United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDWARD HINES JR. VA HOSPITAL,
Hines, IL, Employer
__________________________________________

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

Docket No. 20-0071
Issued: July 1, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 10, 2019 appellant filed a timely appeal from an August 1, 2019 merit decision
and a September 25, 2019 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 has met her burden of proof to establish a medical
condition causally related to the accepted June 12, 2019 employment incident; and (2) whether
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 25, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 17, 2019 appellant, then a 35-year-old housekeeper, filed a traumatic injury claim
(Form CA-1) alleging that on June 12, 2019 she sustained a back injury as a result of throwing
trash into a trash compactor while in the performance of duty. She stopped work on June 13, 2019
and returned on June 23, 2019.
In a form report dated June 13, 2019, Dr. Stephen Kalmar, an emergency medicine
specialist, diagnosed a work-related left shoulder injury and recommended work restrictions. An
unsigned after visit summary dated June 13, 2019 noted that appellant had been seen for muscle
injury, deep tissue injury, and acute left-sided thoracic back pain.
By letter dated June 18, 2019, Barbara Majcher, an advanced practice nurse, requested that
appellant be excused from work from June 13 through 23, 2019, and noted a 10-pound work
restriction after appellant’s return to work. She explained that the reason for appellant’s absence
was a work-related deep tissue injury.
An x-ray of appellant’s thoracic spine taken on June 13, 2019 demonstrated mild leftward
curvature and no acute fracture or traumatic subluxation.
In an attending physician’s report (Form CA-20) dated June 21, 2019, Dr. Asima Doriwala,
a Board-certified internist, diagnosed muscle injury, deep tissue injury, and acute left thoracic back
pain. She explained that the injury occurred on June 12, 2019 when appellant lifted a 30-pound
garbage can at work and injured her left mid-back/scapular region. Dr. Doriwala checked a box
marked “Yes,” indicating her belief that the conditions found were caused or aggravated by an
employment activity, explaining that the conditions were caused by lifting a heavy garbage can at
work. She recommended work restrictions and a return to regular work on July 5, 2019.
In a development letter dated July 1, 2019, OWCP informed appellant that additional
medical evidence was needed to establish her claim. It advised her of the type of factual and
medical evidence needed, including medical evidence from a qualified physician which provided
a diagnosis and a rationalized explanation as to how the employment incident caused the diagnosed
condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In a progress report dated June 13, 2019, Ms. Majcher diagnosed muscle injury, deep tissue
injury, and acute-left sided thoracic back pain.
On June 21, 2019 Dr. Doriwala diagnosed deep tissue injury and left shoulder injury. She
noted that appellant’s symptoms had improved.
By letter dated July 16, 2019, Dr. Doriwala related that appellant sustained muscle injury
and deep tissue injury of her left shoulder and left thoracic paraspinal region on June 12, 2019
when she lifted a heavy object at work in the performance of duty. She noted that an x-ray of
appellant’s thoracic spine demonstrated no acute skeletal abnormalities, thus supporting the
diagnoses of muscle injury and deep tissue injury.
2

In a physical therapy referral dated July 18, 2019, Ms. Majcher diagnosed muscle injury,
deep tissue injury, and acute left-sided thoracic back pain.
By decision dated August 1, 2019, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted medical evidence containing a medical diagnosis in connection
with her accepted employment incident. It concluded, therefore, that the requirements had not
been met to establish an injury as defined under FECA.
On September 3, 2019 appellant requested reconsideration of its August 1, 2019 decision.
With the request she attached an undated narrative statement in which she described the incident
of June 12, 2019. Appellant also attached a witness statement dated August 31, 2019.
In a letter dated August 23, 2019, Dr. Doriwala resubmitted the letter of July 16, 2019 with
the addition of ICD-10 diagnostic codes including injury of unspecified body region (ICD-10 code
T14.8XXA), unspecified injury (ICD-10 code T14.90XA), unspecified injury of left shoulder and
upper arm (ICD-10 code S49.92XA), acute left thoracic back pain, and pain in the thoracic spine
(ICD-10 code M54.6). She related that the twisting motion of appellant’s body when lifting the
heavy object placed a strain on appellant’s muscle and deep tissue. Dr. Doriwala again noted
appellant’s muscle injury and deep tissue injury of the left shoulder and left thoracic paraspinal
region and concluded that, “[t]hese injuries were caused by lifting a heavy object as part of her
work activities.”
In a report dated September 11, 2019, Dr. Doriwala diagnosed left-sided thoracic back pain
of unspecified chronicity. She noted that appellant’s left mid-back was still intermittently painful.
On physical examination, Dr. Doriwala noted tenderness to palpation at the thoracic paraspinal
region.
By decision dated September 25, 2019, OWCP denied appellant’s request for
reconsideration of the merits of her claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to

3

Id.

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

3

the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.7 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted June 12, 2019 employment incident.
On June 13, 2019 Dr. Kalmar related a diagnosis of left shoulder injury. In reports and
letters dated June 21 and July 16, 2019, Dr. Doriwala diagnosed deep tissue injury, left shoulder
injury, muscle injury, and acute left thoracic back pain. An x-ray of the thoracic spine taken on
June 13, 2019 demonstrated no acute fracture or traumatic subluxation. The Board has held that a
medical report lacking a firm diagnosis and a rationalized medical opinion regarding causal
relationship is of no probative value.11 The Board has previously explained that a purported
diagnosis of “injury” is not a firm diagnosis.12 Likewise, pain is a symptom, but not a firm

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

Id.; Elaine Pendleton, 40 ECAB 1143 (1989).

8

K.L., Docket No. 18-1029 (issued January 9, 2019). See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J.
Carlone 41 ECAB 354, 356-57 (1989).
9

M.S., Docket No. 19-1096 (issued November 12, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

R.S., Docket No. 19-1484 (issued January 13, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

L.P., Docket No. 19-1812 (issued April 16, 2020); P.C., Docket No. 18-0167 (issued May 7, 2019).

12

See J.L., Docket No. 18-1804 (issued April 12, 2019).

4

diagnosis.13 Therefore, these reports and letters, lacking firm diagnoses of any condition in
connection with the incident of June 12, 2019 are insufficient to establish appellant’s claim.
Appellant submitted letters and reports dated from June 13 to July 18, 2019 from
Ms. Majcher, an advanced practice nurse. The Board has held that treatment notes signed by a
nurse are not considered medical evidence as these providers are not considered “physician[s]” as
defined under FECA.14
Appellant submitted an unsigned visit summary dated June 13, 2019. The Board has held
that a report that is unsigned or bears an illegible signature lacks proper identification and cannot
be considered probative medical evidence.15
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish a diagnosed medical condition in connection with her June 12, 2019
employment incident.16 Appellant, therefore, has not met her burden of proof.
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 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.17
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

13

T.H., Docket No. 19-1891 (issued April 3, 2020); M.V., Docket No. 18-0884 (issued December 28, 2018). The
Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S., Docket
No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
14

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law); see also B.B., Docket No. 09-1858
(issued April 16, 2010) (nurses are not considered physicians under FECA).
15

T.H., supra note 13.

16

See T.J., Docket No. 18-1500 (issued May 1, 2019); see D.S., Docket No. 18-0061 (issued May 29, 2018).

17
5 U.S.C. § 8128(a); L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

5

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.18
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.19 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.20 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s September 3, 2019 request for reconsideration did not show that OWCP
erroneously applied or interpreted a specific point of law, or advanced a new and relevant legal
argument not previously considered. Thus, she is not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The underlying issue in this case is whether appellant submitted sufficient medical
evidence to establish a diagnosed medical condition causally related to the accepted June 12, 2019
employment incident. She did not submit any relevant and pertinent new evidence with her
September 3, 2019 request for reconsideration.
Appellant submitted an undated narrative statement in which she described the incident of
June 12, 2019 and a witness statement dated August 31, 2019 with her request for reconsideration.
The Board has held that the submission of evidence or argument which does not address the
particular issue involved does not constitute a basis for reopening a case.22 As the underlying issue
on reconsideration is medical in nature, these statements do not establish entitlement to a review
of the merits of appellant’s claim based on the third above-noted requirement under 20 C.F.R.
§ 10.606(b)(3).

