on July 15, 2010 and returned on July 21, 2010. The
employing establishment controverted his claim on the grounds that he did not timely file his
claim to receive continuation of pay and that fact of injury, performance of duty and causal
relationship were not established.2
On November 4, 2010 OWCP accepted appellant’s claim for a left knee and quadriceps
3

sprain.

On November 29, 2010 the employing establishment controverted appellant’s entitlement
to continuation of pay because his claim was not filed within 30 days of the employment injury.
By decision dated November 29, 2010, OWCP denied appellant’s claim for continuation
of pay as untimely.
On December 3, 2010 appellant submitted a request for reconsideration and stated that he
was confused about his entitlement to continuation of pay. He noted that the November 29, 2010
decision denied continuation of pay on the grounds that his Form CA-1 was untimely filed.
However, in the initial September 30, 2010 denial decision, OWCP stated that his claim was
considered to be timely filed. Appellant resubmitted its September 30 and November 4, 2010
decisions and his traumatic injury claim form.
By decision dated March 11, 2011, OWCP denied modification of the November 29,
2010 decision denying continuation of pay for appellant’s July 15, 2010 employment injury as
untimely filed. It pointed out that the timely filing discussed in its previous decision referred to
the timely filing of appellant’s traumatic injury claim to receive workers’ compensation for his
July 15, 2010 injury, not the timely filing of his claim to receive continuation of pay.

2

In a decision dated September 30, 2010, OWCP denied appellant’s claim finding that the medical evidence
failed to demonstrate that his knee condition was causally related to the accepted July 15, 2010 injury. On
October 15, 2010 appellant submitted a request for reconsideration.
3

On October 15, 2010 appellant filed a claim for leave buyback for the period July 15 to August 16, 2010 along
with a time analysis form indicating that he used annual leave for the dates July 15, 19, 20 and August 16, 2010 and
medical reports from Dr. Mark S. Humphrey, a Board-certified orthopedic surgeon. In a decision dated
December 14, 2010, OWCP denied his claim for disability compensation for the period July 15 to August 16, 2010
finding that the medical evidence failed to establish that he was disabled from work as a result of the July 15, 2010
employment injury. On December 17, 2010 appellant submitted a request for reconsideration and a November 8,
2010 medical report from Dr. Humphrey.

2

LEGAL PRECEDENT
Section 8118 of FECA4 provides for payment of continuation of pay, not to exceed 45
days, to an employee who has filed a claim for a period of wage loss due to traumatic injury with
his or her immediate supervisor on a form approved by the Secretary of Labor within the time
specified in section 8122(a)(2) of this title. Section 8122(a)(2) provides that written notice of
injury must be given as specified in section 8119. The latter section provides in part that notice
of injury shall be given in writing within 30 days after the injury.5 Section 8118(a) makes
continuation of pay contingent on the filing of a written claim within 30 days of the injury.
When an injured employee makes no written claim for a period of wage loss within 30 days, he
or she is not entitled to continuation of pay, notwithstanding prompt notice of injury.6
ANALYSIS
OWCP accepted that on July 15, 2010 appellant sustained an injury to his left knee in the
performance of duty. The record establishes that he did not file for continuation of pay within 30
days. Following July 15, 2010 the 30th day was Saturday August 14, 2010. Because the 30th day
fell on a Saturday, appellant’s claim would have been timely filed on Monday, August 16, 2010.
He filed his traumatic injury claim on August 17, 2010, after the 30-day time period as specified
in section 8118(a) and 8122(a)(2) of FECA.
The record does not establish that appellant filed a claim for continuation of pay within
30 days of his July 15, 2010 employment injury. Appellant is not entitled to continuation of pay.
On appeal, he asserts that his claim was timely filed because the December 14, 2010 OWCP
decision stated that a “timely compensation claim for compensation/continuation of pay was
made by the claimant.” As noted in the March 3, 2011 decision, however, this language referred
to the timely failing of a traumatic injury claim within the three-year time period for traumatic
injury claims as stated in section 8122. Claims that are timely under section 8122, however, are
not necessarily timely under section 8118(a) for continuation of pay.7 Section 8118(a) makes
continuation of pay contingent on the filing of a written claim within 30 days of the injury.
Because FECA makes no provision for an exception to the time limitation in section 8118(a), no
exceptional or mitigating circumstance, including error by the employing establishment, can
entitle a claimant to continuation of pay who has not filed a written claim within 30 days of the
date of injury.8 Because appellant did not file this claim within 30 days, he is not entitled to
continuation of pay.

4

5 U.S.C. § 8118.

5

Id. at § 8119(a), (c). See also Gwen Cohen-Wise, 54 ECAB 732 (2003).

6

See also W.W., 59 ECAB 533 (2008); P.R., Docket No. 08-2239 (issued June 2, 2009).

7

Laura L. Harrison, 52 ECAB 515 (2001).

8

Id.

3

CONCLUSION
The Board finds that appellant is not entitled to continuation of pay for his July 15, 2010
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2011 and November 29, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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