18

20 C.F.R. § 10.606(b)(3); L.D., id.; L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
19

Id. at § 10.607(a). The one-year period begins on the next day after the date of the originally contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
20

Id. at § 10.608(a); M.S., 59 ECAB 231 (2007).

21

Id. at § 10.608(b); O.P., Docket No. 19-0445 (issued July 24, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
22
S.H., Docket No. 19-1897 (issued April 21, 2020); M.K., Docket No. 18-1623 (issued April 10, 2019); Edward
Matthew Diekemper, 31 ECAB 224, 225 (1979).

6

Appellant also submitted a letter dated August 23, 2019 from Dr. Doriwala, which was
substantially similar to her July 16, 2019 letter, except for the addition of ICD-10 diagnostic codes
including injury of unspecified body region (ICD-10 code T14.8XXA), unspecified injury (ICD10 code T14.90XA), unspecified injury of left shoulder and upper arm (ICD-10 code S49.92XA),
acute left thoracic back pain, and pain in the thoracic spine (ICD-10 code M54.6). In a report
dated September 11, 2019, Dr. Doriwala diagnosed left-sided thoracic back pain of unspecified
chronicity. While this evidence is new, it is not relevant, as it is substantially similar to prior
evidence of record. Providing additional medical evidence that either duplicates or is substantially
similar to evidence of record does not constitute a basis for reopening a case.23 Furthermore, as
noted above, the submission of evidence or argument that does not address the particular issue
involved does not constitute a basis for reopening a case, and as these reports do not contain firm
medical diagnoses, they do not address the underlying issue in this case.24 As appellant did not
provide relevant and pertinent new evidence, she is not entitled to a merit review based on the third
requirement under 20 C.F.R. § 10.606(b)(3).25
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.26
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted June 12, 2019 employment incident. The Board further
finds that OWCP properly denied her request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).

23

M.O., Docket No. 19-1677 (issued February 25, 2020).

24

See supra note 22.

25

Id.

26

See D.S., Docket No. 18-0353 (issued February 18, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the September 25 and August 1, 2019 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 1, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
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and
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DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Washington, DC, Employer
)
__________________________________________ )
T.S., Appellant

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

Docket Nos. 17-1592 &
17-1629
Issued: November 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 17, 2017 appellant filed a timely appeal from an April 14, 2017 merit decision
and a May 3, 2017 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a cervical
condition causally related to the July 6, 2015 employment incident; and (2) whether OWCP
properly denied appellant’s request for reconsideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 On July 10, 2015 appellant, a 54-year-old
marshal, filed a claim for recurrence of disability (Form CA-2a) for medical treatment only
under OWCP File No. xxxxxx200. He had previously injured his neck and left upper extremity
on January 6, 1997, which OWCP accepted for neck sprain and left elbow/forearm contusion.
On his Form CA-2a, appellant identified July 6, 2015 as the date of recurrence and explained that
the pain in his neck, left arm, and hand “came back a day after [he] was moving some boxes
around at work.” Based on appellant’s description of events, OWCP treated his recurrence claim
as a claim for a new traumatic injury.
Appellant submitted medical evidence indicating that the July 6, 2015 employment
incident aggravated an underlying cervical condition, which produced left arm pain. His treating
physician, Dr. David C. Waters, a Board-certified neurosurgeon, diagnosed left C8 radiculopathy
and recommended surgical intervention. In a November 17, 2015 report, Dr. Waters indicated
that appellant’s July 6, 2015 work activities aggravated his underlying cervical condition.
By decisions dated November 9, 2015 and April 4, 2016, OWCP denied appellant’s
traumatic injury claim finding that the medical evidence submitted was insufficient to establish
causal relationship between appellant’s condition and the employment incident.
On August 30, 2016 appellant requested reconsideration and purportedly submitted new
medical evidence from his treating physician. However, there was no indication that OWCP
received any additional evidence subsequent to its April 4, 2016 decision. OWCP denied
appellant’s request for reconsideration by decision dated September 14, 2016. When the case
was on prior appeal on January 25, 2017, the Board had affirmed OWCP’s September 14, 2016
nonmerit decision.3 The facts and circumstances of the case as set forth in the Board’s
January 25, 2017 decision are incorporated herein by reference.
On January 30, 2017 appellant requested reconsideration and submitted a May 3, 2016
report from Dr. Waters who diagnosed left C8 radiculopathy. Dr. Waters noted that appellant
had C8 radiculopathy since a motor vehicle accident in January 1997 and then experienced
recurrent symptoms after stacking and unloading luggage while at work in May 2007.
Dr. Waters reported that appellant was symptom-free until 2013 when he was “carrying boards
on his left shoulder at home [and] he began to have recurrent symptoms.” He further indicated
that appellant was diagnosed as having a pinched bone in his neck and his symptoms resolved
after five months. Appellant had no symptoms between 2013 and July 2015. Dr. Waters noted
that on July 6, 2015 appellant was moving two 41-pound ammunition boxes from the floor at his
work location and placing them over his shoulder in a turning motion toward the left. While
doing this, he felt some discomfort, sudden onset of pain in the upper scapula, and by the next
day, he had pain radiating down his left arm with an electric current, which fit with the C8 nerve
root distribution. Dr. Waters found that appellant had consistent C8 medical problems and

2

Docket No. 17-0291 (issued January 25, 2017).

3

See supra note 2.

2

opined that his persistent left C8 radiculopathy was aggravated by the July 6, 2015 work
incident.
By decision dated April 14, 2017, OWCP denied modification of its prior decision
because the medical evidence of record failed to establish a causal relationship between
appellant’s cervical condition and the July 6, 2015 employment incident.
On April 20, 2017 appellant again requested reconsideration. In support of his request,
he submitted an April 20, 2017 narrative statement. Appellant reiterated the factual history of
his claim and argued that Dr. Waters had in fact provided medical rationale in his May 3, 2016
report, which appellant resubmitted.
By decision dated May 3, 2017, OWCP denied appellant’s request for reconsideration
without a merit review. It found that no new evidence had been submitted and the May 3, 2016
report from Dr. Waters was repetitious.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a
personal injury.6 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.7

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

3

The fact that a condition manifests itself during a period of employment is insufficient to
establish causal relationship.8 Temporal relationship alone will not suffice.9 Entitlement to
FECA benefits may not be based on surmise, conjecture, speculation, or on the employee’s own
belief of a causal relationship.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS -- ISSUE 1
OWCP accepted that the July 6, 2015 employment incident occurred as alleged, and also
accepted that there was a medical diagnosis in connection with the employment incident.
However, it denied appellant’s traumatic injury claim finding that the medical evidence was
insufficient to establish a causal relationship between the diagnosed condition and the accepted
employment exposure. The issue is whether appellant’s new cervical condition resulted from the
July 6, 2015 employment incident. The Board finds that appellant failed to meet his burden of
proof to establish causal relationship.
In a November 17, 2015 report, Dr. Waters indicated that appellant’s July 6, 2015 work
activities aggravated his underlying cervical condition. He explained that appellant was moving
boxes at work and he had another episode of severe left C8 radicular symptoms. However,
Dr. Waters did not adequately explain how the July 6, 2015 employment incident aggravated
appellant’s preexisting cervical condition. A physician’s opinion on causal relationship must be
supported by medical rationale, explaining the nature of the relationship between the diagnosed
condition and appellant’s specific employment factor(s).12
In his May 3, 2016 report, Dr. Waters diagnosed left C8 radiculopathy. He noted that
appellant had C8 radiculopathy since a January 1997 motor vehicle accident, and then
experienced recurrent symptoms after stacking and unloading luggage at work in May 2007.
Dr. Waters also reported that appellant was symptom-free until 2013 when he was carrying
boards on his left shoulder at home and began to have recurrent symptoms. At that time,
appellant was diagnosed with a pinched bone in his neck, and his symptoms reportedly resolved
after five months. Dr. Waters noted that on July 6, 2015 appellant was moving two 41-pound
ammunition boxes from the floor at his work location and placing them over his shoulder in a
turning motion toward the left. While doing this, he felt some discomfort, sudden onset of pain
in the upper scapula, and by the next day, he had pain radiating down his left arm with an electric
8

20 C.F.R. § 10.115(e).

9

See D.I., 59 ECAB 158, 162 (2007).

10

See M.H., Docket No. 16-0228 (issued June 8, 2016).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

12

Victor J. Woodhams, supra note 6.

4

current, which fit with the C8 nerve root distribution. Dr. Waters opined that appellant’s
persistent left C8 radiculopathy was aggravated by the July 6, 2015 work incident. The Board
finds that Dr. Waters failed to provide sufficient medical rationale explaining how moving boxes
at work on July 6, 2015 either caused or contributed to appellant’s condition. As noted, a
physician’s opinion must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed conditions and appellant’s specific employment factor(s).13
The need for rationale is particularly important as the evidence indicates that appellant had a
preexisting cervical condition and prior, intervening injuries in 2007 and 2013.14 Thus, the
Board finds that Dr. Waters’ latest report is similarly insufficient to establish that appellant
sustained an employment-related injury on July 6, 2015.
As appellant has not submitted any rationalized medical evidence to support his claim
that he sustained a cervical injury causally related to the July 6, 2015 employment incident, he
has failed to meet his burden of proof to establish entitlement to compensation benefits.
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 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.15 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.16 One such limitation is that the request for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.17 A timely application for reconsideration, including all supporting documents,
must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously
applied or interpreted a specific point of law; (ii) advances a relevant legal argument not
previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not
previously considered by OWCP.18 When a timely application for reconsideration does not meet

13

Victor J. Woodhams, supra note 6.

14

See supra note 11.

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
15

16

20 C.F.R. § 10.607.

17

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System; see Chapter 2.1602.4b.
18

20 C.F.R. § 10.606(b)(3).

5

at least one of the above-noted requirements, OWCP will deny the request for reconsideration
without reopening the case for a review on the merits.19
ANALYSIS -- ISSUE 2
Appellant’s April 20, 2017 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. He submitted an April 20,
2017 narrative statement reiterating the factual history of his claim and arguing that OWCP did
not reference any of Dr. Waters’ May 3, 2016 report wherein he provided medical rationale to
support his opinion. The Board finds, however, that he has not advanced a relevant legal
argument not previously considered by OWCP. Consequently, appellant is not entitled to further
review of the merits of his claim based on the first and second above-noted requirements under
section 10.606(b)(3).
With respect to the third requirement under section 10.606(b)(3), appellant has not
submitted any relevant and pertinent new evidence. He resubmitted a May 3, 2016 report from
Dr. Waters, but the Board finds that the submission of this evidence did not require reopening
appellant’s case for merit review because appellant had submitted the same evidence, which was
previously reviewed by OWCP in its April 14, 2017 decision. As the report repeats evidence
already in the case record, it is duplicative and does not constitute relevant and pertinent new
evidence.20
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(3), and properly denied his request for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a cervical
condition causally related to a July 6, 2015 employment incident. The Board further finds that
OWCP properly denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

19

Id. at § 10.608(a), (b).

20

See D.K., 59 ECAB 141 (2007).

6

ORDER
IT IS HEREBY ORDERED THAT the May 3 and April 14, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
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)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-84
Issued: September 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 14, 2010 appellant, through his attorney, filed a timely appeal of a June 25,
2010 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c)(1) and 501.3, the
Board has jurisdiction to consider the merits of the schedule award case.
ISSUE
The issue is whether appellant has more than 17 percent impairment of her right upper
extremity and 12 percent of the right lower extremity, for which she received schedule awards.
On appeal counsel contends that OWCP erred in using the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),
depriving appellant of property rights under the United States Constitution.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On January 26, 1994 appellant, a 54year-old distribution clerk, entered an elevator which was not level with the floor, tripped and
fell on her right side. OWCP accepted that she sustained a sprained left wrist, arm, right
shoulder sprain, torn right rotator cuff and hematoma of the right ankle.
A magnetic resonance imaging (MRI) scan dated November 8, 1995 demonstrated a
rotator cuff tear involving the supraspinatus tendon. Appellant underwent an arthroscopy of the
right shoulder on March 5, 1996 due to a full thickness rotator cuff tear with anterior subluxation
repaired with an arthroscopic acromioplasty and mini-open rotator cuff repair of the right
shoulder. On November 11, 1997 Dr. Don A. Kovalsky, a Board-certified orthopedic surgeon,
performed an arthroscopic debridement of the glenoid labrum, open acromioplasty, incision
corocoacromial ligament and open rotator cuff repair of the right shoulder. A 1998
electromyogram (EMG) and nerve conduction velocity (NCV) test demonstrated borderline right
carpal tunnel syndrome and cubital tunnel syndrome. On February 3, 1998 Dr. Kovalsky
performed a surgical release of the right carpal tunnel. An MRI scan dated March 17, 1998
demonstrated a herniated disc at C5-6 with cord displacement. Dr. Kovalsky performed a
cervical discogram at C3-4, C4-5, C5-6 and C6-7. He performed additional back surgery on
June 13, 1998 due to a cervical epidural abscess which necessitated placement of methyl
methacrylate spacers at C5-6 and C6-7. Dr. Kovalsky performed an anterior cervical discectomy
and foraminotomy at C5-6 and C6-7 with anterior inner body fusion on September 29, 1998. An
iliac crest graft was taken from her right hip. On July 14, 1999 OWCP expanded appellant’s
claim to include right carpal tunnel syndrome and herniated discs at C5-6 and C6-7. In a report
dated August 2, 2000, Dr. Kovalsky stated that appellant developed heterotopic ossification over
the right iliac bone graft donor site.
In a decision and order dated August 4, 2003,2 the Board found that appellant’s left hand
nodules and requested surgery were not established as related to her employment. The facts and
the circumstance of the Board’s prior decision are incorporated herein by reference.
Appellant requested a schedule award on February 12, 2004. By decision dated
November 23, 2004, OWCP granted him a schedule award for 17 percent impairment of the right
upper extremity. It accepted that appellant had developed osteoarthritis of the right hip due to
her employment injury and treatment as well as sustaining a recurrence of disability on
January 23, 2007.
Appellant submitted a February 3, 2009 report from Dr. Arthur Becan, an orthopedic
surgeon, describing her history of injury on January 23, 1989 and resulting surgeries.3 Dr. Becan
listed the employment injury on January 26, 1994. He stated that appellant had a QuickDASH
2

Docket No. 03-912 (issued August 4, 2003).

3

In a decision dated December 23, 2010, Docket No. 10-862 (issued December 23, 2010), the Board reviewed
this report from Dr. Becan and affirmed OWCP’s decision dated November 18, 2009 under claim number
xxxxxx011 finding that appellant had no more than five percent impairment of each of her lower extremities due to
her January 23, 1989 employment injury.

2

score of 61 percent. Dr. Becan provided physical findings relating to appellant’s cervical spine,
right upper extremity, right hip and right and left knees. He noted loss of strength on manual
muscle testing including 4/5 in the right deltoid, triceps, biceps and supraspinatus. Dr. Becan
found 28 centimeters of upper arm circumference on the right compared to 30 on the left as well
as 24 centimeters of right lower arm circumference compared to 25 on the left. He found no
perceived dermatonal abnormalities in either upper extremity. Dr. Becan examined appellant’s
right upper shoulder and found acromioclavicular joint and anterior cuff tenderness. He listed
appellant’s shoulder range of motion as forward elevation of 160 degrees, abduction of 150
degrees, adduction of 60 degrees, external rotation of 80 degrees and internal rotation of 60
degrees. Regarding appellant’s right wrist, Dr. Becan found dorsal tenderness and positive
Phalen’s sign. He reported wrist range of motion of dorsiflexion of 60 degrees, palmar flexion of
70 degrees, radial deviation of 15 degrees and ulnar deviation of 25 degrees. Dr. Becan
performed grip strength testing and found 4 kilograms in the right hand and 12 kilograms in the
left. Pinch strength testing demonstrated two kilograms in the right and four kilograms on the
left. Dr. Becan stated that monofilament testing revealed diminished light touch of the medial
nerve distribution on the right. He examined appellant’s right hip finding greater trochanteric
tenderness and tenderness over the anterior superior iliac spine. Dr. Becan listed appellant’s hip
range of motion as forward flexion of 110 degrees, extension of 20 degrees, abduction of 25
degrees and external rotation of 30 degrees. He also noted that appellant’s right knee was 120
degrees of flexion and extension. On manual muscle testing, Dr. Becan found quadriceps
strength of four plus out of five on the right. He applied the fifth edition of the A.M.A., Guides4
found that appellant had 4 percent impairment due to loss of range of motion of the right
shoulder, 2 percent due to loss of range of motion of the right wrist, 10 percent impairment due
to right shoulder resection arthroplasty, and 20 percent impairment due to right lateral pinch
deficit, 31 percent impairment due to sensory deficit of the right median nerve for 54 percent
impairment of the right upper extremity. Dr. Becan also found 25 percent impairment due to loss
of range of motion of the right hip as well as 3 percent pain-related impairment for 28 percent
impairment of the right lower extremity. He concluded that appellant reached maximum medical
improvement on February 3, 2009. Appellant, through counsel, requested a schedule award on
March 23, 2009.
Dr. Arnold T. Berman, district medical adviser for OWCP and a Board-certified
orthopedic surgeon, reviewed this report on April 2, 2009 and found that, under a proper
application of the fifth edition of the A.M.A., Guides, appellant had only 14 percent impairment
of the right upper extremity and had previously received a schedule award for 17 percent
impairment. He concluded that appellant was not entitled to an additional schedule award for
upper extremity impairment. Dr. Berman found that appellant had 15 percent impairment of the
right lower extremity due to loss of range of motion of the hip under the fifth edition of the
A.M.A., Guides. He noted that Dr. Becan attributed additional impairment to appellant’s right
quadriceps, but stated that this was not an accepted condition as it would be related to appellant’s
knee.
The claims examiner requested a supplemental report from Dr. Berman on April 27, 2009
noting that appellant had previously received a schedule award for 12 percent impairment of the
4

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

3

right lower extremity under claim number xxxxxx011 for the right knee. He requested that
Dr. Berman address whether appellant had a total of 15 percent impairment of the right lower
extremity or an additional 15 percent impairment beyond the 12 percent already received.
In a letter dated May 20, 2009, OWCP requested a medical report addressing appellant’s
permanent impairment under the sixth edition of the A.M.A., Guides.5 Counsel objected on
May 22, 2009.
Dr. Berman responded that appellant had an additional 13 percent impairment due to his
right hip conditions as 15 percent combined with 12 percent previously awarded for the right
knee was 25 percent impairment of the right lower extremity.
Dr. Becan completed an addendum to his February 3, 2009 report in October 2009. He
found that appellant had class 1 right shoulder full thickness tear with residual loss, five percent
impairment.6 Dr. Becan provided the functional history modifier of three based on his prior
QuickDASH score of 61 percent.7 He found a physical examination modifier of two based on
atrophy.8 Dr. Becan found that appellant had clinical studies modifier of two due to MRI scan
findings.9 He applied the applicable formula to reach a net adjustment of four or seven percent
impairment of the right upper extremity. Dr. Becan also evaluated appellant’s right lower
extremity, finding a class 1 right hip trochanteric bursitis with motion deficit or default
impairment of two percent.10 He noted a functional history modifier of two, physical
examination modifier of two, clinical studies of two11 based on x-rays and applying the formula a
net adjustment of two for three percent impairment of the right lower extremity. Dr. Becan also
found that appellant had class 1 right knee patellofemoral arthritis, 10 percent impairment.12 He
applied the formula noting a functional history modifier of two, physical examination modifier of
two, and clinical studies modifier of two based on x-rays to reach the net adjustment of three.
Dr. Becan concluded that appellant had 13 percent impairment of the right lower extremity due
to knee arthritis.
On October 29, 2009 Dr. Berman stated that the left lower extremity was not an accepted
impairment and did not recommend a schedule award. He found that as appellant had reduced
5

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
6

A.M.A., Guides 403, Table 15-5.

7

Id. at 406, Table 15-7.

8

Id. at 408, Table 15-8.

9

Id. at 410, Table 15-9.

10

Id. at 512, Table 16-4.

11

Id. at 516, Table 16-6, 517, Table 16-7 and 519, Table 16-8, respectively.

12

Id. at 511, Table 16-3.

4

range of motion, her upper extremity impairment should be based on range of motion
impairment which resulted in an increased upper extremity rating of eight percent based on
flexion of 160 degrees resulting in three percent upper extremity impairment, abduction of 150
degrees resulting in three percent upper extremity impairment, nonratable impairments for
adduction and external rotation and internal rotation of 60 degrees resulting in two percent
impairment.13 Dr. Berman stated, “Utilizing page 449, Table 15-23 Entrapment Neuropathy,
[appellant has] two percent default value for the right upper extremity due to carpal tunnel
syndrome. This is combined with 8 percent impairment recommended for right shoulder
impairment for right upper extremity impairment of 10 percent.” Dr. Berman concluded that
appellant should receive a schedule award for 10 percent impairment.
Regarding appellant’s right lower extremity, Dr. Berman stated:
“Class 1, Table 164 16-4: Hip Regional Grid, bursitis hip is two percent default
value Grade C.
“Utilizing the adjustment grid and grade modifiers, page 516, Table 16-6:
Functional History Adjustment, Lower Extremities, grade modifier 1, page 517.
Table 16-7: Physical Examination Adjustment, Lower Extremities, grade
modifier 1, and page 519, Table 16-8: Clinical Studies Adjustment, Lower
Extremities grade modifier 1.
“Utilizing page 521, net adjustment formula mathematical explanation, net
adjustment is 0. Therefore, the right lower extremity based upon right hip
trochanteric bursitis is two percent impairment.”
Dr. Berman found that appellant did not have a default value of 10 percent due to
patellofemoral arthritis because of lack of documentation of a two millimeter cartilage interval,
rather a default value of 3 percent. He concluded that appellant had two percent impairment of
the right lower extremity.
By decision dated December 21, 2009, OWCP denied appellant’s claim for an increase in
her schedule award noting that she had previously received schedule awards for 17 percent
impairment of the right upper extremity and 12 percent impairment of the right lower extremity,
and that the evidence of record demonstrated percentages of impairment smaller than those
previously awarded.
Counsel requested an oral hearing on December 30, 2009 held on April 20, 2010. He
contended that the fifth edition of the A.M.A., Guides should apply. Counsel stated that the right
knee was a separate claim for which appellant had received a schedule award.
In a decision dated June 25, 2010, the hearing representative affirmed the December 21,
2009 decision finding that Dr. Berman’s opinion was entitled to the weight of the medical
evidence as it comported with the appropriate edition of the A.M.A., Guides. Based on the

13

A.M.A., Guides 475.

5

opinions of Drs. Becan and Berman, the hearing representative expanded the acceptance of
appellant’s claim to include right hip bursitis.
LEGAL PRECEDENT
The schedule award provision of FECA14 and its implementing regulations15 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the 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. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.16
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class for the diagnosed condition, which is then adjusted by grade modifiers based
on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).17
A similar formula is applicable for the lower extremities which requires that the
physician determine the Class of Diagnosis (CDX) and apply the appropriate grade modifiers for
GMFH, GMPE and GMCS and apply the following formula (GMFH - CDX) + (GMPE - CDX)
+ (GMCS - CDX) to reach the appropriate grade within the class of diagnosis.18
In regard to entrapment neuropathies such as carpal tunnel syndrome, grade modifiers for
test findings, history, physical findings and functional scale are evaluated using Table 15-23.19
Additional impairment values are not permitted for decreased grip strength, loss of motion or
pain.20 Grade modifiers for test findings, history and physical findings are averaged and the
default impairment for that average is further modified by the grade modifier for functional scale
to determine the final impairment rating.21
14

5 U.S.C. §§ 8101-8193, 8107.

15

20 C.F.R. § 10.404.

16

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 1 (January 2010).
17

A.M.A., Guides 411.

18

Id. at 521.

19

Id. at 449, Table 15-23.

20

Id. at 433.

21

Id. at 448-49.

6

ANALYSIS
Appellant has previously received schedule awards for 17 percent impairment of the right
upper extremity and 12 percent impairment of the right lower extremity due to impairment of her
knee. In support of her claim for additional schedule awards, she submitted reports from
Dr. Becan received on March 30, 2009. In his initial report applying the fifth edition of the
A.M.A., Guides, Dr. Becan found that appellant had 54 percent impairment of the right upper
extremity and 28 percent impairment of the right lower extremity. Dr. Berman, the district
medical adviser, reviewed this report on April 2, 2009 and found that, under the fifth edition of
the A.M.A., Guides, appellant had no more than 14 percent impairment of the right upper
extremity for which she had previously received a schedule award based on 17 percent
impairment. He found that appellant had 15 percent impairment of the right lower extremity.
The claims examiner, however, on April 27, 2009, requested clarification regarding whether this
rating included the 12 percent previously awarded for the right lower extremity. Dr. Berman did
not respond until May 19, 2009, after the sixth edition of the A.M.A., Guides became effective.
The claims examiner then requested additional medical evidence from appellant
addressing her permanent impairment under the sixth edition of the A.M.A., Guides.
Dr. Becan found in October 2009 that appellant had class 1 right shoulder full thickness
tear with residual loss, five percent impairment.22 He utilized the upper extremity formula to
reach seven percent impairment of the right upper extremity. The medical adviser, Dr. Berman
applied the A.M.A., Guides, to Dr. Becan’s finding and concluded that appellant’s impairment
should be evaluated through her loss of range of motion in accordance with the A.M.A.,
Guides.23 The Board finds that this method was appropriate and operated in appellant’s favor.
Dr. Berman found that flexion of 160 degrees was three percent impairment, abduction of 150
degrees was three percent impairment, nonratable impairments for adduction and external
rotation and internal rotation of 60 degrees was two percent impairment reaching an upper
extremity rating of eight percent.24 He also found appellant was entitled to an impairment rating
for entrapment neuropathy of two percent impairment due to her accepted condition of carpal
tunnel syndrome.25 Dr. Becan reported test findings of an abnormal EMG, history of mild
intermittent symptoms and decreased sensation on physical findings, these resulting grade
modifiers of 1, 1 and 2, respectively. These values are added and average as 1 for a grade 1.
The A.M.A., Guides provided that the value is modified up or down based on the functions scale
grade. With a QuickDASH score of 61, the functional scale is 2 and appellant should receive an
impairment rating of three percent.26 Combining appellant’s range of motion impairment rating
of eight with her compression neuropathy impairment of three percent27 results in an upper
22

Id. at 403, Table 15-5.

23

Id. at 390, 403.

24

Id. at 475, Table 15-34.

25

Id. at 449, Table 15-23.

26

Id. at 449.

27

Id. at 481.

7

extremity impairment rating of 11 percent. As the medical evidence in the record based on the
proper edition of the A.M.A., Guides establishes that appellant has no more than 11 percent
impairment of her right upper extremity,28 the Board finds that OWCP properly denied her claim
for an additional schedule award due to upper extremity impairment.
Dr. Becan provided impairment ratings for appellant’s right lower extremity, based on
right hip trochanteric bursitis with motion deficit and knee patellofemoral arthritis. He
concluded that appellant had 23 percent impairment of the right lower extremity due to these
conditions. In regard to appellant’s hip bursitis, Dr. Becan accorded a functional history
modifier three, physical examination modifier two and clinical studies modifier two. However,
he did not elaborate on the findings that lead him to reach these modifiers and the impairment
rating of three percent. Dr. Berman disagreed with Dr. Becan’s conclusions. He noted findings
of tenderness over the right hip and slight decrease in range of motion. Dr. Berman stated that
hip bursitis had a default value of two for grade C based on consistent motion deficits.29 He
found that appellant had grade modifiers one for physical examination,30 clinical studies31 and
functional history32 resulting in a net adjustment of zero for an impairment rating of two for right
hip trochanteric bursitis.33 The Board finds that the medical adviser’s conclusions are proper
under the A.M.A., Guides.
Dr. Becan also found that appellant had class 1 right knee patellofemoral arthritis, 10
percent impairment.34 The Board notes that this impairment is based on a two-millimeter
cartilage interval.35 Dr. Becan applied the formula noting a functional history modifier two,
physical examination modifier two, and clinical studies modifier two based on x-rays to reach
the net adjustment of three. He concluded that appellant had 13 percent impairment of the right
lower extremity due to knee arthritis. The Board finds that Dr. Berman properly noted that as the
record did not contain x-rays documenting two-millimeter cartilage interval value, the proper
impairment range was from one to five percent impairment with a default value of three
percent.36
Appellant’s lower extremity impairment rating includes three percent for
28

The A.M.A., Guides provide that in most cases only one diagnosis will be appropriate. The A.M.A., Guides
state, “If a patient has two significant diagnoses, for instance rotator cuff tear and biceps tendinitis, the examiner
should use the diagnosis with the highest causally-related impairment rating for the impairment calculation.”
A.M.A., Guides, 387. Neither physical explained why an impairment for carpal tunnel should be used given this
provision of the A.M.A., Guides. Furthermore, if the additional two percent impairment for carpal tunnel is used,
the combined value is still less than the 17 percent impairment rating previously received by appellant.
29

A.M.A., Guides 512, Table 16-4.

30

Id. at 517, Table 16-7.

31

Id. at 519, Table 16-8.

32

Id. at 516, Table 16-6.

33

Id. at 512, Table 16-4.

34

Id. at 511, Table 16-3.

35

Id.

36

Id.

8

patellofemoral arthritis and two percent impairment for right hip trochanteric bursitis for a
combined lower extremity impairment rating of five percent.37 The Board finds that the weight
of the medical evidence clearly establishes that she has no more than seven percent impairment
of the right lower extremity for which she has previously received a schedule award.
On appeal, appellant asserts that she has property right in a schedule award benefit under
the fifth edition and a protected property interest cannot be deprived without due process, citing
Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). These
cases held only that a claimant who was in receipt of benefits (in Goldberg public assistance and
in Mathews Social Security benefits) could not have those benefits terminated without
procedural due process.38 In this case, appellant is simply making a claim for a schedule award.
Appellant was not in receipt of schedule award benefits nor was OWCP attempting to terminate
benefits. She has no vested right to a schedule award under the fifth edition of the A.M.A.,
Guides.
Appellant argued that there was a delay in the adjudication of the claim for a schedule
award, which deprived her of due process rights regarding a determination under the fifth edition
of the A.M.A., Guides. The Board does not find that there was any delay in the adjudication of
the schedule award claim. In Harry Butler,39 the Board noted that Congress delegated authority
to the Director regarding the specific methods by which permanent impairment is to be rated.
Pursuant to this authority, the Director adopted the A.M.A., Guides as a uniform standard
applicable to all claimants and the Board has concurred in the adoption.40 On March 15, 2009
the Director exercised authority to advise that as of May 1, 2009 all schedule award decisions of
OWCP should reflect use of the sixth edition of the A.M.A., Guides.41 The applicable date of the
sixth edition is as of the schedule award decision reached. It is not determined by either the date
of maximum medical improvement or when the claim for such award was filed. OWCP properly
determined appellant’s right upper extremity and lower extremity permanent impairment under
that edition.
CONCLUSION
The Board finds that appellant has no more than 17 percent impairment of her right upper
extremity and 12 percent of the right lower extremity for which she has received schedule
awards.

37

Id. at 529, 604.

38

In Mathews the court noted that the private interest that would be adversely affected by the erroneous
termination of benefits was likely to be less in a disabled worker than a welfare recipient and due process would not
require an evidentiary hearing.
39

43 ECAB 859 (1992).

40

Id. at 866.

41

FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal
(FECA) Procedure Manual, Part -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

9

ORDER
IT IS HEREBY ORDERED THAT the June 25, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS INSTALLATION FACILITIES &
ENVIRONMENT DIVISION, Quantico, VA,
Employer
__________________________________________

)
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)

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

Docket No. 20-0284
Issued: June 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 18, 2019 appellant filed a timely appeal from a June 28, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted April 11, 2018 employment incident.
1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of the June 28, 2019 decision, and with his appeal form, appellant
submitted additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is
limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 25, 2018 appellant, then a 60-year-old electrician, filed a traumatic injury claim
(Form CA-1) alleging that on April 11, 2018 he sustained a right knee injury when he slipped off
a sidewalk and twisted his knee while moving a mechanical man lift down the sidewalk while in
the performance of duty. He stopped work on the date of injury.
Appellant was initially treated on April 11, 2018 by Kimberly McCue, an employing
establishment physician of nursing and Board-certified family nurse practitioner, who noted a
history of injury that, on that day, he hurt his right knee while slipping off a sidewalk. He placed
appellant on restricted activity until April 18, 2018.
An April 17, 2018 progress note from Dr. Lisa Jones King, a Board-certified internist,
indicated that appellant was unable to work at that time.
In an April 11, 2018 attending physician’s report (Form CA-20), Dr. Douglas P. Murphy,
an attending Board-certified physiatrist, noted a history of injury that, on that day, appellant
sustained a right knee injury at work. He noted that appellant had a preexisting injury or disease.
Dr. Murphy diagnosed degenerative joint disease of the right knee. He checked a box marked
“Yes” indicating that the diagnosed condition was caused or aggravated by an employment
activity. Dr. Murphy noted that it was unknown as to when appellant could resume regular work.
Duty status reports (Form CA-17) dated May 18 and August 3, 2018 with illegible
signatures noted a history that on April 11, 2018 appellant hurt his knee while slipping off a
sidewalk. Appellant was advised to resume light-duty work with restrictions as of May 28, 2018.
On October 3, 2018 the employing establishment informed OWCP that appellant required
surgery.
OWCP, in a January 15, 2019 development letter, notified appellant that when his claim
was received it appeared to be a minor injury that resulted in minimal or no lost time from work,
and since the employing establishment had not controverted continuation of pay or challenged the
case, a limited amount of medical expenses were administratively approved and paid. It noted that
it had reopened the claim for formal consideration because he had requested authorization for
surgery. OWCP informed appellant that additional factual and medical evidence was required to
establish his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and attached a questionnaire for his completion. OWCP afforded appellant 30
days to submit the requested evidence.
On January 26, 2019 appellant responded to OWCP’s development questionnaire. He
noted that while pulling a mechanical man lift he twisted his knee and tore his lower meniscus,
which aggravated arthritis in his knee. Appellant indicated that he did not have any prior, similar
disability or symptoms.
In a letter dated February 4, 2019, Dr. King noted a history of injury that on April 11, 2018
appellant slipped and twisted his right knee while helping his coworkers move a single man lift.
She indicated that he underwent right total knee replacement on December 6, 2018.

2

Dr. Murphy, in a May 18, 2018 progress note, discussed examination findings and
reviewed diagnostic test results. He provided an impression that appellant had right knee pain due
to substantial osteoarthritis, tricompartmental. Dr. Murphy advised that appellant was unable to
return to work and provided work restrictions.
In a June 18, 2018 right knee magnetic resonance imaging (MRI) scan report,
Dr. Muhammad R. Khan, a Board-certified diagnostic radiologist, provided impressions of
moderate-to-severe osteoarthritis involving the medial compartment with degenerative tear
involving the medial meniscus; mild-to-moderate osteoarthritis involving the patellofemoral joint
with thinning of the hyaline cartilage; and varicosities in the medial aspect of the left, clinically
indicated interventional radiology can be consulted for venous insufficiency.
In consult requests dated October 2, 2018, Dr. Robert S. Adelaar, a Board-certified
orthopedic surgeon, discussed examination findings and reviewed diagnostic test results. He
provided an impression of right knee osteoarthritis.
OWCP, by decision dated March 5, 2019, denied appellant’s traumatic injury claim finding
that the evidence of record was insufficient to establish a diagnosed condition in connection with
the accepted April 11, 2018 employment incident. It concluded therefore that the requirements
had not been met to establish an injury as defined by FECA.
A September 4, 2018 report by Dr. Young Seo, a Board-certified physiatrist, and
Dr. Murphy indicated that appellant received an injection to treat his right knee pain and
degenerative joint disease.
Dr. Murphy, in an August 30, 2018 note, provided an impression of right knee pain due to
moderate-to-severe osteoarthritis. He also noted that appellant had a meniscal tear.
In a March 20, 2019 letter, Dr. Murphy noted that appellant reported that he had kicked
something and subsequently experienced pain and swelling. He also noted a history of his medical
treatment, including his December 6, 2018 right total knee replacement. Dr. Murphy advised that
appellant’s fall clearly was an exacerbating factor contributing to the need for surgery.
On April 2, 2019 appellant requested a review of the written record before a representative
of OWCP’s Branch of Hearings and Review regarding the March 5, 2019 decision. He submitted
physical therapy daily notes dated June 21, 2018 to March 1, 2019.
In a March 21, 2019 progress note and certificate of illness/injury, Dr. Varatharaj J.
Mounasamy, a Board-certified orthopedic surgeon, reported that appellant was status post right
total knee arthroplasty. He advised that appellant could resume regular duties on March 25, 2019.
An operative report signed by Dr. Alexandria O. Starks, a surgical resident physician,
indicated that she performed right total knee arthroplasty on December 6, 2018 to treat appellant’s
right knee osteoarthritis.
By decision dated June 28, 2019, an OWCP hearing representative affirmed, the March 5,
2019 decision, as modified, finding that appellant had established a medical diagnosis in
connection with the accepted April 11, 2018 employment incident. The hearing representative

3

determined, however, that the medical evidence of record was insufficient to establish that his
diagnosed condition was caused or aggravated by the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and this component can be established only by medical evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 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 and specific employment factors
identified by the employee.9
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right condition
causally related to the accepted April 11, 2018 employment incident.
In an April 11, 2018 Form CA-20 report, Dr. Murphy checked a box marked “Yes”
indicating that appellant’s diagnosed right knee degenerative joint disease was caused or
aggravated by the April 11, 2018 employment incident. While his report generally supports causal
relationship, he did not offer medical rationale sufficient to explain how and why he believes that
the April 11, 2018 employment incident could have resulted in or contributed to the diagnosed
condition. When a physician’s opinion on causal relationship consists only of checking a box
marked “Yes” in response to a form question, without explanation or rationale, that opinion has
limited probative value and is insufficient to establish a claim.11 Such rationale is particularly
important since Dr. Murphy noted that appellant had a preexisting injury or disease.12 Thus, his
report is insufficient to meet appellant’s burden of proof.
In his March 20, 2019 letter, Dr. Murphy opined that appellant’s fall was clearly an
exacerbating factor that contributed to his need to undergo right total knee placement on
December 6, 2018. He did not, however, explain how the April 11, 2018 employment incident
was sufficient to have resulted in the need for surgery. Medical evidence that provides a
conclusion, but does not offer a rationalized medical explanation regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.13 Therefore,
Dr. Murphy’s report is insufficient to establish appellant’s claim.
Dr. Murphy’s remaining May 18 and August 30, 2018 progress notes provided impressions
of right knee pain due to moderate-to-severe osteoarthritis, tricompartmental, and meniscal tear,
but this evidence does not render an opinion on causation. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.14 Therefore, these reports are insufficient to
establish appellant’s claim.
Dr. King’s April 17, 2018 progress note and February 4, 2019 letter noted a history of the
April 11, 2018 employment incident and appellant’s December 6, 2018 right total knee
replacement. She also advised that he was totally disabled from work. Dr. King did not, however,
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).
11

V.W., id. K.R., Docket No. 19-0375 (issued July 3, 2019).

12

See K.M., Docket No. 19-1247 (issued February 21, 2020); B.R., Docket No. 16-0456 (issued April 25, 2016).

13

C.V., Docket No. 18-1106 (issued March 20, 2019); M.E., Docket No. 18-0330 (issued September 14, 2018);
A.D., 58 ECAB 149 (2006).
14

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

5

provide a specific diagnosis of an injury or medical condition nor did she provide an opinion as to
causal relationship. The Board has held that a medical report lacking a firm diagnosis and a
rationalized medical opinion regarding causal relationship is of no probative value.15 As such,
Dr. King’s medical evidence is insufficient to meet appellant’s burden of proof.
While the September 4 and October 2, 2018 reports of Dr. Seo and Dr. Adelaar indicated
that appellant had degenerative joint disease and osteoarthritis of the right knee, neither physician
provided a history of injury or an opinion regarding causal relationship. Lacking these elements,
their reports are insufficient to establish appellant’s claim.16
Similarly, Dr. Mounasamy’s March 21, 2019 progress note and Dr. Starks’ operative
reports are also insufficient to establish causal relationship. The physicians noted appellant’s
December 6, 2018 right total knee arthroplasty, but did not provide a history of injury or an opinion
that his right knee condition and need for surgery were causally related the April 11, 2018
employment incident.17
Appellant submitted Dr. Khan’s June 18, 2018 MRI scan report which addressed
appellant’s right knee conditions. The Board has held, however, that diagnostic test reports
standing alone lack probative value as they do not provide an opinion on causal relationship
between an employment incident and a diagnosed condition.18
Appellant also submitted May 18 and August 3, 2018 Form CA-17 reports containing
illegible signatures. The Board has held that reports that are unsigned or bear an illegible signature
lack proper identification and cannot be considered probative medical evidence as the author
cannot be identified as a physician.19 Therefore, these reports have no probative value and are
insufficient to establish the claim.
Additionally, appellant submitted reports signed solely by a nurse practitioner or a physical
therapist. The Board has held that medical reports signed solely by a nurse practitioner or a
physical therapist are of no probative value as neither a nurse practitioner nor a physical therapist
is considered physician as defined under FECA and are therefore not competent to render a medical
opinion.20 These reports are therefore insufficient to establish the claim.

15

L.P., Docket No. 19-1812 (issued April 16, 2020); S.J., Docket No. 20-0157 (issued April 1, 2020); P.C., Docket
No. 18-0167 (issued May 7, 2019).
16

Id.

17

Id.

18

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

19

M.A., Docket No. 19-1551 (issued April 30, 2020); T.O., Docket No. 19-1291 (issued December 11, 2019).

20
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); L.F., supra
note 18. (physical therapist); T.J., Docket No. 19-1339 (issued March 4, 2020) (nurse practitioner).

6

As there is no well-rationalized medical opinion presently of record before the Board,
previously considered by OWCP, establishing appellant’s traumatic injury claim the Board finds
that he has not met his burden of proof.21
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted April 11, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 30, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

21

T.J., id.; F.D., Docket No. 19-0932 (issued October 3, 2019); D.N., Docket No. 19-0070 (issued May 10, 2019);
R.B., Docket No. 18-1327 (issued December 31, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.E., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE MATERIEL COMMAND, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-177
Issued: November 4, 2013

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 October 31, 2012 appellant filed a timely appeal from the October 16, 2012 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 appellant received a $6,289.56 overpayment of
compensation; and (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on January 19, 2007 appellant, then a 63-year-old aircraft mechanic,
sustained multiple injuries when he slipped and fell on a freshly-waxed ramp floor. These
injuries included a back contusion, lumbar strain, aggravation of lumbar degenerative disc
disease, left lumbar radiculopathy, lumbago, cervical spondylosis without myelopathy, exostosis,
intervertebral disc disorder with myelopathy, herniated lumbar disc at L5-S1, cervical osteophyte
at C3-4 and sprain of right upper arm and shoulder. Appellant received wage-loss compensation
and medical benefits in connection with this injury.
On November 2, 2010 appellant received a schedule award for a 15 percent permanent
impairment of his left arm, a 21 percent permanent impairment of his right arm, an 18 percent
permanent impairment of his left leg and an 18 percent permanent impairment of his right leg.
The award ran for 216 weeks from October 24, 2010 to December 13, 2014.
Appellant’s wage-loss compensation was ended effective October 24, 2010 when he
began receiving his schedule award. The record contains documents showing that, despite
appellant’s election to be under the Federal Employees Health Benefits (FEHB) system, no
FEHB insurance premiums were made from the schedule award payments. On December 3,
2010 appellant received the remainder of his schedule award as a lump sum when a check was
issued in the amount of $143,811.95.2 Documents further show that OWCP failed to deduct
FEHB insurance premiums through January 14, 2012 and the amount of the insurance premiums
that were not deducted between October 24, 2010 and January 14, 2012 totaled $6,289.56.
In a March 28, 2012 notice, OWCP advised appellant of its preliminary determination
that he received a $6,289.56 overpayment of compensation when FEHB insurance premiums
were not deducted for the period November 24, 2010 to January 14, 2012. It also made a
preliminary determination that he was not at fault in the creation of the overpayment. OWCP
advised appellant that he could submit evidence challenging the fact, amount or finding of fault
and request waiver of the overpayment. It informed him that he could submit additional
evidence in writing or at a prerecoupment hearing, but that a prerecoupment hearing must be
requested within 30 days of the date of the written notice of overpayment. OWCP requested that
appellant complete and return an enclosed financial information questionnaire (Form OWCP-20)
within 30 days even if he was not requesting waiver of the overpayment.
Appellant requested a hearing with an OWCP hearing representative regarding the
overpayment. Prior to the hearing, he submitted a Form OWCP-20, which he completed on
April 2, 2012. Appellant reported his monthly income as $1,748.00 from social security
benefits. He listed $1,883.80 in monthly expenses, including $102.35 for property taxes,
$300.00 for food, $587.00 for utilities, $246.45 for other miscellaneous expenses and $646.00
for payments to Farmers State Bank with respect to a loan. Regarding his assets, appellant noted
that he had $3.00 cash on hand and $1.72 in his checking account. He indicated that he did not

2

The check covered the period November 21, 2010 to December 13, 2014.

2

have savings account monies, stocks, bonds or “value of other personal property and other
funds.”3
Appellant also submitted a number of financial documents concerning his monthly
income and monthly expenses. A letter from the Social Security Administration showed that he
received $1,748.00 in income each month and bill statements showed that he had monthly
obligations of $106.46 for automobile insurance and $102.35 for property tax. Documentation
further reveals that, beginning May 15, 2011, appellant made monthly loan payments of $648.00
to Farmers State Bank and that monthly bills from Northwestern Energy between January and
March 2012 ranged from $247.00 to $394.00.4
During the July 16, 2012 hearing with an OWCP hearing representative, appellant
testified that he understood how the $6,289.56 overpayment occurred, but he requested waiver of
recovery of the overpayment because he was not at fault in its creation. He asserted that he did
not have the money to repay the overpayment, noting that his only income was $1,748.00 per
month from social security benefits. Appellant’s wife testified that the $587.00 in utilities listed
on the Form OWCP-20 completed on April 2, 2012 included monthly expenses for electricity,
water, telephone and cable, but did not include the monthly expense of about $100.00 for
propane gas. She indicated that the $246.45 listed for other miscellaneous expenses was on the
low side because it did not include figures for expenses such as medical bills not covered by
insurance.
In a September 11, 2012 letter to OWCP regarding his life insurance policy, appellant
indicated that his wife received $780.00 in Social Security Administration benefits each month.5
In an October 16, 2012 decision, the hearing representative determined that appellant
received a $6,289.56 overpayment of compensation. She further found that he was not at fault in
the creation of the overpayment, but that the overpayment was not subject to waiver. The
hearing representative discussed 20 C.F.R. § 10.438 (regarding submission of financial
information in overpayment cases) and found that appellant did not submit sufficient financial
information with supporting evidence. She indicated that appellant received a lump-sum
payment for his schedule award in the amount of $143,811.95, but that no information was
provided regarding those funds and whether any of the funds were still available.

3

Appellant indicated “does not apply in my case” in response to the question, “Since you were notified of the
overpayment, have you transferred by loan, gift, sale, etc., any property?”
4

Several submitted documents were mostly illegible, including those ostensibly concerning providers of propane
and communications services.
5

In an August 3, 2012 letter, appellant’s wife made additional comments regarding income and expenses for her
and appellant’s household, noting an obligation of about $529.00 per month for unspecified insurance premiums and
a $1,325.00 debt to Blue Cross for prescriptions. She indicated that in July 2012 she started receiving $780.00 per
month in Social Security Administration benefits.

3

LEGAL PRECEDENT -- ISSUE 1
An employee entitled to disability compensation may continue his or her health benefits
under the FEHB program. The regulations of the Office of Personnel Management (OPM),
which administers the FEHB program, provides guidelines for the registration, enrollment and
continuation of enrollment for federal employees.
In this connection, 5 C.F.R.
§ 890.502(b)(1) provides:
“An employee or annuitant is responsible for payment of the employee’s share of
the cost of enrollment for every pay period during which the enrollment
continues. In each pay period for which health benefits withholdings or direct
premium payments are not made but during which the enrollment of an employee
or annuitant continues, he or she incurs an indebtedness due to the United States
in the amount of the proper employee withholding required for that pay period.”6
In addition 5 C.F.R. § 890.502(d) provides:
“An agency that withholds less than or none of the proper health benefits
contributions from an individual’s pay, annuity or compensation must submit an
amount equal to the sum of the uncollected deductions and any applicable agency
contributions required under section 8906 of the title, 5 United States Code, to
OPM for deposit in the Employees’ Health Benefits Fund.”7
Thus, under applicable OPM regulations, the employee or annuitant is responsible for
payment of the employee’s share of the cost of enrollment.8 An agency that withholds less than
the proper health benefits contribution must submit an amount equal to the sum of the
uncollected deductions.9 The Board has recognized that, when an under withholding of health
insurance premiums is discovered, the entire amount is deemed an overpayment of compensation
because OWCP must pay the full premium to OPM when the error is discovered.10 Section
8129(a) of FECA provides that where an overpayment of compensation has been made because
of an error of fact or law, adjustment shall be made by decreasing later payments to which the
individual is entitled.11
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $6,289.56 overpayment of compensation. In
the present case, the record contains documents showing that appellant elected FEHB coverage,
6

5 C.F.R. § 890.502(b)(1).

7

Id. at § 890.502(d).

8

Supra note 6.

9

Supra note 7.

10

See Marie D. Sinnett, 40 ECAB 1009 (1989); John E. Rowland, 39 ECAB 1377 (1988); 5 C.F.R. § 890.502.

11

5 U.S.C. § 8129(a).

4

but no FEHB insurance premiums were made beginning October 24, 2010, the date that his
schedule award began to run.12 Documents further show that FEHB insurance premiums were
not deducted through January 14, 2012 and the amount of the insurance premiums that were not
deducted between October 24, 2010 and January 14, 2012 totaled $6,289.56. Therefore, OWCP
properly determined that appellant received a $6,289.56 overpayment.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.13 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”14 When a claimant is found to
be without fault in the matter of the overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
Section 10.438 of OWCP’s regulations provide:
“(a) 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 the FECA or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”15
ANALYSIS -- ISSUE 2
OWCP properly determined that appellant did not establish entitlement to waiver of
recovery of the $6,289.56 overpayment of compensation under the relevant standards. It found
that appellant was not at fault in the creation of the $6,289.56 overpayment.16 However, citing
12

See supra notes 6 through 11. On December 3, 2010 appellant received the remainder of his schedule award as
a lump sum when he was issued a check in the amount $143,811.95.
13

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

14

5 U.S.C. § 8129(b).

15

20 C.F.R. § 10.438.

16

If OWCP finds a claimant to be without fault in the matter of an overpayment, then, in accordance with section
8129(b) of FECA, OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience. See supra note 13.

5

20 C.F.R. § 10.438 in her October 16, 2012 decision,17 OWCP’s hearing representative denied
his request for waiver of recovery of the overpayment by finding that he was not entitled to such
waiver because he had not provided adequate documentation of his finances.
The Board finds that appellant did not provide sufficient financial information within the
appropriate time period to show that he was entitled to waiver of the $6,289.56 overpayment and
OWCP’s hearing representative properly exercised her discretion to deny waiver of recovery of
the overpayment. Appellant submitted a number of financial documents concerning his monthly
income and expenses, but these documents did not fully document the income and expenses
which were listed on the Form OWCP-20 he completed on April 2, 2012 and discussed in a
July 16, 2012 hearing with the hearing representative. For example, appellant did not submit
documents supporting his claimed monthly expenses of $300.00 for food and only provided
documents supporting a portion of the $687.00 claimed for utilities (comprised of $587.00 for
electricity, water, telephone and cable and $100.00 for propane). It was suggested that the
$246.45 appellant listed for other miscellaneous expenses included unreimbursed medical
expenses, but he did not provide a detailed listing of miscellaneous expenses or submit
documents supporting the claimed expenses in this category.18 Moreover, it should be noted that
appellant received the remainder of his schedule award as a lump sum of $143,811.95 and that
asset was not adequately documented.19
For these reasons, appellant failed to provide adequate information regarding monthly
income, monthly expenses and assets and, under Section 10.438 of its regulations, OWCP
properly denied his request for waiver of recovery of the $6,289.56 overpayment of
compensation.
CONCLUSION
The Board finds that appellant received a $6,289.56 overpayment of compensation. The
Board further finds that OWCP did not abuse it discretion by refusing to waive recovery of the
overpayment.

17

See supra note 15.

18

In an August 3, 2012 letter, appellant’s wife noted an obligation of about $529.00 per month for unspecified
insurance premiums and a $1,325.00 debt to Blue Cross for prescriptions. However, no documentation was
submitted to support these ostensible expenses.
19

In addition, it does not appear that appellant fully reported his income on the Form OWCP-20 he completed on
April 2, 2012. The form required appellant to list his spouse’s income, but he did not list spousal income and there is
some indication in the record that his wife had income from the Social Security Administration. Appellant provided
additional financial information after OWCP’s October 16, 2012 decision, but the Board cannot consider such evidence
for the first time on appeal. See 20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the October 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2013
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

7